Stevenson, Application of

• Decision Date: 10 September 1969
• Citation: 458 P.2d 414,254 Or. 94
• Parties: Application of Ralph Allen STEVENSON for a Writ of Habeas Corpus. Ralph Allen STEVENSON, Respondent, v. James C. HOLZMAN, Director of Public Safety and Sheriff of Multnomah County, Oregon, Appellant. Application of Norton Lloyd BOGGS for a Writ of Habeas Corpus. Norton Lloyd BOGGS, Respondent, v. James C. HOLZMAN, Director of Public Safety and Sheriff of Multnomah County, Oregon, Appellant.
• Court: Oregon Supreme Court

Page 414

458 P.2d 414

254 Or. 94

Application of Ralph Allen STEVENSON for a Writ of Habeas Corpus.

Ralph Allen STEVENSON, Respondent, v. James C. HOLZMAN, Director of Public Safety and Sheriff of

Multnomah County, Oregon, Appellant.

Application of Norton Lloyd BOGGS for a Writ of Habeas Corpus.

Norton Lloyd BOGGS, Respondent, v. James C. HOLZMAN, Director of Public Safety and Sheriff of

Multnomah County, Oregon, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Feb. 3, 1969.

Decided Sept. 10, 1969.

Billy L. Williamson, Deputy Dist. Atty., Portland, argued the cause for appellant. With him on the briefs was George Van Hoomissen, Dist. Atty.

Charles J. Merten, Portland, argued the cause and filed a brief for respondents.

Marian C. Rushing, City Atty., Portland, and other city attorneys filed a brief amici curiae on behalf of appellant.

Robert B. Conklin and Jack B. Schwartz, Portland, filed a brief amici curiae on behalf of the American Civil Liberties Union.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN DENECKE, and HOLMAN, JJ.

McALLISTER, Justice.

The question presented by this appeal is whether an indigent person accused of the violation of a municipal ordinance has a constitutional right to the assistance of counsel at public expense.

The petitioner was charged in the Municipal Court of Portland with the crime of disorderly conduct. ¹ He pleaded not guilty, was tried, convicted and sentenced to six months in jail. ² It is conceded that at the time petitioner was convicted the court did not inform accused persons that if they were unable to employ counsel the court would appoint counsel to represent them and the court did not, in fact, appoint counsel for indigent defendants.

Claiming that he had been denied his constitutional right to the assistance of counsel, petitioner sought a writ of habeas corpus in the Circuit Court for Multnomah County, which writ was granted. Defendant appeals.

No contention is made here that petitioner was not indigent or that he waived his right to counsel. The defendant argues only that a person charged with violation of a municipal ordinance has no constitutional right to court-appointed counsel.

Both the Constitution of Oregon and the Constitution of the United States guarantee the right to counsel. If either constitution entitled petitioner in this case to the appointment of counsel we must affirm the trial court.

We will consider first the Constitution of the United States. The Sixth Amendment provides, Inter alia, that:

'In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defense.'

This provision was made binding on the states in capital cases by Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527 (1932). In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963), it was made binding on the states in all serious offenses. We need not pause here to consider the period between Powell and Gideon when the aberrational rule of Betts v. Brady ³ prevailed.

Some courts interpreted Gideon as requiring the appointment of counsel in all criminal prosecutions, but we think the holding of Gideon was not that broad. In the first place Gideon asked only that the rule of Betts v. Brady be abandoned in prosecutions for 'a serious criminal offense.' ⁴ Secondly, Mr. Justice Harlan in his concurring opinion assumed that Gideon applied only to offenses that 'carry the possibility of a substantial prison sentence.' He said: 'Whether the rule should extend to All criminal cases need not now be decided.' 372 U.S. at 351, 83 S.Ct. at 801, 9 L.Ed.2d at 809--810. Lastly, the Supreme Court has denied certiorari in at least three cases which squarely presented the question of whether Gideon applied to misdemeanors. ⁵ In Winters v. Beck, supra, n. 5, Mr. Justice Stewart, in dissenting, said:

'In Gideon v. Wainwright, supra, we said that 'any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.' No State should be permitted to repudiate those words by arbitrarily attaching the label 'misdemeanor' to a criminal offense. I think this Court has a duty to resolve the conflict and clarify the scope of Gideon v. Wainwright. I do not suggest what the ultimate resolution of this problem should be, but I do suggest that the answer cannot be made to depend upon artificial or arbitrary labels of 'felony' or 'misdemeanor' attached to criminal offenses by 50 different States. Whatever one's view may be as to the appropriate exercise of this Court's certiorari jurisdiction, surely it is at least our duty to see to it that a vital guarantee of the United States Constitution is accorded with an even hand in all the States.' 385 U.S. at 908, 87 S.Ct. at 208, 17 L.Ed.2d at 138.

See, also, Mr. Justice Stewart's dissent in DeJoseph v. Connecticut, 385 U.S. 982, 87 S.Ct. 526, 17 L.Ed.2d 443 (1966).

If the right to counsel could be equated with the right to trial by jury, also guaranteed by the Sixth Amendment, our question would be answered. The Supreme Court has held without equivocation that the right to a jury trial does not apply to 'petty offenses.' In Frank v. United States, 395 U.S. 147, 89 S.Ct. 1503, 1505, 23 L.Ed.2d 162, 166 (1969), the court said:

'The Sixth Amendment to the Constitution gives defendants a right to a trial by jury in 'all criminal prosecutions.' However, it has long been the rule that so-called 'petty' offenses may be tried without a jury. See, e.g., District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct 660, 81 L.Ed. 843 (1937). For purposes of the right to trial by jury, criminal contempt is treated just like all other criminal offenses. The defendant is entitled to a jury trial unless the particular offense can be classified as 'petty.' Dyke v. Taylor Implement Mfg. Co. 391 U.S. 216, 88 S.Ct. 1472 20 L.Ed.2d 538 (1968); Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968); Chieff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629, (1966).'

See, also, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). For this purpose the Supreme Court has accepted the congressional definition of a petty offense expressed in 18 U.S.C. § 1 as '(a)ny misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both * * *.' See Frank v. United States, supra, 395 U.S. at 150, 89 S.Ct. at 1506, 23 L.Ed.2d at 167, n. 3.

We agree, however, with those courts that have held that the right to counsel is more essential to a fair trial than the right to a jury. The distinction has been pointed out with clarity by Knutson, C.J., in State v. Borst, 278 Minn. 388, 154 N.W.2d 888, 894 (1967), as follows:

'But even though the two rights derive from the same provisions of our Federal Constitution, they are not of equal significance when it comes to the matter of obtaining a fair trial. It is conceiveable that a fair trial may be had before an impartial judge without a jury, but it is hardly conceivable that a person ignorant in the field of law can adequately defend himself without the assistance of counsel. Consequently, we do not consider the cases involving the right to a jury trial controlling in this area.'

See, also, James v. Headley, 410 F.2d 325, 331 (5th Cir. 1969).

That the 'petty offense rule' does not apply to all constitutional guarantees is illustrated by Williams v. Oklahoma, 395 U.S. 458, 89 S.Ct. 1818, 23 L.Ed.2d 440 (1969) in which the Supreme Court applied the equal protection doctrine of Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, 55 A.L.R.2d 1055 (1956) to the appeal of a delinquent driving conviction under an Oklahoma City municipal ordinance where the defendant was sentenced to 90 days in jail and a $50 fine. The opinion did not mention the 'petty offense rule' reaffirmed three weeks earlier in Frank v. United States, supra.

Since the Supreme Court has not decided the question, we must ourselves decide whether the Sixth Amendment right to counsel extends to prosecutions for misdemeanors, which term we use here to include violations of municipal ordinances and all criminal prosecutions not amounting to felonies. We hold that it does and are persuaded to our conclusion by two important considerations. The most important is the recognition that the assistance of counsel is a necessary ingredient of a fair trial regardless of the seriousness of the crime. As the Supreme Court said in Gideon v. Wainwright, supra:

'* * * A defendant's need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama:

"The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence." 372 U.S. at 344--345, 83 S.Ct. at 797, 9 L.Ed.2d at 805--806.

If our objective is to insure a fair trial in every criminal prosecution the need for counsel is not determined by the seriousness of the crime. The assistance of counsel will best avoid conviction of the innocent...