1 MILR (Rev.) 182

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CRIM. NO. 88-01
(High Ct. Crim. No. 1988-034)

REPUBLIC OF THE MARSHALL ISLANDS,
Plaintiff-Appellee,

-v-

GEORGE SAKAIO,
Defendant-Appellant.

APPEAL FROM THE HIGH COURT

October 18, 1989

ASHFORD, C.J.
TENNEKONE, A.J., and KONDO, A.J. (sitting by designation)

SUMMARY:

The Supreme Court set aside a conviction for possession of marijuana because the trial court failed to inform the defendant of his right to have a lawyer and to assure that he fully understood the consequences of a guilty plea and, also, for denying defendant's request to withdraw that plea and to be represented by counsel.

DIGEST:

1. CONSTITUTIONAL LAW – Due Process – Accused's Right to Counsel: Few constitutional protections are as fundamental to ensuring a fair trial for the accused as the right to the assistance of counsel. This right is guaranteed by Article II, § 4(4) of the Constitution.

2. CONSTITUTIONAL LAW – Construction – Rules of Interpretation: Article I, § 3(1) mandates that the courts of the Marshall Islands, in interpreting and applying the Constitution, shall look to the decisions of courts of countries having constitutions similar in the relevant respect.

3. CRIMINAL LAW AND PROCEDURE – Record: Rules 2b(1) and 17b(1) of the Marshall Islands Rules of Criminal Procedure impose on the trial court the duty to make a record which is more than merely a summary of the proceedings.

4. CRIMINAL LAW AND PROCEDURE – Same: The duty to make a proper record of the proceedings is not discretionary.

5. CRIMINAL LAW AND PROCEDURE – Arrests – Duty to Advise of Right to Counsel: The duty to advise arrested persons of their right to counsel does not obligate the police to persuade an accused that he needs counsel, but simply to advise of his right to the assistance of counsel.

6. CRIMINAL LAW AND PROCEDURE – Rights of the Accused – Advice of Rights: The official at a preliminary hearing is under an affirmative duty to advise an accused during such hearing of his right to the assistance of counsel.

7. CRIMINAL LAW AND PROCEDURE – Pleas: The accused may not be called upon to plead at a preliminary hearing. 32 MIRC Ch. 1, § 40.

8. CRIMINAL LAW AND PROCEDURE – Same: Before a plea of guilty is accepted, the trial court must ascertain from the accused's own statements in court that he is voluntarily making the plea and understands the nature and general effect of the plea.

9. CRIMINAL LAW AND PROCEDURE – Waivers – Awareness and Competence: Waiver of the right to counsel must be knowingly and affirmatively made by an accused competent and completely aware of the right being waived and must appear on the record.

10. CRIMINAL LAW AND PROCEDURE – Pleas – Withdrawal of Guilty Plea: Withdrawal of a plea of guilty should be allowed when the court cannot conclude that it was given advisedly and without fear or ignorance.

OPINION OF THE COURT BY ASHFORD, C.J.

This is an appeal from a conviction on a plea of guilty to possession of marijuana. The conviction must be set aside for failure of the High Court to advise the Appellant of his right to the assistance of counsel, to assure that his guilty plea was made with a full understanding of his rights and of the consequences of that plea and for summarily rejecting his attempts to withdraw that plea and to be represented by counsel.

Appellant was charged with possession of marijuana, in violation of Public Law 1987-11. The record below does not reveal whether he was informed of his right to the assistance of counsel by the police or by the High Court prior to or at his arraignment. No transcript of the arraignment and sentencing proceeding exists. However, it is undisputed that at his arraignment, he was not represented by counsel and pleaded guilty to the charge. The court thereupon sentenced him to two years in prison and he immediately requested that his plea of guilty be withdrawn. The court refused to grant the request.

At a subsequent hearing (of which there is a transcript) to assure proper disposition of the marijuana, the High Court declined to let the Public Defender represent the defendant, on the ground that he had already been convicted and sentenced.

[1,2] Few constitutional protections are as fundamental to ensuring a fair trial for the accused as the right to the assistance of counsel. Article II, § 4(1) of the Marshall Islands Constitution commands that "[n]o person shall be deprived of life, liberty, or property without due process of law." Article I, § 3(1) mandates that "[i]n interpreting and applying this Constitution, a court shall look to the decisions of the courts of other countries having constitutions similar, in the relevant respect, to the Constitution of the Marshall Islands ...." The provisions in Article II, § 4(4) of the Constitution contain and expand upon the rights guaranteed by the Sixth Amendment to the United States Constitution. Article II, § 4(4) of the Marshall Islands Constitution states:

In all criminal prosecutions, the accused shall enjoy the right ... to defend himself in person or through legal assistance of his choice and, if he lacks funds to procure such assistance, to receive it free of charge if the interests of justice so require.

The Sixth Amendment to the United States Constitution states:

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

Both constitutional provisions provide for the assistance of counsel in criminal prosecutions. Thus, the decisions of the United States Supreme Court in this area are entitled to respect in this Republic. Article I, § 3, Marshall Islands Constitution.

In a leading case concerning the right to counsel in the United States, its Supreme Court stated:

The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not "still be done." It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is represented by experienced and learned counsel. That which is simple, orderly, and necessary to the lawyer – to the untrained laymen – may appear intricate, complex, and mysterious.

Johnson v. Zerbst, 304 U.S. 458, 462-63, 82 L.Ed. 1461, 58 S.Ct. 1019 (1938).

The United States Supreme Court further explained the importance of the accused's right to counsel in Gideon v. Wainwright, 372 U.S. 335, 344, 9 L.Ed. 2d 799, 83 S.Ct. 792 (1963):

[R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.... That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indication of the widespread belief that lawyers in criminal courts are necessities, not luxuries.

I. Lack of a record in the High Court.

The only "record" of the proceedings upon the arraignment and sentencing in the High Court is the order entered by the trial judge at the conclusion of those proceedings. The order recited in general terms what occurred during those proceedings and set the amount and terms of bail in the event of an appeal.

Rule 2b(l) of the Marshall Islands Rules of Criminal Procedure imposes on the trial court the duty to make a record:

The judge of any court, including a community court, who presides at any trial, hearing, or other proceeding, shall be responsible for the making of the record of that trial, hearing, or proceeding, and may require any other judge hearing the matter, or a reporter, or clerk, to assist him in making the record.

[3,4] Rule 17b(1), Marshall Islands Rules of Criminal Procedure explains that in the High Court the record is more than merely a summary of the proceedings:

A record of every case (other than an appeal) will be taken down in longhand, shorthand, or mechanical means, except that only so much, if any, of oral arguments or oral statements of counsel need be included as the court may direct.

No such record was made in this case, but in view of the disposition of the appeal, we need not rule upon the consequences of that failure. Suffice to say, that the duty to make a proper record of the proceedings is not discretionary. The discussion that follows may indicate the importance of a record complying with the rule.

II. Failure to Inform the Appellant of His Right to the Assistance of Counsel.

A. Duty of Police to Advise.

[5] The courts and the Nitijela have recognized the importance of the right to the assistance of counsel at several stages in the criminal process. 12 TTC § 68(2)(a)-(c) (1980), currently codified as 32 MIRC Ch. 1, § 20(2)(a)-(c), specifically states:

[A]ny person arrested shall be advised as follows:

(a) that the individual warned has a right to remain silent;

(b) that the police will, if the individual so requests, endeavor to call counsel to the jail or other place of detention and allow the individual to confer with counsel there before he is questioned further, and allow him to have counsel present while he is questioned by the police, if he so desires; and

(c) that the services of the Public Defender, when in the vicinity, and of his local representative are available for these purposes without charge.

The duty to advise arrested persons of their right to counsel does not obligate the police to persuade an accused that he needs counsel. Trust Territory v. Sokau, 4 TTR 434 (1969). The police must simply advise the accused of his right to the assistance of counsel.

In this case, there is no showing that the police advised Appellant of his right to counsel. The High Court's order entered after Appellant's arraignment and sentencing demonstrates he was not represented by counsel at those proceedings. Promptly after sentencing, Appellant requested the services of the Public Defender. From these circumstances, this Court concludes that the police did not inform Appellant of his right to counsel.

B. Court's Duty to Advise.

[6] Like police, the official at a preliminary hearing is under an affirmative duty to advise an accused during such hearing of his right to the assistance of counsel. 12 TTC § 202, currently codified as 32 MIRC Ch. 1, § 39(b), provides that the official shall:

(b) inform the arrested person of his right to retain counsel and of his right to be released on bail as provided by law, and allow him reasonable time and opportunity to consult counsel, if desired;

Rule 3b of the Marshall Islands Rules of Criminal Procedure imposes that same duty upon the court, to advise an accused of his constitutional right to the assistance of counsel, if that advice has not earlier been tendered. That Rule requires that the accused be informed of his right to counsel "as soon as practicable after arrest and not later than the time as [sic] which he is informed of the charges and receives a copy thereof." The information should be provided in language easily understood by the average person. The accused should be given the opportunity to make an intelligent and uncoerced choice whether to be represented by counsel.

Further assurance that the accused has been informed of his right to counsel is provided by Rule 9 of the Marshall Islands Rules of Criminal Procedure, which mandates that immediately prior to arraignment:

... the court shall require the accused to identify himself by giving his name, age, sex, and residence. The court shall then ask the accused if he has counsel. If he has no counsel, the court shall ask him if he desires counsel. If he so desires, he shall be allowed opportunity to procure counsel.

The importance of counsel at a preliminary hearing was first recognized in the United States in White v. Maryland, 373 U.S. 59, 10 L.Ed. 2d. 193, 83 S.Ct. 1050 (1963). In that case, during a preliminary hearing at which the accused was not represented by counsel, a plea of guilty was entered by the accused. After the appointment of counsel, the plea was changed to "not guilty" and "not guilty by reason of insanity." At trial, the plea of guilty made at the preliminary hearing was introduced into evidence against the accused. The United States Supreme Court reversed the conviction, holding that the time at which an accused enters a plea is critical and, therefore, he must earlier be advised of his right to the assistance of counsel.

[7] In this Republic, the accused may not be called on to plead at the preliminary hearing. 12 TTC § 203, currently codified as 32 MIRC Ch. 1, § 40. The rule from White v. Maryland, therefore, applies when the accused can be called upon to plead; i.e., during an arraignment.

III. Failure to Assure that Appellant Fully Understood.

[8] Because of the finality of a plea of guilty, courts have required that "the trial court ascertain from the accused's own statements personally in open court that he is voluntarily making a plea of guilty and understands the nature of the charge and the general effect of the plea, before such a plea is accepted." Rodriguez v. Trust Territory, 3 TTR 179, 181 (1966). The American Bar Association's Standards For Criminal Justice, which have been extensively cited in United States Courts and have begun to attract international attention, set forth a comprehensive array of subject matters that should be covered by the court, with the defendant, to assure that he fully understands the meaning and consequences of a guilty plea.3 [sic]

While the Standards state aspirations that perhaps cannot be expected to be attained except in quite sophisticated courts with well trained and experienced judges, prosecutors and defense counsel, they demonstrate the variety of concerns a court should address to assure that a plea of guilty is knowingly made and is based on an adequate understanding of the rights and consequences involved.

[9] Because counsel can provide valuable assistance to a defendant in achieving the necessary levels of knowledge and understanding the court must also assure that any waiver of the right to counsel is knowingly and affirmatively made. That waiver must appear on the record; it cannot be assumed from a silent record. Boykin v. Alabama, 395 U.S. 238, 23 L.Ed. 2d 274, 89 S.Ct. 1709 (1969).

For a waiver to be effective, the prosecution must show that the accused was competent to make such a waiver and that the accused was completely aware of the right being waived. In Johnson v. Zerbst, supra, the United States Supreme Court observed that "[t]he determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Johnson v. Zerbst, 304 U.S. at 464. Absent a clear indication on the record of his awareness of a waiver, an accused will not be found to have waived his right to the assistance of counsel. The order entered by the trial judge contains no mention of any discussion, much less a waiver, of the Appellant's right to counsel.

IV. Failure to Properly Consider Appellant's Request To Withdraw His Guilty Plea and Denial of the Assistance of Counsel.

In Benemang v. Trust Territory, 5 TTR 22, 27 (1970) the court said:

It is a familiar general rule that when a defendant has pled guilty in a criminal case, it is within the discretion of the trial court to permit the plea to be withdrawn. Application of the rule to a given situation depends upon the time the motion to withdraw is made and the circumstances pertaining to the reason for the withdrawal. (citations omitted)

The Benemang court quoted Friedman v. U.S., 200 F.2d 690 at 696 (8th Cir. 1953), concerning the circumstances the trial court must consider when it decides whether to allow an accused to withdraw his guilty plea.

The issue for determination is whether the plea of guilty was voluntary, advisedly, intentionally and understandingly entered or whether it was at the time of entry, attributable to force, fraud, fear, ignorance, inadvertence or mistake such as would justify the court in concluding that it ought not to be permitted to stand. Benemang v. Trust Territory, 5 TTR at 27.

[10] In both Rodriguez, supra, and Benemang the accused had counsel at the time of entering his guilty plea. In the present case, Appellant was not represented by counsel when he pleaded guilty and was sentenced, nor does it appear that he ever was advised of the opportunity to be provided with the services of counsel. Clearly, the concerns expressed by the courts in Rodriguez and Benemang are present in this case. In the circumstances, this Court cannot conclude that Appellant's plea was given advisedly and without fear or ignorance.

The post-sentencing hearing was held five days after denial of the Appellant's request to withdraw his guilty plea. Appellant, meantime, had requested the assistance of the Public Defender, who appeared at the second hearing and attempted to represent Appellant. The transcript reveals he was not permitted to do so and the order entered by the judge on conclusion of the hearing stated "the Court disallowed his application (to appear as counsel) as the defendant was no longer an accused as he had pleaded 'guilty' to the charge and had been sentenced."

The Constitution guarantees the right to counsel to persons accused of criminal wrongdoing. This constitutional right must not be treated lightly by the police or the courts, for the right to the assistance of counsel ensures accused persons of a fair trial and ultimately, due process of law.

The United States Supreme Court has held that a conviction obtained from a proceeding in which the constitutional right to counsel has been denied is void. Gideon v. Wainriqht, supra. In this case the denial of the right appears to have occurred not merely once, but twice.

The judgment is reversed and the cause is remanded to the High Court for further action consistent with this opinion.

Submitted on the brief, without oral argument.
David M. Strauss, Public Defender, for Plaintiff-Appellant

The Attorney General declined to file a brief on behalf of Defendant-Appellee

________

3[sic]Standard 14-1.4, entitled "Defendant to be advised," states:

"(a) The court should not accept a plea of guilty or nolo contendere from a defendant without first addressing the defendant personally in open court and determining that the defendant understands:

(i) the nature and elements of the offense to which the plea is offered;

(ii) the maximum possible sentence on the charge, including that possible from consecutive sentences, and the mandatory minimum sentence, if any, on the charge, or of any special circumstances affecting probation or release from incarceration;

(iii) that, if the defendant has been previously convicted of an offense and the offense to which the defendant has offered to plead is one for which a different or additional punishment is authorized by reason of the previous conviction or other factors, the fact of the previous conviction or other factors may be established after the plea, thereby subjecting the defendant to such different or additional punishment;

(iv) that by pleading guilty the defendant waives the right to a speedy and public trial, including the right to trial by jury; the right to insist at a trial that the prosecution establish guilt beyond a reasonable doubt; the right to testify at a trial and the right not to testify at a trial; the right at a trial to be confronted by the witnesses against the defendant, to present witnesses in the defendant's behalf, and to have compulsory process in securing their attendance; and

(v) that by pleading guilty the defendant waives the right to object to the sufficiency of the charging papers to state an offense and to evidence allegedly obtained in violation of constitutional rights, except to the extent that motions concerning such matters may already have been made and ruled upon, or unless the right of appeal on such issues is reserved.

(b) If the court is in doubt about whether the defendant comprehends his or her rights and the other matters of which notice is required to be supplied in accordance with this standard, the defendant should be asked to repeat to the court in his or her own words the information about such rights and the other matters, or the court should take such other steps as may be necessary to assure itself that the guilty plea is entered with complete understanding of the consequences.

(c) If the defendant is represented by a lawyer, the court should not accept the plea where it appears the defendant has not had the effective assistance of counsel."

American Bar Association Standards For Criminal Justice (2d ed., 1986)