Hanson v. Passer

• Decision Date: 14 February 1993
• Docket Number: No. 92-3792,92-3792
• Citation: 13 F.3d 275
• Parties: Ronald Julian HANSON, Appellant, v. Rick PASSER, Chief Executive Officer, Anoka County Adult Detention Facility, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 275

13 F.3d 275

Ronald Julian HANSON, Appellant, v. Rick PASSER, Chief Executive Officer, Anoka County Adult Detention Facility, Appellee.

No. 92-3792.

United States Court of Appeals Eighth Circuit.

Submitted June 18, 1993.

Decided Jan. 3, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Feb. 14, 1993.

Paul C. Engh, Minneapolis, MN, argued, for appellant.

Dennis A. Plahn, St. Cloud, MN, argued, for appellee.

Before McMILLIAN, FAGG, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Ronald Julian Hanson appeals from the district court's order denying his 28 U.S.C. Sec. 2254 habeas corpus petition in which he challenged two state convictions. Hanson contends that he was denied his right to counsel in the first prosecution and that his guilty plea in the second prosecution was not voluntary. We affirm the denial of habeas corpus relief in the second prosecution but reverse as to the first prosecution, finding a Fourteenth Amendment violation resulting from the denial of Hanson's right to counsel.

I. BACKGROUND

Hanson, a former police officer, was charged in October of 1989 with one count of furnishing alcohol to a minor in violation of Minn.Stat. Sec. 340A.503, subd. 2(1) (1988). During the pendency of the first prosecution, the state filed a second complaint charging Hanson with similar conduct in relation to another minor.

In December of 1989, Hanson requested court-appointed counsel. After inquiring into his financial status at a preliminary hearing, the state court granted the request in part, determined that Hanson was entitled to counsel, and ordered that if Hanson paid $1,000 prior to the omnibus hearing, the court would appoint a public defender to represent him. Hanson appeared at the omnibus hearing without counsel and without having paid the $1,000 to entitle him to a public defender. Hanson protested the $1,000 prepayment requirement, saying he did not have the money, and he refused to waive his right to counsel. The omnibus court determined that Hanson's refusal to pay was an election to proceed pro se. The omnibus hearing proceeded over Hanson's continued protest of his pro se status.

In an order filed after the omnibus hearing, and perhaps sensing that an error had been committed, the judge modified the court appointment ruling, stating that "[i]f the defendant is willing to make provisions for substantial monthly payments from his pay he is receiving as a St. Cloud Police Officer, the court will accept those in lieu of the entire $1,000." (Appellee's Br., addend. at 1-2.) Also, a different state judge later reconsidered Hanson's request for court-appointed counsel and appointed the public defender to represent Hanson at trial, reserving any decision about Hanson's possible contribution. At trial, Hanson refused to accept the representation offered by the public defender even though the trial judge strongly encouraged Hanson to accept her assistance. Hanson proceeded pro se, and the public defender acted as standby counsel.

Following trial, the jury convicted Hanson on the first complaint. Hanson later entered a guilty plea on the second complaint. He was represented by court-appointed counsel when he decided to accept a plea agreement to the second complaint and when he pleaded guilty. After exhausting his state-court remedies, Hanson filed this habeas petition in federal district court. ¹ The district court adopted the findings and conclusions of the magistrate's report and recommendation and denied the petition.

On appeal, Hanson contends that the district court erred in denying his habeas corpus petition. As to the first conviction, Hanson contends that the state court violated his Sixth Amendment right to counsel by conditioning the initial appointment of the public defender upon prepayment of $1,000 and that he did not waive his right to counsel by proceeding pro se at the omnibus hearing. As to the second conviction, Hanson contends that because he was denied counsel on the first complaint and the second complaint was prosecuted in a serial fashion, the constitutional violation in the first case renders his guilty plea to the second complaint involuntary.

II. THE RIGHT TO COUNSEL

The Sixth Amendment guarantees that an accused in a criminal prosecution has the right to have the assistance of counsel for his defense. "[A] person accused of crime 'requires the guiding hand of counsel at every step in the proceedings against him,' Powell v. Alabama, 287 U.S. 45, 69 [53 S.Ct. 55, 64, 77 L.Ed. 158] (1932), and that constitutional principle is not limited to the presence of counsel at trial." Coleman v. Alabama, 399 U.S. 1, 7, 90 S.Ct. 1999, 2002, 26 L.Ed.2d 387 (1970). The Sixth Amendment right to counsel attaches at every critical stage of the prosecution, see United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 1931, 18 L.Ed.2d 1149 (1967); Smith v. Lockhart, 923 F.2d 1314, 1318 (8th Cir.1991), and is made obligatory upon the states by the Fourteenth Amendment, see Gideon v. Wainwright, 372 U.S. 335, 339-45, 83 S.Ct. 792, 793-97, 9 L.Ed.2d 799 (1963). In Smith, 923 F.2d at 1319-20, this court found that an Arkansas omnibus hearing, which is a pretrial hearing where motions are made and ruled upon and procedural and constitutional issues are considered, was a critical stage necessitating the assistance of counsel.

The proceeding at issue here is the pretrial omnibus hearing held on the first complaint on January 8 and 11, 1990, pursuant to Minnesota Rule of Criminal Procedure 11. At the omnibus hearing, the parties examined two witnesses and presented several pretrial motions including a motion to suppress and a motion to determine the admissibility of Rule 404(b)-type evidence of other offenses. At oral argument before this court, the county attorney conceded that the omnibus hearing was a critical stage in the prosecution, and we agree. A competent attorney could have provided Hanson with meaningful assistance. See id. at 1319.

The decisive issue is whether the court denied Hanson the right to counsel by conditioning his entitlement to court-appointed counsel upon prepayment of $1,000. We note that fundamental constitutional principles have long required courts to appoint counsel for criminal defendants who are financially unable to obtain counsel for their defense. "[A]ny 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." Gideon, 372 U.S. at 344, 83 S.Ct. at 796. A criminal defendant who can afford to contribute some amount to the expense of his defense but who cannot afford to hire counsel because his own resources are inadequate either to pay a retainer or to assure private counsel of full payment is functionally akin to an indigent defendant and equally entitled to court-appointed counsel.

Minnesota Rule of Criminal Procedure 5.02(5) recognizes that one who can pay part but not all of the cost of his defense cannot be denied appointment of counsel. "The ability to pay part of the cost of adequate representation at any time while the charges are pending against a defendant shall not preclude the appointment of counsel for the defendant." Id. See also Minn.Stat. Sec. 611.18 (1986) ("If it appears to a court that a person requesting an appointment of counsel satisfies the requirements of this chapter the court shall order the appropriate public defender to represent the person at all further stages of the proceeding ..."). "A defendant is financially unable to obtain counsel if financially unable to obtain adequate representation without substantial hardship for the defendant or the defendant's family." Minn.R.Crim.P. 5.02(3). The Criminal Justice Act uses substantially similar language in 18 U.S.C. Sec. 3006A, and we have held in other contexts that the Act adds no new substantive rights but is merely a means of implementing the constitutional right to counsel. See Ray v. United States, 367 F.2d 258, 264 (8th Cir.1966), cert. denied, 386 U.S. 913, 87 S.Ct. 863, 17 L.Ed.2d 785 (1967). The phrase "financially unable to obtain counsel" does not require a showing of indigency to entitle an accused to counsel; it is a less stringent standard. See United States v. Foster, 867 F.2d 838, 839 (5th Cir.1989); United States v. Nichols, 841 F.2d 1485, 1506 (10th Cir.1988). It is evident under this standard that one need not be totally indigent to be entitled to court-appointed counsel.

Certainly, when court-appointed counsel is provided, it is constitutionally permissible to require the defendant to repay the expense incurred by the state in providing the representation if the defendant later becomes able to repay, so long as "[t]hose who remain indigent or for whom repayment would work 'manifest hardship' are forever exempt from any obligation to repay." Fuller v. Oregon, 417 U.S. 40, 53, 94 S.Ct. 2116, 2124, 40 L.Ed.2d 642 (1974). Under any state system for recouping the costs of court-appointed attorney's fees, it is essential that "the program under all circumstances must guarantee the indigent defendant's fundamental right to counsel without cumbersome procedural obstacles designed to determine whether he is entitled to court-appointed representation." Alexander v. Johnson, 742 F.2d 117, 124 (4th Cir.1984). In Alexander, the court found that North Carolina's recoupment statute was constitutional based in part on the preliminary determination that "[t]he indigent defendant's fundamental right to counsel is preserved ... and no preconditions are placed on the exercise of that right beyond a reasonable and minimally intrusive procedure designed to establish the fact of indigency." Id. at 124-25.

Minnesota's recoupment statute also preserves the fundamental right to counsel. While the second sentence of Minnesota Rule of Criminal Procedure 5.02(5) provides that "[t]he court may require a defendant, to the extent able, to compensate the...