Com. v. Cote, 08-P-624.

• Court: Appeals Court of Massachusetts
• Writing for the Court: Lenk
• Citation: 910 N.E.2d 400,74 Mass. App. Ct. 709
• Parties: COMMONWEALTH v. Gary P. COTE.
• Docket Number: No. 08-P-624.,08-P-624.
• Decision Date: 29 July 2009

910 N.E.2d 400 74 Mass. App. Ct. 709 COMMONWEALTH
v.
Gary P. COTE. No. 08-P-624. Appeals Court of Massachusetts, Worcester. Argued January 6, 2009. Decided July 29, 2009.

Allison J. Koury, Providence, RI, for the defendant.

Patricia Flannery, Assistant District Attorney, for the Commonwealth.

Present: LENK, SIKORA, & WOLOHOJIAN, JJ.

[910 N.E.2d 401]

LENK, J.

74 Mass. App. Ct. 709

On May 5, 2003, the defendant was arraigned on one count of negligent operation of a motor vehicle, G.L. c. 90, § 24(2)(a). At that arraignment, the presiding judge informed

74 Mass. App. Ct. 710

the defendant that because he would not face any jail time for this misdemeanor, he was not eligible to receive appointed counsel. The defendant appeared pro se at his November 4, 2003, jury trial. That same day, the jury found the defendant guilty and he was sentenced to one year of probation.¹ The defendant, represented by counsel, subsequently filed a motion for a new trial, which was denied. The defendant now appeals, claiming that his motion for a new trial was erroneously denied because (a) he did not knowingly and voluntarily waive his right to counsel, and (b) he was not advised of his right to file a direct appeal after his guilty verdict was entered. We reverse.

Background. At the defendant's arraignment, the judge told the defendant, "You have the right to have a lawyer represent you. You're not eligible for a court-appointed lawyer even if you are indigent, because if convicted, no jail sentence would be imposed. You can go out and hire your own lawyer, or represent yourself. What do you wish to do?" The defendant replied, "Sir, I've already spoken with the probation officer. I'm going to have the court appoint a lawyer." The judge again informed the defendant that he was not eligible for a court-appointed lawyer, saying, "I have something to say about that.... You may be indigent as a matter of law. I don't know. But even if you are, because this is a misdemeanor and I've ruled that no jail sentence is going to be imposed, that as a matter of law you're not entitled to a court-appointed lawyer." The defendant replied, "Okay, I understand, sir," and the judge again informed the defendant that "[y]ou can represent yourself or hire your own lawyer." The defendant replied, "I'll represent myself." The judge presented the defendant with a waiver of counsel form, which the defendant signed. The defendant then had a conference with an assistant district attorney, after which the judge inquired, "You're representing yourself. Correct, sir?" The defendant replied in the affirmative.

74 Mass. App. Ct. 711

Several months later, at a trial assignment hearing, a clerk asked the defendant if he had an attorney, and the defendant replied, "No, I don't." The clerk asked what the defendant would like to do with his case, and the defendant replied, "I would like to have a trial date, please." No further discussion of defendant's representation occurred when the defendant appeared at trial on November 4, 2003.

1. Waiver of counsel. The defendant acknowledges that he was not entitled to court-appointed counsel at trial under G.L. c. 211D, because he was informed on the record that he would not face a jail sentence if found guilty of the misdemeanor with which he was charged. Likewise, the Commonwealth acknowledges that in such circumstances, the defendant nonetheless enjoyed a constitutional

910 N.E.2d 402

right to counsel at every stage of his case, although he would have had to hire his own attorney. See Commonwealth v. Means, 454 Mass. 81, 89-90, 907 N.E.2d 646 (2009). See also United States v. Bauer, 956 F.2d 693, 695 (7th Cir.), cert. denied, 506 U.S. 882, 113 S.Ct. 234, 121 L.Ed.2d 169 (1992) ("Doubtless any defendant should be well warned of the dangers before he sets out to represent himself— whether by spurning proffered counsel or by refusing to dig into his pockets"). As there is no debate that the defendant had a right to counsel,² "[t]he focus of our review is the defendant's subjective understanding of his decision [to proceed pro se] and its consequences. See Commonwealth v. Lee, 394 Mass. 209, 216-217, 475 N.E.2d 363 (1985). We must be confident that the defendant was `adequately aware of the seriousness of the charges, the magnitude of his undertaking, the availability of advisory counsel, and the disadvantages of self-representation,' Commonwealth v. Jackson, 376 Mass. 790, 795, 383 N.E.2d 835 (1978)," before concluding that he made a knowing and intelligent waiver of his right to counsel. Commonwealth v. Martin, 425 Mass. 718, 720, 683 N.E.2d 280 (1997), quoting from Commonwealth v. Barnes, 399 Mass. 385, 390-391, 504 N.E.2d 624 (1987).

74 Mass. App. Ct. 712

Although the defendant was made well aware that counsel would not be appointed for him, he is nonetheless able to meet his burden on appeal: based on the record before us, we are satisfied that the defendant did not make a knowing and intelligent waiver of his right to retain counsel. See Commonwealth v. Lee, supra at 218, 475 N.E.2d 363 ("defendant must establish that his waiver of counsel was ineffective because it was not intelligently made"); Commonwealth v. Barnes, supra at 391, 504 N.E.2d 624. While the Commonwealth is correct that there are no "prescribed" questions that a judge must ask in order to make...