Cableton v. State

• Decision Date: 30 October 1967
• Docket Number: No. 5302,5302
• Parties: Robert CABLETON, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 534

420 S.W.2d 534

243 Ark. 351

Robert CABLETON, Appellant, v. STATE of Arkansas, Appellee.

No. 5302.

Supreme Court of Arkansas.

Oct. 30, 1967.

Rehearing Denied Dec. 4, 1967.

John W. Walker, Little Rock, for appellant.

Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

This appeal is taken from the action of the trial court affirming judgments of the Mayor's Court of the City of Gould in two cases and the Justice of the Peace Court of Gould Township in Lincoln County in three cases. All charges were misdemeanors. The first conviction was had in the Mayor's Court on December 18, 1965 upon a charge of disturbing the peace and obstructing justice. In that case a fine of $100.00 and costs of $10.50 were assessed against appellant. All of the remaining convictions were on October 4, 1966 with total fines imposed amounting to $421.50. The costs assessed totaled $43.00. Jail sentences were for a total of nine months. The charges were public drunkenness, resisting arrest, assaulting an officer and disturbing the peace. Timely appeals were taken. Judgments affirming were entered in the Lincoln Circuit Court on the 13th day of February 1967. Each recites that affirmance of the original judgment was entered when appellant failed to appear after having been called three times at the bar of the court by the sheriff. Motions to vacate these judgments and for new trial were timely filed, heard and denied.

Appellant seeks reversal on the basis that in the Mayor's and Justice of the Peace Courts he was not advised of his right to counsel and that no offer was made to appoint counsel if he were unable to afford his own lawyer. The gist of appellant's argument appears to be that the failure to appoint counsel for an indigent charged with a misdemeanor on which a jail sentence may be imposed is a violation of his rights under the Sixth and Fourteenth Amendments to the Constitution of the United States. The records in the original trial courts are silent on the subjects of indigency, advice as to right to counsel and request for representation by an attorney. The cases heard there in October were continued from September 15, 1966, however, at the request of appellant. On the margin of the docket sheet in the case heard December 18, 1965 the names of John Walker and Deactor (Delector) Tiller are listed as attorneys for appellant. No statement as to their appearance or nonappearance is recited in the judgment.

Appellant's contention is based largely on the holding in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. This court has held that failure to appoint counsel under similar circumstances did not violate the constitutional rights of one charged with a misdemeanor. Winters v. Beck, 239 Ark. 1151, 397 S.W.2d 364, cert. denied 385 U.S. 907, 87 S.Ct. 207, 17 L.Ed.2d 137. It was pointed out in that opinion that the Wainwright case dealt with a felony charge where the defendant had been sentenced to five years in the penitentiary. Appellant urges, however, that the felony-misdemeanor distinction is illogical and should be abandoned, relying on cases from other jurisdictions, at least two of which (McDonald v. Moore, 353 F.2d 106 (5th Cir.) and Harvey v. State of Mississippi, 340 F.2d 263 (5th Cir.)) were decided before the Supreme Court denied certiorari in Winters v. Beck and were obviously considered by that court as they are cited in the dissenting opinion of Mr. Justice Stewart. Not only was the Supreme Court fully aware of the decision of the Fifth Circuit in the McDonald case, but the Circuit Court, even while rejecting the 'felony-misdemeanor' rule, the 'serious offense' rule ¹ and the 'peculiar, particular or special circumstances' ² rule and refusing to adopt a 'petty offense' rule, recognized that the Wainwright case did not require the appointment of counsel in all cases, for it said:

'* * * 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. Still less likely is it that a person given a ticket for a traffic violation would have the right to counsel at the expense of the state. If the Constitution requires that counsel be provided in such cases it would seem that in many urban areas there would be a requirement for more lawyers than could be made available. Even with the assistance of law students, whose services may be requested under some of the Criminal Justice plans, the demand might come near exceeding the supply.'

It should be noted that the Harvey case is relied on as precedent in the McDonald case.

In considering Gideon v. Wainwright, there are factors to be weighed other than the fact pointed out in the Winters case that it involved a felony conviction. That decision did not declare that the Fourteenth Amendment made the guarantees of the Sixth obligatory, as such, upon the states. Its rationale was that those pledges and guarantees contained in the Bill of Rights of the Federal Constitution, which are implicit in the concept of ordered liberty, are fundamental principles of liberty and justice which are the bases of our political and civil institutions and are fundamental and essential to a fair trial, are made obligatory upon the states by the Fourteenth Amendment. In arriving at its conclusion, the court relied upon Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527, as well as Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (the result of which it overruled) and Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed L.Ed. 288, (in which the double jeopardy provision on the Fifth Amendment was held not to be obligatory upon the states). Thus, the statement with reference to right to counsel '(i)n all criminal prosecutions' is not obligatory upon the states, having never been considered fundamental to a fair trial or basic concepts of liberty and justice in any cases other than felonies. The United States Supreme Court has long recognized that a valid distinction can be made between serious and petty offenses in application of Sixth Amendment guarantees. District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843.

Appellant also relies on cases such as People v. Witenski, 15 N.Y.2d 392, 259 N.Y.S.2d 413, 207 N.E.2d 358. This decision was by a court divided four to three. It can be distinguished. In New York there was a statute (Code of Criminal Procedure, § 699) requiring a magistrate to immediately inform a defendant of his right to aid of counsel at every stage of the proceedings and before any further proceeding is had. The court said that it had previously decided there was so little real difference in that statute and Code of Criminal Procedure, § 308, requiring that when a defendant appears upon arraignment on indictment, he must be asked if he desires the aid of counsel and that the court must assign counsel if he does. Of course, our statutes only require the appointment of counsel in felony cases. Ark.Stat.Ann. § 43--1203 (Repl.1964). Subsequently, the New York Court of Appeals recognized that the Wainwright case did not extend the right to assigned counsel to all crimes, in an opinion holding that these constitutional requirements were not applicable where a defendant was charged with a traffic law violation. People v. Letterio, 16 N.Y.2d 307, 266 N.Y.S.2d 368, 213 N.E.2d 670.

Another case cited by appellant is People v. Mallory, 378 Mich. 538, 147 N.W.2d 66. An examination of that decision leads to the conclusion that it is based upon peculiar language of the Michingan Constitution, the rule making power of that court, and statutes of that state. The opinion recognizes that the decisions of the United States Supreme Court may not be controlling of the question of right to counsel in misdemeanor cases.

We choose not to anticipate that the Supreme Court of the United States will extend the rule of the Wainwright case to misdemeanor cases. We rather choose to hold that the public policy of this state on the right to appointed counsel is expressed in our statutory law. While the statute requiring appointment of counsel in felony cases was adopted long before the decision in Gideon v. Wainwright, supra, we take judicial notice that the General Assembly of our state has met in regular session twice subsequently. We cannot assume that, in failing to extend our law to require appointment of counsel in cases other than felonies, they were ignorant of that decision. Any change in the law of Arkansas, after certiorari was denied in the Winters case, should either come through legislative enactment or by an express decision of the United States Supreme Court.

Our decision in the Winters case does not stand alone. It has been followed or cited with approval in other jurisdictions. See, e.g., City of Toledo v. Frazier, 10 Ohio App.2d 51, 226 N.E.2d 777; State v. Sherron, 268 N.C. 694, 151 S.E.2d 599; City of New Orleans v. Cook, 249 La. 820, 191 So.2d 634.

In Florida, the arena in which at least five of the 'constitutional right to counsel' cases have been originally contested, the Supreme Court has also held that the Wainwright case did not apply to misdemeanors. They based their holding that an indigent defendant accused of a misdemeanor was not entitled to appointed counsel on the action of their legislature providing for a public defender for indigents in non-capital felony cases. This, they said, constituted a declaration of the state's public policy. Fish v. State, 159 So.2d 866 (Fla); Watkins v. Morris, 179 So.2d 348 (Fla.). The Ohio court has also found a declaration of public policy in its statutes. City of Toledo v. Frazier, supra. It is suggested by the Supreme Court of North Carolina that the United States Supreme Court has not put a responsibility upon a state in this field any greater than that...