Smith v. Warden, Nev. State Prison, s. 5636

• Decision Date: 10 February 1969
• Docket Number: 5713,Nos. 5636,s. 5636
• Citation: 450 P.2d 356,85 Nev. 83
• Parties: Bobby Fred SMITH, Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent. David C. LUSE, aka David Claude Luse, Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent.
• Court: Nevada Supreme Court

Page 356

450 P.2d 356

85 Nev. 83

Bobby Fred SMITH, Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent.

David C. LUSE, aka David Claude Luse, Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent.

Nos. 5636, 5713.

Supreme Court of Nevada.

Feb. 10, 1969.

Rehearing Denied March 5, 1969.

James C. Martin, Carson City, for appellant Bobby Fred Smith.

Melvin Schaengold, Reno, for appellant David C. Luse and another.

Harvey Dickerson, Atty. Gen., Robert A. Groves, Deputy Atty. Gen., Carson City, for respondent.

OPINION

THOMPSON, Justice.

We recently ruled that an indigent person on probation is not entitled to appointed counsel at a revocation hearing in which sentence has been imposed after a felony conviction, but the execution thereof had been suspended during good behaviour on probation. In re DuBois, 84 Nev. ---, 445 P.2d 354 (1968). We there distinguished the United States Supreme Court decision of Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), which requires counsel, unless waived, in a case where sentencing of the convicted felon is deferred subject to probation. Mempa considered the imposition of sentence to be a critical stage in the criminal proceeding, and mainly for that reason concluded that the Sixth Amendment affords a probationer the right to counsel at a revocation hearing where sentence will be imposed if revocation occurs. Since in Nevada the convicted defendant is represented by counsel, absent waiver, at the time sentence is imposed, we deemed the precise holding of Mempa inapplicable to the procedure followed in this state.

Today, in consolidated cases, we are asked to overturn In re DuBois. Each appellant is indigent. Each was convicted of a felony, sentenced, and placed on probation. In each instance probation was later revoked at a hearing in the absence of counsel. Each prisoner sought post-conviction relief, and these consolidated appeals are from district court judgments denying relief.

It would appear that DuBois is dispositive and renders this consolidated appeal unworthy of serious consideration. However, a new contention is pressed--one concerning the possible application of the equal protection clause to the issue at hand-- a contention not urged when we decided DuBois, and one which we now must consider.

The contention is simply this. A probationer with money may retain counsel to represent him at a revocation hearing. To deny appointed counsel to an indigent probationer is to deny him equal protection of the law. The rich and the poor must be treated alike insofar as the right to counsel is concerned. This argument was approved by the Oregon Supreme Court in a lucid opinion, Perry v. Williard, 427 P.2d 1020 (Or.1967), and is not lightly to be cast aside. We do not, however, choose to accept it in Nevada, for reasons which to us seem sound.

The Sixth Amendment right to counsel cases decided by the United States Supreme Court center upon the need for counsel at critical stages of the criminal proceeding in order to insure fundamental fairness in the treatment of an accused or of one upon whom suspicion is focused. Consequently, that court has ruled that the right to counsel attaches when a police investigation is no longer a general inquiry into an unsolved crime but has begun to focus upon a particular suspect in police custody (Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964)); at pre-trial lineup conducted for identification purposes (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); at the time when a plea is entered (White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961)); at trial (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)); when sentence is imposed (Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967)); and on a convicted person's first appeal granted as a matter of right (Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963)). All of those cases rest upon...