State v. Maxwell, 7005
| Decision Date | 30 June 1975 |
| Docket Number | No. 7005,7005 |
| Citation | 115 N.H. 363,341 A.2d 766 |
| Parties | STATE of New Hampshire v. Walter L. MAXWELL. |
| Court | New Hampshire Supreme Court |
Warren B. Rudman, Atty. Gen., and Edward N. Damon, Concord, by brief, for the State.
Cristiano & Kromphold, Keene, by brief, for defendant.
This is an appeal to the superior court from a conviction in the Keene District Court on a charge of driving while intoxicated on June 9, 1973, subsequent offense. RSA 262-A:62, as amended by Laws 1971, 269:1. The sanctions under this statute for a second offense are more severe than for a first offense, to which the defendant, unrepresented by counsel, had pleaded nolo and was convicted on April 11, 1972, in the same court. From this first conviction he took no appeal.
Prior to trial in the superior court in 1974 the defendant moved to dismiss the complaint on the ground that on his first conviction: 'At no time was the Respondent represented by counsel nor does any stenographic record exist of the proceedings at Defendant's arraignment. . . .' The Court (King, J.), denied the motion and transferred the defendant's exception.
The defendant's failure to appeal the 1972 conviction does not bar the constitutional issue raised by his motion. State v. Daigle, 114 N.H. 677, 327 A.2d 711 (1974); see State v. Herbert, 108 N.H. 332, 235 A.2d 524 (1967). In addition to the allegations in his motion the defendant argues in his brief for the first time that he did not validly waive his right to counsel at the 1972 hearing. We agree that the defendant's first conviction under RSA 262-A:62 (1971) would have been invalid absent a knowing and intelligent waiver of the right to counsel and could not have been used as a basis for a conviction under RSA 262-A:62 (1971), second offense. State v. Herbert, 108 N.H. 332, 235 A.2d 524 (1967); State v. Manoly, 110 N.H. 434, 270 A.2d 611 (1970); see State v. Clough, 115 N.H. --, 332 A.2d 386 (1975).
The New Hampshire constitution pt. I, art. 15 provides in part: 'Every person held to answer in any crime or offense punishable by deprivation of liberty shall have the right to counsel at the expense of the state if need is shown; this right he is at liberty to waive, but only after the matter has been thoroughly explained by the court.' See also RSA 604-A:2. The difficulty with the defendant's position, so far as passing judgment on its merits is concerned, is that according to the record he never brought to the attention of the trial court, by his motion or otherwise, the vital issues necessary to test the validity of his 1972 conviction. He did not claim indigence, or that his waiver was not knowingly or intelligently made, or that the matter had (not) been thoroughly explained to him prior to his waiver. State v. Hervert supra. In short, both the record before the trial court and that before us is barren of essential facts or allegations. Present procedures insure against such situations and provide for a record to be made which will allow for determination of such cases upon facts and not speculation. State v. Clough supra; RSA 502-A:19-a. See Criminal Rules, District and Municipal, Courts, Rule 2.9, effective September 1, 1974 renewed effective August 1, 1975; RSA 502-A:19-a.
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State v. Gosselin
...a knowing and intelligent waiver of that right. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Maxwell, 115 N.H. 363, 341 A.2d 766 (1975); State v. Herbert, 108 N.H. 332, 235 A.2d 524 (1967). However, unlike the prior convictions used in Burgett v. Texas, su......
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State v. Niquette
...of proving representation by or waiver of counsel upon the party seeking to use a witness' prior conviction. See State v. Maxwell, 115 N.H. 363, 365, 341 A.2d 766, 767 (1975); State v. Herbert, 108 N.H. 332, 335, 235 A.2d 524, 527 (1967). Additionally, even if the defendant had met his burd......
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State v. Ward, 78-100
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