O'DELL v. Municipality of Anchorage

576 P.2d 104, 1978 Alas. LEXIS 619
Alaska Supreme Court·Decided March 24, 1978·No. 3763·Published·Cited by 22 cases

Opinions

OPINION

RABINO WITZ, Justice.

This appeal stems from a non-jury district court conviction following O’Dell’s arrest for failure to give information at the scene of an accident.1 O’Dell received a sentence of 30 days with 28 days suspended and a fine of $300. The superior court affirmed the conviction.

[106]*106The relevant events occurred following a minor automobile accident in which Carrie Reeves’ car was struck in the rear by a vehicle on Ingra near 8th Avenue in Anchorage. Reeves told the other driver her name and the name of her insurance company. The other driver gave his name as “Harold Richardson,” and his insurer as “Sun Insurance.” “Richardson” wrote down on a slip of paper the year of Reeves’ automobile and the other information she had given him and handed it to her. Reeves wrote the name “Harold Richardson” and his license plate number on the paper.

Reeves saw “Richardson” shortly thereafter at Karluk and 6th Avenue; he was apparently performing a field sobriety test at the direction of a police officer. Later the same evening, when she learned that no Sun Insurance was listed in the telephone directory, she called the police. The same officer who had administered the field sobriety test to “Richardson” responded to her call. He recognized the license number from his earlier traffic stop and located O’Dell through information contained in the traffic citation.

O’Dell’s primary claim of error in this appeal is that the district court failed to advise him of his right to counsel. Article 1, section 11, of the Alaska Constitution and the sixth and fourteenth amendments to the United States Constitution guarantee an accused the right to assistance of counsel in criminal prosecutions against him. Gregory v. State, 550 P.2d 374 (Alaska 1976); Alexander v. City of Anchorage, 490 P.2d 910 (Alaska 1971); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). In Alexander v. City of Anchorage, supra at 913, we explained:

This means that he has the right to the assistance of counsel for his defense if he is prosecuted for a misdemeanor, as well as for a felony, when the penalty upon conviction of the misdemeanor may result in incarceration in a jail or penal institution, the loss of a valuable license, or a fine so heavy so as to indicate criminality.

A conviction under AO 9.10.040(A) carries a maximum jail term of 30 days, and O’Dell, in fact, received a jail sentence. The municipal attorney concedes O’Dell’s right to counsel in this proceeding. He maintains that O’Dell was informed of his right to counsel at his arraignment and that O’Dell had the right to appear without counsel under McCracken v. State, 518 P.2d 85 (Alaska 1974), and Faretta v. California, 442 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

At O’Dell’s arraignment, the district court delivered a presentation of rights to all those defendants about to appear.2 When O’Dell’s case was reached, the following exchange occurred:

THE COURT: Do you understand the charge?
MR. O’DELL: Yes.
THE COURT: Okay. This carries a maximum penalty of up to a $300 fine and 30 days in jail. Do you understand that?
MR. O’DELL: [No audible response]
[107]*107THE COURT: Okay. Do you understand all — that you have all the rights that I mentioned earlier to everybody?
MR. O’DELL: Yes.
THE COURT: All right. To the complaint, how do you wish to plead?
MR. O’DELL: Not guilty.
THE COURT: Okay. ... Do you want a jury trial?
MR. O’DELL: [No audible response]
THE COURT: Do you plan to get an attorney?
MR. O’DELL: Just a matter of clipped bumpers was all it was—
THE COURT: What?
MR. O’DELL: I said it was just a matter of clipped bumpers was all it is — there was no accident.
THE COURT: Okay — uh—non-jury. All right .

The exchange between the district court and O’Dell concluded with a discussion of bail.

Approximately two months later, O’Dell appeared in the district court for the trial of this matter.3 Prior to the prosecution’s opening statement, the district court judge asked O’Dell if he had any questions about trial proceedings.4 When O’Dell responded negatively, the trial began.

Although an accused does have the right to counsel5 as well as the right of self-representation, our inquiry is not complete once we have found that O’Dell was advised of his right to counsel during the district court’s en masse reading of the right of an accused which preceded his arraignment.6 Before an accused can choose to represent himself in a criminal proceeding, he must first knowingly and intelligently waive his right to counsel. In McCracken v. State, 518 P.2d 85, 91 (Alaska 1974), we held that an accused has a constitutional right of self-representation. Regarding this right of self-representation and the need to avoid perverting the judicial process, our McCracken opinion said, in part:

[T]he trial judge should satisfy himself that the prisoner understands precisely what he is giving up by declining the assistance of counsel. Rule 39(b)(3) provides that, at the trial stage, counsel should be appointed unless the defendant ‘demonstrates that he understands the benefits of counsel and knowingly waives the same.’7

Because the right of an accused to be represented by counsel is so fundamental, the trial court’s inquiry into whether the accused was apprised of the benefits of [108]*108legal representation and whether he intelligently, competently, understandingly and freely waived such benefits should appear affirmatively on the record. Gregory v. State, 550 P.2d 374, 379 (Alaska 1976); Faretta v. California, 442 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562, 582 (1975).

The record before the arraignment judge, as well as the trial judge, fails to reflect a clear waiver by O’Dell of the right to legal representation. Neither in his appearance before the arraignment judge nor at the outset of his trial two months later before another district court judge does the record show that O’Dell understood what he was giving up by declining the assistance of counsel.

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O'DELL v. Municipality of Anchorage, 576 P.2d 104, 1978 Alas. LEXIS 619 (Ala. 1978).

576 P.2d 104 (O'DELL v. Municipality of Anchorage) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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O'DELL v. Municipality of Anchorage
576 P.2d 104 (Alaska Supreme Court, 1978)