Krieger v. Com.

• Decision Date: 13 August 2002
• Docket Number: Record No. 0408-00-2.
• Citation: 38 Va. App. 569,567 S.E.2d 557
• Parties: Arthur C. KRIEGER, II v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

567 S.E.2d 557

38 Va. App. 569

Arthur C. KRIEGER, II v. COMMONWEALTH of Virginia.

Record No. 0408-00-2.

Court of Appeals of Virginia, Richmond.

August 13, 2002.

Mary K. Martin, Petersburg, (Eliades & Eliades, on briefs), for appellant.

Louis A. Rosenstock, III, Special Assistant City Attorney, for appellee.

Present: FITZPATRICK, C.J., and BENTON, WILLIS, ELDER, BRAY, ANNUNZIATA, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS and AGEE, JJ.

HUMPHREYS, Judge.

By order dated January 9, 2002, this Court, on its own motion and pursuant to Code § 17.1-402(D), granted a hearing en banc to consider the motion of Arthur C. Krieger, II, requesting counsel and transcripts on appeal at the expense of the Commonwealth. Upon hearing said motion en banc, we hereby deny Krieger's motion for the reasons set forth below.

I. Background

The relevant procedural history in this matter is uncontroverted. On November 17, 1999, Krieger appeared before the Circuit Court of the City of Petersburg on a hearing to show cause, related to a charge of maintaining a public nuisance. The trial court found Krieger in civil contempt for disobedience of its orders to abate a nuisance and sentenced him to ten days in jail, all of which were suspended on the condition he comply with the terms and conditions of prior orders entered by the court within ninety days.

On February 10, 2000, Krieger appeared pro se before the court for a hearing to review his compliance with the court's November 17, 1999 ruling. Although the trial court found that Krieger was indigent, his request for court-appointed counsel was denied. The Commonwealth then presented evidence that Krieger had failed to comply with the conditions of the November 17, 1999 ruling. Krieger was ultimately found to be in contempt and was remanded into custody to serve the ten-day jail sentence. However, the final order entered by the court provided that Krieger would be entitled to immediate release upon his "demonstrated unconditional willingness to comply with the court's prior order."

On February 22, 2000, Krieger filed pro se a notice of appeal of the February 10, 2000 ruling. He requested court-appointed counsel on appeal and transcripts of the proceedings below, at the Commonwealth's expense. The trial court denied both requests. We granted a hearing en banc solely on the issues of whether he is entitled to court-appointed counsel on appeal, as well as transcripts of the lower court proceedings at the expense of the Commonwealth.¹

II. Analysis

The question of whether an indigent defendant, found guilty of civil contempt of court and sentenced to jail, is entitled to court-appointed counsel on appeal is one of first impression in Virginia.

As a threshold matter, it is axiomatic that the Sixth Amendment provides certain safeguards in "all criminal prosecutions." U.S. Const. amend. VI. Further, the Fourteenth Amendment mandates that: "[n]o state shall... deprive any person of liberty ... without due process of law. . . ." U.S. Const. amend. XIV. Thus, the Supreme Court of the United States has held that "absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial." Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530 (1972).

However, there is no constitutional or statutory right for an indigent to have counsel appointed for trial in a civil case. See Watson v. Moss, 619 F.2d 775, 776 (8th Cir.1980); Darnell v. Peyton, 208 Va. 675, 677, 160 S.E.2d 749, 750 (1968) ("Code § 14.1-183 (Repl.Vol.1964) [ (now Code § 17.1-606) which provides that in a civil action an indigent `shall have, from any counsel whom the court may assign him, ... all needful services ..., without any fees . . .' does not specifically require the appointment of such counsel").² See also Wolfolk v. Rivera, 729 F.2d 1114, 1119-20 (7th Cir.1984); Castner v. Colorado Springs Cablevision, 979 F.2d 1417, 1420 (10th Cir.1992); cf. Plumer v. Maryland, 915 F.2d 927, 931-32 (4th Cir. 1990) (noting "the well-established principle that the right to counsel applies only to criminal or quasi-criminal proceedings and does not extend to administrative license revocation proceedings"); Ferguson v. Gathright, 485 F.2d 504, 506-07 (4th Cir.1973) (holding neither the Due Process Clause nor the Sixth Amendment requires the appointment of counsel in the civil adjudication of a loss of driving privileges), cert. denied, 415 U.S. 933, 94 S.Ct. 1447, 39 L.Ed.2d 491 (1974). Nevertheless, in civil matters, the "presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty," is weighed against other elements in the due process decision to determine, on a case-by-case basis, whether court-appointed counsel is warranted. Lassiter v. Department of Social Services, 452 U.S. 18, 26-27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640 (1981). Such elements include the nature of the private interests at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions. Id. (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976)).³ Similarly, in the appellate context, the United States Supreme Court has held that "where the merits of the one and only [criminal] appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor." Douglas v. California, 372 U.S. 353, 357, 83 S.Ct. 814, 816, 9 L.Ed.2d 811 (1963); see also Cabaniss v. Cunningham, 206 Va. 330, 333, 143 S.E.2d 911, 913 (1965) ("the failure to appoint counsel to assist an indigent defendant in making an appeal from a conviction is a denial of equal protection and due process guaranteed to him under the Federal Constitution and the Virginia Bill of Rights"). However, in Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), the Supreme Court held that "neither the Due Process Clause nor the Equal Protection Clause requires a State to provide counsel at state expense to an indigent prisoner pursuing a discretionary appeal in the state system. . . ." M.L.B. v. S.L.J., 519 U.S. 102, 113, 117 S.Ct. 555, 562, 136 L.Ed.2d 473 (1996) (citing Ross, 417 U.S. at 610, 612, 616-18,94 S.Ct. at 2443-44, 2446-47).⁴

From these cases it is clear that the right to appointed counsel on appeal derives not from some statutory grant, but from the Due Process and Equal Protection Clauses of the Fourteenth Amendment, as well as from the Sixth Amendment in criminal cases. See Cabaniss, 206 Va. at 334, 143 S.E.2d at 914 (noting that "`[i]n all criminal prosecutions, the accused shall enjoy the right ... to have assistance of counsel for his defense.' The right to defend includes the right of assistance in perfecting an appeal." (quoting Gideon v. Wainwright, 372 U.S. 335, 339, 83 S.Ct. 792, 794, 9 L.Ed.2d 799 (1963))). As the Supreme Court held in Ross, it is rudimentary that

[a]t the trial stage of a criminal proceeding, the right of an indigent defendant to counsel is fundamental and binding upon the States by virtue of the Sixth and Fourteenth Amendments. But there are significant differences between the trial and appellate stages of a criminal proceeding.... The fact that an appeal has been provided does not automatically mean that a State then acts unfairly by refusing to provide counsel to indigent defendants at every stage of the way. Unfairness results only if indigents are singled out by the State and denied meaningful access to the appellate system because of their poverty. That question is more profitably considered under an equal protection analysis.

Ross, 417 U.S. at 610-11, 94 S.Ct. at 2443-44. Thus,

[e]qual protection requires the state to provide appointed counsel for appeal and a right of appeal at public expense in those classes of cases in which indigents are entitled to appointed counsel at the trial level and a right of appeal is provided. This principle was developed in criminal cases but it applies to other disputes involving matters of such a fundamental nature as to require appointment of counsel at the trial level, such as juvenile delinquency proceedings and proceedings concerning possible permanent deprivation of parental rights. . . . Where issues of a less fundamental nature are involved, the right to pursue remedies at public expense is considerably more limited.

In re Lewis, 88 Wash.2d 556, 564 P.2d 328, 329-30 (1977), overruled on other grounds by Grove v. State, 127 Wash.2d 221, 897 P.2d 1252 (1995) (citations omitted). See also, In re Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 1451, 18 L.Ed.2d 527 (1967); Lassiter, 452 U.S. at 32-33, 101 S.Ct. at 2162-63.

The United States Supreme Court has specifically declined to discourage those States that have, as a matter of legislative choice, made counsel available to litigants at all stages of judicial review. See Ross, 417 U.S. at 618,94 S.Ct. at 2447-48. Nevertheless, our General Assembly has created no such statutory right, outside of the criminal context. See Tyler v. Garrison, 120 Va. 697, 697, 91 S.E. 749, 749 (1917) ("This day came again the parties, by counsel, and the court having maturely considered the transcript of the record of the judgment aforesaid and argument of counsel, is of opinion that section 3538 of the Code of Virginia [ (now Code § 17.1-606)] does not apply to appellate proceedings."). See also Dodson v. Director, Dept. of Corrections, 233 Va. 303, 309, 355 S.E.2d 573, 577 (1987) (holding that Code § 19.2-157 provides an indigent person charged with the commission of a crime punishable by death or imprisonment is entitled to counsel throughout the appellate process). Accordingly, we must consider the nature of the case below, as well as the nature of the appeal and the apparent due process and equal protection concerns, in order to...