In Re DL

999 S.W.2d 291, 1999 Mo. App. LEXIS 1303
CourtMissouri Court of Appeals
DecidedAugust 17, 1999
Docket74430
StatusPublished

This text of 999 S.W.2d 291 (In Re DL) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re DL, 999 S.W.2d 291, 1999 Mo. App. LEXIS 1303 (Mo. Ct. App. 1999).

Opinion

999 S.W.2d 291 (1999)

In the Interest of D.L.

No. 74430.

Missouri Court of Appeals, Eastern District, Southern Division.

August 17, 1999.

*293 Caterina DiTraglia, Nancy L. Vincent, Public Defenders Office, St. Louis, Renee Anne Murphy, Farmington, for appellant.

Shawn R. McCarver, Farmington, for respondents.

RHODES RUSSELL, Presiding Judge.

D.L. ("juvenile") appeals from an order of the Juvenile Division of the Circuit Court of St. Francois County committing him to the Division of Youth Services. We reverse and remand, as juvenile did not knowingly and intelligently waive his right to counsel.

On January 16, 1998, the Deputy Juvenile Officer ("juvenile officer") of St. Francois County filed a petition alleging juvenile committed two acts which would constitute assaults if committed by an adult. Juvenile officer subsequently filed an amended petition, removing one of the assault charges. Juvenile, K.L. ("mother"), and R.R. ("father"), signed a waiver of counsel form and juvenile pled guilty. The court entered its finding of jurisdiction and order of disposition, and juvenile was placed on probation.

On March 25, 1998, juvenile officer filed a motion to modify the prior order of disposition, alleging probation violations consisting of two acts which, if committed by an adult, would constitute assaults, and two technical violations for failure to report the incidents within forty-eight hours of their occurrence. Specifically, juvenile officer alleged that juvenile threw a rock at a youth just three days after he was placed on probation, and punched another youth in the head with a closed fist.

Prior to the hearing on the motion to modify, juvenile and mother signed another waiver of counsel form and proceeded pro se. At the conclusion of the hearing, the court found juvenile had violated the terms of his probation and committed him to the Division of Youth Services for an indeterminate period of time. Juvenile now appeals.

Juvenile proceedings are in the nature of civil proceedings, and the standard of review is the same as in a court-tried case. In re J.M., 847 S.W.2d 911, 913 (Mo.App.1993). The trial court's order will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.; Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

In his first point, juvenile contends the trial court erred in failing to ensure his waiver of counsel was knowing and intelligent.[1] As a result of this error, juvenile contends he was denied his rights to due process, a fair proceeding, and counsel, as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, as well as Article I, Sections 10 and 18(a) of the Missouri Constitution.

Because this allegation of error was not properly preserved, we review only for plain error. Under plain error review, we will grant relief only if the trial court's action resulted in manifest injustice or a miscarriage of justice. Rule 84.13(c).

The United States Supreme Court has noted that the due process clause of the Fourteenth Amendment requires that in a *294 juvenile delinquency proceeding, where the juvenile may be committed to a state institution, the juvenile must be afforded many, if not most, of the rights afforded to adult criminal defendants. In re Gault, 387 U.S. 1, 12, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527 (1967). Included among these rights are the right to notice of the charges, the right to counsel, the rights to confrontation and cross-examination of witnesses, and the privilege against self-incrimination. Id. at 31-56, 87 S.Ct. 1428.

With respect to the right to counsel in such a delinquency proceeding, the child and his parents must be notified of the child's right to be represented by counsel retained by them or, if they are unable to afford counsel, that counsel will be appointed to represent the child. Gault, 387 U.S. at 41, 87 S.Ct. 1428. The juvenile and his parents must also be confronted with the need for specific consideration of whether they do or do not choose to waive this right. Id. at 42, 87 S.Ct. 1428. Moreover, it is commonly recognized that courts should take "special care" in scrutinizing a purported confession or waiver by a child. Haley v. Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 304, 92 L.Ed. 224 (1948).

Although the Court in Gault did not specifically address the procedures or constitutional rights applicable to the post-adjudicative or dispositional stages of the juvenile process, certain passages of the opinion indicate that the fundamentals of due process should be applied in other critical stages affecting the liberty of a juvenile. State ex rel. D.E., 251 So.2d 703, 705 (Fla.App.1971) (extending Gault to juvenile probation revocation hearings). A hearing on a motion to modify is a critical stage in that the juvenile here, as in Gault, faced a potentially lengthy commitment to a state institution.

Notwithstanding Gault, Missouri statutes and rules provide that a juvenile is entitled to be represented by counsel in all juvenile court proceedings. Section 211.211.1 RSMo 1994;[2] Rule 116.01(a). When a petition has been filed, the court shall appoint counsel for the juvenile when necessary to assure a full and fair hearing. Section 211.211.3; Rule 116.01(c). A juvenile may waive his right to counsel only with the approval of the court. Section 211.211.8; Rule 116.01(h).

With respect to the constitutional requirements for waiving counsel, we begin our analysis with a reiteration of the standards for the waiver of counsel by adult defendants. An effective waiver of counsel must be voluntarily, knowingly and intelligently executed. Wilkins v. State, 802 S.W.2d 491, 501 (Mo. banc 1991) (citing Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975)). Whether a waiver is made intelligently and knowingly depends on the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. State v. Hunter, 840 S.W.2d 850, 858 (Mo. banc 1992). Likewise, the Missouri Supreme Court, in In re A.D.R., 603 S.W.2d 575 (Mo. banc 1980), suggests the validity of juvenile waivers of constitutional rights must be determined from "the totality of the circumstances." In re A.D.R., 603 S.W.2d at 584. This approach mandates inquiry into the juvenile's age, experience, education, background, intelligence, and capacity to understand the warnings given him. Id.

If the record does not disclose that the defendant's waiver of his right to counsel was knowing and intelligent, the presumption arises that it was not. State v. Davis, 934 S.W.2d 331, 334 (Mo.App. 1996).

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Related

Adams v. United States Ex Rel. McCann
317 U.S. 269 (Supreme Court, 1943)
Haley v. Ohio
332 U.S. 596 (Supreme Court, 1948)
In Re GAULT
387 U.S. 1 (Supreme Court, 1967)
Faretta v. California
422 U.S. 806 (Supreme Court, 1975)
Wilkins v. State
802 S.W.2d 491 (Supreme Court of Missouri, 1991)
In Interest of ADR
603 S.W.2d 575 (Supreme Court of Missouri, 1980)
State v. Davis
934 S.W.2d 331 (Missouri Court of Appeals, 1996)
State v. Hunter
840 S.W.2d 850 (Supreme Court of Missouri, 1992)
Murphy v. Carron
536 S.W.2d 30 (Supreme Court of Missouri, 1976)
State v. Kilburn
941 S.W.2d 737 (Missouri Court of Appeals, 1997)
State v. Schnelle
924 S.W.2d 292 (Missouri Court of Appeals, 1996)
State v. Revelle
809 S.W.2d 444 (Missouri Court of Appeals, 1991)
H.M. v. Hensiek
847 S.W.2d 911 (Missouri Court of Appeals, 1993)
In the Interest of D.L.
999 S.W.2d 291 (Missouri Court of Appeals, 1999)
State ex rel. D. E. v. Keller
251 So. 2d 703 (District Court of Appeal of Florida, 1971)
In re Manuel R.
543 A.2d 719 (Supreme Court of Connecticut, 1988)

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Bluebook (online)
999 S.W.2d 291, 1999 Mo. App. LEXIS 1303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dl-moctapp-1999.