Holly v. Smyth

Decision Date03 June 1960
Docket NumberNo. 8058.,8058.
PartiesWillie HOLLY, Appellant, v. W. Frank SMYTH, Jr., Superintendent of the Virginia State Penitentiary, Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

F. D. G. Ribble and Daniel J. Meador, Charlottesville, Va. (court-apointed counsel), for appellant.

Reno S. Harp, III, Asst. Atty. Gen. of Virginia, (A. S. Harrison, Jr., Atty. Gen. of Virginia, on the brief), for appellee.

Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges.

SOBELOFF, Chief Judge.

The constantly recurring problem of a defendant's right to counsel in a criminal case is the issue in this habeas corpus appeal. Willie Holly, presently confined in the Virginia State Penitentiary, petitioned the United States District Court for the Eastern District of Virginia for a writ of habeas corpus, alleging that he was being deprived of his liberty by the appellee, the Superintendent of the Penitentiary, in violation of the United States Constitution. Without calling for a reply and without a hearing, the court dismissed the petition as failing "to state any ground valid in law for the issuance of the said writ or to establish that he is unlawfully detained." The court also denied a certificate of probable cause, required for appeal under 28 U.S.C.A. § 2253. Holly, now represented by counsel appointed by this court, has appealed from the District Court's action. As has been done occasionally in the past, we have considered the case on its merits, and that determination will here govern the issuance of a certificate of probable cause by a judge of this court. See Plater v. Warden, 4 Cir., 1958, 261 F.2d 445.

Since the petition was dismissed without a hearing, as failing to state grounds for relief, we must, for purposes of this appeal, accept as true the facts alleged in the petition along with the accompanying exhibits, which, with the order of the District Court, constitute the entire record.1

The following facts are revealed: In 1942, Holly, along with several co-defendants, was tried and convicted on five charges of storebreaking in the Hustings Court for the City of Portsmouth, Virginia. He had pleaded not guilty to three of the charges and guilty to two of them. At the time Holly was only seventeen years old and had never previously been convicted of any criminal offense. The items stolen consisted of articles of interest to boys, such as bicycles, baseball equipment, cigarettes, etc. All of the co-defendants were represented by counsel hired by their parents. Holly alone was not represented, nor did the co-defendants' counsel undertake to defend him. His petition in the District Court further alleged that he was unable to obtain counsel, that he had no knowledge of the law or of his rights, that he was not advised of his right to counsel, and that the trial court did not appoint counsel to aid him. Certified copies of the judgments show that Holly was sentenced to one year in the state penitentiary on each of the five counts, the sentences to run consecutively, whereas each of the co-defendants was sentenced to the State Board of Public Welfare. Holly attributes this disparity in treatment — a five year sentence to the penitentiary as opposed to the milder disposition — to the fact that he was denied the services of an attorney.

In the argument before us it was brought out that in Virginia sentencing youths to the Board of Public Welfare, not to the penitentiary, is the treatment normally given juvenile offenders under 18 years old. It appears that in 1942, as today, there were special statutory provisions making this distinction between persons under 18 years of age and adult offenders. These statutes forbid commitment of a delinquent child to the penitentiary unless the offense is aggravated or the child is of an extremely vicious or unruly disposition.2 The statutes further stipulate that an adjudication of the child's status under the juvenile statutes shall not operate to impose upon him any of the disabilities ordinarily resulting from a criminal conviction.3 One highly important consequence of being accorded the benefits of the juvenile delinquent statutes instead of being sentenced to the penitentiary is to make the offense unavailable as a basis for applying the state's recidivist law.4

In addition to Holly's own allegations that he had no attorney in the 1942 proceeding, the record contains the certificate of the clerk of the Hustings Court for the City of Portsmouth, referring to Holly's case in 1942, which recites that: "The records do not show that he had any counsel." Also in the record are affidavits of two of his co-defendants at the 1942 trial, asserting that the court: "did not appoint counsel for any of the defendants, and that he, Willie Holly, was the only defendant who was not represented by counsel. The only counsel on the case when we were tried on five charges of storebreaking was the counsel hired by the co-defendants' parents."

There were later prosecutions which require no detailed consideration, and in 1951 Holly was sentenced to an additional ten years in the penitentiary under the Virginia recidivist statute, section 53-296 of the Virginia Code, 1950, as a third offender. In 1957, he was sentenced to a further 15 year term on proof that he had been convicted of a felony four times. The convictions and sentences in 1942 formed the basis in part for these additional 10 and 15 year terms, and it is conceded by the State that Holly is presently serving the recidivist sentences. It is also undisputed on this appeal that if the 1942 convictions are void because of the alleged constitutional infirmity of those proceedings, then the recidivist sentences are also void, for Holly would then not have been a third offender in 1951 or a fourth offender in 1957. Holly may at this time, by habeas corpus, attack the recidivist sentences on this ground. See: McDorman v. Smyth, 1948, 188 Va. 474, 50 S.E.2d 423; Fitzgerald v. Smyth, 1953, 194 Va. 681, 74 S.E.2d 810.

Holly brought a petition in 1958 seeking a writ of habeas corpus in the Hustings Court of the City of Portsmouth. He attacked the 1942 convictions for storebreaking as void for lack of counsel. His petition was denied, a writ of error was refused by the Supreme Court of Appeals of Virginia, and the Supreme Court of the United States denied certiorari, 1959, 361 U.S. 845, 80 S.Ct. 98, 4 L.Ed.2d 83. Thus Holly has, as the state concedes, properly exhausted his state remedies.

Denial of the constitutional right to counsel is one of the grounds for relief most often raised in the numerous appeals in this court, involving the legality of custody of both state and federal prisoners. In many instances, we are confronted with bald allegations of denial of counsel, but no facts are alleged upon which the claims rest. In others, it is clear that the petitioners, if state prisoners, have not properly presented their claims to the state courts. The record before us demonstrates that this case falls into neither of these categories.

In all federal criminal trials involving serious offenses, defendants are entitled, under the Sixth Amendment, to be advised of their right to an attorney and to have one appointed for them if they are financially in need. Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Walker v. Johnston, 1941, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Von Moltke v. Gillies, 1948, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309. In state criminal trials, however, the Supreme Court has not formally abandoned the distinction, first made in Betts v. Brady, 1942, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, between capital and non-capital offenses. If the offense is capital, the lack of counsel, unless the right is intelligently waived, is held to be a violation of due process of law under the Fourteenth Amendment to the Federal Constitution, voiding the conviction and sentence. Powell v. State of Alabama, 1932, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Williams v. Kaiser, 1945, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; Tomkins v. State of Missouri, 1945, 323 U.S. 485, 65 S.Ct. 370, 89 L.Ed. 407; Hawk v. Olson, 1945, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61; Reece v. State of Georgia, 1955, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77. In non-capital state cases, on the other hand, the state's failure to afford a defendant the assistance of counsel is said to violate due process only "when there are special circumstances showing that without a lawyer a defendant could not have an adequate and fair defense." Palmer v. Ashe, 1951, 342 U.S. 134, 135, 72 S.Ct. 191, 192, 96 L.Ed. 154. See also: Betts v. Brady, supra; Harvey v. Smyth, 4 Cir., 1958, 255 F.2d 21; Morrison v. Smyth, 4 Cir., 1960, 273 F.2d 544.5

A review of the non-capital state cases raising the question of lack of counsel convinces us that in the instant case such special circumstances were present as to render Holly's trial in 1942, if without counsel, void under the Fourteenth Amendment. The Supreme Court cases where special circumstances were found not to exist have not involved youthful defendants, without previous experience in criminal cases, and faced with complex legal issues. In Betts v. Brady, 1942, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, the defendant was a mature man 43 years of age, of normal intelligence, and with previous experience in criminal trials. The issue at that trial was characterized as the rather simple one of the defendant's alibi. In Foster v. People of State of Illinois, 1947, 332 U.S. 134, 138, 67 S.Ct. 1716, 1718, 91 L.Ed. 1955, the petitioner, 34 years old when sentenced in the state court upon a plea of guilty to a charge of burglary, alleged no facts indicating special circumstances. He only made, to use the Court's language, "the bald claim that, merely because the record does not disclose an offer of counsel to a defendant upon a plea of guilty, although the...

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