In re R.S.B.

498 N.W.2d 646, 1993 S.D. LEXIS 33

• Court: South Dakota Supreme Court
• Decided: April 7, 1993
• Docket: No. 17885
• Status: Published

Opinions

HENDERSON, Justice.

R.S.B., a juvenile, appeals an order finding him guilty of third degree burglary, declaring him delinquent, and entering an order of commitment to the State Training School. We reverse and remand.

FACTS

By Petition to declare R.S.B. a delinquent child under SDCL ch. 26-8, R.S.B. was charged with two criminal acts arising out of a single incident. He was sixteen years old. He appeared before Judge Richard Hurd on a petty theft charge but did not bring an attorney to represent him. It appears that Judge Hurd suggested that R.S.B. should obtain legal representation for his defense against the burglary charge. There 'is no transcript of that hearing, so this Court cannot, with exactitude, determine what Judge Hurd told R.S.B. However, it is clear that (1) R.S.B. was found guilty of petty theft, (2) R.S.B. was sentenced to 10 days in jail, (3) R.S.B. was found to be delinquent, and (4) trial court, by order, reflected R.S.B. was not represented by counsel.

Two weeks later, R.S.B. appeared before Judge Gene Paul Kean on a charge of third degree burglary. Again, he appeared without an attorney. When asked by Judge Kean: “And that’s the way you want to proceed this morning? [without a lawyer],” R.S.B. replied “No.” Thereafter, his father explained that he and his son had been unable to hire an attorney and requested more time to do so. Father expressed that he had talked to three lawyers and the Public Defender’s office. All three lawyers were busy, had conflicts, and could not come to the hearing. The Public Defender’s office was also contacted. Father told the trial court, “hopefully we will be able to get somebody from over there [Public Defender’s office].” Essentially, the trial court decided R.S.B. had waived his right to counsel by appearing without an attorney. The trial court proceeded with a full evidentiary hearing. R.S.B., with the assistance of his father, attempted to conduct a defense by questioning state’s witnesses. Acting as the finder of fact, the trial court sustained the-petition, found R.S.B. guilty of third degree burglary, and entered an order committing him to the State Training School. R.S.B. was declared to be a delinquent child.

DECISION

A juvenile has the same right to counsel as an adult. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Matter of 284 N.W.2d 874 (S.D.1979). In an adult case involving an alleged waiver of the right to counsel, we explained:

A defendant must be aware of the dangers, and disadvantages of self-representation. On appeal, waiver of the right to counsel will not be found knowingly and intelligently made unless the trial court (1) warns the defendant of the dangers of self-representation or, (2) unless the record indicates circumstances from which this court can find the defendant was aware of the danger and made a knowing and intelligent waiver.

State v. Van Sickle, 411 N.W.2d 665, 667 (S.D.1987).

There is no indication in the record that R.S.B. was aware of the dangers and disadvantages of self-representation and that he “knowingly and intelligently” waived his right to counsel.

SDCL 26-7A-54 provides, inter alia, “the court shall conduct an advisory hearing before the adjudicatory hearing” and “[t]he court shall first ... [a]dvise the parties of their rights to be represented by attorneys and requirements for court-appointed attorney ...” There is no record that this required statutory advisement occurred.

We have previously stated that we will “indulge every reasonable presumption against waiver” and that each case should depend on the “particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” State v. Arpan, 277 N.W.2d 597, 599-600 (S.D.1979) (citing Johnson v. Zerbst, 304 U.S. 458,. 58 S.Ct. 1019, 82 L.Ed. 1461 (1937)).

Based on R.S.B.’s status as a juvenile, his relative inexperience with the legal system, and the incomplete record, we cannot uphold the trial court’s conclusion that R.S.B. made a knowing and intelligent waiver of his right to counsel. See Van Sickle, 411 N.W.2d at 667 (no waiver where it was not shown the defendant knew the pitfalls of self representation). See also In re Haas, 5 N.C.App. 461, 168 S.E.2d 457 (1969) (parent waived right to counsel — but no showing that waiver was knowing and intelligent).

The adjudicatory phase of these proceedings and the dispositional order of delinquency are reversed; and the order of commitment to the State Training School is also reversed. Having reversed, we remand for proceedings consistent herewith.

WUEST and SABERS, JJ., concur. MILLER, C.J., and AMUNDSON, J., concur specially.