State v. Lang, Cr. N

• Decision Date: 29 November 1990
• Docket Number: Cr. N
• Citation: 463 N.W.2d 648
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Ernest LANG, Defendant and Appellant. os. 900138, 900139.
• Court: North Dakota Supreme Court

Page 648

463 N.W.2d 648

STATE of North Dakota, Plaintiff and Appellee, v. Ernest LANG, Defendant and Appellant.

Cr. Nos. 900138, 900139.

Supreme Court of North Dakota.

Nov. 29, 1990.

Patricia L. Burke (argued), State's Atty., Bismarck, for plaintiff and appellee.

Marvin M. Hager (argued), Bismarck, and Ernest Lang (argued), for defendant and appellant.

LEVINE, Justice.

Ernest Lang appeals from judgments of conviction entered upon jury verdicts finding him guilty of two counts of driving while his license was suspended in violation of Section 39-06-42, N.D.C.C. We affirm.

After Lang was charged with two counts of driving under suspension, his court-appointed counsel filed a pretrial motion, seeking a ruling by the trial court on the admissibility of evidence:

"1. that [Lang's] license was suspended after he failed to pay a fee due on a citation for driving a vehicle which did not display current registration, and;

"2. that [Lang's] failure to pay that fee was caused by the fact that he was then a pauper and consequently unable to pay the fee, and;

"3. that [Lang] was then a pauper because the government had caused or participated in the wrongful taking of his property."

Citing State v. Mehlhoff, 318 N.W.2d 314 (N.D.1982), the court determined that the proffered evidence was inadmissible because it constituted a collateral attack on the administrative suspension of Lang's driver's license.

Lang thereafter discharged his court-appointed counsel and requested an omnibus hearing and a substitute court-appointed counsel. The court denied Lang's request, and he appeared pro se at trial. The State presented evidence that Lang had driven a motor vehicle on August 10 and August 14, 1989, and that his driver's license was suspended on those dates. The jury returned guilty verdicts on both counts.

On appeal, ¹ Lang contends that he should have been allowed to introduce evidence to establish the reason why his license was suspended.

In State v. Mehlhoff, 318 N.W.2d 314 (N.D.1982), we held that the validity of a driver's license suspension may not be collaterally attacked in a criminal prosecution for driving under suspension. Mehlhoff and our subsequent decisions have established that the proper time to challenge the validity of a driver's license suspension is at the administrative hearing on the suspension. State v. Bettenhausen, 460 N.W.2d 394 (N.D.1990); State v. Larson, 419 N.W.2d 897 (N.D.1988).

Lang argues that Mehlhoff is distinguishable from this case because in Mehlhoff, the defendant had surrendered his license to the Driver's License Division of the State Highway Department without contesting the validity of the suspension while in this case, Lang has not surrendered his license. Mehlhoff, however, stands for the broader proposition that a driver's license suspension is not subject to collateral attack if the licensee had notice of the original suspension but failed to contest it. Lang does not deny that he received notice of intention to suspend his license, which included the right to request an administrative hearing, and he did not request a hearing. The administrative hearing was the appropriate forum for Lang to contest the suspension. Because he did not request an administrative hearing, we conclude that he may not collaterally attack the license suspension in this criminal prosecution for driving under suspension. Mehlhoff, Larson, Bettenhausen.

Lang contends that the trial court erred in denying his request for substitute court-appointed counsel.

In In Interest of J.B., 410 N.W.2d 530 (N.D.1987), we held that there was no federal constitutional right to appointed counsel of choice in a civil commitment proceeding. We held that a request for substitution of appointed counsel is within a trial court's discretion, and absent a showing of good cause, a trial court's refusal to grant a request is not an abuse of discretion. We cited State v. LaGrand, 152 Ariz. 483, 733 P.2d 1066 (1987), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 157 (1987), a criminal action, for relevant factors to be considered by a trial court in deciding whether good cause exists for substitution of counsel:

"whether an irreconcilable conflict exists between counsel and respondent; whether new counsel would be confronted with the same conflict; the timing of the motion; inconvenience to witnesses; the proclivity of the respondent to change counsel; the quality of counsel. Consideration of these factors should guide the trial court's exercise of discretion in deciding whether there is good cause for the request to substitute counsel." J.B., supra, 410 N.W.2d at 533.

We hold that those factors are applicable to requests for substitution of appointed counsel in criminal proceedings.

In this case Lang requested "that the court appoint an attorney that will work for Lang's interest as he may desire." He further stated that his "initial court appointed attorney has failed to present, into the record, a true defense." The court denied Lang's request, concluding that "[p]retrial proceedings indicate that counsel is competently representing the defendant" and that "[t]he defendant cannot expect counsel to pursue matters unrelated to the issues in the present case." The trial court essentially found that new counsel would be confronted with a demand to raise the same "defense" as Lang's initial court-appointed counsel. That "defense" constitutes an improper collateral attack on Lang's license suspension, and new counsel would thus be confronted with the same conflict. Additionally, the trial court specifically found that appointed counsel was competently representing Lang. We conclude that the trial court did not abuse its discretion in denying Lang's request for substitute counsel.

Lang also contends that the trial court erred in denying his request for an omnibus hearing under Rule 17.1, N.D.R.Crim.P. Lang requested the omnibus...