Ex parte Shelton

Decision Date19 May 2000
Citation851 So.2d 96
PartiesEx parte Lereed SHELTON. (Re Lereed Shelton v. State).
CourtAlabama Supreme Court

William H. Mills of Redden, Mills & Clark, Birmingham, for petitioner.

William H. Pryor, Jr., atty. gen., and Stephanie N. Morman, asst. atty. gen., for respondent. JOHNSTONE, Justice.

In district court Lereed Shelton was convicted of assault in the third degree, a violation of § 13A-6-22, Ala.Code 1975. The district court ordered him to pay a $500 fine and $333.75 as restitution to the victim. Shelton appealed for a trial de novo in circuit court. Pursuant to a jury trial during which Shelton represented himself, Shelton was convicted of assault in the third degree. The sentence of the trial court imposed 30 days' imprisonment, a $500 fine, restitution of $516.69 payable to the victim, and court costs. The trial court, however, suspended the 30 days' imprisonment, placed Shelton on probation, and imposed certain conditions, including timely payment of the sums ordered.

Shelton appealed to the Court of Criminal Appeals, which, holding that he did have a constitutional right to counsel because he had received a sentence to suspended imprisonment, remanded his case for the trial court to determine whether Shelton made a knowing, intelligent, and voluntary waiver of his right to counsel. Shelton v. State, 851 So.2d 83 (Ala.Crim. App.1998). On remand, the trial court conducted a hearing at which Shelton was represented by counsel. Shelton testified that he was not informed that he had a right to counsel and that he was not asked whether he wanted to be represented by counsel. He also testified that he was not informed that he could possibly serve time in jail for his conviction. On cross-examination, Shelton stated that he was aware he could be represented by counsel if he "went and paid the money" to hire a lawyer. He stated further that he believed that the trial court would consolidate his case with his son's case and that they would share the same lawyer. The record does not contain evidence that anyone told Shelton that the trial court would appoint a lawyer to represent him if he could not afford one. The prosecutor argued that, although the record did not reflect that anyone informed Shelton of his right to counsel and that he waived his right, Shelton was aware of his right to counsel because he was present when his son, who was Shelton's codefendant, was informed of his right to counsel and because the trial court warned Shelton throughout the proceedings that he needed a lawyer. The prosecutor stated further that Shelton did a "very good job of representing himself."

Thereafter, trial court entered the following order:

"1. Although [Shelton] never made a statement on the record specifically waiving his right to counsel, it is the opinion of this Judge that [Shelton] fully understood his right to employ counsel and in fact did a creditable job of defending his own case both at the District and Circuit Court levels.
"2. Repeatedly during the trial of his case, the Court informed [Shelton] about the problems of him representing himself and the fact that he was a lay person would not allow him to circumvent the rules of evidence.
"3. [Shelton] appeared to be an intelligent, articulate, shrewd businessman fully aware of what was going on in the courtroom and aware of the criminal charge against him and the possibilities of punishment (he was found guilty in District Court and received a fine and ordered to pay restitution)."

The trial court does not state in this order that it actually informed Shelton of his right to counsel. The trial court does not state that it informed Shelton that the court would appoint a lawyer to represent him if he could not afford to hire a lawyer.

On return to remand, the Court of Criminal Appeals, citing the United States Supreme Court in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), and Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), held that Shelton did not have a constitutional right to counsel because his sentence was suspended and he was not actually imprisoned.1 After the Court of Criminal Appeals overruled Shelton's application for rehearing and denied his Rule 39(k), Ala. R.App. P., motion, he petitioned this Court for a writ of certiorari. We granted Shelton's petition to determine the following: 1) whether Shelton had a constitutional right to counsel even though he was never actually imprisoned; 2) whether Shelton knowingly, intelligently, and voluntarily waived his right to counsel; and 3) whether the trial court denied Shelton his right to a restitution hearing in violation of § 15-18-67, Ala.Code 1975.

In concluding, in this second opinion, that Shelton did not have a constitutional right to counsel, the Court of Criminal Appeals relied on the following holding of the United States Supreme Court in Argersinger v. Hamlin, 407 U.S. at 37-40:

"[A]bsent 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.
"....
"Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel. He will have a measure of the seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts.
"The run of misdemeanors will not be affected by today's ruling. But in those that end up in the actual deprivation of a person's liberty, the accused will receive the benefit of the `the guiding hand of counsel' so necessary when one's liberty is in jeopardy."

This Argersinger holding necessarily requires a court reviewing a claim of violation of a defendant's right to counsel to determine the existence of the right retroactively on the basis of the sentence imposed on the unrepresented defendant.

The defendant in Argersinger was convicted, without the aid of counsel, of the misdemeanor offense of carrying a concealed weapon. He was sentenced to 90 days in jail. The Court held that, because the defendant had been imprisoned and had suffered an actual loss of liberty, he was entitled to representation by counsel. The Court did not address the issue of a defendant's right to counsel when no loss of liberty has occurred. Argersinger, 407 U.S. at 37.

In another case, Scott v. Illinois, supra, the United States Supreme Court considered the right to counsel of an indigent defendant who was convicted of shoplifting, a crime punishable by a maximum fine of $500 or by a maximum term of imprisonment of one year, or by both. The defendant was fined $50, but was not sentenced to any term of imprisonment. In that case, the Court concluded that the defendant was not entitled to appointed counsel:

"[W]e believe that the central premise of Argersinger—that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment—is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel. ... We therefore hold that the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense."440 U.S. at 373,99 S.Ct. 1158. (Emphasis added.)2

Neither Argersinger nor Scott addresses the issue currently before us—whether a suspended or probated sentence to imprisonment constitutes a "term of imprisonment." However, some federal and state courts have interpreted Argersinger and Scott to mean that a defendant who is convicted, without the aid of counsel, of a misdemeanor offense and is sentenced to a term of imprisonment which is suspended or probated, does not have a right to appointed counsel because the defendant was not "actually imprisoned." See People v. Reichenbach, 459 Mich. 109, 587 N.W.2d 1 (1998); Layton City v. Longcrier, 943 P.2d 655 (Utah App.1997); Griswold v. Commonwealth, 252 Va. 113, 472 S.E.2d 789 (1996); State v. Hansen, 273 Mont. 321, 903 P.2d 194 (1995); United States v. Smith, 56 F.3d 66 (6th Cir.1995); United States v. Castro-Vega, 945 F.2d 496 (2d Cir.1991); United States v. Nash, 703 F.Supp. 507 (W.D.La.), aff'd, 886 F.2d 1312 (5th Cir.1989); State v. Sanchez, 94 N.M. 521, 612 P.2d 1332 (N.M.App.1980); and Cottle v. Wainwright, 477 F.2d 269 (5th Cir.), vacated on other grounds, 414 U.S. 895, 94 S.Ct. 221, 38 L.Ed.2d 138 (1973).

On the other hand, other courts have held that an indigent defendant who receives a conditionally suspended or probated sentence to imprisonment is entitled to representation by appointed counsel because that defendant has been "sentenced to a term of imprisonment." United States v. Reilley, 948 F.2d 648 (10th Cir. 1991); United States v. Foster, 904 F.2d 20 (9th Cir.1990); United States v. Sultani, 704 F.2d 132 (4th Cir.1983); United States v. Leavitt, 608 F.2d 1290 (9th Cir.1979); and United States v. White, 529 F.2d 1390 (8th Cir.1976). For example, in Reilley, the defendant was charged with leaving property unattended in a national park for longer than 24 hours in an undesignated area, a crime punishable by a maximum fine of $500 or by a maximum term of imprisonment of six months or by both. The defendant established his indigence and requested appointed counsel, but the trial court denied his request. He was convicted and was sentenced to 30 days' imprisonment, suspended on the condition that he timely pay his $500 fine. In vacating the defendant's 30-day prison sentence, the Reilley court reasoned:

"If a defendant cannot be ordered to serve a sentence of imprisonment, it seems obvious that a conditional sentence of
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  • Russell v. State
    • United States
    • Alabama Court of Criminal Appeals
    • September 8, 2017
    ...and voluntarily desired to forgo his right to counsel." Ex parte Reese, 620 So.2d 579, 580–81 (Ala. 1993). See also Ex parte Shelton, 851 So.2d 96, 102 (Ala. 2000) ("[A] defendant who receives a suspended or probated sentence to imprisonment has a constitutional right to counsel."). At the ......
  • Harris v. State
    • United States
    • Alabama Court of Criminal Appeals
    • March 23, 2007
    ...retain counsel. Therefore, we cannot say that Shelton intelligently and understandingly waived his right to counsel." Ex parte Shelton, 851 So.2d 96, 101-02 (Ala.2000). Likewise, the trial court's admonitions to Harris here did not adequately inform Harris of the and pitfalls of appearing w......
  • U.S. v. Jackson
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • July 9, 2007
    ...portions of the sentence but reversed that aspect of the defendant's sentence imposing a suspended jail sentence. See Ex parte Shelton, 851 So.2d 96, 101-02 (Ala.2000) ("Applying the rationale of Reilley, Argersinger, and Scott, we hold that the defendant in this case was entitled to repres......
  • Connell v. City of Daphne, CR-17-0943
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    • July 12, 2019
    ...129 (citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) ). As the Alabama Supreme Court stated in Ex parte Shelton, 851 So. 2d 96 (Ala. 2000) :"To establish a knowing and intelligent waiver of counsel, ‘the record at the outset of the trial should establish three fa......
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