Marston v. Oliver, 71-1329.

• Decision Date: 09 October 1973
• Docket Number: No. 71-1329.,71-1329.
• Citation: 485 F.2d 705
• Parties: Martin P. MARSTON, Appellee, v. R. M. OLIVER, Superintendent of the Virginia State Farm, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

485 F.2d 705 (1973)

Martin P. MARSTON, Appellee, v. R. M. OLIVER, Superintendent of the Virginia State Farm, Appellant.

No. 71-1329.

United States Court of Appeals, Fourth Circuit.

Argued June 6, 1973.

Decided October 9, 1973.

Robert E. Shepherd, Jr., Asst. Atty. Gen. of Va. (Andrew P. Miller, Atty. Gen. of Va., Burnett Miller, III, Asst. Atty. Gen. of Va., on brief) for appellant.

James L. Sanderlin, Richmond, Va., court-appointed (McGuire, Woods & Battle, Richmond, Va., on brief) for appellee.

David G. Karro, Roanoke, Va., on brief for Wayne A. Garrett, amicus curiae.

Before HAYNSWORTH, Chief Judge, and RUSSELL and FIELD, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

The petitioner in this habeas proceeding was convicted in Virginia of the offense of driving a motor vehicle on November 15, 1968, while his driver's license was suspended or revoked. At trial, he, though indigent, was not provided with counsel. After conviction, he received both a prison sentence and a fine. While imprisoned under this sentence, he filed this proceeding. He has since been released from custody. He contends that, although he has served his sentence and paid his fine, his action is not mooted, since his conviction laid him open to collateral consequences of a civil nature, i. e., the possible revocation of his driver's license. As a result of this conviction and his prior record of convictions,¹ the petitioner did become subject to proceedings for the revocation of his driver's license under the Virginia Habitual Offender Act,² and proceedings for this purpose were begun in early 1970, as a result of which his driver's license was revoked for a period of ten years. On the factual record, the District Court, 324 F.Supp. 691, found that the proceedings had not been mooted by the termination of petitioner's imprisonment, and proceeded to rule invalid the conviction because the petitioner, an indigent, was not afforded counsel. It, however, gave the State leave to retry the petitioner. The State has appealed. We reverse.

There is no dispute between the parties that, had the trial occurred after the decision in Argersinger v. Hamlin (1972) 407 U.S. 25, 92 S.Ct. 2006, 32 L. Ed.2d 530, the uncounseled conviction of the petitioner, resulting as it did in a sentence of imprisonment, would have been open to constitutional attack. This case, however, was tried and disposed of prior to Argersinger but the District Court prophetically anticipated in its decision that the Supreme Court would, as it shortly thereafter did in Argersinger, extend the principle of Gideon³ to misdemeanor convictions where the sentence entailed imprisonment. The decision of the District Court thus rests ultimately on the principles later enunciated in Argersinger and the rights of the petitioner must be resolved on the basis of that authority and, more particularly, on whether that authority is to be applied retroactively. It is important, however, to note that petitioner does not rely on Argersinger, applied retroactively, to relieve him of imprisonment or to secure his release from custody. What he is seeking by this proceeding is to be relieved of the possibility in a civil proceeding, under State procedures, of the loss of his driver's license on account of such conviction. In short, the issue posed by the petitioner on this appeal is whether Argersinger is to be applied retroactively in order to relieve a defendant, not of the actual sentence imposed on him, but of the collateral consequences of such a conviction on a civil right of the defendant. We are of opinion that Argersinger is not to be so applied retroactively.

The determination whether in this unique situation, Argersinger is to be applied retroactively, must begin with an analysis of the scope of the principle enunciated by the Supreme Court in Argersinger. Argersinger is a considerably narrower decision than Gideon. In Gideon, the felony conviction, whatever the penalty resulting, whether fine or imprisonment or both, is declared invalid, if uncounseled. In Argersinger, on the other hand, the Court only invalidated any imprisonment flowing from the conviction; it left intact and outstanding the conviction itself.⁴ The decision seems to have been carefully framed to assure that no one, whether convicted of a misdemeanor or felony, should suffer inprisonment as a result of an uncounseled conviction. It was the loss of liberty by the individual, with which it was concerned and towards which it directed its command. But it withheld relief in misdemeanor convictions for anything other than loss of liberty. Specifically, it did not extend its umbrella of invalidity over convictions involving fines, despite the fact that such a sentence might, especially in the case of an indigent, involve real hardship and privation, and despite the fact that, so far as the collateral consequences on the defendant's right to the continued use of his driver's license would be the same, whether his sentence was a fine or one of imprisonment. In sum, Argersinger purported to excise from the misdemeanor conviction only those consequences that related to loss of liberty and imprisonment. So far as its direct or collateral consequences are the loss of liberty on the part of the defendant, Argersinger applies, and while it is perhaps unnecessary to this decision, we are of opinion that it applies retroactively. But, where it does not carry with it these collateral consequences of imprisonment but merely lays the defendant open to a civil proceeding wherein a civil right may be involved, we are of opinion that neither the purpose nor limited scope of the decision in Argersinger suggests that its principle should be applied retroactively.

Cottle v. Wainwright (5th Cir. 1973) 477 F.2d 269, which gave retroactive application to Argersinger, illustrates the distinction we would make. That case dealt with a probation revocation hearing in which the uncounseled misdemeanor conviction was urged as the basis for revocation. The conviction, if available as a basis for revocation, would have meant the automatic and immediate recommitment to prison of the defendant. Under those circumstances, where the immediate loss of liberty on the part of the defendant would result from the uncounseled conviction, the Court very properly applied Argersinger retroactively. In so doing, the Court was applying Argersinger to the very situation against which the decision was directed, i. e., the imprisonment of the defendant on account of an uncounseled conviction. That, however, is not our situation, where the only collateral consequence is either the right to a driver's license or the right of continued exercise of one already granted.⁵

Not only does it seem that Argersinger was not intended to apply retroactively to collateral consequences of a civil character as a result of an uncounseled misdemeanor conviction; its retroactive application in this context would not comport with the standards generally applied in determining the retroactivity of criminal decisions. Fundamental to a determination of retroactivity is the effect that such a determination will have on the administration of justice. Stovall v. Denno (1967), 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Adams v. Illinois (1972) 405 U.S. 278, 284, 92 S.Ct. 916, 31 L.Ed.2d 202. In upholding the retroactivity of Argersinger in the factual context of the Cottle Case, the Court dismissed the argument that a retroactive application would seriously affect the administration of justice with the observation that, "* * * With regard to the great bulk of misdemeanor convictions invalidated by retroactive application of the Argersinger rule any issue pertaining thereto will, almost by definition, be moot." (477 F.2d at 274). But, if Argersinger, applied retroactively, is to open up traffic convictions terminated by service of sentence — which is the situation here — to attack for the sole, collateral purpose of providing a basis for invalidating a revocation or suspension of a driver's license, then the entire administrative procedure under both point-system statutes and habitual offender acts, as they were conducted prior to Argersinger, will be caught up in an impossible net of repetitive prosecutions, imposing an intolerable burden on traffic courts, if offending drivers are not to be turned loose upon the highways. The difficulties that such a decision would entail are well illustrated by this very case.

The conviction, against which the petitioner directs his challenge in the present petition, occurred on May 27, 1969. It was based on a charge that he had operated a motor vehicle "with revoked or suspended license." In its decision invalidating the proceedings, the District Court did not void that conviction absolutely but, even though the sentence had been served and no additional sentence could be imposed under Pearce,⁶ it authorized the State, within a reasonable time, to retry the defendant, such retrial, if successful, to be had for the sole purpose of validating a revocation of the defendant's driving license. This was in accordance with standard procedure. See Mordecai v. United States (1969), 137 U.S.App.D.C. 198, 421 F.2d 1133, 1137. That, it would seem, at least specifically, would impose no particular hardship on the State in this case and would have little effect on the State's program of improving highway...