State of New Hampshire v. Tino Marino

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2013-0860, State of New Hampshire v. Tino
Marino, the court on February 19, 2015, issued the following
order:

Having considered the brief, memorandum of law, and record submitted
on appeal, we conclude that oral argument is unnecessary in this case. See
Sup. Ct. R. 18(1). We affirm.

The defendant, Tino Marino, appeals the order of the Superior Court
(Brown, J.) finding him in violation of probation, see RSA 504-A:4 (2010), and
imposing his previously suspended sentence. The defendant argues that the
trial court failed to make a proper inquiry as to whether he wished to represent
himself at the probation violation hearing.

Both Part I, Article 15 of the State Constitution and the Sixth
Amendment to the Federal Constitution guarantees a criminal defendant the
right to self-representation. State v. Towle, 162 N.H. 799, 803 (2011). To be
effective, an assertion of the right to self-representation must be: (1) timely;
(2) clear and unequivocal; and (3) knowing, intelligent and voluntary. Id.

The record shows that on August 22, 2013, the court held a status
conference, at which the defendant was represented by his appointed counsel
from the public defender’s office. The defendant appeared by video and advised
the court that he wished to represent himself at the probation violation
hearing. The court instructed defense counsel to file a motion for status of
counsel and advised the defendant that the court would schedule a hearing on
the motion, which he could attend in person.

On September 30, 2013, the trial court held a hearing on the motion.
At the hearing, the defendant made equivocal statements regarding his wish to
represent himself before advising the court that he needed additional time to
decide. The trial court issued an order noting that the defendant was
undecided as to how he wished to proceed and that the status of counsel would
not change.

One month later, at a motion hearing on Wednesday, October 30, 2013,
the trial court advised the defendant as follows:

So I think the next issue really is whether you intend to proceed
with [appointed counsel], represent yourself, seek another counsel,
 or seek stand-by counsel. And that is a decision that you should
make and can make.

When the defendant responded by stating that he had not had a sufficient
opportunity to discuss the issue with his appointed counsel, the trial court
advised the defendant as follows:

I’ll give you until Monday [November 4, 2013] to let us know
whether – you can do it through counsel. Counsel will either say,
“On reflection, he’s decided to represent himself,” “I am continuing
to represent him,” or “There’s going to be stand-by counsel,” and
[appointed counsel] can explain that.

The record fails to show how the defendant responded to the court’s
October 30, 2013 instructions. The transcript of the November 22, 2013
probation violation hearing shows that the defendant was represented by the
same appointed counsel, and nothing in the hearing transcript suggests that
the defendant wished to proceed differently. “It is well established that the
burden of providing this court with a sufficient record to decide the issue
raised on appeal is upon the moving party, in this case, the defendant.”
State v. Bergmann, 135 N.H. 97, 99 (1991). In the absence of a record
sufficient to show how the defendant responded to the court’s instructions, we
must assume that the facts support the trial court’s decision to allow the
defendant to proceed with his appointed counsel at the probation violation
hearing. See State v. Woods, 139 N.H. 399, 403 (1995) (noting that in the
absence of a transcript, the evidence is presumed to support the result reached
by the trial court).

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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