United States ex rel. Singleton v. Woods

• Decision Date: 18 February 1971
• Docket Number: No. 18391.,18391.
• Citation: 440 F.2d 835
• Parties: UNITED STATES of America ex rel. Charles SINGLETON, Petitioner-Appellee, v. Joseph I. WOODS, Sheriff of Cook County, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

440 F.2d 835 (1971)

UNITED STATES of America ex rel. Charles SINGLETON, Petitioner-Appellee, v. Joseph I. WOODS, Sheriff of Cook County, Respondent-Appellant.

No. 18391.

United States Court of Appeals, Seventh Circuit.

February 18, 1971.

Edward V. Hanrahan, State's Atty., Joseph Romano, Chicago, Ill., for respondent-appellant; Robert A. Novelle, Asst. State's Atty., of counsel.

James Brian Haddad, Tyrone C. Fahner, Chicago, Ill., for petitioner-appellee.

Before MAJOR, Senior Circuit Judge, and KERNER and PELL, Circuit Judges.

KERNER, Circuit Judge.

Petitioner-appellee Charles Singleton was convicted of criminal trespass to vehicle, a misdemeanor. He was sentenced to one year in Cook County Jail. Four months later, Singleton petitioned the Illinois Appellate Court for leave to file a late notice of appeal, stating under oath that neither the trial judge nor court-appointed counsel had advised him of his right to appeal and further swearing that he was in fact ignorant of this right. The Illinois Appellate Court denied Singleton's petition to file a late notice of appeal and Singleton brought a petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois. The district court judge granted Singleton's habeas corpus petition and ordered Singleton released, finding that the Illinois Appellate Court had abused its discretion in denying petitioner "an opportunity to secure relief, which might have been available to him under the Constitution of the United States."

Applying the reasoning of Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed. 2d 811 (1963); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and their progeny, we hold that the trial judge should have advised petitioner of his right to appeal and, as a constitutional corollary, his right to court-appointed counsel on appeal if he is indigent. Failure to give such advice violated petitioner's right to equal protection under the fourteenth amendment and his sixth amendment right to counsel, incorporated through the due process clause of the fourteenth amendment. United States ex rel. O'Brien v. Maroney, 423 F.2d 865 (3d Cir. 1970); Nelson v. Peyton, 415 F.2d 1154 (4th Cir. 1969); United States ex rel. Smith v. McMann, 417 F.2d 648 (2d Cir. 1969).

In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), the Supreme Court held that the Illinois law denying free trial transcripts to indigents for preparation of an appeal, in noncapital cases, violated the due process and equal protection clauses of the fourteenth amendment. The Court in Griffin stated:

There is no meaningful distinction between a rule which would deny the poor the right to defend themselves in a trial court and one which effectively denies the poor an adequate appellate review accorded to all who have money enough to pay the costs in advance. It is true that a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all. See, e. g., McKane v. Durston, 153 U.S. 684, 687-688 14 S.Ct. 913, 914-915, 38 L.Ed. 867. But that is not to say that a State that does grant appellate review can do so in a way that discriminates against some convicted defendants on account of their poverty. Appellate review has now become an integral part of the Illinois trial system for finally adjudicating the guilt or innocence of a defendant. Consequently at all stages of the proceedings the Due Process and Equal Protection Clauses protect persons like petitioners from invidious discriminations.

Six years later, in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1962), the Court reiterating its rationale in Griffin, held that equal protection and due process required that an indigent receive court-appointed counsel on appeal without an ex parte showing that such appeal will have arguable merit.

In the same term as its decision in Douglas, the Supreme Court decided Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), in which it held that the sixth amendment right to counsel was applicable to the states through the due process clause of the fourteenth amendment, and, consequently, an indigent facing trial on felony charges was entitled to court-appointed counsel. Subsequently, the right of an indigent to have appointed counsel on appeal was expressly made applicable to the states. Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967).

The State of Illinois has provided for an appeal from petitioner's conviction and one-year sentence for criminal trespass. The right to appeal is ineffectual if a defendant is ignorant of this right, and we find it incumbent on the trial judge to inform indigent defendants of this right.¹ See United States ex rel. O'Brien v. Maroney, supra; United States ex rel. Smith v. McMann, supra. Constitutionally concomitant to the right to be advised of appeal is the right of an indigent to be advised that if he desires to prosecute the appeal, a court-appointed lawyer will be provided. To allow the poor man merely to know of his right to appeal without providing counsel is the violation of equal protection which the Court identified in Douglas.

While we recognize that the facts of Douglas, Griffin and Gideon all involved felonies, we believe that fundamental constitutional protections should not entirely depend on the distinctions between misdemeanors and felonies. Three recent Supreme Court decisions indicate that the Court is not willing to deny to individuals constitutional protections entirely on the basis that the offense involved is a misdemeanor. In Williams v. Oklahoma City, 395 U.S. 458, 89 S.Ct. 1818, 23 L.Ed.2d 440 (1969), the Court held that the denial to an indigent of a free trial transcript necessary to perfect an appeal was a violation of the equal protection clause of the fourteenth amendment even though the offense appealed from was a violation of a misdemeanor, "quasi" criminal in nature.

This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts. citations omitted Id. at 459, 89 S.Ct. at 1819.

In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1965), the Court held that the sixth amendment, as applied to the states through the fourteenth, required that the defendant, although charged with the misdemeanor of battery, punishable by a maximum of two years imprisonment and a $300 fine, be entitled to a jury trial. The Court characterized the charged offense as serious as opposed to a petty offense which would not be subject to the sixth amendment jury trial guarantee. This distinction was further explained in the latest term of the Court. In Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), the Court when faced with the question of whether a misdemeanor offense punishable by a sentence up to one year could be characterized as "serious" or "petty" for the purpose of jury trial, refused to accept the State of New York's argument that the line between petty and serious should coincide with the line between misdemeanors and felonies.

But while * * * a felony conviction is more serious than a misdemeanor conviction — some misdemeanors are also "serious" offenses.

Id. at 70, 90 S.Ct. at 1888.

The Court in Baldwin found that the offense punishable with a sentence up to one year was a "serious" offense and entitled the defendant to the jury trial protection of the sixth amendment.

In Gideon v. Wainwright, supra, the Court stated that "in our adversary system of criminal justice, any person haled in court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him", 372 U.S. at 344, 83 S.Ct. at 796. Even though Gideon involved a felony conviction, the language used in the opinion makes no attempt to differentiate between felonies and misdemeanors. See Goslin v. Thomas, 400 F.2d 594 (5th Cir. 1968). While we need not face the question whether Gideon applies to all misdemeanors, the recent Supreme Court opinions discussed above lead us to hold that the sixth amendment right of assistance of counsel on appeal applies to all "serious" offenses whether they be felonies or misdemeanors. Petitioner was charged with an offense to which he was sentenced to one year in jail and we find as the Supreme Court in Baldwin,supra, that the possible sentence of one year is a serious offense, and entitles him to appointment of counsel to prosecute his appeal.

Finally, the respondent relies on Victor v. Lane, 394 F.2d 268 (7th Cir. 1968, Swygert, J., dissenting), which held that unless an indigent could show arguable merit to his appeal, the trial court's failure to advise him of his right to appeal was not sufficient to award him a belated appeal. A rereading and rethinking of Victor in relation to Douglas v. California, supra, and our discussion in the instant opinion, convinces us that Victor was not correct and should be overruled.² In doing so we adopt the dissenting opinion of Judge Swygert which states in pertinent part:

In Douglas v. People of State of California, supra, the Supreme Court said: "When an indigent is forced to run * * * the gauntlet of a preliminary showing of merit, the right to appeal does not comport with fair procedure." 372 U.S. at 357, 83 S.Ct. at 816. Even though the circumstances in Douglas and the instant case are different, they are sufficiently analogous to require the application of the view expressed in Douglas to this case. Once sufficient excuse for delay is advanced, the equal protection clause of the Constitution should prevent a state from imposing a more rigorous standard on defendants seeking a belated

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