The defendant, Arnold Grodman, appeals his conviction, following a bench trial in superior court, on charges of criminal contempt. See Mortgage Specialists v. Davey, 153 N.H. 764, 788 (2006) (describing criminal contempt). The defendant contends that the trial court erred by: (1) compelling him to represent himself in violation of his right to counsel; (2) refusing to allow him to present a competing harms defense, see RSA 627:3 (2007); and (3) sentencing him for perjury. We reverse and remand.
We first address the defendant's first argument under the State Constitution and rely on federal law only to aid in our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983). Because the charge of criminal contempt placed the defendant at risk of incarceration, he was entitled to be represented by counsel. Mortgage Specialists, 153 N.H. at 788 (stating that defendant accused of indirect criminal contempt is entitled to counsel); see Argersinger v. Hamlin, 407 U.S. 25, 37 (1972) (stating that, absent waiver, defendant may not be imprisoned unless represented by counsel at trial). In this case, the trial court denied the defendant this right, concluding that he was not entitled to counsel because: (1) he had implicitly waived his right; (2) he had de facto counsel; and (3) he was not prejudiced by his lack of counsel.
We review the trial court's conclusion that the defendant waived counsel for an unsustainable exercise of discretion. State v. Moussa, 164 N.H. 108, 125 (2012). A defendant can waive his right to counsel through conduct as well as words, in particular through his own contumacious conduct. Id. at 126. Whether the defendant waived his right to counsel is a practical determination that depends on the particular facts and circumstances of each case. Id.
In this case, the record does not support the trial court's conclusion that the defendant waived his right to counsel. At trial, the defendant did not reject his counsel; instead, his counsel moved to withdraw. Cf. id. at 112 (defendant fired counsel at start of trial). In addition, his counsel did not state that he was withdrawing as a result of the defendant's conduct. Although four other attorneys had been appointed to represent the defendant previously, only one cited an inability to work with the defendant as reason to withdraw. The other three withdrew citing conflicts of interest. Two of the attorneys with conflicts of interest withdrew within weeks of being appointed.
The trial court stated that the defendant "had public defenders in the past, that for one reason or another, he wasn't happy with, for lack of a better term." However, the fact that one counsel indicated that the defendant "insisted on being considered co-counsel" is not sufficient to support the conclusion that the defendant's conduct constituted an implied waiver of counsel. Cf. id. at 125 (defendant unable to work with series of six experienced attorneys appointed to represent him). Therefore, we conclude that the trial court committed an unsustainable exercise of discretion in finding that the defendant had waived his right to counsel.
The trial court cites no authority for the proposition implied in its order that de facto counsel is an adequate substitute for counsel of record, nor are we aware of any. In any event, even if we assumed that there could be circumstances in which de facto counsel could satisfy the constitutional right to counsel, the record here fails to show that the attorney allegedly functioning as de facto counsel provided representation even arguably equivalent to what would reasonably be expected from an attorney engaged to represent the defendant. Errors that partially or completely deny a defendant the right to the basic trial process, such as the denial of a defendant's right to counsel, rise to the level of fundamental unfairness. State v. Etienne, 163 N.H. 57, 80 (2011). Therefore, we cannot say that the defendant was not prejudiced by the denial of his right to counsel.
Because the defendant is entitled to relief under the State Constitution, we need not address his arguments under the Federal Constitution. In light of our conclusion on this issue, we need not address the defendant's other issues on appeal.
Reversed and remanded.
HICKS, CONBOY and LYNN, JJ., ...