State v. Cook

• Decision Date: 27 August 1984
• Docket Number: No. 83-185,83-185
• Citation: 481 A.2d 823,125 N.H. 452
• Parties: The STATE of New Hampshire v. Rene L. COOK.
• Court: New Hampshire Supreme Court

Page 823

481 A.2d 823

125 N.H. 452

The STATE of New Hampshire v. Rene L. COOK.

No. 83-185.

Supreme Court of New Hampshire.

Aug. 27, 1984.

Gregory H. Smith, Atty. Gen. (Loretta S. Platt, Asst. Atty. Gen., on brief and orally), for the State.

Joanne Green, Asst. Appellate Defender, Concord, by brief and orally, for defendant.

SOUTER, Justice.

The defendant stands indicted for the felony of violating a court order that had declared him to be an habitual offender under the motor vehicle laws and had prohibited his operation of a motor vehicle. RSA 262:23. The Superior Court (DiClerico, J.) has transferred two questions raised by a motion to dismiss the indictment:

(1) Is an habitual offender order valid if it rests upon an uncounselled conviction of a motor vehicle violation?

(2) Is an indigent defendant entitled to appointed counsel at a hearing to determine whether he is an habitual offender?

We answer yes to the first question and no to the second.

For purposes of the motor vehicle laws, an habitual offender is a person who has been convicted of certain combinations of motor vehicle offenses within five years. RSA 259:39. On petition of the State, RSA 262:20 (Supp.1983), the superior court holds a hearing to determine whether a person is an habitual offender. RSA 262:21. If the court finds he is, it orders him not to drive a motor vehicle until his license to do so has been restored by order of a court. RSA 262:22. Violation of such an order is a felony with a minimum mandatory term of imprisonment. RSA 262:23.

In this case, a stipulation indicated that in 1978 the Superior Court (Keller, J.) found the defendant to be an habitual offender, on the basis of four motor vehicle violations. The defendant had no counsel in any of the underlying proceedings, and there is no indication that he waived any right to counsel. It is assumed that at the hearing at which the superior court found him to be an habitual offender he was indigent. He did not have counsel, the court did not offer to appoint counsel at public expense, and the defendant did not waive any right to such counsel.

At that hearing the defendant answered a series of questions from the court. From his answers the court identified the defendant as the person named in the petition and in the motor vehicle record. The court also learned that the defendant did not contest the accuracy of the record of motor vehicle offenses that the State had supplied. The defendant clearly indicated that he understood that after being found to be an habitual offender he would have no right to drive until his license should be restored, and that he would be subject to mandatory imprisonment if he violated the court's order not to drive. After the defendant told the court that he had no questions, the court found him to be an habitual offender and ordered him not to drive. The present indictment charges him with a violation of that order.

The defendant argues that any imprisonment for violating an habitual offender order rests ultimately on the underlying convictions that support that order. He claims each such conviction must be counselled in the sense that it must follow a prosecution in which the defendant either had counsel or knowingly and intelligently waived a right to have counsel at his own or at public expense. On his view, imprisonment for violation of an habitual offender order resting on an uncounselled conviction would be imprisonment based on an uncounselled conviction, so as to violate the rights to counsel provided by Part I, Article 15 of the Constitution of New Hampshire and by the Sixth Amendment of the Constitution of the United States, which is binding on the States. Thus the defendant concludes that it would be unconstitutional to find him an habitual offender on the basis of any uncounselled conviction.

Our consideration of the defendant's claim under Part I, Article 15 of the State Constitution begins with that portion of the constitutional language extending the right to counsel to defendants charged with a "crime or offense punishable by loss of liberty." Under this standard, the uncounselled violation convictions are undoubtedly valid. The defendant therefore must argue that collateral use of the uncounselled convictions would emasculate the guarantee of counsel in a later prosecution for violation of an habitual offender order, or he must rest his claim on the more general language of article 15 which guarantees procedural due process of law. See Stapleford v. Perrin, 122 N.H. 1083, 453 A.2d 1304 (1982); Petition of Harvey, 108 N.H. 196, 230 A.2d 757 (1967).

Any argument that later assertions of counsel will be ineffective without a right to counsel in earlier collateral proceedings rests upon a "but for" analysis that has not found favor in these circumstances. Only a minority of the Supreme Court of the United States accepted this reasoning in Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), which we will discuss below. And we have already rejected a "but for" analysis as a basis to claim that the habitual offender order itself is a further penalty for the earlier convictions that justify it. State v. Vashaw, 113 N.H. 636, 312 A.2d 692 (1973). We likewise reject that analysis here. We also reject the notion that the requirement of due process forbids the collateral use of the earlier uncounselled convictions. The following considerations of policy support each of these decisions.

We believe that Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), provides a structure for the kind of analysis and weighing of interests that should underlie decisions about the extension of constitutional guarantees and the application of concepts of procedural due process in this area. See Royer v. State Dep't of Empl. Security, 118 N.H. 673, 394 A.2d 828 (1978).

Accordingly, we first consider the interest of the defendant that the requirement of counsel in violation cases would tend to protect. The defendant's interests include a property interest in the amount of fines. They also include a further protected interest in his driver's license, Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), though this interest can be directly affected by one violation conviction only in a case of driving while under the influence of drugs or liquor under RSA 265:82 to :82-b (Supp.1983) or in a case of reckless driving or a related offense under RSA 265:79 (Supp.1983). Last, the affected interests may include a liberty interest, but only in the remote sense that it can be affected by collateral use of a violation conviction in a later prosecution or under the habitual offender law. Because representation tends generally to produce more reliable adjudication, a guarantee of counsel would tend to foster the reliability of a violation conviction and any collateral use of it.

As the second step in the Mathews analysis, we examine the risk of unreliability in uncounselled violation convictions. That risk is small. Since there is no jury trial, there is less need for the organization and aplomb that is important in addressing a body of lay factfinders. In the district courts where most such cases are finally tried, the prosecutor is usually a police officer, not a lawyer. The charges are characteristically simple ones; in this case all four convictions were for driving without a license. The formality of the procedure is minimal. The greatest potential for complications in violation cases inheres in prosecutions for driving while under the influence of intoxicating liquor or drugs as a first offense, RSA 265:82 (Supp.1983), and reckless driving, RSA 265:79 (Supp.1983). Yet the chemical testing in the former cases has become standardized, and resolution of the issues of influence and recklessness turns on common-sense judicial judgment rather than on legal technicality. We therefore do not find a serious risk of error in the absence of counsel.

The third of the Mathews considerations is the public interest in avoiding undue administrative and fiscal burdens. If we were to accept the defendant's position, either all indigent defendants charged with non-criminal violations would be entitled to counsel at State expense, or the habitual offender law would effectively be confined to a consideration only of misdemeanor and felony convictions. The legislature has clearly indicated that it places a high value on the habitual offender law, and judicial experience in applying the law bears out the legislative judgment. We therefore conclude that eliminating consideration of violation convictions in habitual offender proceedings would be an unacceptable burden, and we proceed to assess the burden of providing counsel in all such cases.

Between July 1, 1981, and June 30, 1982, there were more than 173,000 motor vehicle violation cases in district and municipal courts. Nineteenth Report of Judicial Council of N.H. (1982) at 52-55. Although not all violation convictions are relevant under the habitual offender law, these figures nonetheless indicate that a requirement of counsel would probably be enormously expensive. It would require so much lawyers' time and be so time-consuming in the courts as to raise a question of the present court system's ability to deal with the cases. These considerations weigh heavily, and more so when we consider that most defendants who can afford counsel in such cases choose to appear without it.

We conclude that the risk of unreliable convictions is comparatively low, and that the burden on the public from requiring counsel in all violation cases would be very heavy. Accordingly, we conclude that we should not extend the scope of the guarantee of counsel under article 15, or construe the concept of due process under the State Constitution as the defendant would have us do.

In assessing the defendant's argument under the Sixth Amendment, we begin with Scott v. Illinois, 440 U.S....