State v. DuPaul

Decision Date08 February 1995
Docket NumberCr. N
Citation527 N.W.2d 238
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Michael O. DuPAUL, Defendant and Appellant. CITY OF MINOT, Plaintiff and Appellee, v. Michael O. DuPAUL, Defendant and Appellant. os. 940137, 940138.
CourtNorth Dakota Supreme Court

John P. Van Grinsven, III (argued), Asst. State's Atty., Minot, for plaintiff and appellee.

Michael O. DuPaul (argued), pro se, Minot, for defendant and appellant.

MESCHKE, Justice.

Michael O. DuPaul appeals from the denial of his motions for appointment of counsel for this appeal and for an extension of time to appeal his jury convictions. We affirm both denials and dismiss DuPaul's untimely appeals from the jury convictions.

This is another episode in DuPaul's quixotic quest for his personalized conception of justice. In 1991, DuPaul was arrested for drunk driving and preventing official duties, and his driver's license was revoked. DuPaul appealed the revocation, and we affirmed. North Dakota Dep't of Transp. v. DuPaul, 487 N.W.2d 593 (N.D.1992). The trial court dismissed the misdemeanor charges before trial, and the prosecution appealed. We reversed and remanded for trial. State v. DuPaul, 509 N.W.2d 266 (N.D.1993). A jury found DuPaul guilty of both charges. On April 29, 1994, DuPaul was given a suspended sentence.

DuPaul mailed a notice of appeal on May 9 that was received and filed by the clerk on May 10, one day past the ten days to file an appeal. NDRAppP 4(b)(1). Notified that his appeal was untimely, DuPaul moved on May 31 for an extension of time to file the appeal for reasons of excusable neglect. NDRAppP 4(b)(3). On June 8, the trial court denied any extension.

DuPaul insists that he has been "denied counsel at all stages" throughout this case, and that he has been the victim of "numerous civil rights violations." On June 13, 1994, DuPaul filed his latest request for court-appointed counsel. That motion was quickly denied by the trial court. DuPaul timely appealed both the June 8 order denying an extension for appeal and the June 13 order denying court-appointed counsel for this appeal.

DuPaul argues that the trial court abused its discretion in denying his motions. Specifically, he urges under NDRAppP 4(b)(3) that his neglect in late filing the appeal should be excused. DuPaul also claims indigency and that, under NDRCrimP 44, he should have counsel appointed at public expense for this appeal.

DuPaul urges that the denial of appointed counsel for the criminal trial and appeal was "an acceptable and genuine excuse (reason) for missing a particular court procedure date," and he vaguely alleges that "[e]xcusable neglect is presented specifically and overall LACK of Due Process herein." These generalized allegations do little unless DuPaul was in fact entitled to appointment of counsel at some earlier stage. Therefore, we first consider DuPaul's appeal of the denial of court-appointed counsel for his appeal of the order denying an extension of time to appeal his jury convictions, since that claim is joined with his claim of excusable neglect. As Ennis v. Dasovick, 506 N.W.2d 386, 393 (N.D.1993), explains, our standard for review of denial of appointment of counsel is whether the trial court acted arbitrarily, unconscionably, or unreasonably in doing so.

The right to counsel in a criminal case is the subject of the Sixth Amendment of the United States Constitution:

In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.

This "provision of the Bill of Rights ... is 'fundamental and essential to a fair trial' [and] is made obligatory upon the States by the Fourteenth Amendment." Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 795, 9 L.Ed.2d 799 (1963). And "a State may not grant appellate review in such a way as to discriminate against some convicted defendants on account of their poverty." Douglas v. California, 372 U.S. 353, 355, 83 S.Ct. 814, 815, 9 L.Ed.2d 811 (1963), citing Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). 1 What's more, the North Dakota Constitution directs:

In criminal prosecutions in any court whatever, the party accused shall have the right ... to appear and defend in person and with counsel....

Art. I, Sec. 12. "We have traditionally recognized that the right to counsel under our Constitution is fundamental because it enables an accused to procure a fair trial." State v. Orr, 375 N.W.2d 171, 177-78 (N.D.1985). Still, the right to appointed counsel in a criminal case is neither as absolute, as "free," nor as comprehensive as DuPaul would like it.

There is no legal reason to appoint counsel for someone who can afford and obtain his own. The limited right to appointed counsel is largely implemented in North Dakota by NDRCrimP 44: "Absent a knowing and intelligent waiver, every indigent defendant is entitled to have counsel appointed at public expense to represent the defendant at every stage of the proceedings from initial appearance ... through appeal in the courts of this state in all felony cases," and further "in all non-felony cases unless the magistrate has determined that sentence upon conviction will not include imprisonment." (Our emphasis). The Explanatory Note to NDRCrimP 44 explains some of the factors in appointment of counsel at public expense for an accused indigent:

Rule 44 is a modification of Rule 44, FRCrimP, governing the appointment of counsel, and implements the holding of the U.S. Supreme Court in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). This Rule would allow appointment of counsel only when so required under the holding of Argersinger, whereas the present Federal Rule requires appointment of counsel for all indigent defendants. It is not the intent of this Rule to impose upon counties the expenses of the defense of indigents in municipal courts.

Rule 44 was amended in 1983, effective September 1, 1983, to add the words "in the courts of this state" in each of the first two sentences to make it clear that the appointment of counsel for indigent defendants at public expense is required only in proceedings through appeal in the courts of North Dakota.

We decide DuPaul's claim of entitlement to "free" counsel under this rule.

In the prosecution's appeal of the earlier dismissal of these criminal charges, where DuPaul appeared without counsel, we explained that DuPaul had been appointed counsel several times, had dismissed one attorney, had attempted to dismiss another who was allowed to withdraw, and had requested yet another attorney be appointed. State v. DuPaul, 509 N.W.2d at 272 n. 7. In that case, we also refused to appoint another attorney to handle DuPaul's appeal, but DuPaul received appointment of an attorney on remand after that decision. 2

At a pretrial hearing after remand, the prosecution informed the trial court that it would not seek imprisonment for DuPaul. DuPaul's appointed attorney then withdrew, and the trial court denied DuPaul's repeated motions for appointment of counsel at state expense because no imprisonment was sought or mandated. The court also reasoned that DuPaul "has not provided the Court with sufficient information for the Court to determine if [he] is indigent. The Court has repeatedly informed [DuPaul] of the requirements for such an appointment.... [DuPaul] has not satisfied the Court that [he] is indigent. The [prior] appointment was made in this case because [he] was not able to secure the services of an attorney because of who he is or the type of case, not because he is indigent."

DuPaul continues to claim that NDRCrimP 44 allows him appointed "counsel AT ALL STAGES whether incarceration is at stake or not." DuPaul demands that this "case should be dismissed immediately or remanded to the lower court to appoint free counsel directing both court and counsel to dismiss without fees, costs or any other penalties...."

The relevant rule of criminal procedure plainly says that it is "every indigent defendant" who is "entitled to have counsel appointed at public expense." NDRCrimP 44. It is not "every defendant," but only "every indigent defendant," who is entitled. DuPaul did not prove his indigency.

Instead, DuPaul claimed that some vague right to "financial privacy" negated any duty to prove indigency. On this appeal, DuPaul declares: "Privacy and counsel are absolute rights." But neither are. The trial court explicitly gave DuPaul an opportunity to have his proof of indigency sealed or to submit the sworn information in camera. See State, County of Cass v. Gruchalla, 467 N.W.2d 451, 455-56 (N.D.1991) (allowing proof of indigency in camera for appointment of counsel at public expense when financial disclosures might otherwise self-incriminate the accused). DuPaul refused both opportunities, and failed to file the necessary affidavit of indigency despite repeated invitations by the trial court. See State v. Jensen, 241 N.W.2d 557, 561 (N.D.1976) ("In the absence of a statement of assets, we can give little consideration to a statement of liabilities."). Without adequate proof of indigency, the court did not act unreasonably in denying appointed counsel even if DuPaul truly believed he was too poor to hire his own lawyer.

What's more, the prosecution informed the trial court that it would not seek imprisonment, and the trial court recognized that no prison term was mandated for DuPaul's misdemeanor charges. When the potential sentence will not include imprisonment, NDRCrimP 44 clearly says that an accused is not entitled to appointment of counsel at public expense. See Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530 (1972) ("absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial"); Scott v. Illinois, 440 U.S. 367, 373-74, 99 S.Ct. 1158, 1162, 59...

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