Cox v. Hutto

• Decision Date: 13 May 1980
• Docket Number: No. 79-1778,79-1778
• Citation: 619 F.2d 731
• Parties: Billy Ray COX, Appellee, v. Terrell Don HUTTO, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 731

619 F.2d 731

Billy Ray COX, Appellee, v. Terrell Don HUTTO, Appellant.

No. 79-1778.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 15, 1980.

Decided April 16, 1980.

Rehearing Denied May 13, 1980.

Ray E. Hartenstein, Asst. Atty. Gen., Little Rock, Ark., for appellant; Steve Clark, Atty. Gen., Little Rock, Ark., on brief.

Merl O. Barns, Howell, Price & Howell, Little Rock, Ark., for appellee.

Before STEPHENSON and McMILLIAN, Circuit Judges, and SCHATZ, ^* District Judge.

McMILLIAN, Circuit Judge.

The State of Arkansas appeals from a decision of the district court ¹ granting Billy Ray Cox's petition for a writ of habeas corpus and releasing him from a prison sentence. ² The district court, pursuant to the earlier mandate of this court in this case (Cox I ), ³ found that Cox had suffered prejudice because of errors in a state court proceeding sentencing him as a habitual criminal. We affirm.

This case involves a proceeding under the Arkansas habitual criminal statute, ⁴ which provides longer sentences for convicted felons if they are shown to be repeat offenders. Under the statute, a defendant charged with a felony may also be charged with being a repeat offender; in such a case, the defendant has a two-stage trial. In the first stage, the defendant's guilt or innocence on the present felony charge is determined (along with the sentence which, under Arkansas law, is determined by the jury). If the defendant is found guilty, the second stage, a "sentence enhancement" proceeding, is held before the same jury, which hears evidence of prior convictions and adjusts the sentence accordingly. ⁵ The statute provides three levels of sentence enhancement depending on whether offenders are found to have had one, two, or three or more prior offenses. ⁶

In an Arkansas court in 1973, Cox was convicted of burglary by a jury which initially sentenced him to two years imprisonment. In the habitual criminal proceeding which followed, Cox stipulated that he had four felony convictions and the jury resentenced him to thirty-one and one-half years as a habitual criminal. In 1975, Cox brought a habeas corpus proceeding in federal district court, based in part on constitutional defects in the sentence enhancement proceeding. The district court denied the petition, but in Cox I this court reversed, holding that Cox had been denied due process when his counsel stipulated that he had four previous felony convictions, because the trial court failed to inquire whether Cox had knowingly and voluntarily agreed to the stipulation. We concluded that the burden should be on the State to show that Cox had not been prejudiced by this defect in the state proceeding. The State urged that Cox had suffered no prejudice, because the State had evidence which it would have used to establish the prior convictions at Cox's trial if the stipulation had not been entered. We remanded for a determination of whether the State had met its burden.

Since then, in Klimas v. Mabry, 599 F.2d 842 (8th Cir.), reh. denied, 603 F.2d 158 (1979), petition for cert. filed, 48 U.S.L.W. 3358 (U.S. Oct. 15, 1979) (No. 79-622), we had further occasion to review the Arkansas habitual criminal statute. ⁷ In that case, Francis Edward Klimas had been convicted for burglary and grand larceny, and in the sentence enhancement phase of the trial the State introduced evidence of thirteen prior convictions. The jury then imposed the maximum sentence available under the habitual criminal statute. ⁸ The records for seven of those prior convictions, however, failed to establish that Klimas had been represented by counsel. The Arkansas Supreme Court held that the use of those seven convictions in the sentence enhancement proceeding violated due process of law and therefore that the seven convictions were inadmissible. Klimas v. State, 259 Ark. 301, 534 S.W.2d 202, cert. denied, 429 U.S. 846, 97 S.Ct. 128, 50 L.Ed.2d 117 (1976). But because valid evidence of six convictions remained on the trial record to support the habitual criminal charge, the Arkansas Supreme Court concluded that Klimas would not be prejudiced if his punishment were reduced to the minimum available under the habitual criminal statute for a defendant who had three or more prior convictions. ⁹

In Klimas's subsequent habeas corpus proceeding, we determined that the State had not shown that the improper admission of the seven convictions was harmless error, even though the record disclosed undisputed evidence of six convictions to support the habitual criminal finding. Where seven of the thirteen convictions were inadmissible, we were unable to satisfy ourselves that the jury had indeed relied on only the six valid convictions. (The six admissible prior convictions consisted of three pairs of burglary and grand larceny convictions arising out of three incidents, one of which was the theft of cigarettes, money and other property from an open automobile trunk. See Klimas v. Mabry, supra, 599 F.2d at 845 n. 5. The inadmissible convictions included crimes as serious as robbery. Id. at 845 n. 4.) ¹⁰ Moreover, Arkansas had changed its habitual criminal statute after Klimas's original conviction, ¹¹ and we were also unable to determine that as a matter of law Klimas clearly could not raise any new defense or obtain a lesser punishment under the new law. Id. at 848-51.

The rationale of Klimas v. Mabry depended critically upon the fact that Arkansas gives to the jury the function of sentencing, both in general and specifically under the Habitual Criminal Act.

Where a state has provided, by statute, that a habitual criminal charge is to be tried to a jury, we do not believe that the state can abrogate that right in a particular case without violating the notions of fundamental fairness inherent in the due process clause. Where a right to trial by jury has been established under state law, the state cannot deny a particular accused that right without violating even the minimal standards of the due process clause.

Klimas v. Mabry, supra, 599 F.2d at 848, citing Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). The court was concerned that the modification of sentence in Klimas's case may have operated to abrogate Klimas's right to a jury trial. Klimas v. Mabry, supra, 599 F.2d at 849-50. The court also explained:

In Cox (I, supra ), we held that the failure of the state trial judge to inquire into Cox's knowledge of and consent to a stipulation of his prior convictions, filed by his counsel in a habitual criminal proceeding, deprived him of his constitutional rights. We remanded the case to the District Court for a determination of whether Cox sustained any prejudice from the defective stipulation of prior convictions. Such prejudice would be presumed unless the state could establish that it possessed evidence at the time of trial establishing the three prior convictions necessary to support Cox's sentence. Cox's right to a redetermination by jury of his habitual criminal conviction was not raised in that case and, thus, we did not address that issue.

Klimas v. Mabry, supra, 599 F.2d at 850 n. 12.

On remand in this case the district court squarely addressed the jury issue. As we noted in Cox I, supra, 589 F.2d at 396-97 & n. 3, the amount of sentence enhancement received by Cox required a finding of at least three prior convictions. ¹² The State claimed in Cox I, and continues to claim in the present case, that three prior convictions were "established" and that a new trial for Cox would be a "futile gesture." The district court noted that Arkansas law provides that the jury determines questions of fact as to the existence of prior convictions in the habitual criminal proceeding. ¹³ Therefore, Cox would have been prejudiced by the stipulation of four convictions unless as a practical matter the unchallenged evidence of three of the prior convictions ¹⁴ stipulated in the 1973 trial would leave the jury no reasonable alternative but to agree with the State. As Judge Cardozo put it, "The genius of our criminal law is violated when punishment is enhanced in the face of reasonable doubt as to the facts leading to enhancement." People v. Reese, 258 N.Y. 89, 101, 179 N.E. 305, 308 (1932). The district court found the evidence not so persuasive.

The four convictions stipulated by Cox included two convictions on two counts of cattle theft in 1962 and convictions for burglary and grand larceny arising out of a break-in and theft committed by Cox in 1970. The district court found ambiguities in the record as to whether Cox had been convicted of one or two counts of cattle theft in 1962 and regarded only one such conviction as clearly established. The commitment record referred to "the crime," not crimes, of which defendant was guilty. Although the State points to other evidence that in fact two convictions did take place in 1962, the district court did not err in refusing to consider as established two 1962 convictions, for there was a dispute of fact. Arkansas law leaves the resolution of the dispute to the jury. ¹⁵

The district court found, however, that Cox raised no serious challenges to the existence of the two 1970 convictions for burglary and grand larceny. Although a 1976 change in the Habitual Criminal Act provides that a burglary and the larceny that was the object of the burglary must be considered one conviction, ¹⁶ the Act by its terms contained no such provision when Cox was sentenced in 1973. Therefore, the district court assumed that the 1970 burglary and grand larceny convictions could have supported a jury finding of two prior convictions.

We note that under Arkansas law it is not altogether clear whether the 1970 burglary and grand larceny convictions could have been used as two separate prior convictions in the habitual criminal proceeding. The question appears to have been unresolved as of the 1976 revision of the Arkansas criminal code. "Although most circuit...