Bearden v. State of South Carolina

• Decision Date: 10 June 1971
• Docket Number: No. 14079,14197.,14079
• Citation: 443 F.2d 1090
• Parties: James G. BEARDEN, Appellant, v. STATE OF SOUTH CAROLINA and Mr. William D. Leeke, Director, Department of Corrections, et al., Appellees. Cuthbert McInnies MIDGETT, #57853, Appellant, v. J. D. COX, Superintendent, Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

443 F.2d 1090 (1971)

James G. BEARDEN, Appellant, v. STATE OF SOUTH CAROLINA and Mr. William D. Leeke, Director, Department of Corrections, et al., Appellees.

Cuthbert McInnies MIDGETT, #57853, Appellant, v. J. D. COX, Superintendent, Virginia State Penitentiary, Appellee.

Nos. 14079, 14197.

United States Court of Appeals, Fourth Circuit.

June 10, 1971.

William T. Toal, Greenville, S. C. (court-assigned counsel), for appellants.

W. Luke Witt, Asst. Atty. Gen. of Va. (Andrew P. Miller, Atty. Gen. of Va., on brief), for appellee in No. 14197.

Emmett H. Clair, Asst. Atty. Gen. of S. C. (Daniel R. McLeod, Atty. Gen., and John P. Wilson, Asst. Atty. Gen., of S. C., on brief), for appellee in No. 14079.

Before HAYNSWORTH, Chief Judge, and SOBELOFF, BOREMAN, BRYAN, WINTER, CRAVEN and BUTZNER, Circuit Judges.

CRAVEN, Circuit Judge:

These cases present important questions:

(1) Whether the Sixth Amendment and the due process clause of the Fourteenth Amendment require the states to appoint counsel for indigents faced with possible revocation of parole.

(2) Whether the due process clause of the Fourteenth Amendment requires that the states grant to a parolee faced with possible revocation reasonable notice of his alleged default and opportunity to rebut the same including opportunity to be heard pro se and to present voluntary witnesses in his own behalf.

We answer the first question with a qualified "no" and the second one "yes".

I.

Midgett's case presents the first of the questions previously framed. On November 15, 1949, Midgett was convicted of rape and sentenced to a term of 30 years in the Virginia State Penitentiary. Nearly ten years later he was paroled and remained free under supervision for nearly seven years, until on March 23, 1966, his parole status was revoked and he was returned to custody. At the time of revocation Midgett was not represented by counsel and none was proffered him. Implicit in the state's brief is the concession that if demand had been made for free counsel it would have been denied. Midgett does not urge upon us that the reason for revocation was inadequate or unlawful or that the parole authority proceeded arbitrarily and capriciously, but, instead, limits his appeal to the first question — whether an indigent has a constitutional right to have counsel furnished by the state when faced with possible revocation of parole.

The answer is to be found in the penumbra of Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). On its face, Mempa is a narrow decision limited to "the question of the extent of the right to counsel at the time of sentencing where the sentencing has been deferred subject to probation." 389 U.S. at 130, 88 S.Ct. at 254.

In his opinion for the Court, Mr. Justice Marshall reviewed the evolution of the right to counsel in a criminal trial from Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) (during sentencing), to Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957) (hearing after guilty plea on the degree of the crime), to Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961) (arraignment), and concluded that after Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the decided cases clearly stand for the proposition "that appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected." 389 U.S. at 134, 88 S.Ct. at 257. The Court then equated "revocation of probation" with "deferred sentencing" and held that the Constitution required the assistance of counsel at "the deferred sentencing stage of the proceeding." 389 U.S. at 137, 88 S.Ct. at 258.

Undergirding the unanimous opinion are these expressed reasons for it:

(1) An assumption that counsel appointed for the purpose of trial or guilty plea would not be unduly burdened by following through at the deferred sentencing stage of the proceeding.

(2) Certain legal rights may be lost if not exercised at the time of deferred sentencing, e. g., the right of appeal and the right to withdraw a plea of guilty prior to sentencing.

In determining whether to extend the right of counsel from the deferred sentencing procedure of the original criminal trial to a revocation of parole after every stage of the trial has been completed, we think these expressed reasons advanced by the Court ought to be evaluated in the new context.

It should not lightly be assumed, we think, that counsel appointed to represent an indigent defendant at a criminal trial will not be "unduly burdened" to forever after represent him at any parole revocation hearing that may occur — in Midgett's case nearly seventeen years after the trial. There are differences of time, place, compensation and subject matter. A deferred sentencing procedure may occur soon or late after the trial,¹ but a parole revocation hearing is always late, for it cannot, of course, precede the service of at least a part of the sentence — usually one-fourth or one-third as a minimum. The venue of a deferred sentencing procedure presumably would be that of the original trial, quite probably the home town and place of business of the lawyer involved. The revocation of parole hearing would not likely be at the place of trial, but is more probably to be laid at the penitentiary or central office of the Board of Paroles. If the state should provide compensation for lawyers who defend indigents in the criminal courts, presumably it would embrace the whole criminal trial including a deferred sentencing procedure. It is not so clear that it would embrace representation before the executive branch of government in a proceeding wholly removed from the judicial process. If it is not an undue burden on a lawyer to be asked to return for a deferred sentencing procedure, it may be in part because that procedure is related to the original criminal trial and is part of it. Conduct that may have triggered the motion of the prosecutor for imposition of sentence is only one aspect of the many factors that enter into the sentencing procedure. In a sentencing procedure the whole criminal trial and all of its manifestations are the subject of discussion in an attempt to determine upon just punishment. Presumably the original trial lawyer will remember the evidence at trial sufficiently to help his representation at sentencing. The issue at parole revocation is quite different. It is no longer important what occurred at the trial, but only what has occurred thereafter with respect to rehabilitation.

If it should ever be decided that every parolee must have free counsel furnished by the state, it seems to us that the burden should not be thrust wholly upon original trial counsel, who is scarcely better able to function than would new counsel and is likely to be far removed from the venue of the parole revocation hearing. Moreover, we doubt the inherent power of the courts to compel counsel as officers of the judicial branch to perform services without compensation in the executive branch of government. So far as we know, neither South Carolina nor Virginia, nor any of the other states within this circuit, have legislatively authorized the payment of lawyers to represent parolees faced with the possibility of revocation. Thus if the Constitution compels representation by counsel, it will compel lawyers to work in non-judicial business without compensation, at least until such time, if ever, as the legislatures of the several states may appropriate voluntarily or under court order monies for such a purpose.

We hold that the Sixth Amendment and the due process clause of the Fourteenth Amendment do not require the states in every case to afford counsel to indigent parolees. In so holding, we adhere to our former decisions, Boddie v. Weakley, 356 F.2d 242 (4th Cir. 1966); Gaskins v. Kennedy, 350 F.2d 311 (4th Cir. 1962), and are in accord with the Third, Ninth and Tenth Circuits, Washington v. Hagen, 287 F.2d 332 (3rd Cir. 1960); Williams v. Dunbar, 377 F.2d 505 (9th Cir. 1967); Williams v. Patterson, 389 F.2d 374 (10th Cir. 1968), and Idaho, Heath v. State, 482 P. 2d 76 (Idaho 1971). Other circuits and state courts have indicated that they would reach a like result, even going so far as to deny or narrowly restrict the right to any hearing of any sort, see Morrissey v. Brewer, 443 F.2d 942 (8th Cir. 1971); Rose v. Haskins, 388 F.2d 91 (6th Cir. 1968); Curtis v. Bennet, 351 F.2d 931 (8th Cir. 1965); Hiatt v. Compagna, 178 F.2d 42 (5th Cir. 1949); Richardson v. Markley, 339 F.2d 967 (7th Cir. 1965); Baxter v. Commonwealth, 468 N.E.2d 670 (Mass.1971), an extreme solution we reject.

The present Chief Justice when a member of the Court of Appeals for the District of Columbia said in Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1968):

No case has yet held that an interested party in an administrative or regulatory proceeding is entitled to be furnished with counsel if he cannot afford one of his own choice. We hold due process does not require that indigent parolees be provided with appointed counsel when they appear before the Parole Board in revocation proceedings.

318 F.2d at 238.

In rejecting the contention that the due process clause of the Fifth Amendment required the appointment of counsel for indigent parolees the Chief Justice had this to say:

The Bureau of Prisons and the Parole Board operate from the basic premise that prisoners placed in their custody are to be rehabilitated and restored to useful lives as soon as in the Board\'s judgment that transition can be safely made. This is plainly what Congress intends. Thus there is a genuine identity of interest if not purpose in the prisoner\'s desire to be released and the Board\'s policy to grant release as soon as possible. Here there is not the attitude of adverse, conflicting objectives as between the parolee and the Board inherent between prosecution and

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