State v. Levesque

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 90-206

                              MARCH TERM, 1992


 State of Vermont                  }          APPEALED FROM:
                                   }
                                   }
      v.                           }          District Court of Vermont,
                                   }          Unit No. 2, Franklin Circuit
                                   }
 Daniel J. Levesque                }
                                   }          DOCKET NO. 1884-11-89Fcr


              In the above entitled cause the Clerk will enter:

      Defendant was charged with disorderly conduct, was denied public
 defender assistance, and thereafter signed a waiver of counsel form.  He
 defended himself in the ensuing jury trial, and was convicted and fined $55.
 He appeals on grounds that the trial court erred by failing to determine
 whether defendant made a knowing and intelligent waiver of his right to
 counsel, relying on State v. Merrill, 155 Vt. 422, 584 A.2d 1129 (1990).  We
 agree and remand for a Merrill hearing.

      We held in Merrill that "[n]either a defendant's waiver of his right to
 counsel nor his assertion of his right to proceed pro se may be presumed
 from a silent record."  Id. 155 Vt. at 425, 584 A.2d at ____.  Explaining
 that both the right to defend oneself and the right to counsel are embedded
 in the Constitution, we specifically held:

             In order to protect both competing constitutional
           rights, the better practice is for the trial court first
           to conduct sufficient inquiry into the defendant's
           experience, motives, and understanding of what he is
           undertaking to determine the quality of his purported
           waiver, and then to provide a clear explanation of the
           adverse consequences of pro se representation. This
           discussion should appear on the record so that a
           reviewing court may determine that the defendant
           knowingly accepted the risk.

 Id.  The State does not argue that the court undertook a Merrill inquiry,
 but rather that none was needed for an offense lacking the possibility of a
 jail term.  See 13 V.S.A. {{ 5201(4)(B) and 5231.  State v. Duval, 2 Vt.
 L.W. 63, 65 (1991).  However, Duval dealt with the right to counsel at
 public expense, not the question of whether defendant knowingly waived his
 right to be represented.  We made this distinction in Merrill, 155 Vt. at
 425, 584 A.2d at ____, n.1:

             Defendant applied for appointment of counsel on
           appeal, and was denied as financially ineligible.  His
           income had been at least as great at the time of trial.
           Thus, his only alternative at the time of trial would
           have been for him to retain counsel . . . .

 Though defendant had no right to be represented at public expense, he had
 the same rights under Merrill as any defendant.  Though the offense here was
 relatively minor, the judicial effort required to make certain that defend-
 ant realized the consequences of waiver would also have been small.

      Remanded for trial court proceedings not inconsistent with this
 opinion.





                                    BY THE COURT:



                                    Frederic W. Allen, Chief Justice



 [ ]  Publish                       John A. Dooley, Associate Justice

 [ ]  Do Not Publish
                                    Denise R. Johnson, Associate Justice