Gill v. Estelle

• Decision Date: 10 January 1977
• Docket Number: No. 75-1416,75-1416
• Citation: 544 F.2d 1336
• Parties: Richard Donald GILL, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1336

544 F.2d 1336

Richard Donald GILL, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.

No. 75-1416.

United States Court of Appeals Fifth Circuit.

Jan. 10, 1977.

Donald A. Smyth, Staff Counsel for Inmates, Texas Dept. of Corr., Brazoria, Tex., for petitioner-appellant.

Jack B. Boone, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

(Opinion April 28, 1976, 5 Cir. 1976, 530 F.2d 1152)

Before WISDOM, CLARK and RONEY, Circuit Judges.

RONEY, Circuit Judge:

This is a petition for rehearing and rehearing en banc filed by the State of Texas. As one ground for its petition, the State contends that the panel erred in relying on Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), for determining the instant probation revocation proceeding to be invalid. Instead, the State asserts that Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and not Mempa, should control. Specific attention is directed to this statement in the panel decision:

Constitutional law clearly requires that counsel be afforded to a defendant in a probation revocation proceeding.

Gill v. Estelle, 530 F.2d 1152, 1153 (5th Cir. 1976). We grant the petition for rehearing limited only to addressing the above argument made by the State. Otherwise the decision of the panel remains unaltered. Gill v. Estelle, supra.

The question here is whether Gill was entitled to be represented by counsel at his probation revocation proceeding. If so, the instant proceeding would be unconstitutional since Gill had no counsel to represent him when probation was revoked. Mempa v. Rhay mandates that counsel be provided an indigent at a combined revocation of probation/sentencing proceeding. There is no dispute that Gill was indigent when his probation was revoked.

The State argues that under Gagnon v. Scarpelli, supra, Gill would have no automatic right to counsel at the probation revocation and that Mempa is inapposite to the instant facts. The State further argues that this case is identical to Gagnon where the probationer is sentenced at the time of probation although execution of that sentence is suspended. In that situation no sentence is imposed anew when probation is revoked since the sentence was first imposed at the time probation was granted.

Although the State correctly reads the prevailing law, it is mistaken that Gagnon v. Scarpelli should control this question. The facts in Gill's case make it identical to the problem addressed by the Supreme Court in Mempa v. Rhay. Although this Court's above quoted passage may be overbroad as a recital of the black letter law, it is clear, however, that the Constitution would require that Gill be provided with counsel at the revocation proceedings under the facts of this case. We hold, therefore, that Gill's revocation of probation proceeding was constitutionally invalid. Our reasoning follows.

In Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), the Supreme Court held that counsel must be provided a defendant at a combined revocation of probation/sentencing hearing. The sentence in Mempa was imposed at the time of the probation revocation and not when probation was first granted. See Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948). The Court stated that counsel must be provided "at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected." 389 U.S. at 134, 88 S.Ct. at 257.

Six years later in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the Court defined the limits of Mempa. The issue in Gagnon was whether a probationer was entitled to a hearing at the time of revocation and if so, whether counsel must be provided at that hearing. The Court held that hearings along the lines established for parolees in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), must be accorded a probationer. Counsel at these hearings, the Court held, is not an absolute right. Instead the right to counsel would be determined on a case-by-case basis. Importantly the Court recognized the difference with Mempa.

(Under Mempa) counsel must be provided an indigent at sentencing even when it is accomplished as part of a subsequent probation revocation proceeding. But this line of reasoning does not require a hearing or counsel at the time of probation revocation in a case such as the present one, where the probationer was sentenced at the time of trial.

411 U.S. at 781, 93 S.Ct. at 1759 (emphasis added).

The State argues that Gagnon, and not Mempa, controls. We disagree. The statement from the panel opinion, quoted above, although perhaps stating the law too broadly is correct under the facts of the instant case. We find it unnecessary at this time to determine whether Texas has decided to go beyond the constitutional prescriptions of Gagnon and apply the Mempa right to counsel in all revocation of probation proceedings. The pre-Gagnon case of Ex parte Bird, 457 S.W.2d 559 (Tex.Cr.App.1970), indicates this although the more recent decision in Ex parte Shivers, 501 S.W.2d 898 (Tex.Cr.App.1974), upon a close reading, indicates otherwise. On the record before us we believe Gill's revocation of probation proceeding falls into the category of cases recognized in Mempa.

At the time of Gill's revocation proceeding in 1962, Texas statutory law allowed a sentencing court to either suspend the imposition of sentence, or impose sentence and then suspend execution of the sentence. Tex.Code Crim.Pro. art. 781d. "Where the execution of the sentence was suspended under such procedure, the sentence was actually pronounced and imposed." Ex parte Shivers, supra, 501 S.W.2d at 901 n.2. Under this law, and applying Mempa, the Texas courts held that where imposition of sentence was suspended and probationer was later sentenced at the time of the revocation, counsel must be provided when the probation was revoked. See, e. g., Ex parte Jentsch, 510 S.W.2d 320 (Tex.Cr.App.1974); Crawford v. State, 435 S.W.2d 148 (Tex.Cr.App.1968); Ex parte Williams, 414 S.W.2d 472 (Tex.Cr.App.1967). See also McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968). Under current Texas law, the courts will only be able to suspend imposition of the sentence when probation is granted. Tex.Code Crim.Pro. art. 42.12(3). See Teel v. State, 432 S.W.2d 911 (Tex.Cr.App.1968); Ex parte Williams, supra. The courts' option for an alternative method has now been eliminated.

The State of Texas has supplied this Court with copies of the documents granting Gill's 1961 probation and the 1962 order revoking that probation. It is the State's position that these documents indicate that Gill was actually sentenced at the time of his guilty plea in 1961 and that the execution of that sentence was thereafter suspended. Thus, it is argued, this is a Gagnon situation.

Gill was represented by counsel at his plea of guilty before the state court. Thereafter the court

ORDERED AND ADJUDGED AND DECREED that the imposition and execution of the sentence based upon the judgment of conviction herein entered against said defendant in this cause be and the same is hereby suspended, and the said defendant is hereby placed on probation for the full number of years of his sentence to wit: Eight years . . . .

Upon violation of his conditions of probation, Gill was brought before the court in October 1962. The court's order revoking probation and sentencing indicates that Gill's sentence was first imposed at that time.

And the defendant having waived time for appeal and agreed to accept sentence, he is here now sentenced to serve not less than five years and not more than eight years in the Texas State Penitentiary.

In light of...