Smith v. Yeager

• Citation: 459 F.2d 124
• Decision Date: 26 April 1972
• Docket Number: No. 17816.,17816.
• Parties: Herbert F. SMITH, Jr., Appellant, v. Howard YEAGER, Warden, New Jersey State Prison.
• Court: U.S. Court of Appeals — Third Circuit

459 F.2d 124 (1972)

Herbert F. SMITH, Jr., Appellant, v. Howard YEAGER, Warden, New Jersey State Prison.

No. 17816.

United States Court of Appeals, Third Circuit.

Submitted October 18, 1971.

Decided April 26, 1972.

Herbert F. Smith, pro se.

David Noah Dubrow, Asst. Prosecutor, Newark, N. J., for appellee.

Before ALDISERT, GIBBONS and ROSENN, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

When appellant appeared in 1955 at a juvenile certification hearing, case law, as then articulated, did not mandate assistance of counsel. This appeal requires us to decide whether a subsequent entry of a counseled plea of guilty as an adult offender forecloses a collateral attack on that plea based on later pronouncements of the courts requiring the presence of counsel at juvenile certification proceedings.

Represented by counsel whose competence is not challenged, appellant, in May, 1955, entered a plea of non vult to a charge of murder in a New Jersey court.¹ He was sentenced to life imprisonment. Eleven years later he sought federal habeas corpus relief, alleging a Sixth Amendment deprivation of counsel at the juvenile court proceeding which certified that he be tried as an adult offender. N.J.S.Anno. 2A:4-14 and 15. The habeas court granted a conditional writ, giving the state an opportunity to hold a second certification hearing with court-appointed counsel. Appellant has appealed from the result of this second certification hearing which was conducted in 1968 before the same juvenile court judge who heard his case in 1955. The district court found that the second hearing satisfied the requirements it had imposed.

Although we concur in the result reached by the district court, we do it for other reasons. We are persuaded that the writ of habeas corpus should have been denied for the reasons set forth in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763; Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785; Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

We do not reach the question of the adequacy of counsel at the second certification hearing because in our view the remand for this purpose was not required. The McMann trilogy held that where there was a counseled plea of guilty, the relator was not, without more, entitled to a hearing on a petition for writ of habeas corpus alleging that the plea was entered because of a prior coerced confession.

With one exception, this court has unswervingly followed the mandate of these cases.² The only deviation appeared in the troublesome case of Bannister v. United States, 446 F.2d 1250 (3d Cir. 1971) (en banc), where a majority of the court, for various reasons, held that the trilogy would not apply to a prosecution under 26 U.S.C. § 4744(a) (2) where the plea was entered before Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), which announced that a timely and proper assertion of the privilege against self-incrimination was a complete defense to the prosecution. The plurality opinion of Judge Biggs emphasized that constitutional rights created by Leary could not be waived in advance, because the Leary right was not procedural but constituted a total defense. Judge Gibbons' plurality opinion, suggesting that Leary in reality invalidated the statute under which he was indicted, stated:

We do not quarrel with the proposition that every change in the procedural law governing the criminal justice system cannot be the means for casting wholesale doubt upon the vast bulk of criminal judgments which result from guilty pleas. But the Brady, McMann and Parker cases involved changes in the law which were essentially procedural. They did not involve petitioners confined as a result of a guilty plea to an offense under a statute later held to be unconstitutional as applied to them and their conduct.

446 F.2d at 1264.³

Thus, whether we apply the general rule of the guilty plea trilogy depends on the quality of the right sought to be asserted in the collateral attack. Does the newly-expressed right affect, what Judge Biggs in Bannister termed, "the integrity of the conviction," 446 F. 2d at 1255, or does it constitute what Judge Gibbons described as an "essentially procedural" change in the law, 446 F.2d at 1264?

We are persuaded that the requirement of counsel at a juvenile certification hearing constituted a purely procedural right. The newly-conferred right to counsel carries no guarantee of a change in the result of the certification hearing. Indeed, putting aside the argument of inadequate counsel, the same judge who certified appellant as an adult offender in 1955 reached the identical conclusion following the second certification hearing thirteen years later in October, 1968. Moreover, the opportunity to have a juvenile court hearing is afforded by a New Jersey statute; it is not mandated by the federal constitution. Indeed, even if appellant were to be tried as a juvenile, the only practical distinction would be the difference in sentence and the opportunity of parole. Compare N.J.S.Anno. 2A:4-37 (Juvenile) with N.J.S.Anno. 30:4-123.11 (Life Sentence: Adult). "A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended . . . the likely penalties attached to alternative courses of action. Brady, supra, 397 U.S. at 757, 90 S.Ct. at 1473.

In sum, we find it difficult to accept the hypothesis that Fifth Amendment protection against self-incrimination, so basic to the Bill of Rights, may be waived by a properly counseled guilty plea, but that a Sixth Amendment right to counsel at a hearing that simply determines which of two judicial forums may try a defendant is a more significant right; a right of such fundamental importance that it can survive a later counseled plea of guilty.

Accordingly, we hold that Smith's plea of guilty "intelligently made in the light of the then applicable law did not become vulnerable because of later judicial decisions," Brady, supra, which conferred a right to counsel at juvenile certification hearings.

In the view we take, it does not become necessary to address ourselves to the substantive considerations associated with the right to counsel. Although we do not meet the issue, it is not inappropriate to observe, however, that the district court's order could have been justified on the theory of limited retroactivity of the recently enunciated right to counsel requirement at juvenile certification proceedings. United States ex rel. Turner v. Rundle, 438 F.2d 839 (3d Cir. 1971). In Turner there is at least the suggestion that the requirement be given limited retroactivity. Although relying on the reasoning of Kemplen v. State of Maryland, 428 F.2d 169 (4th Cir. 1970), which accorded full retroactivity, we did not go as far, explicitly limiting retroactivity to a hearing "conducted after the decision in United States v. Kent," 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), 438 F.2d at 842. See also, Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed. 2d 202 (1972), denying any retroactivity to the requirement of counsel at an adult preliminary hearing now mandated by Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L.Ed.2d 387 (1970). A persuasive argument could be made that it is inconsistent to accord full retroactivity to the right to counsel at a juvenile certification proceeding when it is denied to an adult defendant at a preliminary hearing. Kent was decided in 1966; the certification hearing in question here was held in 1955.

In any event, for the considerations set forth in the McMann trilogy, the order of the district court denying the writ of habeas corpus will be affirmed.

MAX ROSENN, Circuit Judge (dissenting).

The majority finds that this appeal is foreclosed by the Supreme Court's decision in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). I cannot agree. It is my opinion that the denial of appellant's right to counsel at his hearing on the waiver of juvenile court jurisdiction is properly before us. Once I face that question, I conclude that appellant had a right to counsel, and that the State of New Jersey failed to comply with the mandate of the United States District Court in providing such assistance to Smith.

Smith was sixteen and a half years of age when he was apprehended. Under New Jersey law, N.J.S.A. 2A:4-15, the juvenile court had to determine whether he should be treated as a juvenile or as an adult offender. The law provided that the juvenile court may refuse to take a case if the juvenile is an habitual offender, or has been charged with an offense of a heinous nature, under circumstances which may require the imposition of a sentence rather than the rehabilitative disposition permitted by New Jersey.¹

New Jersey considers this hearing a vital step in the administration of justice because it involves the decision whether to treat the youthful offender in a protective fashion, parens patriae, or whether to deal with him as an adult. State v. Tuddles, 38 N.J. 565, 186 A.2d 284 (1962). The state supreme court has concluded that the character of the decision is such that the matter should not be disposed of without a hearing that will explore all relevant questions in the interests of both the youth and society. State v. Van Buren, 29 N.J. 548, 150 A.2d 649 (1959).

While the waiver of juvenile court jurisdiction is within the discretion of the juvenile judge, State v. Tuddles, supra, 186 A.2d at 287-288; State v. Smith, 32 N.J. 501, 161 A.2d 520, 539 (1960); State v. Van Buren, supra, 150 A.2d at 654, the hearing takes into account a wide variety of factors concerning the nature of the offense, the economic and social background of the defendant, and the alternative strategies for rehabilitation. State v. Van Buren, supra, at 654-655. Although the judge may conclude on the basis of the...