State v. Lewis

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 89-338

                           SEPTEMBER TERM, 1990


State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }          Unit No. 2, Franklin Circuit
                                  }
John W. Lewis                     }
                                  }          DOCKET NO. 196-2-89Fcr


             In the above entitled cause the Clerk will enter:

     Defendant appeals his convictions of driving while under the influence
of intoxicating liquor and the district court's finding of refusal to submit
to a chemical test in violation of 23 V.S.A. {{ 1201(a)(2) and 1205.  We
affirm.

     Beginning at his arraignment on February 27, 1989, and continuing
thereafter, defendant repeatedly stated that he wanted to represent himself.
Defendant contends that the trial court conducted no formal inquiry to de-
termine if his decision was knowingly and intelligently made, and he now
argues that the record should show such an inquiry.

     The recognized "better practice is for the trial court first to conduct
sufficient inquiry into the defendant's experience, motives, and understand-
ing 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."   State v. Merrill, No. 86-421, slip op. at 4 (Nov. 30, 1990),
(citations omitted).  It is also advisable for the court to inform a
defendant of the options available to protect his right to counsel, the
nature of the charges against him, and the possible punishment.  Id. at 5;
State v. O'Connell, 147 Vt. 60, 65, 510 A.2d 167, 169 (1986).  "The specific
circumstances of a particular case, however, may excuse a trial court's
failure to inquire into a defendant's decision to proceed pro se."
O'Connell, 147 Vt. at 65, 510 A.2d  at 169.

     Review of the record in this case does not lead to the conclusion that
defendant's decision was uninformed.  First, defendant was informed of the
potential adverse consequences of self-representation.  At the pretrial
status conference, defendant was warned that he was facing a serious matter
with serious administrative consequences, and that his lack of counsel made
the situation potentially even more serious.  Second, defendant was made
aware of the nature of the charges against him.  He was given a copy of the
information stating the nature of the charges and the possible sentence,
and, in response to the court's inquiry, he stated that he understood the
charges and had no questions pertaining to them.  Finally, defendant was
made aware of the options available to him.  At his arraignment the court
informed him of his right to be represented by counsel, but he unequivocally
stated his decision to represent himself and signed a Waiver of Counsel
form.  At the status conference the court made it clear to defendant that it
would certainly accommodate him if he changed his mind about getting a
lawyer.  Although defendant was not specifically informed by the court of
the right to have counsel provided, he signed the Waiver of Counsel form
which clearly listed the right to have counsel provided at state expense if
he could not afford to hire an attorney of his own.  Defendant makes no
claim that he did not understand what he was signing, or that he was,
thereby, "forced to to proceed pro se."  Id. at 66, 510 A.2d  at 170.

     In addition, the record reveals that through defendant's background and
experience he was not ignorant of the risks involved in proceeding pro se.
Through the various stages of proceedings, defendant repeatedly referred to
his prior experience with traffic violations, and to his two brothers having
lost their licenses "for quite a number of years" for DWI offenses.  As
noted by the trial court, defendant was "obviously very aware of the
penalties."   Even with this experience, defendant wanted to represent him-
self to get out his "frustration and hate and anger" at the legal system.
From this record, we conclude that defendant was aware of the "dangers and
pitfalls that confront a lay person in defending himself in a criminal
trial."  State v. Quintin, 143 Vt. 40, 44, 460 A.2d 458, 460-61 (1983).  His
right to make this decision is constitutionally guaranteed even though "he
may conduct his own defense ultimately to his own detriment . . . ."
Faretta v. California, 422 U.S. 806, 834 (1975).

     Affirmed.






                                   BY THE COURT:



                                   Frederic W. Allen, Chief Justice


                                   Louis P. Peck, Associate Justice


[ ]  Publish                       Ernest W. Gibson III, Associate Justice

[ ]  Do Not Publish
                                   John A. Dooley, Associate Justice


                                   James L. Morse, Associate Justice