Advisory Opinion to the Governor

• Decision Date: 10 November 1995
• Docket Number: No. 95-265-M,95-265-M
• Citation: 666 A.2d 813
• Parties: In re ADVISORY OPINION to the GOVERNOR (Appointed Counsel). P.
• Court: Rhode Island Supreme Court

Page 813

666 A.2d 813

In re ADVISORY OPINION to the GOVERNOR (Appointed Counsel).

No. 95-265-M.P.

Supreme Court of Rhode Island.

Nov. 10, 1995.

Joseph S. Larisa, Harris Weiner, Governor, Thomas Dickinson, Aaron Weisman, Attorney General, for the Governor.

R. Kelly Sheridan, Linda Buffardi, Bar Association, John Dineen, ACLU, Barbara Hurst, Paula Rosin, Catherine Gibran, Public Defender, Mary J. Ciresi, Andrew Horwitz, Assoc. of Criminal Defense, for Amicus Curiae.

To His Excellency Lincoln Almond, Governor of the State of Rhode Island and Providence Plantations:

We have received from Your Excellency a request seeking the advice of the justices of this Court in accordance with article X, section 3, of the Rhode Island Constitution on the following question of law:

"In view of the historical development of the law relating to the right of appointed counsel under the federal and state constitutions, and the more recent developments in federal case law, is the State of Rhode Island required by the Rhode Island Constitution to provide free counsel to indigents notwithstanding that the trial justice determines that no incarceration will be imposed?"

In response, we issued an order inviting briefs from various specified parties and all other interested parties. We have received and gratefully acknowledge briefs filed as amici curiae from the Attorney General, the District Court of Rhode Island, the Office of the Public Defender, the National Legal Aid and Defender Association, the Rhode Island Association of Criminal Defense Lawyers, the Rhode Island Bar Association, and the American Civil Liberties Union, Rhode Island Affiliate.

Appropriateness of Request

Article X, section 3, of the Rhode Island Constitution provides that "[t]he judges of the supreme court shall give their written opinion upon any question of law whenever requested by the governor or by either house of the general assembly." This Court has concluded previously that the provision is mandatory in respect to inquiries that fall within the purview of this constitutional provision. In re Advisory Opinion to the Governor, 483 A.2d 1078, 1079 (R.I.1984). Nevertheless, this Court will generally refrain from advising the Governor on issues that do not have "a bearing upon a present constitutional duty presently awaiting performance by the Governor." Advisory Opinion to the Governor, 110 R.I. 1, 5, 289 A.2d 430, 433 (1972).

As a threshold matter, we address whether the question of law propounded by you presents to us an appropriate subject for an advisory opinion. Your Excellency avers that your obligation to prepare and present a budget to the General Assembly, pursuant to article IX, section 15, of the Rhode Island Constitution, represents a constitutional duty awaiting your performance and argues that, therefore, your request is an appropriate one. We are of the opinion that Your Excellency has presented legitimate concerns that impede your ability to prepare a budget absent clarification of the requirements imposed by article I, section 10. We note on a related matter that on June 27, 1994, the Chief Justice of this Supreme Court entered an executive order prohibiting appointment of counsel to assist indigent litigants "save where constitutionally required." The order was entered in an effort to control expenditures for appointed counsel, which outlay had exceeded appropriations by more than $300,000 in each of the prior two fiscal years.

Although we are responding to your request for advice in this instance, we would not consider that every issue affecting the state budgetary duties of the Governor or of the General Assembly would be a proper subject for such an opinion. See, e.g., In re Advisory Opinion to the Governor, 483 A.2d at 1079. ¹ Rather, we have concluded that the question before us clearly affects an issue of constitutional proportions in respect to the rights of defendants charged with criminal offenses.

United States Supreme Court Treatment of the Right to Counsel Clause of the Sixth Amendment to the United States Constitution

The Sixth Amendment to the United States Constitution mandates that "[i]n all criminal prosecutions, the accused shall enjoy the right * * * to have the assistance of counsel for his defense." In 1963, the United States Supreme Court made this requirement applicable to the states via the Fourteenth Amendment in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

The Gideon decision, however, did not reveal the contours of the right to counsel inasmuch as that holding was limited to facts that involved a felony conviction. The issue of the right to counsel was revisited in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), in which the Supreme Court was asked to rule on whether indigent defendants facing misdemeanor charges are entitled to appointed counsel. The Argersinger Court concluded that the rationale of the Gideon decision "has relevance to any criminal trial, where an accused is deprived of his liberty." Id. at 32, 92 S.Ct. at 2010, 32 L.Ed.2d at 536. Argersinger went on to hold that any criminal prosecution resulting in the actual deprivation of an indigent defendant's liberty must be accompanied by the appointment of counsel for that defendant. Id. at 40, 92 S.Ct. at 2014, 32 L.Ed.2d at 540.

Although Argersinger did not specifically address the question of whether counsel must be appointed when no imprisonment will result, the Supreme Court did reach this issue seven years later, in Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). Scott, an indigent defendant, was convicted of shoplifting and fined $50 after a trial in which he was not assisted by appointed counsel. In an opinion by Justice Rehnquist, the Court held that the right to appointed counsel under the Sixth and Fourteenth Amendments of the United States Constitution requires "only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense." Id. at 374, 99 S.Ct. at 1162, 59 L.Ed.2d at 389.

The Supreme Court reaffirmed the holdings of Scott and Argersinger in Nichols v United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994), and held that prior uncounseled misdemeanor convictions that did not themselves result in imprisonment could serve to enhance sentencing for subsequent offenses, even in the event that a subsequent sentence would include imprisonment. Id. at ---- - ----, 114 S.Ct. at 1927-28, 128 L.Ed.2d at 755. In so holding, the Supreme Court expressly adhered to its holding in Scott. Id. at ----, 114 S.Ct. at 1928, 128 L.Ed.2d at 755.

Rhode Island Decisions Regarding Right to Appointed Counsel

The Rhode Island constitutional analogue to the Sixth Amendment guarantee of the right to counsel is found in article I, section 10, of the Rhode Island Constitution. This section protects a defendant's right to assistance of counsel in terms almost identical to those of its federal counterpart: "In all criminal prosecutions, accused persons shall * * * have the assistance of counsel in their defense." In 1971, prior to the Supreme Court's rulings in Argersinger and Scott, this provision was interpreted in State v. Holliday, 109 R.I. 93, 280 A.2d 333 (1971). In Holliday, this Court prefaced its conclusions by noting that there had been no precise guidance from the United States Supreme Court on whether the United States Constitution requires that defendants charged with misdemeanors be provided with counsel. Id. at 97, 280 A.2d at 335. In the absence of such guidance, we construed article I, section 10, broadly to require appointment of counsel for indigent defendants charged with misdemeanors that carry a potential prison sentence in excess of six months, even if no imprisonment is actually imposed. Id. at 98-99, 280 A.2d at 336-37.

We have not been asked, until now, to reexamine our holding in Holliday since the United States Supreme Court rendered its decision in Scott. On two occasions, this Court has uncritically followed its holding in Holliday, namely, in State v. Moretti, 521 A.2d 1003 (R.I.1987), and in State v. Medeiros, 535 A.2d 766 (R.I.1987). In Moretti, the defendant had been convicted of arson after the admission of evidence of several previous misdemeanor convictions that was used to impeach Moretti. On appeal, Moretti challenged the admission of the prior convictions, arguing that he had not been assisted by counsel when these convictions occurred. 521 A.2d at 1009. We acknowledged our holding in Holliday, but nevertheless decided the issue in favor of the state because there had been no "positive representation" by Moretti that he had been unlawfully denied counsel. Id. at 1010-11.

We had no occasion in Moretti to rule on the validity of Holliday in light of Argersinger and Scott, nor did we in Medeiros, where we were again asked to reverse a conviction on the basis of the trial justice's admission of prior uncounseled misdemeanor convictions to impeach the defendant's credibility. We determined that Holliday would not work to invalidate Medeiros's conviction because any error on the trial justice's part in admitting the convictions was harmless. Medeiros, 535 A.2d at 769.

In Holliday this Court had no means of ascertaining the direction that the Supreme Court would take, and it is clear that our prognostication in Holliday was inaccurate. Holliday did not anticipate that the Supreme Court's test would be incarceration rather than potential punishment. Indeed, Holliday did not meet the requirement of counsel in cases of incarceration, however brief that confinement would have been, that was set forth in Argersinger and Scott.

Should This Court Read the Rhode Island Constitution's Right-to-Counsel Provision More Broadly than the Supreme Court Has Read the Sixth Amendment?

Although certain amici have argued that the...