Powell v. Hocker
| Decision Date | 10 December 1971 |
| Docket Number | No. 71-1118.,71-1118. |
| Citation | 453 F.2d 652 |
| Parties | Billy Ray POWELL, Petitioner-Appellant, v. Carl G. HOCKER, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Billy Ray Powell, in pro. per.
Robert List, Atty. Gen. of Nevada, Carson City, Nev., for respondent-appellee.
Before CHAMBERS and CHOY, Circuit Judges, and MUECKE,* District Judge.
Billy Ray Powell was seventeen years of age when he was charged on March 3, 1966 with burglary, carrying a concealed weapon, and violation of curfew.
Several days later, Powell and his parents received a notice that they were to appear on March 31, 1966 in the Juvenile Court of Clark County, Nevada. The purpose of the hearing, as announced in the notice, was "consideration" of the charges.
The Powells appeared on the designated date, without an attorney representing them. They were not told that Powell was entitled to counsel. After a brief statement,1 the juvenile court judge certified Powell to be tried as an adult. This decision was made without an investigation required by Nevada law.2
Powell was represented by counsel when, in adult criminal court, he pleaded guilty to a charge of burglary. He was sentenced to a term of one to fifteen years.
Powell made two attacks on his conviction by appeal and by petition for habeas corpus to the Nevada Supreme Court. In the decision pertinent here,3 the Nevada Supreme Court denied Powell's claim that he was deprived of the right to counsel at the certification hearing.
He then petitioned the United States District Court for a writ of habeas corpus. He appeals from a denial of the writ. We reverse and remand with instructions.
The Nevada Supreme Court held that Powell's claim should be denied because In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), which held that due process and fairness require assistance of counsel, adequate notice, and a statement of reasons, does not apply retroactively to certification hearings for juveniles, which were conducted before that decision.
The District Court did not reach the issue of Gault's retroactivity; instead, the court held that, by reason of his guilty plea, Powell waived his right to complain of the denial of counsel.
We hold that Gault does apply retroactively and that Powell did not waive his right to counsel by pleading guilty in the adult criminal court.
A hearing to determine whether a juvenile should be tried as an adult is a critical stage in the criminal proceedings wherein an adolescent risks losing his claim to juvenile rehabilitative treatment. "Juvenile status is, in effect, a basis upon which a youthful offender can plead diminished responsibility for his unlawful act." Kemplen v. State of Maryland, 428 F.2d 169, 175 (4th Cir. 1970).
The standards of due process in juvenile proceedings are intended to ensure that a youth who comes before the juvenile court receives a full and fair hearing on the appropriateness of treating him as a juvenile or an adult.
In Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), which was decided approximately three weeks before Powell was certified for trial as an adult, the Supreme Court interpreted a District of Columbia statute to require counsel and adequate notice of hearing to determine whether a juvenile should be tried as an adult. It is not self-evident from Kent whether these requirements inhere in the constitutional mandate of due process. However, Gault contains the following language which indicates that the rights of juveniles at such hearings have a constitutional basis:
This language makes it clear that due process requires the rights to counsel, to adequate notice and to a statement of reasons at a hearing to determine whether a juvenile is to be tried as an adult. We join a growing list of courts that interpret Kent in the light of Gault as establishing certain minimum constitutional rights of juveniles at such hearings.4
The wisdom—indeed, the necessity— of this doctrine is vividly illustrated by the distinct disregard for Powell's rights when, contrary to the procedure required by Nevada law, the juvenile court judge certified Powell for trial as an adult offender without the benefit of any investigation.5 The assistance of counsel itself should deter such perfunctory treatment of juveniles in the future.
The certification of Powell for trial as an adult antedated the decision in Gault. It is, therefore, necessary to determine whether Gault is to be applied retroactively.6
There is a split of authority on the issue in various jurisdictions.7 However, the Supreme Court itself has declared:
"The right to counsel at the trial (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799) on appeal (Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811) and at the other `critical\' stages of the criminal proceedings (Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114) have all been made retroactive, since the `denial of the right must almost invariably deny a fair trial.\'" Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 36, 21 L.Ed.2d 5 (1968).
The retroactivity issue turns on whether the rights to counsel, to adequate notice and to a statement of reasons are essential to the integrity of the certification process. The Supreme Court, in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967), set out the criteria for deciding this question in particular situations: "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards." 388 U.S. at 297, 87 S.Ct. at 1970.
The role to be played by counsel at a juvenile certification hearing is a crucial one. As pointed out in Kemplen v. State of Maryland, 428 F.2d 169, 177 (4th Cir. 1970), the hearing is "the only opportunity an accused has to plead the defense of his diminished responsibility as a juvenile." Counsel for the juvenile is in a special position to present to the juvenile court such material considerations as mitigating facts in the background of the youth, his potential for rehabilitation, the availability in the particular community of alternative modes of rehabilitation, and otherwise ensure that full regard be accorded the particular situation of each juvenile offender.
The reliance of law enforcement agencies on the pre-Gault rule may be substantial and the number of juveniles who have been improperly certified as adult offenders large, but these considerations do not outweigh the basic constitutional rights of offenders such as Powell.
Thus, we hold that Gault is to be applied retroactively to hearings to certify juveniles for trial as adults.
In Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), the Supreme Court ruled that a waiver constitutes "an intentional relinquishment or abandonment of a known right or privilege" and "every presumption against waiver" is to be indulged. 304 U.S. at 464, 58 S.Ct. at 1023. We have held that a guilty plea effects only a limited waiver: "When a defendant voluntarily and knowingly pleads guilty at his trial this constitutes a waiver of all non-jurisdictional defenses . . ." Thomas v. United States, 290 F.2d 696, 697 (9th Cir. 1961).
The jurisdiction of an adult criminal court to try a juvenile as an adult is predicated on the proper certification of the juvenile by the juvenile court. In Nevada, the requirement of a full investigation at the certification hearing is necessary to confer jurisdiction on the adult criminal court. Thus, Powell's guilty plea here does not amount to a waiver of the jurisdictional defects affecting the proceedings by which he was convicted and sentenced.
Moreover, his plea of guilty cannot be deemed a waiver based on full knowledge of his constitutional rights. The plea was made only three weeks after the decision in Kent; the constitutional underpinnings of Kent had not yet been specified by Gault. Counsel for Powell, in advising the latter to enter a guilty plea, could not be expected to have informed his client of rights, the status of which was then still nascent.8
We hold, therefore, that Powell's guilty plea did not constitute a waiver of his rights to counsel, to adequate notice and to a statement of reasons, based on Kent and Gault.9
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