Colson v. Joyce

• Decision Date: 29 September 1986
• Docket Number: Civ. No. 86-0118 P.
• Citation: 646 F. Supp. 102
• Parties: James R. COLSON, Petitioner, v. Martin JOYCE, Sheriff of Cumberland County, and Attorney General of the State of Maine, Respondents.
• Court: U.S. District Court — District of Maine

646 F. Supp. 102

James R. COLSON, Petitioner, v. Martin JOYCE, Sheriff of Cumberland County, and Attorney General of the State of Maine, Respondents.

Civ. No. 86-0118 P.

United States District Court, D. Maine.

September 29, 1986.

Stanley F. Greenberg, Portland, Me., for petitioner.

James A. McKenna, Asst. Atty. Gen., Augusta, Me., for respondents.

MEMORANDUM OF DECISION AND ORDER

GENE CARTER, District Judge.

Presently before the Court is the petition for a Writ of Habeas Corpus filed by James R. Colson under 28 U.S.C. § 2254. Petitioner has been on personal recognizance bail since February 10, 1983, following his arrest and imprisonment on February 4, 1983 for default in payment of a fine as authorized by 17-A M.R.S.A. § 1304.¹ Petitioner has exhausted his remedies in the Maine state courts and now seeks relief from this Court.

I.

The essential facts can be briefly stated. On November 17, 1981, Petitioner was arrested for a violation of 29 M.R.S.A. § 2184, Driving while license or registration suspended or revoked. At his arraignment on December 28, 1981 in the Ninth District Court, Division of Southern Cumberland, Docket No. 81-CR-33574, Petitioner pled guilty to this offense. Petitioner concedes that he affirmatively, knowingly, and intelligently waived his right to counsel at this arraignment. Upon accepting Petitioner's plea of guilty, the District Court sentenced him to pay a $350 fine, according to a schedule which he requested. Petitioner concedes that at that time he was capable of paying the fine under the imposed schedule.

Petitioner failed to make any of these prescribed payments, and on May 12, 1982, the District Court authorized, sua sponte, the issuance of a bench warrant, which was issued on May 24, 1982. On February 4, 1983, Petitioner was arrested under this warrant, and on February 8, 1983, he was brought before the District Court, as authorized by 17-A M.R.S.A. § 1304, to show cause why he should not be committed for his failure to pay the $350 fine. Petitioner was not represented by counsel at this section 1304 hearing, nor was he advised that he had a right to be represented by an attorney, or that, if he was indigent, the court would appoint an attorney to represent him. At this hearing, the court ordered Petitioner committed to the Cumberland County Jail for 35 days to serve out his $350 fine at the rate of $10 per day.

Subsequent to being committed to jail, Petitioner filed a Motion for Appointment of Counsel and an Affidavit of Indigency, under 15 M.R.S.A. § 810. Petitioner has pressed his cause through the state courts, culminating in the denial by the Supreme Judicial Court of Maine of his petition for post-conviction review. Colson v. State, 498 A.2d 585 (Me.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1245, 89 L.Ed.2d 354 (1986) (White, J. would have granted certiorari).

II.

Petitioner contends that he was denied due process of law when the court did not inform him at the section 1304 hearing that he had a right to counsel and that, if he was indigent, the court would appoint counsel for him. Petitioner, through appointed counsel, has expressly waived two issues: (1) whether the District Court correctly inquired of his ability to pay the fine when originally imposed, as mandated by 17-A M.R.S.A. § 1302, (1983); and (2) whether his default in payment of the fine was "excusable" within the meaning of section 1304. Thus, Petitioner isolates the narrow question of whether he had a constitutional right to be represented by counsel at the section 1304 hearing at which the court committed Petitioner to jail.

III.

The Court must evaluate Petitioner's claim in light of both the scope of his right to counsel and the nature of the proceedings against him. Since the application of the Sixth Amendment to the states in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), criminal defendants in state courts have had a constitutionally guaranteed right to counsel. The general rule is that "absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial." Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530 (1972). The right attaches "at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected." Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 257, 19 L.Ed.2d 336 (1967). Such stages include the stage at which an accused tenders a plea of guilty, Argersinger, 407 U.S. at 34, 92 S.Ct. at 2011 (dicta); Rice v. Olson, 324 U.S. 786, 788, 65 S.Ct. 989, 990, 89 L.Ed. 1367 (1945), or is sentenced to imprisonment, Mempa, supra. Cf. Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979) (indigent defendant did not have constitutional right to appointed counsel where imprisonment was authorized by statute but not actually imposed). If the right has attached, denial is a per se violation of the Constitution. See United States v. Cronic, 466 U.S. 648, 658-59, 104 S.Ct. 2039, 2046-47, 80 L.Ed.2d 657 (1984). Thus, once it is determined that the Sixth Amendment right has attached, the due process analysis of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) and Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), is inapposite.

Not all proceedings that include the possibility of imprisonment involve the Sixth Amendment right to counsel. One example is probation or parole revocation proceedings. For instance, if imprisonment is conditionally imposed at sentencing, the convicted party does not have a Sixth Amendment right to counsel at a subsequent parole or probation revocation hearing at which he merely loses his conditional liberty. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). In these post-conviction proceedings, the right to counsel is a due process right. Consequently, an evaluation of "the need for counsel must be made on a case-by-case basis." Scarpelli, 411 U.S. at 790, 93 S.Ct. at 1763. This evaluation requires a balancing of the interests involved: the private interest at stake, the government interest, and the risk that the procedures used will lead to an erroneous decision. See id.; Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. at 903.

Another example is contempt proceedings. Although apparently a matter of first impression in this Circuit,² all Circuit Courts of Appeals that have considered the question have found that there is a right to counsel in civil³ contempt proceedings at which incarceration can be imposed. Walker v. McLain, 768 F.2d 1181, 1184 (10th Cir.1985) (habeas corpus petitioner had due process right to counsel in state contempt proceedings for failure to pay court-ordered support where imprisonment could be imposed only if petitioner were not indigent), cert. denied, ___ U.S. ___, 106 S.Ct. 805, 88 L.Ed.2d 781 (1986); Ridgway v. Baker, 720 F.2d 1409, 1415 (5th Cir.1983) (same holding); United States v. Anderson, 553 F.2d 1154 (8th Cir.1977) (witness facing contempt charges for failure to produce records had due process right to counsel); In re Di Bella, 518 F.2d 955, 959 (2d Cir.1975) (witness facing contempt charges for failure to answer grand jury questions had right to counsel, but exclusion of counsel from part of the proceeding was harmless error); In re Kilgo, 484 F.2d 1215 (4th Cir.1973) (recognizing, in dicta, the right to counsel in contempt proceedings); United States v. Sun Kung Kang, 468 F.2d 1368, 1369 (9th Cir.1972) (same); see also Lassiter v. Department of Social Services, 452 U.S. 18, 26-27, 101 S.Ct. 2153, 2159-2160, 68 L.Ed.2d 640 (1981) (recognizing, in dicta, "the presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty"). Because the right to counsel is not absolute in these situations, the due process balancing test of Mathews v. Eldridge is again applicable.

Relying on the reasoning of Morrissey and Scarpelli, Respondent argues that a section 1304 proceeding is a post-conviction proceeding to which no Sixth Amendment right to counsel attaches. In addition, Respondent argues that Petitioner did not have a due process right to counsel at his section 1304 hearing because the hearing was not so complex or adversarial that the assistance of counsel would have lessened the risk of an erroneous decision. The Court, therefore, turns to an analysis of Petitioner's section 1304 proceeding.

IV.

Both the Maine Legislature and the Maine Law Court have characterized section 1304 hearings as "post-sentencing proceedings." State v. Colson, 472 A.2d 1381, 1382 (Me.1984) (citing the definition of post-sentencing proceedings in 15 M.R.S.A. § 2121(2) (Supp.1985), which expressly refers to section 1304). Nevertheless, the Law Court has declined to characterize section 1304 as imposing either a conditional sentence of imprisonment at the time a convicted person is sentenced to pay a fine, Colson v. State, 498 A.2d 585, 588 (Me. 1985) ("Although the sentence did not include imprisonment, the imposition of a fine exposed Colson to incarceration pursuant to section 1304 for unexcused default in payment."), or a sentence of imprisonment in the nature of a civil contempt sentence. See id. at 590 (Nichols, J., dissenting). This absence of a precise characterization of section 1304 creates a lacuna in the sentencing process that is inconsistent with the rationale of Morrissey and Scarpelli.

In both Morrissey and Scarpelli, the defendants had been convicted of crimes and sentenced to terms of imprisonment. In Scarpelli, the Court specifically stressed the significance of the defendant's underlying sentence of imprisonment when the Court distinguished the case from Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254...