Golden v. Newsome

• Decision Date: 25 March 1985
• Docket Number: No. 83-8858,83-8858
• Citation: 755 F.2d 1478
• Parties: Robert GOLDEN, Jr., Petitioner-Appellant, v. Lanson NEWSOME, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1478

755 F.2d 1478

Robert GOLDEN, Jr., Petitioner-Appellant, v. Lanson NEWSOME, Warden, Respondent-Appellee.

No. 83-8858.

United States Court of Appeals Eleventh Circuit.

March 25, 1985.

Sandra Popson, Macon, Ga. (Court appointed), for petitioner-appellant.

Paula K. Smith, Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before JOHNSON and CLARK, Circuit Judges, and LYNNE ^*, District Judge.

LYNNE, District Judge:

This appeal from the district court's denial of habeas corpus relief presents a novel question of constitutional law: does a criminal defendant who escapes during trial automatically waive his Sixth Amendment right to be represented by counsel at subsequent stages of the criminal proceeding? The court below found that the appellant's escape during trial did amount to an implied waiver of his right to be represented by counsel at sentencing, and therefore refused to vacate a state court sentence handed down with neither appellant nor his counsel present at the sentencing hearing. Because this Court is convinced that appellant did not waive his right to counsel at sentencing merely by virtue of his escape during trial, we now reverse the district court's denial of habeas corpus relief and remand with directions.

FACTS AND PROCEEDINGS BELOW

Appellant Robert Golden, Jr., was tried for felony theft by taking in the Superior Court of Bibb County, Georgia, on May 16 and 17, 1977. His court-appointed attorney was Mr. Thomas Dunn. Appellant Golden was in attendance during the first day of trial, but he escaped custody on the morning of May 17, 1977, voluntarily absenting himself from the remainder of the proceedings. The escape occurred after all of the evidence in his case had been introduced and after the closing arguments of both counsel, but before the trial judge charged the jury. The trial continued without Golden, and the jury (which was then unaware of Golden's escape) ¹ returned a guilty verdict.

On July 19, 1977, the trial court conducted a deferred sentencing hearing and sentenced appellant in absentia to seven years in the penitentiary. ² Apparently neither Mr. Thomas Dunn, appellant's trial attorney, nor any other attorney appeared on appellant's behalf to represent him at the sentencing hearing. ³ It appears that Mr. Dunn was busy closing up his Georgia practice in preparation for a move to Louisiana, and consequently neglected to either attend his client's sentencing hearing or to arrange for the attendance of substitute counsel.

Following appellant's sentencing without benefit of counsel, Mr. Dunn's former associate, Mr. Hubert Hamilton, III, took over the appeal of appellant's case. While the appeal was pending, appellant was apparently captured in Tallahassee, Florida, in December, 1977. Following extradition proceedings, Golden was returned to the custody of Georgia officials on or about February 17, 1978. He made no effort to contact Mr. Hamilton (who was still in the same office he had shared with Mr. Dunn and could still be reached at the same telephone number he had shared with Mr. Dunn) to inform Hamilton of his return to the custody of Georgia officials. On February 27, 1978, the Georgia Court of Appeals, aware of information that Golden may have been recaptured in Florida but unaware Golden had been returned to Georgia correctional authorities, dismissed his appeal on the ground that Georgia courts refuse to entertain appeals of escapees. Golden v. State, 145 Ga.App. 36, 243 S.E.2d 303 (1978). The court noted that there was no indication that Golden was even aware that the appeal was being prosecuted, and refused to construe the "escapee exception" to the right of appeal narrowly so as to allow appeal where the escapee has been returned to the custody of another state.

On June 28, 1978, Golden again escaped custody. He committed further crimes and was later arrested, tried and convicted for shoplifting by distraction and theft by taking in the Superior Court of Sumter County, Georgia. He was subsequently sentenced to further prison terms for these crimes. The sentencing court was informed of appellant's past record, and ordered that the new sentences run consecutive to the Bibb County sentence.

Golden then filed a series of state habeas corpus petitions. Relief was denied. Having exhausted all state court remedies, on June 14, 1983, Golden filed a pro se federal habeas petition in the court below, alleging ineffective assistance of counsel at trial and on appeal in the Bibb County case and denial of the right to counsel and effective assistance of counsel at the Bibb County sentencing hearing. ⁴ On October 17, 1983, the court below entered an order denying habeas corpus relief. The court found that appellant received effective assistance of counsel at trial; that appellant had not received ineffective assistance of counsel on appeal because appellate counsel could not reasonably have known that Golden had been returned to the custody of Georgia officials prior to the dismissal of the appeal; and, most importantly, that appellant had, by escaping, waived his right to be represented by counsel at sentencing. The court below did not separately address Golden's claim that he had been denied effective assistance of counsel at sentencing, apparently because it viewed the right to effective assistance of counsel as derivative from the right to be represented by counsel.

Golden now appeals from the lower court's denial of habeas corpus relief, claiming that the court below erred as a matter of law in holding that a criminal defendant who escapes during trial automatically waives his Sixth Amendment right to counsel and to effective assistance of counsel at sentencing. ⁵

DISCUSSION

The question presented by this appeal is a novel one. It is clear that a defendant who escapes from custody during trial thereby waives his Sixth Amendment rights to be personally present and to confront witnesses both during the remainder of the trial and during sentencing. Thus, escapees may be sentenced in absentia. Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973); Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912). Cf. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Therefore, had Golden's trial attorney or substitute counsel appeared at the sentencing to offer any evidence in mitigation of the sentence, to monitor the veracity of any information upon which the sentence was based, and to present arguments for a lesser sentence, Golden would probably have no legal basis for complaint.

Golden's attorney did not attend the sentencing hearing, however. Nor did Mr. Dunn arrange for the appearance of substitute counsel. As a result, no one was present at the deferred sentencing hearing to represent Golden's interests. The sentence was handed down not only in absentia, but without benefit of counsel. While the Supreme Court has sanctioned sentencing of escapees in absentia, no federal court has previously held that an escapee who has not expressly waived his right to counsel may nevertheless be sentenced in the total absence of counsel. That is the question this panel is called upon to decide. ⁶

This is a troublesome question. There is a temptation to invoke an analogue of the equitable doctrine of "unclean hands" and deny relief on the theory that because Golden chose not to appear himself, he had no right to expect his attorney to attend, either. It seems that the district court essentially gave in to this temptation, reasoning that because the defendant escaped, he waived his right to present mitigating evidence, and also his right to the assistance of counsel, since "there was nothing for counsel to assist." (Record Excerpts at 49-50).

But the analysis is not as simple as that. The Sixth Amendment guarantees criminal defendants several separate and distinct rights. One is the defendant's right to be present at trial and sentencing and to confront witnesses against him. This right is waived, however, if the defendant voluntarily absents himself from the proceedings. Taylor, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174; Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353. Separate from the right to be present and to confront witnesses are the right to be represented by counsel and the related right to effective assistance of counsel. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). These rights are fully applicable at a sentencing hearing, which has been called a "critical stage" of the criminal proceeding. Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1205, 51 L.Ed.2d 393 (1977); Mempa v. Rhay, 389 U.S. 128, 137, 88 S.Ct. 254, 258, 19 L.Ed.2d 336 (1967); Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); United States v. Huff, 512 F.2d 66 (5th Cir.1975). Whereas a defendant's escape is clear and unequivocal evidence that the defendant wishes to forego his right to be present during further proceedings, his escape tells us very little about his intent to forego the right to be represented by counsel and to have effective assistance of counsel. Moreover, a "waiver by escape" theory would be difficult to reconcile with the mandate of Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), which held that a waiver of the constitutional right to be represented and effectively assisted by counsel must be a knowing and intelligent one, and that courts must "indulge every reasonable presumption against waiver."

The appellee concedes that the Johnson v. Zerbst test for waiver of the right to be represented by counsel cannot be met on the facts of this case, since there is no way to determine whether the escapee intended to waive the right to counsel by escaping, and if so, whether the waiver was a...