Stubblefield v. Beto

• Decision Date: 24 July 1968
• Docket Number: No. 24088.,24088.
• Citation: 399 F.2d 424
• Parties: Marvin Niles STUBBLEFIELD, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

399 F.2d 424 (1968)

Marvin Niles STUBBLEFIELD, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Appellee.

No. 24088.

United States Court of Appeals Fifth Circuit.

July 24, 1968.

Joel J. Finer, Stanford, Cal., Philip Juarez, Austin, Tex., for appellant.

Allo B. Crow, Jr., Asst. Atty. Gen., Austin, Tex., for appellee.

Before BELL, COLEMAN, and GODBOLD, Circuit Judges.

PER CURIAM:

The question presented on this appeal from the denial of a petition for the writ of habeas corpus arises in an unusual context. Appellant is serving a life sentence by virtue of his third conviction of a felony less than capital. The third conviction was for burglary with the sentence having been enhanced to life on the basis of two prior felony convictions. See Art. 63, Texas Penal Code. The life sentence was imposed in 1959. The two prior felony convictions were for burglary in 1955 and for driving while intoxicated in 1950. This latter offense was deemed a felony under Texas law because of a 1948 conviction based on a plea of guilty to the misdemeanor charge of driving while intoxicated. See Art. 802b, Texas Penal Code.

No infirmity is alleged as to the prior felony convictions. Appellant's position is that he was denied counsel when he pleaded guilty to the misdemeanor charge in 1948. In the event he is able to sustain this view, the 1950 felony conviction for driving while intoxicated will fall and the life sentence will likewise fall because of the absence of the requisite number of prior felony convictions for enhancement.

The difficulty with appellant's position is that there is an adequate factual foundation for the conclusion reached by the District Court that he waived counsel when he entered his plea of guilty to the misdemeanor. The evidence was clear that appellant was not an indigent at the time. He had an income of approximately $6,000 per year from his business. He was arrested in Johnson County, Texas for driving while intoxicated and released on bond shortly thereafter upon the payment of $10.00 to a bondsman. He testified on the habeas hearing that the County Court of Johnson County did not inform him that he might or might not have a lawyer. He stated that the court said to him only that his fine was $50.00. He testified with respect to the County Court proceeding: "* * * I didn't see a reason for hiring a lawyer when I could pay the fifty dollars and get turned a-loose." The County Court records reflect only that "* * * defendant pleaded guilty as charged, after being reminded by the judge of his rights."

In the view we take of the case, which is that there was intelligent and competent waiver of counsel by appellant, Johnson v. Zerbst, 1938, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461, we do not reach the further question of whether our decisions in McDonald v. Moore, 5 Cir., 1965, 353 F.2d 106; and Harvey v. State of Mississippi, 5 Cir., 1965, 340 F.2d 263, would afford appellant a basis for claiming a Sixth Amendment right to counsel when he was tried by the County Court in 1948.

Affirmed.

GODBOLD, Circuit Judge (dissenting):

I respectfully dissent. The standards of the Sixth Amendment requiring assistance of counsel in a criminal case, read into the Fourteenth Amendment, have not been met in this case.

The appellant, who has been through the third grade in school, is under a mandatory life sentence imposed by Texas law in 1959 on conviction of a third non-capital felony.¹ If the 1948 misdemeanor conviction, entered on a waiver of jury trial and plea of guilty without counsel, did not meet constitutional standards the appellant's mandatory life sentence is not valid. The 1948 drunk driving conviction became eleven years later the trigger device for life imprisonment.

The critical Findings of Fact and Conclusions of Law concerning the 1948 trial are set out in the margin.² The habeas court decided specifically that appellant effectively waived counsel and inferentially that he was not entitled to offer of appointive counsel because he was not indigent. The decision of the majority in this court is based on the sole ground of waiver.

The 1948 conviction was under what is now Texas Penal Code art. 802 (Vernon ed. 1961). The range of punishment in 1948 was confinement in the county jail for not less than ten days and not more than two years and a fine of not less than $50 nor more than $500.

"The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel." Johnson v. Zerbst, 304 U.S. 458, 463, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461, 1466 (1937); Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942). The Sixth Amendment's guarantee is one of the fundamental rights made obligatory upon the states by the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). It is firmly established that the right to assistance of counsel when entering a plea applies in state as well as federal tribunals. Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). And it is now beyond question that Gideon is to be applied retroactively.

The majority opinion sets out all the evidence there is in this case tending to show intelligent and competent waiver of assistance of counsel — the statement of defendant eighteen years later, "I didn't see a reason for hiring a lawyer when I could pay the fifty dollars and get turned aloose"; the meaningless boilerplate entry quoted by the majority; and the fact that the appellant said he made $6,000 a year.³ This evidence is not sufficient. It seems to me inescapable that evidence which otherwise would be summarily held insufficient to constitute waiver of assistance of counsel is held sufficient in this case for two reasons, the statement about $6,000 a year and the feeling, though not reached as an issue, that the appellant really was not entitled to counsel anyhow.

Determining whether constitutional requirements of assistance of counsel are met where the accused pleads guilty without counsel necessitates two areas of inquiry. Is the accused indigent and must counsel be offered him? Does he choose to proceed without assistance of counsel by reason of electing not to employ counsel if financially able or by reason of rejecting the appointment of counsel if indigent? The majority speak of "waiver of counsel" without differentiation between waiving appointment of counsel where required by indigency and waiving assistance of counsel. These two waivers usually coalesce into one in the case of the indigent. Only the second waiver, that of assistance of counsel, is of significance to the non-indigent. But where the defendant is not indigent it is all too easy — as has happened here — for the question whether there is waiver of assistance of counsel to get inextricably entangled with the issue of whether he was entitled to have counsel appointed, with the result that the right of the non-indigent to assistance of counsel is overwhelmed by the focus on, and force of, the factual determination that the state of his pocketbook didn't require counsel be appointed.

Certainly the majority cannot mean that the Sixth Amendment right to assistance of counsel is confined to indigents. The duty to appoint counsel for the indigent is drawn from the Sixth Amendment, not vice versa.⁴ The majority must mean that on inquiry into alleged waiver of assistance of counsel by a non-indigent, defendant's financial status has evidentiary relevance. But the evidentiary effect is confined in this case to circumstantial evidence of his state of mind, i. e., since he was able to hire a lawyer and did not he must have intended to proceed without counsel. But appellant's state of mind is not in dispute, for he candidly described it as exactly what the evidence of financial status would tend to show it was. There is neither evidence nor contention that appellant communicated to the trial judge his annual income (or anything else about counsel).

Turning now to the issue of waiver, on plea of guilty, of assistance of counsel by the accused — indigent and non-indigent alike — there are several questions that must be answered:

— How much must the accused know before his decision to proceed without assistance of counsel can be effective?

— What is the role of the trial court? How much must it do and say?

— What must the accused, having sufficient knowledge to make a decision about proceeding without counsel, do or say to adequately evidence his choice?

(1) What must the accused, possessing sufficient knowledge, do or say?

The habeas court found an effective waiver in the single phrase of the appellant on oral testimony, "I saw no reason to hire a lawyer when I could pay fifty dollars and get a-loose."⁵ The district judge equated this to his own exercise of judgment in paying $2 fines for parking tickets found under the windshield wiper. His full statement concerning waiver, made at the end of the hearing, is set out in the margin.⁶ The habeas court considered as a waiver, and dispositive of the case, that appellant thought he didn't need a lawyer. Appellant's 1966 description of his totally subjective 1948 conclusion is not a constitutionally effective waiver, in fact not a waiver of anything, effectual or otherwise. There is no evidence, and no one has contended, that appellant communicated his state of mind to the trial judge or anyone else. An unarticulated state of mind, stark and alone, cannot be a waiver.

Johnson v. Zerbst recognizes that a purpose of the Sixth Amendment is to protect the layman from his own lack of professional skill to defend himself in the criminal courts. The layman "needs the aid of counsel lest he be the victim. * * * of his own ignorance or...