Johnson v. District of Columbia , 1953 D.C. App. LEXIS 192 ( 1953 )

QUINN, Associate Judge.

The Juvenile Court found appellant to be the father of an illegitimate child and entered an order requiring him to support the child. The question presented on this appeal is whether the defendant was fully advised by 'the court of his right to the assistance of counsel in compliance with Rule 15 of the Juvenile Court, which reads as follows: “If a defendant appears in court without counsel, the Court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is deemed by the Court to be able to-obtain counsel.”¹

On May 6, 1953, an information was filed charging defendant with being the father of a child born on March 5 to an unmarried woman.² Defendant, who was nineteen years of age at the time, appeared at the preliminary hearing accompanied by his mother. He was without counsel. After the information had been read to him, the trial judge asked‘“if he wanted to get a lawyer before answering.” He replied that he did not. He and his mother then signed a waiver of his right to counsel. In response to the court’s inquiry defendant denied being the father of the child. A preliminary hearing was held and he was ordered to stand trial. According to the statement of proceedings and evidence, the following occurred after the preliminary hearing: “The court * * * asked the defendant if he wished a trial by the court or by jury. Defendant replied that he wanted a trial by the court. The court then advised the defendant that the matter was being set down for trial on June 9, 1953 and that if he desired counsel at that time, he might have it and further that if he had any witnesses who knew anything about the matter that he should bring them down at that time * *

On the date of trial appellant appeared without counsel, testimony was taken, and appellant was found to be the father of the child in question. Only defendant and his mother testified on his behalf. The case was continued by the court until June 25 for entry of the order of support.

Six days after the trial and ten days before entry of the order of support, defendant employed counsel, and through him filed a motion for new trial. Affidavits in support of the motion were filed by defendant and his mother. In his affidavit defendant stated that he was not aware that this case was in the nature of a criminal action, nor was he aware that if he was found to be the father of the child that he would be ordered to support the child. He stated further that he was not informed of his right to have subpoenas issued to compel the appearance of witnesses in his behalf; that he was without knowledge as to how to proceed in cross-examining the complaining witness; and that he was not advised by the court "that he had a right to produce character witnesses to testify in his be half. The motion for new trial was argued and denied, and an order was entered requiring the appellant to pay a fixed sum weekly until the child reached five years of age .and then a larger sum until the child reached sixteen years of age.

Several errors ajre assigned, but it is our view that only the one relating to the failure of the court, prior to trial, to fully inform defendant of his right to counsel need be considered. The record before us fails to show that on the day of trial any inquiry was made as to whether the defendant desired an attorney to represent him at that time, nor is there any showing that at anytime the judge advised defendant that he could have an attorney assigned to him, if he was without funds to retain one. Also, there was never an inquiry by the judge ,as to defendant’s education or familiarity with court proceedings.. The charge against defendant,, according to the record, was never explained to him in any detail. Nor, was he told that .if he was, found to be the father of the child what penalties would attach to such a finding, i. e-. . that he would have .to support the child until it reached sixteen years Of age, .and¡that, if he defaulted in his payments he could be sent to jail for a period of one year.- :

' It is settled law that a waiver to be effective must be an intentional- relinquishment of a known right.³ Therefore, unless a defendant is informed of his rights,'how can it be said that he clearly, intentionally, and understandingly waived them ? “A defendant who pleads not guilty and elects to go to trial is usually more in need of the assistance of a lawyer than is one who pleads guilty.” ⁴ Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247, 1251, 93 L.Ed. 1686. The facts in this case lead us to the conclusion that defendant was not fully advised of his right to counsel, as required by Rule 15 of the Juvenile Court. The motion for a new trial should have been granted.

Reversed.

1 . Rules of the Juvenile Court, effective April 1, 1953.

2 . Public Law 917, Chapter 1225, 81st Cong., 2d Sess., approved January 11, 1951, 64 Stat. 1240.

3 . Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; cf. Humphries v. United States, D.C.Mun.App., 68 A.2d 803.

4 . Cf. Coleman v. District of Columbia, D.C.Mun.App., 83 A.2d 873.