People v. Mallory

Decision Date04 January 1967
Docket NumberNo. 3,3
Citation378 Mich. 538,147 N.W.2d 66
PartiesPEOPLE of the State of Michigan, Plaintiff and Appellee, v. Alton MALLORY, Defendant and Appellant.
CourtMichigan Supreme Court
Samuel H. Olsen, Pros. Atty., Wayne County, Samuel J. Torina, Chief Appellate Lawyer, James E. Lacey, Asst. Prosecuting Atty., Detroit, for the People

Goodman, Crockett, Eden, Robb & Philo, Detroit, Rolland R. O'Hare and Sheldon M. Meizlish, Detroit, of counsel, for defendant-appellant.

Charles M. Waugh, Chairman, by Irving Tukel, Detroit, for amicus curiae, Civil Liberties Committee of State Bar of Michigan, a public body corporate.

Before the Entire Bench.

DETHMERS, Justice.

This is an appeal, upon leave granted, from court of appeals denial of application for delayed appeal from an order of the recorder's court of the city of Detroit denying defendant's motion for appointment of appellate counsel and free transcript for appeal purposes.

On May 11, 1964, defendant was convicted, by a judge sitting without a jury, in the recorder's court of the city of Detroit, of the misdemeanor of receiving and concealing stolen property under the value of $100. This is an offense cognizable by a justice of the peace. The maximum permissible sentence is 90 days in jail or $100 fine or both. He was sentenced to 90 days in the Detroit house of correction and served the sentence.

It is urged by the people that because defendant completed service of his sentence this appeal should be dismissed on the ground that the case has become moot. For this the following authorities are cited: People v. Leavitt, 41 Mich. 470, 2 N.W. 812; City of Ishpeming v. Maroney, 49 Mich. 154 N.W. 62; Thomas v. Montcalm Circuit Co. v. Charles Klein Co., 177 Mich. 399, 140 N.W. 484; Howe v. Doyle, 187 Mich. 655, 154 N.W. 62; Thomas v. Montclaim Circuit Judge, 228 Mich. 44, 199 N.W. 610; Sullivan v. Michigan State Board of Dentistry, 268 Mich. 427, 256 N.W. 471; Horowitz v. Rott, 235 Mich. 369, 209 N.W. 131; People v. Pyrros, 323 Mich. 329, 35 N.W.2d 281; Johnson v. City of Muskegon Heights, 330 Mich. 631, 48 N.W.2d 194; McCarthy v. Wayne Circuit Judge, 294 Mich. 368, 293 N.W. 683.

At the time of the alleged commission of the misdemeanor and his conviction thereof, defendant was on parole from a previous sentence on a 1962 felony conviction. After the May 11, 1964, misdemeanor conviction defendant was found guilty by the parole board of parole violation and, after service of his 90-day misdemeanor sentence, was remanded to State prison as a parole violator and is still there as There is question as to how the matter of the reasons for his parole revocation, set forth in defendant's appendix, came into the record in this case. However, the people's appendix contains material which equally goes into the matter. From all that appears in the appendices it is evident that either defendant's misdemeanor conviction automatically brought about a finding by the parole board of parole violation or that, at least, that conviction was an element and factor in the parole violations charged against defendant and considered by the board in making its finding of parole violation. Accordingly, we consider the above cases cited by the people with respect to mootness inapt. Defendant's present incarceration may well be considered a consequence, in part at least, of this misdemeanor conviction. More to the point is United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248, in which the United States supreme court said:

provided by law, serving the remainder of his sentence for the 1962 felony conviction.

'Although the term has been served, the results of the conviction may persist. Subsequent convictions may carry heavier penalties * * *. As the power to remedy an invalid sentence exists, * * * respondent is entitled to an opportunity to attempt to show that this conviction was invalid.'

See, also: Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285; United States ex rel. Harton v. Wilkins, 2 Cir., 342 F.2d 529; Williams v. United States, 7 Cir., 332 F.2d 36; United States v. Cariola, 3 Cir., 323 F.2d 180; Williams v. United States, 7 Cir., 310 F.2d 696; United States v. Moore, 7 Cir., 166 F.2d 102; United States v. Steese, 3 Cir., 144 F.2d 439; United States ex rel. Oddo v. Fay, D.C., 236 F.Supp. 242; Janiec v. State of New Jersey, 85 N.J. Super. 68, 203 A.2d 727; Bojinoff v. People, 299 N.Y. 145, 85 N.E.2d 909. Because of the parole revocation and present resultant imprisonment, we cannot hold this case moot.

Defendant was not represented by counsel at the misdemeanor trial. Since trial defendant has said that he did not waive his right to trial by jury and the record does not clearly disclose that he did. Other claims of reversible error with respect to the trial and conviction are suggested. None of these, however, are before us for determination now. Rather, it is the subsquent occurrences which are the subject of this appeal. We turn now to these.

Defendant's brief states the question involved in this appeal as follows:

'Is an indigent misdemeanant entitled as a matter of right to have counsel appointed to appeal a misdemeanor conviction?'

Despite defendant's wording of this question, it will be noted that there is involved not only appointment of appellate counse but also furnishing to defendant of a free copy of portions of transcript and record essential to preparation of post conviction motions and appeal.

In Griffin v. People of the State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, indigent defendants were convicted of armed robbery, which was undoubtedly, as in Michigan, a felony. It was held that the due process and equal protection clauses of the 14th amendment to the Federal Constitution required furnishing defendants, at public expense, with the portions of the transcript of trial necessary for taking and presenting an appeal.

In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, an indigent defendant convicted of a noncapital felony was denied appointment of trial counsel. The court held that defendant's trial and conviction without being accorded the fundamental right of assistance of counsel violated the 14th amendment.

In Douglas v. People of the State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, indigent defendants were convicted of 13 felonies. Denial of their In Patterson v. Warden, Maryland Penitentiary, 372 U.S. 776, 83 S.Ct. 1103, 10 L.Ed.2d 137, defendant had been denied court-appointed counsel because the Maryland statute provided for this only in capital or 'serious' cases and the trial court said this one was neither. He was convicted of carrying concealed weapons and sentenced to two years' imprisonment. The United States supreme court vacated judgment and remanded for reconsideration in the light of Gideon v. Wainwright, supra.

requests for appointment of counsel to prosecute an appeal was held to amount to discrimination between the rich and the poor, in violation of the 14th amendment.

Similar are the cases of Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892, involving a conviction for murder, and Draper v. State of Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899, in which the indigent defendants were convicted of robbery.

These United States supreme court decisions, all involving felonies, may not necessarily be controlling of the question in the instant case relating to a misdemeanor.

The Federal criminal justice act, 18 U.S.C.A. § 3006A(b), provides that 'In every criminal case in which the defendant is charged with a felony or a misdemeanor, Other than a petty offense, and appears without counsel' (emphasis supplied) defendant shall be advised by the commissioner or court that counsel will be appointed to represent him if he is financially unable to obtain counsel.

In the opinions of certain Federal courts of appeal cases language appears indicating that statutory denomination of the offense as a felony or fixing of a serious penalty or the offense being a serious one are not prerequisites to the constitutional right to counsel at public expense and apprisal of defendant of his rights thereto. These do not appear to give heed to the 'petty offense' provision of the above Federal statute. For example:

In Evans v. Rives, 75 U.S.App.D.c., 242, 126 F.2d 633, 638, the court of appeals for the District of Columbia said:

'It is further suggested by the District of Columbia that the constitutional guaranty of the right to the assistance of counsel in a criminal case does not apply except in the event of 'serious offenses.' No such differentiation is made in the wording of the guaranty itself, and we are cited to no authority, and know of none, making this distinction. The purpose of the guaranty is to give assurance against deprivation of life or liberty except strictly according to law. The petitioner would be as effectively deprived of his liberty by a sentence to a year in jail for the crime of non-support of a minor child as by a sentence to a year in jail for any other crime, however serious. And so far as the right to the assistance of counsel is concerned, the Constitution draws no distinction between loss of liberty for a short period and such loss for a long one.'

In Harvey v. State of Mississippi, 5 Cir., 340 F.2d 263, 271, defendant was convicted, on plea of guilty of the misdemeanor of possession of whiskey and sentenced to a 90-day jail term and to pay $500 fine. The fifth circuit court of appeals, after quoting the above quotation from the Evans v. Rives Case, went on to say:

'While the rule as thus stated has never been expressly extended to misdemeanor charges in state tribunals, it has been argued that such a principle is implicit in the Supreme Court's decision in Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733. Be this as it may, the reasoning in Evans along with other recent right-to-counsel deci...

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