Kemplen v. State of Maryland

• Decision Date: 22 May 1970
• Docket Number: No. 13290.,13290.
• Citation: 428 F.2d 169
• Parties: John Wayne KEMPLEN, Appellant, v. STATE OF MARYLAND, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

428 F.2d 169 (1970)

John Wayne KEMPLEN, Appellant, v.STATE OF MARYLAND, Appellee.

No. 13290.

United States Court of Appeals, Fourth Circuit.

Argued November 7, 1969.

Decided May 22, 1970.

Rehearing Denied and Rehearing Denied July 10, 1970.

Alan D. Yarbro, and Joseph H. H. Kaplan, Baltimore, Md. (Court-assigned counsel), for appellant.

Alfred J. O'Ferrall, III, Asst. Atty. Gen. of Maryland (Francis B. Burch, Atty. Gen. of Maryland, on the brief), for appellee.

Before SOBELOFF, BOREMAN and CRAVEN, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied July 10, 1970.

CRAVEN, Circuit Judge:

The primary question presented by this appeal is whether a state may, in enforcing its criminal laws, elect to proceed against a juvenile as if he were an adult without his having counsel at the "waiver hearing" in the juvenile court.We think not, and reverse the decision of the district court denying habeas corpus relief to John Wayne Kemplen.

According to the petition, the petitioner was 17 years old at the time of his arrest on February 17, 1965.The next day he appeared, without counsel, before the Juvenile Court of Harford County, Maryland, for a determination of whether he should be tried as a juvenile or as an adult.Kemplen and his parents were present at this "waiver hearing."Kemplen was not, however, informed of any right to retain counsel for the hearing, nor was counsel appointed for him by the court.The juvenile court ordered its jurisdiction waived without making any specific findings of fact.¹Petitioner was tried as an adult by the Circuit Court of Harford County on August 13, 1965, and was sentenced to two years' imprisonment in the Maryland Correctional Institution for larceny and malicious damage to property.Because of this conviction and his prior record, Kemplen was ordered to the Patuxent Institution by the trial court for psychological examination to determine whether he was a "defective delinquent."²Because Kemplen refused to cooperate in phychological testing at Patuxent, he remained there without committal long past the expiration of his sentence.He has now been released.Prior to release he sought habeas corpus relief in the state courts, and thereafter in the United States District Court.

In affirming a state trial court's rejection of Kemplen's application for state habeas corpus relief, the Maryland Court of Special Appeals assumed arguendo that In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527(1967), andKent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84(1966), were applicable to Maryland's waiver of juvenile jurisdiction proceedings,³ but held that these cases did not apply retroactively to Kemplen's 1965 hearing.Maryland v. Hance, 2 Md.App. 162, 233 A.2d 326(1967).The United States District Court for the District of Maryland adopted the same approach in its order denying Kemplen's petition for a federal writ of habeas corpus.Kemplen v. State of Maryland, 295 F.Supp. 8(D.Md.1969).

MOOTNESS

Kemplen's petition for habeas corpus relief is not rendered moot by his belated release from custody."Once the federal jurisdiction has attached in the District Court, it is not defeated by the release of the petitioner prior to completion of proceedings on such application."Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 1560, 20 L.Ed.2d 554(1968)."The habeas corpus statute does not limit the relief that may be granted to discharge of the applicant from physical custody.Its mandate is broad with respect to the relief that may be granted.It provides that `the court shall * * * dispose of the matter as law and justice require.28 U.S.C. § 2243.'"Id. at 239, 88 S.Ct. at 1560.The petitioner is not required to bear the continuing stigma of an allegedly unlawful conviction simply because the legal remedy has been slow in coming.Because of the disabilities and burdens flowing from a conviction, petitioner still has "a substantial stake in the judgment of conviction,"Id. at 237, 88 S.Ct. at 1559, that prevents this appeal from being moot.

We are informed by counsel that Kemplen, now 22 years of age, has been continuously employed since his release from Patuxent.He has undertaken to augment his scanty education through extensive reading and is characterized by his counsel as "articulate, polite, and terrified of any possibility of future incarceration."Even after release Kemplen urged counsel to pursue his appeal "in the hope that a favorable result would remove the conviction from his record."Thus, the result that we reach today will apparently mean something to the petitioner⁴ and will be more than a mere exercise in judicial futility.

WAIVER OF JUVENILE JURISDICTION: RIGHT TO COUNSEL AND TO NOTICE

Collateral to the right to counsel question is whether Kemplen was also entitled to reasonable notice of the offense charged and reasonable time to prepare for the "waiver hearing."

In deciding that Kemplen was not entitled to notice of the offense charged and to advice of counsel at his 1965 waiver hearing, the district court reasoned that if these rights were made applicable to such a proceeding by Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84(1966), andIn re Gault, 387 U.S. 1, 87 S.Ct. 1428(1967), they should not be applied retroactively.We disagree.

The Supreme Court stated in Gault that "neither the Fourteenth Amendment nor the Bill of Rights is for adults alone."Gault,supra, at 13, 87 S.Ct. at 1436.The factually precise holding of Gault is that a juvenile must be accorded full due process, including the rights to notice and counsel, at those proceedings by which it is determined whether he is "delinquent".However, "the language of that opinion Gault exhibits a spirit that transcends the specific issues there involved * * *."In re Urbasek, 38 Ill.2d 535, 232 N.E.2d 716, 719(1967), quoted favorably in United States v. Costanzo, 395 F.2d 441, 444(4th Cir.1968).Indeed, the Court in Gault quoted at length from its opinion in Kent v. United States, supra, in order to emphasize the breadth of its intention to implement due process in juvenile proceedings.The Kent decision was based upon the "Juvenile Court Act of the District of Columbia and the decisions of the United States Court of Appeals for the District of Columbia Circuit,"Kent v. United States, 383 U.S. at 556, 86 S.Ct. at 1055, and held that a juvenile was entitled to have counsel and other procedural safeguards at a waiver of jurisdiction hearing.That result was said to be "required by the statute read in the context of constitutional principles relating to due process and the assistance of counsel."Id. at 557, 86 S.Ct. at 1055.These significant references to Kent appear in Gault:

In Kent v. United States * * * we considered the requirements for a valid waiver of the "exclusive" jurisdiction of the Juvenile Court of the District of Columbia so that a juvenile could be tried in the adult criminal court of the District.Although our decision turned upon the language of the statute, we emphasized the necessity that "the basic requirements of due process and fairness" be satisfied in such proceedings.383 U.S. at 553, 86 S.Ct. at 1053.In re Gault, 387 U.S. at 12, 87 S.Ct. at 1436.

In Kent v. United States * * * we stated that the Juvenile Court Judge\'s exercise of the power of the state as parens patriae was not unlimited.We said that "the admonition to function in a `parental\' relationship is not an invitation to procedural arbitariness."383 U.S. at 555, 86 S.Ct. at 1054.With respect to the waiver by the Juvenile Court to the adult court of jurisdiction over an offense committed by a youth, we said that "there is no place in our system of law for reaching a result of such tremendous consequences without ceremony — without hearing, without effective assistance of counsel, without a statement of reasons."383 U.S. at 554, 86 S. Ct. at 1053.We announced with respect to such waiver proceedings that while "We do not mean * * * to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment."383 U.S. at 562, 86 S.Ct. at 1057.We reiterate this view * * * as a requirement which is part of the Due Process Clause of the Fourteenth Amendment of our Constitution.In re Gault, 387 U.S. at 30, 31, 87 S.Ct. at 1445.

The child 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(1930).Just as in Kent v. United States * * * we indicated our agreement with the United States Court of Appeals for the District of Columbia Circuit that the assistance of counsel is essential for purposes of waiver proceedings, so we hold now as to Gault that it is equally essential for the determination of delinquency * * *.In re Gault, 387 U.S. at 36, 87 S.Ct. at 1448.

Thus the Supreme Court has taken broad language from Kent and apparently adopted its rationale for the decision of Gault.Whether Gault and Kent, taken together, form a constitutional imperative as to juvenile waiver proceedings is not self-evident.⁵However, Kent and Gault do make it unquestionably clear that juvenile court proceedings that affect a young person's substantial rights "must measure up to the essentials of due process and fair treatment,"Gault,387 U.S. at 30, 87 S.Ct. at 1445, in the same manner as must criminal proceedings affecting the substantial rights of adults.⁶It is also clear that "appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected."Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 257, 19 L.Ed.2d 336(1967).We must consider Kemplen's claims in this context.

There is no proceeding for adults comparable...