Cottle v. Wainwright

• Decision Date: 23 April 1973
• Docket Number: No. 72-1673.,72-1673.
• Parties: Ernest Jackson COTTLE, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

477 F.2d 269 (1973)

Ernest Jackson COTTLE, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellant.

No. 72-1673.

United States Court of Appeals, Fifth Circuit.

April 23, 1973.

Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, Fla., for respondent-appellant.

Morton A. Kesler, Jacksonville, Fla., court appointed, for petitioner-appellee.

Before TUTTLE, WISDOM and SIMPSON, Circuit Judges.

TUTTLE, Circuit Judge:

Ernest Jackson Cottle, appellee herein, was convicted of robbery in the Duval County Criminal Court of Record and on September 14, 1956, was sentenced to serve a term of twelve years in the state penitentiary. He was released on parole on November 28, 1961, and thereafter conducted himself in a manner which the Florida Parole Commission found unobjectionable until April 29, 1968 when he was convicted in the Recorder's Court of New Hanover, North Carolina for public drunkenness. The court imposed the maximum penalty of twenty days for a first such offense, but suspended sentence. On June 12, 1968 Cottle was again convicted in the Recorder's Court for the same offense and this time he received a twenty day jail sentence pursuant to a North Carolina statute which provides for as much as six months' imprisonment for a second such offense committed within a year after the first.¹ Insofar as appears from the record, Cottle was not represented by counsel,² nor was he advised of any right to appointed counsel, at either of these North Carolina trials.

On August 2, 1968 the Florida Parole Commission, in view of the North Carolina convictions, conducted a hearing to determine whether Cottle's parole should be revoked. With respect to such hearings the state of Florida has provided by statute that:

"As soon as practicable after the arrest of a person charged with violation of the terms and conditions of his parole, such parolee shall appear before the commission in person, and if he desires he may be represented by counsel, and a hearing shall be had at which the state and the parolee may introduce such evidence as they may deem necessary and pertinent to the charge of parole violation." F.S. § 947.23, F.S.A. (Emphasis supplied).

Although thereby permitted to be represented by counsel, Cottle, who was indigent, appeared before the Commission without the benefit of counsel and testified in his own behalf. He denied having committed the parole violations with which he had been charged.³ The Commission, however, formally revoked his parole, retroactive to July 6, 1968, by order of revocation dated August 6, 1968.⁴

Having exhausted his state remedies, Cottle brought this petition for writ of habeas corpus in the United States District Court for the Middle District of Florida. He alleged, first, that the failure of the state to appoint counsel to represent him at his parole hearing constituted a denial of equal protection, and, second, that parole revocation could not properly be based on the two North Carolina convictions which, he asserted, were procured in violation of his constitutional right to counsel. The district court, 338 F.Supp. 819, upon resolution of the factual issues,⁵ concluded that Cottle's claims were meritorious. The court released Cottle on his own recognizance and ordered that at any subsequent parole revocation hearing Cottle should be afforded the services of counsel and that at such hearing, if any, the judgments of conviction from the North Carolina trials could not be considered by the Parole Commission as evidence (although the underlying facts might be proved by independent evidence). The state of Florida, in behalf of the director of the Florida Division of Corrections, appeals from that judgment. We affirm in part and reverse in part.

We consider first whether the Equal Protection Clause of the Fourteenth Amendment to the Constitution requires that the state of Florida appoint counsel for indigent parolees unable themselves to retain counsel to represent them at parole revocation hearings. This question, of course, arises specifically within the framework of Florida's legislative scheme pertaining to parole revocation, which, among other things, provides that a parolee, if he desires, "may be represented by counsel" at his parole revocation hearing. We are of the view that inasmuch as such assistance is, by statute, available to those who can afford it, it should likewise be available to those who cannot.

In this context we need not undertake to reflect upon the question whether the state of Florida would be obliged, as a matter of due process, to provide for representation by counsel at parole revocation hearings. The Supreme Court has recently had occasion to consider whether the requirements of due process apply to parole revocation proceedings and while it concluded that certain minimal procedures were constitutionally mandated, it did not "reach or decide the question whether the parolee is entitled to the assistance of retained counsel or to appointed counsel if he is indigent." Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1971). Nor do we.⁶

However, though we reserve decision as to whether the state might be required to provide for representation by counsel at parole revocation hearings, we think nonetheless that, once having provided for retained counsel, the state cannot constitutionally deny the same opportunity to indigents. This conclusion simply restates a well-established principle of constitutional jurisprudence. In Griffin v. Illinois, 351 U.S. 12, 20, 76 S. Ct. 585, 591, 100 L.Ed. 891 (1955), for instance, the Supreme Court held that a state with an appellate system which made available trial transcripts to those who could afford them was constitutionally required to provide "means of affording adequate and effective appellate review to indigent defendants." The Court noted, "It is true that a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all. citation omitted. But that is not to say that a State that does grant appellate review can do so in a way that discriminates against some convicted defendants on account of their poverty." 351 U.S. at 18, 76 S.Ct. at 590. Although this decision arose in a fairly limited context, its fundament is not so limited and has been held to apply to representation by counsel. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1962): Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1962). As the Court said in Douglas, "there is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf," while the indigent is left to shift for himself. 372 U.S. at 358, 83 S.Ct. at 817.

We note that the Court of Appeals for the Tenth Circuit in Earnest v. Willingham, 406 F.2d 681 (CA 10, 1969) has directly addressed the question which confronts us here and has concluded as we have. In that case the issue was whether the federal parole board, which as an administrative mater permitted the retention of counsel for parole revocation hearings, could refuse to appoint counsel for indigents. The court said, "To pose the question is to answer it for Griffin and its progeny have made it clear beyond doubt that where liberty is at stake a State may not grant to one even a non-constitutional statutory right such as here involved and deny it to another because of poverty." 406 F.2d at 683-684.

While absolute equality between rich and poor is not required by the Constitution, we think that indigent parolees at least are entitled to as adequate a parole revocation hearing as those who have means, and in this respect representation by counsel is likely to be of substantial importance to the poor as well as the rich.⁷ The very fact that the Florida legislature has seen fit to permit representation by counsel, at least to non-indigents, we think attests to its efficacy. We agree with the court's conclusion in Earnest v. Willingham, supra, that "a revocation hearing is no `perfunctory formality.' Nor can it be said that the assistance of counsel at such a revocation hearing is an empty ritual. It may very well spell the difference between revocation and forgiveness." 406 F.2d at 684. Such valuable service ought not be denied a parolee simply because he is poor.⁸

We turn, then, to the second issue raised on this appeal, to wit, whether the Florida Parole Commission, at any subsequent hearing, may consider, as a basis for revocation, the two convictions against Cottle for public drunkenness. To an extent this issue turns on whether or not the recent Supreme Court decision in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1971), pertaining to the right to counsel in misdemeanor cases, is to be applied retroactively.⁹

We conclude that Argersinger is fully retroactive, but that only the second of Cottle's two convictions falls within its scope and must be excluded from the Parole Commission's consideration.

The Court held in Argersinger 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." 407 U.S. at 37, 92 S.Ct. at 2012. Though the Court did not specify whether the decision was to be applied retroactively, the issue not being before it, there are several factors which argue in favor of such application.

The starting point is Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), which sets forth three criteria for guiding resolution of the question whether a newly-announced rule of criminal procedure is to be applied retroactively. These are: "(a) the purpose to be served by the new standards, (b) the extent of the...