from the District Court of Grand Forks County, Northeast
Central Judicial District, the Honorable Donald Hager, Judge.
Carmell F. Mattison (argued) and Megha Kholwadwala (on
brief), third-year law student, under the Rule on Limited
Practice of Law by Law Students, for plaintiff and appellee.
Benjamin C. Pulkrabek, for defendant and appellant.
1] Justin Baker appeals from the criminal judgment entered
after a jury found him guilty of escape. He argues he was
denied his Sixth Amendment right to counsel when the district
court allowed his appointed counsel to withdraw from the
case. We conclude the record does not establish Baker
knowingly and intelligently waived his right to counsel, and
we reverse and remand for a new trial.
2] While Baker was serving jail time at the Grand Forks
County Correctional Center, he was granted temporary leave.
He failed to return, and was charged with escape, a class C
felony. Baker was granted appointed counsel, and they reached
a plea agreement with the State. After reaching the plea
agreement, Baker spoke with his family and decided he would
rather go forward with a trial.
3] At the change of plea hearing, Baker's attorney
informed the district court that Baker would not accept the
plea agreement and would like to proceed to trial with a new
attorney. Because of the assurances he had made to the
State's attorney and the court, and to avoid future
ethical issues or complaints, the attorney stated he wished
to withdraw from the case. When asked by the court whether he
had talked to another attorney for private hire, Baker stated
his father was trying to get ahold of a contact of his but
had been unable to reach him. The court informed Baker it was
inclined to approve his attorney's motion to withdraw, if
filed, and also informed Baker he would be allowed to obtain
private counsel if he desired. The court stated, however,
that a new attorney would not be appointed, because his
current appointed counsel was capable of representing him and
proceeding to trial.
4] After the hearing, Baker's appointed counsel moved to
withdraw from the case, and the district court granted the
motion. At trial, Baker represented himself. The jury found
him guilty of escape.
5] The district court had jurisdiction under N.D. Const. art.
VI, § 8, and N.D.C.C. § 29-32.1-03. Baker's
appeal is timely under N.D.R.App.P. 4(b). This Court has
jurisdiction under N.D. Const. art. VI, §§ 2 and 6,
and N.D.C.C. § 29-32.1-14.
6] On appeal, Baker argues he was denied his Sixth Amendment
right to counsel when the district court allowed his
appointed attorney to withdraw from the case without
appointing another attorney to represent him.
7] Both the North Dakota Constitution and the Sixth Amendment
of the United States Constitution mandate the right to
counsel in criminal cases. See N.D. Const. art. I,
§ 12 ("In criminal prosecutions in any court
whatever, the party accused shall have the right to... appear
and defend in person and with counsel."); U.S. Const.
amend. VI ("In all criminal prosecutions, the accused
shall enjoy the right to... have the assistance of counsel
for his defense."). "The right to appointed ...