State v. Schneeweiss, 20000295.
| Decision Date | 10 July 2001 |
| Docket Number | No. 20000295.,20000295. |
| Citation | 2001 ND 120,630 N.W.2d 482 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Eugene SCHNEEWEISS, Defendant and Appellant. |
| Court | North Dakota Supreme Court |
Allen M. Koppy (argued), State's Attorney, and Ladd R. Erickson (on brief), Assistant State's Attorney, Mandan, ND, for plaintiff and appellee.
Wayne D. Goter, Goter Law Office, Bismarck, ND, for defendant and appellant.
[¶ 1] Eugene Schneeweiss appeals from the judgment of conviction based on a jury verdict of guilty for driving a vehicle while under the influence of intoxicating liquor. Schneeweiss claims the trial court improperly denied him assistance of counsel in his defense. We affirm.
[¶ 2] On December 17, 1999, Schneeweiss was arrested for driving a motor vehicle while under the influence of intoxicating liquor. At his initial appearance, the trial court advised Schneeweiss of his right to court-appointed counsel if Schneeweiss was indigent and asked if Schneeweiss was going to hire his own attorney. Schneeweiss replied that he already had talked to an attorney and was going to hire his own. However, on January 18, 2000, Schneeweiss submitted an application for a court-appointed attorney. The trial court denied the request because Schneeweiss was not indigent, as he had no dependents and was earning $1,200 per month, which exceeds the guideline requirement for appointed counsel. Schneeweiss appeared pro se at his pretrial conference and requested a jury trial.
[¶ 3] On March 13, 2000, Schneeweiss reapplied for a court-appointed attorney, this time claiming no income. The trial court appointed an attorney and continued the trial date. One day before the rescheduled trial, Schneeweiss requested a new court-appointed attorney after threatening a malpractice suit and demanding the attorney to withdraw for allegedly failing to conduct sufficient discovery, failing to call requested witnesses, and refusing to file perjury charges against the arresting officer. The attorney filed a motion to withdraw, stating much of the requested discovery was irrelevant and undiscoverable, the requested witnesses were in jail and had never been arrested by the officer so would not be able to prove the officer improperly arrested Schneeweiss, and the attorney refused to be "a tool for [Schneeweiss] to exact his retribution" against the arresting officer. At a hearing on the motion to withdraw, the State requested placing conditions on Schneeweiss's request for a court-appointed attorney as sanctions for harassing attorneys and delaying process. The trial court granted the motion to withdraw, stating Schneeweiss would be allowed one additional appointed counsel, and rescheduled the trial a second time.
[¶ 4] Subsequently, the newly appointed counsel asked the trial court why Schneeweiss, who was working, qualified for appointed counsel. Schneeweiss had not notified the trial court he was working, although the application for court-appointed counsel required notifying the judge of any changes occurring after filing the application. The trial court scheduled an Order to Show Cause to determine if Schneeweiss was still eligible for court-appointed counsel. At a hearing on October 9, 2000, which was 10 days before trial, the trial court determined Schneeweiss's income exceeded the amount allowed by the guidelines for appointed counsel. The trial court vacated the appointment of counsel and affirmed the trial date of October 19, 2000.
[¶ 5] On October 10, 2000, the trial court administrator received a letter from Schneeweiss, dated September 6, 2000, alleging harassment by the state's attorney to "stall this case beyond the limits set do[wn] for a speedy trial." Schneeweiss stated he had a right to a speedy trial, but the court-appointed attorneys did not file requested papers so as "to stall this case to continue to terrorize me." The court administrator immediately replied that the trial would take place as scheduled on October 19, 2000, and suggested Schneeweiss take the necessary steps to prepare his case. On October 13, 2000, Schneeweiss again applied for appointed counsel, claiming he was temporarily unemployed and reporting no monthly income. The trial court indicated Schneeweiss was not indigent and did not approve his application. Schneeweiss defended his case pro se; the jury found him guilty. Schneeweiss appeals, arguing he improperly was denied assistance of counsel in his defense.
[¶ 6] The right to counsel in a criminal case is mandated both by the North Dakota Constitution and the Sixth Amendment of the United States Constitution. State v. DuPaul, 527 N.W.2d 238, 240 (N.D.1995); N.D. Const. art. I, § 12 (); U.S. Const. amend. VI ().
[¶ 7] Indigent defendants have the right to counsel appointed by the court, under N.D.R.Crim.P. 44(a), which provides:
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 before a magistrate through appeal in the courts of this state in all felony cases ... [and] in all non-felony cases unless the magistrate has determined that sentence upon conviction will not include imprisonment. The court shall appoint counsel to represent a defendant at the defendant's expense if the defendant is unable to secure the assistance of counsel and is not indigent.
The right to appointed counsel is a limited right, not an absolute right. DuPaul, 527 N.W.2d at 240-41. We have cautioned there is no legal reason to appoint counsel for defendants who can afford to obtain their own counsel. Id. at 241. On review of a trial court's denial of a request for appointed counsel, we inquire whether the trial court acted arbitrarily, unconscionably, or unreasonably. Id. at 240.
[¶ 8] Schneeweiss argues because the trial court vacated the appointment of his second appointed counsel just 10 days before trial, the trial court improperly denied Schneeweiss the assistance of counsel in his defense. The trial court vacated the appointment of counsel due to Schneeweiss's reported monthly income, yet Schneeweiss asserts the trial court (1) failed to consider whether he had the present assets to retain an attorney, (2) refused to appoint substitute counsel, (3) refused to continue the trial to allow Schneeweiss additional time to prepare his defense, and (4) should have allowed the second appointed counsel to continue and ordered Schneeweiss to pay for counsel after determining Schneeweiss was not indigent.
[¶ 9] Schneeweiss contends the trial court improperly made no inquiry into whether he had the present resources to pay the retainer necessary to hire an attorney to represent him at a jury trial, notwithstanding his reported monthly income.
[¶ 10] The guidelines establish eligibility for indigent defense services for an individual with no dependents at a maximum annual gross income of $10,438. N.D. Legal Counsel for Indigents Comm'n, N.D. Sup.Ct., Indigent Defense Procedures and Guidelines, Dec. 1995, at 1.4 (rev.Apr. 2000). Defendants bear the burden of proving they are indigent and qualify for appointed counsel. State v. DuPaul, 527 N.W.2d 238, 242 (N.D.1995). In DuPaul, we concluded the trial court did not arbitrarily or unreasonably deny counsel to the defendant when he failed to prove his indigency. Id. We reasoned, "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." Id.
[¶ 11] Similarly, we affirmed a trial court's revocation of a defendant's indigency status after first determining him to be indigent and appointing counsel for representation in all matters pertaining to the case. State v. Fontaine, 382 N.W.2d 374, 375-76 (N.D.1986). Three months after appointment of counsel, the defendant received social security benefits which elevated his income above the guideline amount required to qualify for public-paid defense services. Id. We concluded the defendant was not prejudiced by the revocation of his indigency status, as he did not show he was unduly burdened by the revocation or that the flow of court proceedings was disrupted. Id. at 376.
[¶ 12] On January 18, 2000, Schneeweiss submitted his first application for appointed defense services, indicating he had no dependents and reporting a monthly income of $1,200. This monthly income results in an annual income of $14,400, which is $4,000 over the guideline amount required for indigent defense services eligibility. Thus, the trial court properly disapproved of Schneeweiss's application on the basis that he was not indigent. Two months later, on March 13, 2000, Schneeweiss again applied for appointed counsel, this time reporting no income. The trial court approved his application and appointed counsel. However, the trial court later issued an Order to Show Cause, as Schneeweiss informed counsel he was now gainfully employed and failed to respond to the court's request for disclosure of current financial information regarding such employment. After a hearing, the trial court found Schneeweiss's earned income exceeded the guideline requirements and vacated the appointment of counsel. A mere three days later, Schneeweiss again reapplied for appointed counsel, stating he was temporarily unemployed and reporting no income. The trial court denied his application, indicating Schneeweiss was not indigent.
[¶ 13] Our review of the record demonstrates the trial court did not act arbitrarily, unconscionably, or unreasonably when determining Schneeweiss was not indigent. Schneeweiss...
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