State v. Anderson

• Decision Date: 04 June 1964
• Docket Number: No. 1341,1341
• Citation: 392 P.2d 784,96 Ariz. 123
• Parties: STATE of Arizona, Appellee, v. William Reed ANDERSON, Appellant.
• Court: Arizona Supreme Court

Page 784

392 P.2d 784

96 Ariz. 123

STATE of Arizona, Appellee, v. William Reed ANDERSON, Appellant.

No. 1341.

Supreme Court of Arizona, In Banc.

June 4, 1964.

Rehearing Denied June 23, 1964.

Ross Anderson, Phoenix, for appellant.

Robert W. Pickrell, Atty. Gen., Merton E. Marks, Asst. Atty. Gen., for appellee.

JENNINGS, Justice.

William Reed Anderson, appellant herein, was informed against for violation of A.R.S. § 13-391, par. 3, a misdemeanor, i. e., attempting to assist the escape of a prisoner incarcerated in the Maricopa County jail upon a charge of a felony. Appellant pleaded guilty and was thereafter adjudged guilty and sentenced to serve a term of eighteen (18) months in the Maricopa County jail. From the conviction and sentence, he appeals.

We will direct our attention to the following question: Was there a constitutional requirement that legal counsel be appointed to represent appellant under the circumstances of this case?; and if so, was such requirement satisfied?

Appellant appeared without counsel at his arraignment in the Superior Court of Maricopa County on February 1st, 1963. The Minute entry of that date reflects that the trial court found appellant to be without funds to employ legal counsel. The court advised appellant that the law did not permit the appointment of counsel upon a charge of a misdemeanor. The minute entry then states 'defendant then waives the reading of the Information and pleads guilty to the charge, because of no counsel to represent him.' (Emphasis ours.)

On the same date appellant stated he probably would be able to obtain counsel if his bond were reduced. The court, treating this request as a motion for reduction of bond, assigned the matter to a special proceeding court, continued the arraignment to February 8th, and allowed appellant to withdraw his plea of guilty. The motion to reduce the bond was heard and denied on February 5th, 1963. On February 8th, appellant withdrew his plea of not guilty and again entered a plea of guilty to the Information. Appellant was not represented by counsel at this time.

The date for sentencing was set for February 15th, 1963. At that time, appellant appeared still in custody and without counsel. The court 'interrogated' appellant and thereafter requested Mr. Robert Welliever to counsel with him whereupon the court recessed. The court reconvened and the record shows that Mr. Welliever counseled with appellant, and was thereupon released from any further responsibility in the matter. The sentencing was continued to February 21st.

At the new sentencing time, appellant was present without counsel. The trial court thereupon adjudged him guilty. Thereafter, appellant initiated appeal proceedings and appellate counsel was appointed to represent him. At all proceedings, save the final sentencing, the county attorney was represented.

Was the superior court required by virtue of the due process clause of the Fourteenth Amendment of the United States Constitution to appoint counsel for appellant under the circumstances of this case? To answer this question we must examine the recent decision of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and the historical background leading up to this landmark case.

Clarence Gideon, an indigent, was charged with a state noncapital felony. He appeared in court without funds and without a lawyer and asked the court to appoint counsel for him. The court refused this request on the ground that under Florida law the only time the court could appoint counsel to represent a defendant was when that person was charged with a capital offense. Gideon thereupon conducted his own defense. The jury returned a verdict of guilty and a sentence of five years in the state prison was imposed. Later Gideon filed a petition for a writ of habeas corpus in the Florida Supreme Court but was denied all relief.

Upon granting certiorari, the United States Supreme Court specifically requested counsel to discuss in their briefs and oral arguments the following: 'Should this Court's holding in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 be reconsidered?' The Court expressly overruled Betts v. Brady and held that the Sixth Amendment's guarantee of counsel was one of those provisions of the Bill of Rights fundamental and essential to a fair trial, made obligatory on the states by the Fourteenth Amendment, and that an indigent defendant in a criminal prosecution in a state court has the right to have counsel appointed for him.

The law in the federal courts prior to Gideon was as follows: 'The Sixth Amendment to the Federal Constitution expressly provided that 'In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defense.' (Emphasis ours.) In 1938, the Supreme Court, in a case involving a felony charge, ruled that the Sixth Amendment withheld from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he had or waived the assistance of counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. Mr. Justice Black, speaking for the court, stated at p. 462 of 304 U.S., at p. 1022 of 58 S.Ct., at p. 1465 of 82 L.Ed.:

'* * * This (right to counsel) is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. * * *'

Again at pp. 467-468 of 304 U.S., at p. 1024 of 58 S.Ct., at p. 1468 of 82 L.Ed., he said:

'* * * Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a federal court's authority to deprive an accused of his life or liberty. * * * If the accused * * * is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty. * * *'

The Johnson rule was followed in the cases of Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830, and Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, rehearing denied 315 U.S. 827, 62 S.Ct. 629, 637, two cases, 86 L.Ed. 1222. Subsequently, Rule 44 of the Federal Rules of Criminal Procedure was enacted to codify the existing law as enunciated in these three cases. ¹ The Supreme Court had not, before Gideon, decided whether the Johnson rule was applicable to cases involving a charge of a misdemeanor.

What was the situation in the state courts prior to Gideon? The defendants had to rely upon the due process clause of the Fourteenth Amendment for their constitutional right to assigned counsel.

In the case of Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232, the appellant asked the Court to rule that the due process of law clause of the Fourteenth Amendment required the states to provide criminal indictments by grand jury as was required in federal courts pursuant to the mandate of the Fifth Amendment. The Court held in effect that since no part of the Fifth Amendment could be regarded as superfluous, the term 'due process of law' as used in that amendment was not intended to include the institution and procedure of a grand jury in any case; and that the same phrase, employed in the Fourteenth Amendment was to be interpreted as having been used in the same sense and with no greater extent; and that if it had been the purpose of that Amendment to perpetuate the institution of the grand jury in the states, it would have embodied, as did the Fifth Amendment, an express declaration to that effect.

One could make this same argument with respect to the incorporation of the Sixth Amendment's right to counsel into the due process clause of the Fourteenth Amendment. The extreme Hurtado rule, however, has been relaxed in later cases. ² The Court, in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527 (1932) had before it the question whether, under the circumstances of that case, the defendants were denied the right of counsel, and if so, whether such denial infringed the due process clause of the Fourteenth Amendment. The Court noted the Hurtado rule but cited cases which laid down exceptions thereto. They said in effect that the Hurtado rule was an aid to construction and in some instances would be conclusive, but that it had to yield to more compelling considerations whenever such considerations existed. The Court went on to say at pp. 67, 68 of 287 U.S., at p. 63 of 53 S.Ct., at pp. 169 and 170 of 77 L.Ed.:

'* * * The fact that the right involved is of such a character that it cannot be denied without violating those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions' (citing case) is obviously one of those compelling considerations which must prevail in determining whether it is embraced within the due process clause of the Fourteenth Amendment, although it be specifically dealt with in another part of the Federal Constitution * * * While the question has never been categorically determined by this court, a consideration of the nature of the right and a review of the expressions of this and other courts makes it clear that the right to the aid of counsel is of this fundamental character.' (Emphasis ours.)

The Court held that in a state capital case, where the defendant was unable to employ counsel, and was incapable adequately of making his own defense because of ignorance, feeblemindedness, illiteracy or the like, it was the duty of the court, whether requested or not, to assign counsel as a necessary requisite of due process of law; and that such duty was not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.

Although the Court...