Losieau v. Sigler

• Decision Date: 28 February 1969
• Docket Number: No. 19178.,19178.
• Citation: 406 F.2d 795
• Parties: Robert William LOSIEAU, Appellant, v. Maurice H. SIGLER, Warden, Nebraska State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

406 F.2d 795 (1969)

Robert William LOSIEAU, Appellant, v. Maurice H. SIGLER, Warden, Nebraska State Penitentiary, Appellee.

No. 19178.

United States Court of Appeals Eighth Circuit.

February 4, 1969.

Rehearing Denied February 28, 1969.

Vincent L. Dowding, of Luebs, Tracy & Huebner, Grand Island, Neb., for appellant.

Melvin K. Kammerlohr, Asst. Atty. Gen., State of Nebraska, Lincoln, Neb., for appellee; Clarence A. H. Meyer, Atty. Gen., of Nebraska, was with him on the brief.

Before MATTHES, MEHAFFY and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

The petitioner has spent most of his adult life in prison. This habeas corpus appeal is the culmination of efforts on his part to have a 1952 Nebraska conviction and sentence as a habitual criminal set aside so that his prison terms, if served to completion, would expire in 1982 rather than 1987.¹ To set the 1952 conviction aside, it is necessary to find that the petitioner was deprived of the right to appointed counsel at a critical stage in the 1939 and 1945 criminal proceedings on which the habitual criminal sentence was based.² The trial court held that it was not necessary to determine the validity of the proceedings. We reverse and remand.

The petitioner was first convicted in 1939 by a Nebraska state court for armed robbery. Convictions followed in 1945 (stealing an automobile — Nebraska), 1948 (nine crimes involving possessing, passing and forging United States Postal Money Orders — United States District Court), 1952 (burglary — Nebraska), and 1962 (breaking and entering — Nebraska).³ His punishment was enhanced in 1952 and 1962 pursuant to the provisions of the Nebraska Habitual Criminal Act. On each occasion, as a result, the petitioner received a twenty-year sentence.

The attack on the 1952 habitual criminal conviction and sentence was instituted in two Nebraska District Courts. Each court denied relief without conducting a full evidentiary hearing. The petitioner appealed both decisions to the State Supreme Court. It also denied relief.⁴ He then filed a petition with the United States District Court for the District of Nebraska in each case. That court consolidated the matters and gave a full evidentiary hearing on all issues raised by the petitioner. It denied his petition. It found that the petitioner was furnished counsel when he pled guilty in 1945. It held that whether counsel was provided at sentencing was immaterial. It reasoned:

"* * * The normal remedy where counsel was not present at the time of sentencing is to have the individual resentenced. The defect does not affect the validity of the conviction. United States ex rel. Wagner v. Myers, 234 F.Supp. 239 (E.D.Penn. 1964); Hollis v. Ellis, 201 F.Supp. 616 (S.D.Tex.1961). Where the conviction has been used in an habitual criminal charge, it is the validity of the conviction which is important, not that of the sentence. See the memorandum opinion of this court in Kennedy v. Sigler, 1243L. It would seem to be irrelevant to the question raised here whether petitioner had counsel at the sentencing or not."

We do not agree that the validity of the 1945 sentence is irrelevant. The Nebraska Habitual Criminal Act can be invoked only when a felon has been twice previously convicted, sentenced and imprisoned. Further, each conviction, sentence and imprisonment must be valid or it cannot be used to enhance punishment for another offense. See, Burgett v. State of Texas, 389 U. S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526 (1966); Williams v. Coiner, 392 F.2d 210 (4th Cir. 1968).

In Burgett, the Court said:

"* * * To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense * * * is to erode the principle of that case. Worse yet, since the defect in the prior or conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right."

389 U.S. at 115, 88 S.Ct. at 262.

The trial court's statement that an invalid Nebraska sentence can ordinarily be validated by resentencing and thus does not void a lawful conviction for the same crime is supported by Nebraska case law, State v. Burnside, 181 Neb. 20, 146 N.W.2d 754, 756 (1966), cert. denied, Burnside v. Sigler, 387 U.S. 936, 87 S.Ct. 2063, 18 L.Ed.2d 1000 (1967); Kennedy v. State, 171 Neb. 160, 105 N. W.2d 710, 721 (1960) dicta; Haswell v. State, 167 Neb. 169, 92 N.W.2d 161, 165 (1958), and by the language of this Court in Kennedy v. Sigler, 397 F.2d 556, 560 (8th Cir. 1968). We do not believe, however, that the cited cases are controlling here.

The statement had its origin in Haswell. There, the defendant was charged with and convicted of the offense of rape, and was given an indeterminate sentence. He appealed to the Supreme Court of Nebraska contending that an indeterminate sentence may not be imposed on one convicted of a crime of violence against a person of another, and that as he had been given such a sentence, his conviction must be set aside. The Nebraska Supreme Court held that the indeterminate sentence was improperly imposed but sustained the conviction. It remanded the matter to the County Court with directions to impose a proper sentence.

In Kennedy v. State, supra, the defendant was convicted as a habitual criminal in 1959. The state relied on two prior burglary convictions as the basis for the conviction. The defendant contended on appeal that it erred in so doing as he had been erroneously sentenced on one of the prior convictions to serve a period of two years at the Nebraska State Reformatory when he was less than sixteen years of age. The court held that the defendant had failed to establish that he was in fact less than sixteen years of age when the allegedly improper sentence was imposed, thus the sentence was valid. It added by way of dicta:

"* * * This court recently reaffirmed and concluded in Haswell v. State, 167 Neb. 169, 92 N.W.2d 161; that an unauthorized or erroneous sentence does not void a lawful conviction. In any event the age of an accused when he has been twice convicted, sentenced, and committed to prison on a felony charge has no bearing on the question of whether or not he was an habitual criminal within the statutory meaning thereof."

105 N.W.2d at 721.

In Burnside, the defendant was charged with robbery. The information also contained a count under the habitual criminal statute. The defendant was found guilty and sentenced to fifteen years in the Nebraska State Penitentiary. No appeal was taken. The defendant then sought relief under the Nebraska Post Conviction Statute. He contended that he had been improperly sentenced as a habitual criminal as such a sentence cannot be imposed where a greater punishment is provided for the current offense. The State District Court granted the defendant's motion as the punishment for the crime of robbery — three to fifty years — exceeded that permissible as a habitual criminal. The State District Court set aside the previous sentence under the habitual criminal act and reimposed the fifteen year sentence under the appropriate statute. The defendant appealed to the Nebraska Supreme Court where he contended that the conviction must also be set aside as the initial sentence was improper. The court stated:

"* * * We assume, for the purpose of this case, that the original sentence on the finding that the defendant was a habitual criminal is erroneous. But, the finding that the defendant is a habitual criminal does not constitute conviction and sentence for any separate offense. This charge and information merely permitted the court to inflict a greater penalty because of the defendant\'s previous convictions. Davis v. O\'Grady, 137 Neb. 708, 291 N.W. 82. Defendant was tried and convicted by a jury for the offense of robbery. His motion does not allege that he was deprived of any constitutional rights up to the time of his trial and conviction. His main contention relates to the erroneousness of his sentence. We have repeatedly held that an unauthorized or erroneous sentence does not void a lawful conviction. Kennedy v. State, 171 Neb. 160, 105 N.W.2d 710; Haswell v. State, 167 Neb. 169, 92 N.W.2d 161. We find no merit in the defendant\'s contention.

"The record here shows that the most the defendant was entitled to was a vacation of the original sentence and a resentence on the count of robbery for which he was properly tried and convicted. This relief he was granted. The new sentence was for the same period of time as the original sentence and began on the same date, November 3, 1960. The defendant is simply dissatisfied with the length of this sentence. But, it is clear that the new sentence was within the limits of the statutory penalty of 3 to 50 years for the crime charged and is a valid sentence. The record fails to reveal any abuse of discretion in the imposition of the new sentence."

146 N.W.2d at 756 (Emphasis added.).

Only Haswell and Burnside hold that an invalid sentence does not affect the validity of a valid conviction. In neither case, however, was the court presented with the question of whatever a sentence, void for lack of counsel, can be retroactively validated after it has been fully served to support the imposition of a habitual criminal sentence imposed during the period that the sentence was void.

We are faced with the undecided question. We hold that if the defendant's 1945 sentence is invalid, it cannot be validated in 1968 for the purpose of supporting a 1952 habitual criminal sentence. Oksanen v. United States, 362 F.2d 74, 80, 81 (8th Cir. 1966).⁵ To reach any other conclusion under the facts of this case would be to render meaningless the defendant's right to counsel in 1945. It is obviously impossible at this late date to recreate the conditions that existed in 1945.

We turn to an examination of the validity...