Application of Wright

• Decision Date: 03 September 1971
• Docket Number: No. 10925,10925
• Citation: 189 N.W.2d 447,85 S.D. 669
• Parties: Application of William WRIGHT for Writ of Habeas Corpus.
• Court: South Dakota Supreme Court

Page 447

189 N.W.2d 447

85 S.D. 669

Application of William WRIGHT for Writ of Habeas Corpus.

No. 10925.

Supreme Court of South Dakota.

Sept. 3, 1971.

William J. Janklow and Richard Smith, Rosebud, for appellant.

RENTTO, Presiding Judge.

The issue raised by this habeas corpus proceeding is whether an indigent is entitled to appointment of counsel at public expense when charged in a police magistrate's court with the violation of a town ordinance proscribing public intoxication. We hold he is not.

While the jailer having the applicant in custody produced him at the hearing on the writ, he did not make a return to it nor did he appear either in person or by counsel. The testimony of the applicant was the only evidence submitted. He was represented by counsel from the Legal Services office at Rosebud, South Dakota. After the hearing the trial court entered the following findings and conclusions:

'1. The applicant was arrested in the Town of Wood for violating an Ordinance of the Town of Wood making it unlawful 'to become drunk or intoxicated.' The applicant was arrested on the 27th day of October, 1969, and taken to the jail at White River, South Dakota.

2. On the 28th day of Octobr, 1969, the applicant appeared before the Police Magistrate Howard Piper, the magistrate for the Town of Wood, at the White River jail.

3. At that hearing the magistrate informed the applicant that he had a right to be represented by counsel and offered an extension so that the applicant could retain an attorney.

4. At that time the applicant informed the court that he wished to be represented by counsel but that he could not afford retained counsel. The court said that in that event it could do nothing to aid the applicant and the applicant entered a plea without counsel.

5. The applicant pled guilty and was sentenced to ten days labor on the streets of Wood and sixty days probation, or thirty days imprisonment and a fine of $100. The applicant elected ten days labor on the streets of Wood and sixty days probation. The applicant worked four of the ten days. On the fourth day the Wood Marshal, Emmett Kreuger, informed the applicant that because of heavy snow he could complete the sentence in Spring. Applicant then discontinued his work in the streets of Wood.

6. On the 2nd day of March, 1970, the applicant was arrested in Wood, South Dakota, and brought before Police Magistrate Piper at the local filling station. At this time, Police Magistrate Piper ordered the applicant to begin his sentence of thirty days and a $100 fine for failure to complete the ten days of work in the streets of Wood.

7. At the March 2nd, 1970, hearing applicant was not informed of his right to counsel and the court did not offer to appoint counsel.

8. At the time of this writ the applicant was imprisoned. Applicant's sentence is presently stayed pending appeal.

9. The applicant is an an indigent person and unable to retain counsel.

10. Applicant's plea of guilty to the offense of 'public intoxication' was a result of the applicant's inability to retain counsel and the court's refusal to appoint counsel.

CONCLUSIONS OF LAW

A. The applicant was not denied his Constitutional right to be represented by counsel because there is no Constitutional right to counsel for 'petty offenses' of less than six months imprisonment.

B. The applicant did not waive his right to counsel if such right did in fact exist.'

He appeals from the judgment entered quashing the writ.

On his behalf it is urged that the right to counsel denied him by the magistrate is his by virtue of the Constitution of the United States and the Constitution and statutes of South Dakota. In this court we have had the benefit of his counsel's brief and oral argument but the Town of Wood, whose ordinance he is charged with having violated, made no appearance except to advise us by letter that it could not afford such representation. It is a small town whose population declined from 267 in 1960 to 132 in 1970.

The applicant's claim is bottomed on the Sixth Amendment to the Constitution of the United States. That article provides that:

'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.'

In Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357, the Supreme Court held the amendment to mean that in federal courts counsel must be provided for defendants unable to employ them unless the right is competently and intelligently waived. In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, it held this right to counsel obligatory on the states through the Fourteenth Amendment.

Since Gideon involved an offense that was a felony, obviously the rule is applicable to indigent defendants charged with crimes that are in that category. But the extent to which the rule applies to other offenses is not answered therein. While the majority opinion placed no limitation on the right, Justice Harlan in a concurring opinion remarked that the court in that case was not called on to decide whether the rule should be extended to all criminal cases. In In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, the right was recognized in a delinquency proceeding because that was comparable in seriousness to a felony prosecution.

As observed by Judge Matthes, now Chief Judge of the Eighth Circuit, in Beck v. Winters, 8 Cir., 407 F.2d 125:

'That the reach of Gideon is not altogether clear is evidenced by two dissenting opinions of Justices in denials of certiorari in Winters v. Beck, 385 U.S. 907, 87 S.Ct. 207 (17 L.Ed.2d 137) (1966) and DeJoseph v. Connecticut, 385 U.S. 982, 87 S.Ct. 526, 17 L.Ed.2d 443 (1966). In those opinions the Justices call for the Court to clarify its holding in Gideon.'

The state courts that have had occasion to interpret Gideon in this reference have arrived at a variety of results as to the type of cases to which it applies. Many of these are referred to in State ex rel. Plutshack, Jr. v. State Department of Health and Social Services, 37 Wis.2d 713, 155 N.W.2d 549, 157 N.W.2d 567 and Newell v. Maine, Me., 277 A.2d 731.

The Sixth Amendment which assures to an accused the right to counsel also guarantees to him the right to a jury trial. As to this latter right the Supreme Court has on several occasions held that it extends only to trials for non-petty offenses punishable by more than six months imprisonment. Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629; Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491; Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522; Frank v. United States, 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162. It has not yet said that the right to counsel is similarly limited.

On the basis of these holdings other courts have held that the right to counsel under Gideon extends only to those cases which involve offenses that carry a possible penalty of more than six months in prison. State of Florida ex rel. Argersinger v. Hamlin, Fla., 236 So.2d 442; State of North Carolina v. Green, 277 N.C. 188, 176 S.E.2d 756; State ex rel. Plutshack, Jr. v. State Department of Health and Social Services, supra; State of North Carolina v. Morris, 275 N.C. 50, 165 S.E.2d 245; Newell v. Maine, supra; Wall v. Purdy, D.C., 321 F.Supp. 367. When the penalty is less than this it is termed a petty offense. The Fifth Circuit of the federal court system applies a 90-day rule. Wooley v. Consolidated City of Jacksonville, D.C., 308 F.Supp. 1194.

The petty-offense rule now has Congressional approval. 18 U.S.C.A. 3006A. That provision denies to defendants in federal prosecutions the right to appointed counsel if their offense is petty, which is defined therein as any misdemeanor, the penalty for which does not exceed imprisonment of six months or a fine of not more than $500 or both.

Until the United States Supreme Court decides the issue presented otherwise, we hold that the applicant was not entitled to court-appointed counsel by virtue of the Sixth Amendment to the Constitution of the United States. That provision, in our view, does not extend the right to offenses of this type. In McDonald v. Moore, 5 Cir., 353 F.2d 106, it is written:

'It seems unlikely that a person in a municipal court charged with being drunk and disorderly, would be entitled to the services of an attorney at the expense of the state or the municipality.'

If such offenders are given the right to appointed counsel, to whom can it be rationally denied?

The provision of the South Dakota Constitution on which he relies is Art. VI, § 7. It is substantially like the Sixth Amendment to the United States Constitution and provides:

'In all criminal prosecutions the accused shall have the right to defend in person and by counsel; to demand the nature and cause of the accusation against him; to have a copy thereof; to meet the witnesses against him a face to face; to have compulsory process served for obtaining witnesses in his behalf, and to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.'

Section 6 of the same article expands on the jury trial guaranteed in Section 7. In City of Brookings v. Thomsen, 84 S.D. 651, 176 N.W.2d 46, we had occasion recently to consider whether the right to a jury trial mentioned in Section 7 was available to one charged with the violation of a city ordinance. We held it was not. We there said that neither Section 6 nor 7 of Art. VI applies to violations of municipal ordinances. This is so even though the...