Roberts v. Janco, Civ. A. No. C-71-97-E.

• Decision Date: 22 December 1971
• Docket Number: Civ. A. No. C-71-97-E.
• Citation: 335 F. Supp. 942
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Diane Connie ROBERTS, Petitioner, v. Joseph JANCO, Sheriff of Monongalia County, West Virginia, Respondent.

335 F. Supp. 942

Diane Connie ROBERTS, Petitioner, v. Joseph JANCO, Sheriff of Monongalia County, West Virginia, Respondent.

Civ. A. No. C-71-97-E.

United States District Court, N. D. West Virginia.

December 22, 1971.

David G. Hanlon, Harrisville, W. Va., for petitioner.

Willard A. Sullivan, Asst. Atty. Gen., Charleston, W. Va., for respondent.

MEMORANDUM ORDER

MAXWELL, Chief Judge.

Petitioner, Diane Connie Roberts, is presently serving a one year sentence in the Monongalia County Jail in Morgantown, West Virginia. This sentence was imposed on February 7, 1971, by a Monongalia County Justice of the Peace under the authority of West Virginia's "Peace Bond" proceedings, West Virginia Code ch. 62, art. 10, §§ 1-4 (Michie 1966).¹

Having earlier exhausted state remedies, Petitioner now seeks a writ of federal habeas corpus in this Court pursuant to 28 U.S.C. § 2241 et seq. She proceeds here in forma pauperis.

The facts underlying Petitioner's conviction and subsequent incarceration are primarily undisputed. Petitioner was charged under the provisions of § 62-10-2 with assaulting and threatening the life and property of another. At her hearing before the justice of the peace Petitioner admitted her guilt and, "in lieu of bond," according to the justice of the peace, she was committed to the county jail to begin serving a one year sentence as specified in § 62-10-1 (for a term not exceeding one year).

In addition to these agreed-to facts the justice who sentenced Petitioner testified at this Court's evidentiary hearing that he did not give Petitioner any advice regarding counsel.

In contesting Petitioner's conviction and sentence, her attorney attacks the constitutionality of West Virginia's Peace Bond provisions and asserts six grounds² in support thereof which consolidate into four basic constitutional issues: cruel and unusual punishment, denial of procedural due process, denial of substantive due process and denial of equal protection.

Counsel for Respondent argues in reply that the West Virginia statutes merely require a "recognizance"³ and that an accused has only to obligate himself to pay a sum, if and when he fails to keep the peace. Although recognizing the difficulty the State might experience in attempting to collect such a pledge from an indigent under this interpretation, Respondent concludes that this statutory scheme is constitutional since it does not discriminate between rich and poor in its application.

As illustrated by the present case, however, the practice of justices has been, at least on occasions, to require the actual posting of a sum of money, or comparable security, to keep the peace and if the same is not forthcoming, to commit the accused to jail.⁴

As a preface to a discussion of the issues raised by the instant petition, the Court is unpersuaded by the contention raised in oral argument that West Virginia's Peace Bond provisions should be struck down as having lost their original aims and purposes. This Court is of the firm opinion that these statutes continue to serve a salutary purpose and are an effective and proper deterrent to violence, either actually perpetrated or immediately threatened. Consequently, if an accused is afforded the necessary constitutional guarantees under existing procedures, then these statutory provisions must stand and any punishment exacted within the prescribed limits thereof must be upheld and given effect.⁵

When Petitioner's alleged deprivations are considered in a chronological order, the initial issue is whether or not Petitioner was entitled to legal representation at her hearing before the justice of the peace.

At the present time the extent to which the Sixth Amendment's right to counsel applies to misdemeanor cases has not been ruled on by either the United States Supreme Court⁶ or the West Virginia Supreme Court of Appeals.⁷ There is, however, much case law on a misdemeanant's right to counsel. For purposes of this case it is sufficient to note some of the recent federal⁸ and state⁹ cases which have considered this issue and to recognize the current misdemeanor-felony dichotomy¹⁰ which is interwoven into many of these decisions.

Implicit in the language of § 62-10-1 is the theory that they are intended to deter an individual's future acts. In a realistic sense, however, these provisions also serve to punish.¹¹ It is evident in this case that as a result of the operation of the involved statutes and/or the practice employed, this Petitioner was assured of punishment exceeding six months imprisonment. Thus, in applying the teachings of Gideon v. Wainwright¹² and its progeny to this case, and in accepting the rationale of those cases which hold that individuals facing possible sentences exceeding six months imprisonment and fines exceeding $500 are entitled to legal representation,¹³ this Court holds that the absence of an attorney at Petitioner's hearing, or satisfactory evidence of a valid waiver thereof, voids her conviction.

In holding that the constitutional right to counsel, either retained or appointed, and the resulting infusion of the principles of advocacy required in a criminal case apply with equal force to West Virginia's Peace Bond proceedings, the Court finds additional support in that portion of Coleman v. Alabama¹⁴ pertaining to a criminal defendant's right to counsel at a preliminary hearing.

In view of the fact that West Virginia's peace warrant proceedings are punitive in nature with confinement of one year assured under the statute and/or the prevailing practice, peace warrant matters in West Virginia are tantamount to a preliminary hearing, a critical stage of criminal proceedings under Coleman. Indeed, the statement in Coleman that "the guiding hand of counsel . . . is essential to protect the indigent accused against an erroneous or improper prosecution"¹⁵ is applicable to virtually every person, including Petitioner, accused under the so called peace statute.

Although not necessary to grant the relief sought, it appears that a discussion of Petitioner's remaining allegations is warranted.

As presently worded West Virginia Code § 62-10-3 permits a justice of the peace to require a recognizance "if he consider there is good cause therefor" but to discharge the accused if he decides "there is not good cause for the complaint. . . ." (emphasis added).

Petitioner argues that this statute unconstitutionally shifts the burden of proof to the accused and permits a justice of the peace to require the posting of a peace bond, or be confined to jail, on less than reasonable doubt, the standard required in a criminal case. In support of these arguments, Petitioner relies on Santos v. Nahiwa,¹⁶ a recent case in which the Supreme Court of Hawaii upheld a lower court's determination that Hawaii's "Bond to Keep the Peace," a statute similar to West Virginia's, was unconstitutional in that it failed to require proof of guilt beyond a reasonable doubt.

The present wording of § 62-10-3 also conditions an appeal of the justice's decision on the giving of the recognizance. The effect, therefore, is to deny the right to appeal to an individual who fails or refuses for any reason, including indigency, to post the bond. In the case of an indigent accused, the denial of equal protection found in Tate v. Short¹⁷ is compounded in that the very inability to secure one's freedom also operates to prevent an appeal.

The Supreme Court's most recent expression on the subject of an indigent's appeal, Mayer v. City of Chicago,¹⁸ strongly suggests that an appeal of a justice's decision under West Virginia's Peace Bond statutes may not be conditioned on the giving of the statutory recognizance. In holding that an indigent misdemeanant has a right to a free transcript or "record of sufficient completeness" for appeal purposes, the Court in Mayer stated:

The size of the defendant's pocketbook bears no more relationship to his guilt or innocence in a nonfelony than in a felony case. . . .

. . . The invidiousness of the discrimination that exists when criminal procedures are made available only to those who can pay is not erased by any differences in the sentences that may be imposed.

While not intimating any opinion as to what effect Petitioner's guilty plea¹⁹ would have on these equal protection and due process arguments, the tenor of the Santos, Tate and Mayer cases makes it clear that the legislature has the opportunity to consider the possibilities of statutory changes in light of these constitutional challenges.²⁰

Accordingly, for the reasons and expressions set forth herein, it is ordered that the sentence imposed upon Petitioner is hereby declared void and that the writ of habeas corpus shall issue, directing and authorizing Respondent herein to release and discharge Petitioner from custody.

1 West Virginia Code § 62-10-1, entitled "Security to Keep the Peace" reads:

Every justice of the peace shall have the power to require, from persons not of good fame, security for their good behavior and to keep the peace, for a term not exceeding one year.

West Virginia Code § 62-10-2:

If complaint be made to any justice, that there is good cause to fear that a person intends to commit an offense against the person or property of another, he shall examine the complainant on oath, and any witnesses who may be produced, reduce the complaint to writing, and cause it to be signed by the complainant. If it appear proper, such justice shall issue a warrant, reciting the complaint, and requiring the person complained of forthwith to be apprehended and brought before him or some other justice of the county.

West Virginia Code § 62-10-3:

When such person appears, if the justice, on hearing the parties, consider that there is not good cause for the complaint, he shall discharge such person, and may give judgment in his favor and against the complainant for his costs. If he consider there is good cause therefor, he may require a...