Molignaro v. Smith

• Decision Date: 18 March 1969
• Docket Number: No. 25784.,25784.
• Parties: Henry MOLIGNARO, Appellant, v. Lamont SMITH, Warden, Georgia State Prison, Reidsville, Georgia, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

408 F.2d 795 (1969)

Henry MOLIGNARO, Appellant, v. Lamont SMITH, Warden, Georgia State Prison, Reidsville, Georgia, Appellee.

No. 25784.

United States Court of Appeals Fifth Circuit.

March 18, 1969.

W. Lance Smith, Barnard Portman, Savannah, Ga., for appellant.

Mathew Robins, Asst. Atty. Gen., Arthur K. Bolton, Atty. Gen., Marion O. Gordon, Asst. Atty. Gen., Atlanta, Ga., for appellee.

Before WISDOM and AINSWORTH, Circuit Judges, and JOHNSON, District Judge.

WISDOM, Circuit Judge:

This habeas case involves the duty of a trial court to inform an accused of the consequences of pleading guilty to an indictment for child molesting. The question is whether, before accepting a waiver of the right to counsel, the trial court should have informed the accused that a guilty plea carried a maximum possible sentence of twenty years. We reverse the district court's denial of the writ. In the absence of a showing that the petitioner was informed of the possible punishment he faced, we hold that there was no knowing and intelligent waiver of the right to counsel.

Henry A. Molignaro was arrested in Muscogee County, Georgia, on March 2, 1964, and charged with molesting a minor. He alleges that at a preliminary commitment hearing the next day, he requested, but was denied counsel. He pleaded not guilty and was bound over for trial before the Superior Court. At the time of his arrest, Molignaro was a sergeant in the United States Army and had never before been in trouble with the law. Molignaro had completed six grades of schooling.

For ten days following the commitment hearing, Molignaro remained in jail without benefit of an attorney. On March 13 he came before Superior Court Judge J. Alvin Davis, still without an attorney, and pleaded guilty to the charge of child molestation. The charge carried with it a possible sentence of twenty years imprisonment; Molignaro was sentenced to fifteen. There is no record of the proceedings, a circumstance that makes it difficult for the petitioner to prove non-waiver and difficult for the state to carry its burden of proving a knowing and intelligent waiver.

The prisoner later sought a writ of habeas corpus from the Georgia courts, alleging that his constitutional right to counsel had been violated. He pursued his application to the Supreme Court of Georgia without success. See Molignaro v. Balkcom, 1965, 221 Ga. 150, 143 S.E.2d 748.

Molignaro then sought habeas relief in the federal district court. He contended that he had not knowingly waived counsel at the time he pleaded guilty, and that his conviction on the basis of that plea had therefore violated the sixth and fourteenth amendments. At the habeas hearing Molignaro testified that he had decided to plead guilty while in jail before the arraignment hearing. He said that he had pleaded "nolo contendere" in the belief that such a plea would enable him to discover the nature of the charge against him. He denied that anyone at the arraignment had advised him of his right to an attorney, appointed or otherwise.

The state introduced contrary evidence at the hearing. It read into the record a statement by John H. Land, the prosecuting attorney at the time of Molignaro's conviction. Land was asked to state "whether or not Henry A. Molignaro was advised of his constitutional rights concerning the appointment of legal counsel for his defense". Land replied, "Henry A. Molignaro was so advised."

On the basis of that answer, the district court concluded that Molignaro's waiver of counsel had been made with sufficient information to withstand constitutional attack. This Court, however, reversed on that point:

We therefore reverse the judgment of the District Court and remand the cause with directions to hold a new hearing for a full development of the facts with particularity concerning the offer of counsel to Molignaro and his asserted waiver thereof.

Molignaro v. Dutton, 5 Cir. 1967, 373 F.2d 729, 731.

At the remand hearing the State relied solely upon the depositions of two witnesses to prove the validity of the waiver. In the first deposition, John H. Land said that Molignaro appeared to be "lucid" and to "comprehend the explanation of his constitutional rights". He could not testify, however, as to whether Molignaro understood the penalty he might incur if convicted:

Now whether he was told that the punishment for molesting a minor was one to twenty years, I can\'t definitely say. I can not positively say that. (R. 57).

Judge Davis, who had presided at Molignaro's arraignment, testified, on the basis of the usual practice in his court rather than on his recollection of Molignaro's case, that the prosecutor had informed the accused of the charges against him and of his right to a lawyer's advice, at state expense if necessary. Judge Davis further declared that Molignaro appeared to understand the charge. Like Mr. Land, however, he could not remember that anyone had apprised Molignaro of the twenty-year sentence that may accompany conviction for molesting a minor in Georgia. Nor did he assert that informing defendants as to possible penalties was a part of his court's normal procedure at arraignment. Molignaro himself did not testify at the hearing. There was, therefore, no evidence at the remand hearing that could support a finding that Molignaro knew the magnitude of the punishment he was accepting by deciding to waive counsel and plead guilty.

At the close of the evidence, the district judge made his ruling from the bench. After stating that Molignaro bore the burden of proof as to knowing waiver and that the burden had not been carried, the court denied the petition for habeas corpus. This appeal followed. In Miranda v. Arizona, 1966, 384 U.S. 436, 486, 86 S.Ct. 1602, 16 L.Ed.2d 694, a case involving an in-custody interrogation, however, the Supreme Court said:

If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. State of Illinois, 378 U.S. 478, 490, n. 14 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

Whether the state produced sufficient evidence at the habeas hearing to support a finding of waiver is, of course, an issue of fact and we must uphold the district court's decision in that respect unless it was clearly erroneous. There was, however, no evidence at all to indicate that either the prosecution or the state trial judge apprised Molignaro, prior to his plea, of the twenty-year maximum sentence that Georgia provides for convicted child molesters. The judge and the solicitor specifically could not testify that Molignaro was aware of the range of punishment which could be imposed. The district court even suggested that Molignaro may not have been aware of the possible range of punishment:

THE COURT: The punishment was what you were worried about, the length of your sentence, wasn\'t that right? Isn\'t that what is the matter with you now, that they give you more than you thought they would give you?

* * * * * *

THE COURT: * * * if you had gotten a year or two years or something, you wouldn\'t push the case any further would you?

One who was not aware of the statutory penalties for child molesting might well think he would not be sentenced to more than a year or two. When the actual range extends to twenty years, a defendant has done more than make an educated but erroneous guess, and "voluntary" and "intelligent" are no longer apt adjectives to describe his waiver of the right to counsel.

We address ourselves to the circumstances of this case. We need not, and do not, rule upon the general question of whether a defendant can ever effectively waive counsel without a full warning about the sentence that may accompany conviction. We have before us only Molignaro's waiver of counsel and its constitutional adequacy, as measured by the particular context in which it was made.¹

Molignaro's waiver occurred at a critical stage of the proceedings against him; the guilty plea that he entered without counsel could not be retracted at some later stage, because he was convicted and sentenced immediately afterwards. Thus, under the Supreme Court's decisions in White v. Maryland, 1963, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed. 2d 193, and Hamilton v. Alabama, 1961, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, his right to a lawyer's advice had become operative. Once that right attaches, it can be lost only by a fully intelligent waiver. The Supreme Court has been at pains to say that the waiver of counsel must not be treated lightly:

It has been pointed out that `courts indulge every reasonable presumption against waiver\' of fundamental constitutional rights and that we `do not presume acquiescence in the loss of fundamental rights.\'

Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. In cases where the defendant manifests the intent to proceed without counsel, the trial court must extend itself to be certain that he knows what he is doing:

This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.

Id. at 465, 58 S.Ct. at 1023, 82 L.Ed. at 1467.

In Carnley v. Cochran, 1962, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70, the Supreme Court emphasized that a federal habeas court must find positive indication of a waiver on the record in order to uphold a finding of waiver below. The burden of...