Cardran v. Com.

• Decision Date: 30 October 1969
• Citation: 356 Mass. 351,252 N.E.2d 358
• Parties: Brian W. CARDRAN v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 358

252 N.E.2d 358

356 Mass. 351

Brian W. CARDRAN v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 6, 1969.

Decided Oct. 30, 1969.

John P. McGloin, Lynn, for petitioner.

David G. Nagle, Jr., Deputy Asst. Atty. Gen., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, CUTTER, KIRK, SPIEGEL and REARDON, JJ.

KIRK, Justice.

By this petition for a writ of error the petitioner seeks to have reversed judgments of guilty the District Court of Southern Essex (the District Court). The case came before the single justice who reserved and reported it without decision upon the pleadings, return, and a statement of agreed facts, which we summarize.

On July 30, 1968, after trial when he was represented by counsel, the petitioner was found guilty of operating a motor vehicle while under the influence of intoxicating liquor and guilty of drunkenness. He was ordered to pay fines on the respective complaints. He immediately appealed to the Superior Court. On September 14, 1968, he appeared voluntarily before the judge of the District Court, withdrew his appeals and paid the fines. The petitioner's counsel of record, who continued to represent him, was not present on September 14 when the appeals were withdrawn. The judge did not advise the petitioner 'of his right to counsel.' On September 16, 1968, the scheduled date for the petitioner's trial de novo in the Superior Court, the petitioner and his counsel appeared in the District Court. Counsel requested the judge to revoke or to allow the petitioner to retract the withdrawal of appeals. The request was denied.

Both the petitioner and the Commonwealth, citing cases, have argued constitutional grounds for the reversal or affirmance of the judgments. Resolution of the case on constitutional grounds would require us to determine on this record whether the petitioner intelligently waived his right to have the assistance of counsel when, notwithstanding the fact that he had counsel of record, he voluntarily appeared in court without counsel and withdrew his appeals. The stated proposition is pregnant with conflicting inferences. We decline to entertain it as a premise upon which a conclusion of constitutional significance would be predicated.

The petitioner argues, and we hold, that the case is governed by the provisions of S.J.C. Rule 3:10, 351 Mass. 791, which in pertinent part reads: 'If a defendant charged with a crime, for which a sentence of imprisonment may be imposed, appears in any court without counsel, the judge shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceedings unless he elects to proceed without counsel or is able to obtain counsel. * * * If the judge finds that the defendant is able to procure counsel, he shall make a finding to that effect which shall be filed with the papers in the case. If the defendant elects to proceed without counsel, a waiver and a certificate of the judge on a form herein established shall be signed, respectively, by the defendant and the judge and filed with the papers in the case.'

The rule of course is designed to make sure, so far as possible, that a defendant in a criminal case is made aware of his right to counsel. It has as well the additional practical purpose to eliminate from the record speculation and doubt, on review of the case, whether a defendant intelligently waived his right to counsel at any stage of the proceeding. The achievement of this purpose requires the judge to follow with particularity the procedures for ascertaining and recording any waiver of right to counsel. See Mulcahy v. Commonwealth, 352 Mass. 613, 227 N.E.2d 326; Baldassari v. Commonwealth, 352 Mass. 616, 227 N.E.2d 741. In this way 'ex post facto inquiries' are best avoided. See Miranda v. Arizona, 384 U.S. 436, 471--473, n. 43, 86 S.Ct. 1602, 16 L.Ed.2d 694; Carnley v. Cochran, Corrections Director, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70.

The agreed facts bring the case within Rule 3:10. In one of...