Gutierrez v. Estelle

• Decision Date: 10 May 1973
• Docket Number: No. 72-3570 Summary Calendar.,72-3570 Summary Calendar.
• Parties: Rogelio GUTIERREZ, Petitioner-Appellee, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

474 F.2d 899 (1973)

Rogelio GUTIERREZ, Petitioner-Appellee, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellant.

No. 72-3570 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

March 1, 1973.

Rehearing Denied May 10, 1973.

Crawford Martin, Atty. Gen., Gilbert J. Pena, Asst. Atty. Gen., Austin, Tex., for respondent-appellant.

Rogelio Gutierrez, Servanndo Gonzalez, McAllen, Tex. (Court-Appointed), for petitioner-appellee.

Before BELL, GODBOLD and INGRAHAM, Circuit Judges.

INGRAHAM, Circuit Judge:

Rogelio Gutierrez is a prisoner of the State of Texas, having been convicted of assault with intent to murder without malice. Upon proof of two prior felony convictions, his sentence was enhanced to life imprisonment under Art. 63 of the Texas Penal Code. Asserting that the prior convictions were constitutionally infirm under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and thus inadmissible for enhancement, Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), Gutierrez has sought relief in the state, Gutierrez v. State, 456 S.W. 2d 84 (Tex.Cr.App.1970), and federal courts.

On direct appeal of the assault case, Gutierrez v. State, supra, the Texas Court of Criminal Appeals held Gutierrez bound by the record entries of the prior convictions — that he had appeared in person and by counsel. In state habeas corpus proceedings, Gutierrez was unable to secure a hearing, the last being denied by the Texas Court of Criminal Appeals without written order. Having exhausted available state remedies, Gutierrez petitioned the Federal district court for habeas corpus relief.

The district court, faced with allegations of a state's use of assertedly unconstitutional convictions for the enhancement of a conviction and without the benefit of an adequate state court hearing, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), properly put the state to its burden of defending the prior enhancing convictions. Craig v. Beto, 458 F.2d 1131 (5th Cir., 1972); Reed v. Henderson, 463 F. 2d 485, 487, at note 2 (5th Cir., 1972). A minute entry alone is insufficient to prove previous representation by counsel or the waiver thereof. Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972); Dulin v. Henderson, 448 F. 2d 1238 (5th Cir., 1971).

An evidentiary hearing was held which produced testimony that Gutierrez's prior convictions had both resulted from his counseled pleas of guilty. Counsel appointed for the habeas corpus hearing, however, developed a constitutional infirmity in the prior convictions. The testimony and record entries of the two prior convictions do not disclose an appearance by counsel at sentencing, nor were either of his two attorneys able after so many years to recall whether they had in fact been present at the imposition of the respective sentences. Gutierrez, however, testified, with familial corroboration, that he had stood sentencing unrepresented.

Despite the probabilities against Gutierrez's having twice been unrepresented at separate sentencings, the district court held the ambiguous record sufficient to establish that Gutierrez had in fact been unrepresented at the allocution of sentence. Relying on Burgett, supra; Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), and Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1947), the district court reasoned that a lack of counsel at sentencing (whose presence is required by Mempa, supra) invalidated a record of conviction such that it could not be used for enhancement. Accordingly, it held the enhanced sentence invalid and on the authority of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), ordered Gutierrez resentenced without recourse to the two prior felony convictions. The State of Texas appeals.

On appeal the state argues that the use of prior convictions does not taint the jury's imposition of life imprisonment because the prior sentences at issue were the result of plea bargains. A plea bargain, the state asserts, removes from the state sentencing judge any discretion, thereby rendering the imposition of sentence a ministerial act at which counsel is not required. Williams v. Beto, 354 F.2d 698 (5th Cir., 1965); Fairris v. Beto, 446 F.2d 1290 (5th Cir., 1971). The district court correctly replied to this argument:

"Although recognizing that sentencing is a critical stage of all criminal proceedings, the Fifth Circuit Court of Appeals has held that if the sentencing of a defendant is a mere ministerial act, that the absence of counsel at the sentencing does not require reversal of the conviction. Williams v. Beto, 354 F.2d 698 (CA5, 1965). The Honorable Judge Carl O. Bue, Jr. of this District, in an opinion that was affirmed and adopted by the Court of Appeals, held that the Mempa decision was not controlling in a case in which a jury had set the term to be served and the defendant was not represented by counsel at sentencing. Fairris v. Beto, 446 F.2d 1290 (CA5, 1971). The sentencing being one of a merely mechanical nature, the Court stated that the petitioner had failed to show how he was prejudiced by the lack of counsel. It is to be noted that Judge Bue specifically refrained from deciding the issue of whether counsel was required at sentencing, due to the mechanical nature of the sentencing in the particular case.

"It would appear that this case is of a different nature as regards sentencing. Certainly the sentencing process in the burglary and robbery causes herein may not be characterized as ministerial. The Judge was endowed with ample leeway in assessing the sentences, regardless of any bargain between the defendant\'s attorney and the prosecutor. Tex.Pen.Code Ann.,

Arts. 1397, 1408 (1953); Tex.Code Crim.P.Ann., Art. 42.12 (1966)."

We need only add the sad commentary based on the number of appeals to this court which assert that plea bargains have not been kept; e. g., Hilliard v. Beto, 465 F.2d 829 (5th Cir., 1972), rehearing en banc granted December 1, 1972; Gallegos v. United States, 466 F.2d 740 (5th Cir., 1972), rehearing en banc granted December 1, 1972. Experience has demonstrated that a plea bargain does not render imposition of sentence into a ministerial act for application of the Williams or Fairris cases. The state's argument also fails to discern the distinction between cases directly reviewing sentences obtained without counsel at sentencing and cases challenging the use of those convictions for enhancement. See text and note 2, infra.

Given the ambiguous record of representation presented the district court, it properly found that the sentences imposed in the two enhancing convictions were invalid. Burgett v. Texas, supra; Mempa v. Rhay, supra; Townsend v. Burke, supra. The court then, however, took a quantum leap by holding the sentencing deficiencies invalidated the record of the underlying convictions when used for enhancement. The leap was unwarranted and we reverse.

Sentencing, like other pretrial and trial proceedings, is a critical stage in the criminal process at which counsel is required, Mempa v. Rhay, supra; Townsend v. Burke, supra, but the defect is not one which goes to the validity of a judgment of conviction. Rather it is one which goes to the sentence imposed. United States v. Tucker, supra. A reading of the Supreme Court's opinions on the Sixth Amendment right to counsel, culminating in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), makes it clear that the integrity of the fact finding determination of guilt is at issue. Thus, in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the Court rejected the notion that counsel was not required in a capital case and said:

"The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect." 287 U.S. at 68-69, 53 S.Ct. at 64.

Then in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), the Court declared:

"The Sixth Amendment embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is represented by experienced and learned counsel. That which is simple, orderly and necessary to the lawyer—to the untrained layman—may appear intricate, complex and mysterious." 304 U.S. at 462-463, 58 S.Ct. at 1022.

Expanding the right of counsel to indigent state defendants, the Court in Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L.Ed.2d 799 (1963), proclaimed:

"In our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere

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