Arbo v. Hegstrom
Decision Date | 17 June 1966 |
Docket Number | Civ. No. 11340. |
Citation | 261 F. Supp. 397 |
Court | U.S. District Court — District of Connecticut |
Parties | Norman ARBO v. Harold E. HEGSTROM, Connecticut State Jail Administrator. |
William D. Graham, Hartford, Conn., for petitioner.
Arnold Markle, Chief Prosecuting Atty., Circuit Court, New Haven, Conn., Edward R. Smoragiewicz, Daniel E. Lynch, Hartford, Conn., for defendant.
This is a petition for a writ of habeas corpus filed on March 23, 1966. Petitioner was arrested on January 17, 1966, on a charge of non-support in violation of § 53-304 Conn.Gen.Stats. (Supp.1964), and on the next day, unrepresented by counsel and unable to pay for one, he entered a plea of guilty and was sentenced to a term of one year in jail, the maximum penalty provided for under the statute. The central issue presented to this court for consideration is whether the state has an obligation to appoint counsel to represent an indigent accused of this particular non-felony offense.
This petition is properly brought in a United States District Court, state remedies having been exhausted in accordance with 28 U.S.C. § 2254. Arbo did not appeal from his conviction. However, he made a prompt application to the Superior Court for a writ of habeas corpus dated March 10, 1966. This application was rejected by the clerk of the Superior Court and Supreme Court of Errors because it was not accompanied by the necessary $22 filing fee. § 52-259 Conn.Gen.Stats. The clerk indicated that the fee is waived for indigent prisoners only when they are in state prison,1 as distinguished from incarceration in the Hartford State Jail, the place of confinement for those sentenced to one year or less. § 54-120 Conn.Gen.Stats. Petitioner's avenues of review at the state level are effectively cut-off. United States ex rel. Rhyce v. Cummings, 233 F.2d 190 (2d Cir.), cert. denied, 352 U.S. 854, 77 S.Ct. 78, 1 L.Ed.2d 64 (1956). Id. at 192.
At the time this petition was filed, the petitioner was serving out his sentence in the state jail. During the hearing, the court suggested that he be admitted to bail pending the hearing and decision on whether a writ should issue. Counsel have orally informed the court that the petitioner has been admitted to bail. But that does not deprive this court of jurisdiction on the ground that the case has become moot. Reis v. United States Marshal, 192 F.Supp. 79, 83 (E.D.Pa. 1961). The order of commitment has not been set aside or modified. He is still subject to bail limits and "he might be thrown back in jail to finish serving the allegedly invalid sentence * * *." Jones v. Cunningham, 371 U.S. 236, 242, 83 S.Ct. 373, 377, 9 L.Ed. 2d 285 (1963). Whether Connecticut's law permits admission of a person serving a sentence to bail has not been decided, § 54-53 Conn.Gen.Stats., but his application for bail having been granted, the petitioner is subject to imprisonment for three years if he willfully fails to appear when legally called according to § 53-154 Conn.Gen.Stats.
At the evidentiary hearing on this matter, the following background facts were elicited. For five or six days prior to his arrest on January 17th, Arbo was working at Jack Moore's, a local car wash business. Although the salary was $1.25 an hour and he was able to work full time except when adverse weather conditions dampened customer demand, Arbo had not been there long enough to accumulate any funds and certainly could not afford to hire private counsel. He had held only occasional part-time jobs before. On the day following the arrest and after a night in jail, petitioner was advised, as one of a group of about forty, by the assistant clerk of the Circuit Court # 14, of his right to a continuance to obtain counsel. However, and this is conceded, Arbo was never told that the state would appoint counsel for him, nor was counsel ever appointed although it was within the discretion of the trial judge to designate the public defender as a representative. § 54-81a Conn.Gen.Stats. At sentencing, after a plea of guilty, the trial judge ignored the defendant's request for "a break" and followed the recommendation of Mr. Patti of the Family Relations Division in imposing the one year maximum.
Certainly the petitioner cannot be said to have waived his right to counsel by the guilty plea. United States ex rel. Durocher v. LaVallee, 330 F.2d 303 (2d Cir.), cert. denied, 377 U.S. 998, 84 S.Ct. 1921, 12 L.Ed.2d 1048 (1964). Nor does his failure to make a request for counsel constitute a waiver of his right, if such a right exists. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). Unless he had reason to know that counsel would be provided or had the imagination to make this request without so knowing, an indigent accused is not in a position to take advantage of an allowance of time to obtain assistance. Arbo's silence on the matter reflects no more than his ignorance of his rights. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
Getting now to the ultimate question, I hold that, under the totality of circumstances presented here, the state had an absolute obligation to appoint counsel to aid the accused, Norman Arbo, in the preparation of his defense.
Any discussion of the right to counsel must of necessity commence with Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). That case held that the due process clause of the fourteenth amendment required that indigent state defendants in non-capital cases be given counsel. Gideon was convicted of breaking and entering a poolroom with the intent to commit a misdemeanor, a felony under Florida law. His persistent requests for a lawyer were denied, there being no precedent for such action in Florida law. The Supreme Court, Mr. Justice Black writing, responded that:
"Reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth * * * From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. (372 U.S. at 344, 83 S.Ct. at 796) (emphasis added).
The underlined language emphasizes the fact that the majority of the Court was thinking in terms of a pervasive rule to cover all criminal cases. There is nothing explicit in their opinions to indicate a limitation to felony cases, and, in fact, the word "felony" does not appear even once in any of the four opinions except to describe the offense under which Gideon was prosecuted. The only significant limitation on the holding is suggested in the concurrence by Mr. Justice Harlan: ...
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