Cohen v. State
Decision Date | 30 March 1981 |
Docket Number | No. 11595,11595 |
Parties | Melvin COHEN, Appellant, v. The STATE of Nevada, Respondent. |
Court | Nevada Supreme Court |
William N. Dunseath, Washoe County Public Defender, N. Patrick Flanagan, Deputy Public Defender, Reno, for appellant.
Calvin R. X. Dunlap, Washoe County Dist. Atty., Edward B. Horn, Deputy Dist. Atty., Reno, for respondent.
A jury found the appellant, Melvin Cohen, guilty of burglary, attempted grand larceny and possession of stolen property. Appellant was also adjudicated an habitual criminal.
The district judge at the time of the appellant's arraignment offered to assign counsel to represent him. Appellant advised the court that he desired to make his own summation to the jury. The judge then, in effect, told him he could either represent himself throughout the trial or have an attorney do so. 1
Appellant now claims that the waiver of his right to counsel was not intelligently made. He also challenges the validity of his habitual criminal adjudication.
1. While a defendant in a criminal trial has a sixth amendment right to represent himself, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and, hence, may waive his right to counsel, the United States Supreme Court has held that the relinquishment of a known right must be an intelligent waiver. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). In a similar situation we held that Garnick v. Miller, 81 Nev. 372, 376, 403 P.2d 850, 853 (1965), citing Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948). See also, Reynolds v. Warden, 86 Nev. 941, 478 P.2d 574 (1970); Lawrence v. Warden, 84 Nev. 554, 445 P.2d 156 (1968); Bundrant v. Fogliani, 82 Nev. 388, 419 P.2d 293 (1966). There is no indication from the record that the trial judge conducted any canvass to determine whether appellant's waiver was valid. 2 Therefore, the conviction must be reversed.
2. At oral argument, the state conceded the invalidity of appellant's adjudication as an habitual criminal: two sentences were imposed upon appellant, one for the habitual criminal charge, and the other for the primary offense. This was error; the purpose of the habitual criminal statute is not to charge a separate substantive crime, but to allege a fact which may enhance the punishment. State v. Bardmess, 54 Nev. 84, 7 P.2d 817 (1932). Only one sentence may be imposed. Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966).
Appellant's second argument regarding his adjudication as an habitual criminal has merit. Exemplified copies of two of the three convictions upon which the habitual criminal adjudication was based failed to indicate either the existence of counsel, or a valid waiver of the right to counsel. The burden is upon the state to prove that, in the prior criminal proceedings, an attorney was either present or that the defendant validly waived his right to counsel. Fournier v. State, 95 Nev. 591, 600 P.2d 213 (1979); Hamlet v. State, 85 Nev. 385, 455 P.2d 915 (1969).
For these reasons the judgment of conviction is reversed and the case is remanded for a new trial.
1 The colloquy between the district judge and the appellant is set forth below:
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