Hays v. Arave

• Decision Date: 04 November 1991
• Docket Number: No. 90-16775,90-16775
• Parties: Lee M. HAYS, Petitioner-Appellant, v. A.J. ARAVE, et al., Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 475

977 F.2d 475

Lee M. HAYS, Petitioner-Appellant, v. A.J. ARAVE, et al., Respondent-Appellee.

No. 90-16775.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 4, 1991. ^*

Decided Oct. 7, 1992.

Lee M. Hays, in pro per.

J. Robert Jibson, Deputy Atty. Gen., Sacramento, Cal., for respondent-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before: POOLE, REINHARDT, and FERNANDEZ, Circuit Judges.

REINHARDT, Circuit Judge:

Lee M. Hays appeals the district court's dismissal of his pro se habeas petition. He raises numerous claims on appeal. We need address only one issue, however, because we find it dispositive.

Hays asserts that he was denied his right to be present at his sentencing when California sentenced him in absentia. ¹ Hays has both a state and federal right to be present at his sentencing. His state right emanates from the California Constitution and section 1193 of the California Penal Code, which at the time of Hays' sentencing provided that he "must be personally present when judgment is pronounced against him, unless, after the exercise of reasonable diligence to procure the presence of the defendant, the court shall find that it will be in the interest of justice that judgment be pronounced in his absence." Hays' federal right emanates from the Constitution: he has both a due process right to be present at his sentencing, see Brewer v. Raines, 670 F.2d 117, 118-19 (9th Cir.1982); see also Faretta v. California, 422 U.S. 806, 819 n. 15, 95 S.Ct. 2525, 2533 n. 15, 45 L.Ed.2d 562 (1975) ("It is now accepted, for example, that an accused has a right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings."), as well as a Sixth Amendment right to effective assistance of counsel at sentencing. See, e.g., Mempa v. Rhay, 389 U.S. 128, 133-34, 88 S.Ct. 254, 256-57, 19 L.Ed.2d 336 (1967); United States v. Green, 680 F.2d 183, 188 (D.C.Cir.1982), cert. denied, 459 U.S. 1210, 103 S.Ct. 1204, 75 L.Ed.2d 445 (1983). Because we conclude that Hays' federal constitutional right to be present at his sentencing was violated, we do not address any other issue.

Hays pled guilty to various criminal charges in California on March 7, 1984. He was scheduled to be sentenced for those crimes on April 4, 1984. However, on April 1--three days prior to his sentencing--California voluntarily surrendered him to Idaho authorities pursuant to an extradition request. Two months later, Hays was sentenced in Idaho to four concurrent life terms in the Idaho state prison on May 30, 1984. On July 16, 1984, California requested Idaho to lodge a detainer against him as a preliminary step to obtaining his return so that he could be sentenced for his California crimes. Four days later, Idaho lodged the detainer.

For almost a year and a half after Idaho lodged the detainer, California did nothing to secure Hays' presence. Indeed, California awoke to Hays' continued existence only in early 1986, when Hays filed a motion in the Sacramento Superior Court to dismiss the California charges and vacate his conviction. The California court ordered the state to show cause why Hays' motion to dismiss should not be granted. California then attempted to enforce its year-and-a-half-old detainer against Hays and return him to California, but the parties to the Idaho detainer action--Idaho and Hays--stipulated that the detainer was invalid; accordingly, the Idaho court quashed California's detainer. On June 6, 1986, Idaho returned the detainer: California did not subsequently file a new detainer or request custody of Hays. On July 2, 1986, the California court ruled on Hays' motion to dismiss the California charges and vacate his conviction. The court denied Hays' motion to dismiss: it then sentenced him in absentia to an aggregate term of twelve years in state prison. Hays asserts that his in absentia sentencing violates his federal constitutional rights.

Hays' claim raises two questions. First, can the federal constitutional right to be present at sentencing be waived? Second, if so, was it waived in this case? With respect to the first question, the answer is "sometimes". A state criminal defendant usually may waive his federal constitutional right to be present at his sentencing in a non-capital case. See, e.g., Brewer v. Raines, 670 F.2d 117, 119-20 (9th Cir.1982). But see Annotation, Voluntary Absence of Accused When Sentence is Pronounced, 6 A.L.R.2d 997 (1949 & 1985 Supp. & 1991 Supp.) (listing numerous states that prohibit in absentia sentencing by statute). ² Hays was sentenced in state court for a non-capital crime: his federal constitutional right to be present at his sentencing was subject to waiver. The question, then, is whether Hays waived that constitutional right.

California contends that by his actions, Hays waived his right to be present at his sentencing: to support that argument, it relies upon several cases in which a defendant who had fled from the authorities after the jury's verdict was permitted to be sentenced in absentia. See, e.g., Tinghitella v. State of California, 718 F.2d 308, 312 (9th Cir.1983); Brewer v. Raines, 670 F.2d 117, 119-20 (9th Cir.1982). The state is correct that when a state defendant deliberately flees before sentencing and after notice of the consequences, he generally waives his federal constitutional right to be present at his sentencing. See Brewer, 670 F.2d at 119-20. Here, however, Hays did not flee. Instead, he remained exactly where California had sent him--incarcerated in an Idaho state prison. Nor, unlike in the case of a fleeing prisoner, was California without the ability to secure Hays' presence for sentencing: it need only have filed a valid detainer against Hays in order to obtain custody of him. The fleeing prisoner's "waiver" of his constitutional right to be present at his sentencing thus is completely inapplicable to the present case.

California nevertheless contends that when Hays, a state prisoner, filed a pro se opposition to the undisputedly erroneous detainer lodged against him by California, he thereby waived his federal constitutional right to be present at sentencing. The record does not reflect that Hays was advised that any opposition to the detainer would constitute a waiver of his right to be present at his sentencing. Cf. Brewer, 670 F.2d at 119 (finding waiver because "[t]he record shows that petitioner was informed of his original trial date and that his trial could be held in absentia if he voluntarily failed to appear. This notice was sufficient to evoke a knowledgeable waiver of petitioner's right to be present."). From the record before us, it appears that the most Hays did was to notify the Idaho courts of the invalidity of the detainer lodged against him and insist upon his right to the protections of a properly processed and lawful detainer. See Interstate Agreement on Detainers Act, 18 U.S.C.App. § 2 (1989). In such circumstances, Hays' opposition to the detainer in no way constitutes a knowing and voluntary waiver of his federal constitutional right to be present at his sentencing. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) (noting that waivers of constitutional rights must be "knowingly and intelligently made" and are strictly construed); United States v. Cochran, 770 F.2d 850, 851 (9th Cir.1985) (same); Farrow v. United States, 580 F.2d 1339, 1355 (9th Cir.1978) (same).

Rather than sentence Hays before it extradited him to Idaho, California surrendered custody of him three days prior to his scheduled sentencing. In addition, California did not attempt to regain custody of Hays for a year and a half after it lodged the detainer against him, and even that act was performed only when Hays attempted to have the California charges dismissed. The only act performed by California designed to secure Hays' presence for sentencing was its filing of an invalid detainer. The parties to the detainer action stipulated that the detainer was in error: California does not contend and has not contended in any court that the Idaho court was incorrect in its decision to quash that detainer or that the stipulation was in any respect erroneous. Even after the detainer was quashed and returned to California, the state did not file a new detainer, nor does it contend that it attempted to obtain Hays' return through any other means. California clearly failed to exercise reasonable diligence ³ despite the ready availability of means which would have secured Hays' presence at his sentencing. See Interstate Agreement on Detainers Act, 18 U.S.C.App. § 2 (1989). Instead, California sentenced him in absentia and thereby deprived him of his constitutional liberty interest in being present at a crucial stage of his criminal proceeding. Because Hays did not waive his right to be present at his sentencing, California's action was a violation of his federal constitutional right to due process. ⁴

We now must determine the appropriate remedy for Hays' unconstitutional sentencing. Prior to Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the answer would have been simple, because all constitutional errors resulted in reversal and a remand for proceedings that were consistent with the Constitution. In Chapman, however, the Court held that even constitutional errors sometimes could be "harmless" and not require reversal. See id. at 20-22, 87 S.Ct. at 826-27. The Court later stated that errors which mandate reversal per se "are the exception and not the rule." Rose v. Clark, 478 U.S. 570, 578-79, 106 S.Ct. 3101, 3106-07, 92 L.Ed.2d 460 (1986) (citation omitted). The most recent attempt to distinguish between errors which can be "harmless" and those which cannot occurred in Arizona v. Fulminante, --- U.S. ----, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). According to five Justices in Fulminante, "trial errors" are...