Ash v. State
| Decision Date | 14 October 1976 |
| Docket Number | No. 4565,4565 |
| Citation | 555 P.2d 221 |
| Parties | Ron ASH, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Christopher A. Crofts of Hamilton & Hursh, Riverton, for appellant.
V. Frank Mendicino, Atty. Gen., and Craig Newman, Sp. Asst. Atty. Gen., Cheyenne, for appellee.
Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.
Defendant, Ron Ash, was convicted by a jury in Fremont County District Court of the crime of burglary, being in violation of § 6-129, W.S.1957, and after denial of a motion for new trial 1 was sentenced to a term of one to three years in the Wyoming State Penitentiary. A written complaint charging Ash with two counts of burglary was filed on December 9, 1974, and a warrant was issued thereon. Ash appeared before the justice of the peace in Fremont County on that date and was then fully advised of his right to counsel and of his right to request counsel and have one appointed if he were unable to obtain one. An information was filed and he was arraigned before the district court on January 6, 1975, at which time no attorney appeared. The judge advised him of his right to have an attorney at the arraignment and he told the court that he wished to proceed without an attorney and then entered his plea of not guilty. The judge at that time advised him at great length and in all particulars about his constitutional rights, but particularly his right to counsel and the fact that the State would provide an attorney if he was unable to obtain one. The court then inquired if he would have an attorney to help him at the trial, and his answer was:
After some inquiry as to his financial condition, the judge asked him if there was any reason why he could not afford to get an attorney, and he replied as follows:
He refused to name the lawyer, although the court required him to do so and he answered in this manner:
Thereupon the court reiterated to him that he was charged with two felonies and of his right to representation, and if he were needy or unable to make full payment for an attorney and all necessary expenses of representation that this would be supplied at public expense, and defendant agreed that he understood this. After further discussion, in which defendant davised the court that he did not feel he was a needy person, he was then asked the direct question whether he wished to waive or give up all claim to an attorney provided at public expense. He answered, 'Yes.'
After having the information read, the judge then reiterated a lengthy explanation to defendant of his rights, the possible consequences of a conviction, and his right to counsel. Defendant thereupon entered pleas of not guilty to the two counts, and the judge at that time set the trial for February 11, 1975, at 9:30 a. m., and added that an attorney who would represent him must file his appearance and that any desired special instructions should be submitted by February 7. Defendant made inquiry, and the court explained the procedure of submission of instructions involved and this requirement at some length. Later, after a colloquy about the cash deposit on the appearance bond, the judge again inquired if he intended to hire a lawyer and defendant said:
The judge then required him to deposit an additional $500 for a bond and advised him if he did hire a lawyer an arrangement for release of at least some of this deposit to pay an attorney would be made, and told defendant he was doing this in a special effort to get him to engage a lawyer. The court further advised him that though he had the right that he did not consider him competent to defend himself. The judge, though he deemed him to have waived the right by his plea, further gave him until January 17 to file any motions deemed proper and enjoined him to consult his attorney. On January 28 Ash filed a motion for change of judge, to which was attached an affidavit of disqualification, and the presiding judge who had handled his arraignment on January 29 assigned this case to the Honorable Kenneth G. Hamm, District Judge of the Second District. On January 31 Judge Hamm reset the trial date for February 12 at 9 a.m. On February 10 Judge Nicholas made an order, upon application of Ash, permitting him to interview Buzz Apodaca, another defendant, to prepare his defense. Judge Hamm wrote to the county attorney, asking him to have Simonton, a member of the public defender staff, inquire of defendant if he had an attorney and if he did not that Simonton should be prepared to counsel and assist him. Simonton was advised of this letter of February 10 at 3 p. m. . he talked to Ash on the 11th and went over the factual situation with him. Simonton had represented another defendant in this same incident and he was familiar with the factual situation.
He explained the trial procedure to Ash, who then advised him that he would be unable to properly handle it himself. . simonton told him to get an attorney and Ash asked that Simonton represent him. Simonton told Ash he would be bound by the court's order. At 8:30 on the morning of the trial Simonton, in company with Ash, advised Judge Hamm that Ash wished to have an attorney and asked that the court appoint Simonton as such attorney, which the court did. Simonton then advised the judge that he had several motions which might be appropriate but first made a motion for a continuance so he could 'be fully prepared to stand the issues.' He conceded his familiarity with the factual situation but not of Ash's defense. He advised the court he had spent some six hours on the matter but did not feel he could do a fair and competent job. Simonton also made a motion for change of venue before the trial, which was denied by the judge, who advised him he would determine if such change were necessary from the voir dire.
This rather unusual and complete statement of facts is set out because of appellant's contention that it was error for the trial court to deny appellant's motion for continuance so that counsel might have more time for preparation.
The record is clear that throughout this entire proceeding, even with repeated advice that if he could not afford counsel one would be provided, and even the strong suggestions, which might be termed importunities, by Judge Nicholas that defendant employ an attorney or have one appointed, the trial judge was not advised of Ash's desire for an attorney until 8:30 the morning of the trial. In fact, the first such statement to anyone was his concession to Simonton on the 11th that he could not handle his own defense, although he had known at all times since January 6 of the trial setting for February 11, which was thereafter reset for February 12, and he was personally served with notice of this setting on February 4. Prior to defendant's request to the court for appointment of an attorney, it would have been reversible error for the trial judge to have appointed an attorney and to have attempted to force an attorney upon Ash Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 2540-41, 45 L.Ed.2d 562. The record further demonstrates that had it not been for the concern of Judge Hamm and his instruction to the county attorney with regard to Simonton's reviewing this matter with Ash, he would have appeared without counsel at the time of the trial setting, because even at that time until Simonton's advice and explanation he apparently had not contemplated seeking appointed counsel. This situation was solely of defendant's making and in no way can be laid upon the doorstep of either of the trial judges, who exercised yeoman efforts to avoid this situation. It may be conceded without any argument that defendant was entitled to have competent counsel to assist him in his defense and that proper time for preparation is included within this right. It is, however, just as obvious that this is directed at the protection of the defendant and should not be or become a tool of a scheming or recalcitrant defendant to defeat the orderly processes and give to defendant the power to control the court's clendar. Judge Breitenstein, in Leino v. United States, 10 Cir., 338 F.2d 154, 156, expressed this most forcefully when he said:
* * *'
It is our view that this defendant by his actions waived his right to the appointment of counsel until the morning of the trial.
The case of Goforth v. United States, 10 Cir., 314 F.2d 868, certiorari denied 374 U.S. 812, 83 S.Ct. 1703, 10 L.Ed.2d 1035, is most helpful in a resolution of this case. This case considers a claim of a defendant that he was denied effective assistance of counsel because, as here, his attorney was not appointed in time for him to adequately prepare a defense. The court observed in that opinion that competence of counsel cannot be determined solely upon the amount of time the lawyer has had with his client, 314 F.2d at 871. Defendant therein appeared without a lawyer and after the court-appointed lawyer had five to fifteen minutes to confer with defendant, the selection of a...
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