Walker v. Dillard, Civ. A. No. 72-C-28-R.

Decision Date30 August 1973
Docket NumberCiv. A. No. 72-C-28-R.
Citation363 F. Supp. 921
CourtU.S. District Court — Western District of Virginia
PartiesMary WALKER, Petitioner, v. Honorable George B. DILLARD, Judge, Municipal Court, City of Roanoke, Respondent.

David G. Karro, Legal Aid Society of Roanoke Valley, Roanoke, Va., for petitioner.

Robert E. Shepherd, Asst. Atty. Gen., Richmond, Va., for respondent.

OPINION and JUDGMENT

DALTON, Chief Judge.

On August 25, 1971, the petitioner was convicted by the respondent, Judge George B. Dillard, in the Municipal Court for the City of Roanoke for having violated § 18.1-238, as amended, of the Virginia Code (1960 Repl.Vol.)1 She was sentenced to serve thirty days in jail, which sentence was suspended for six months, and required to pay a twenty-five dollar fine and costs. Following her conviction, petitioner on August 27, 1971, filed a petition for a writ of habeas corpus in the Supreme Court of Virginia. That court denied relief and dismissed the petition in an order dated January 17, 1972.

Petitioner then filed in this court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Leave to proceed in forma pauperis was granted by order of February 22, 1972.

Petitioner complains in her petition that: (1) she was denied her constitutional right to a trial by jury in the Municipal Court of the City of Roanoke; (2) her failure to seek a trial de novo was not a voluntary waiver of the right to trial by jury; and (3) § 18.1-238 of the Code of Virginia violates the First, Fifth and Fourteenth Amendments to the United States Constitution in that it is vague and overbroad. These same issues were raised in the petition for a writ of habeas corpus in the Supreme Court of Virginia, which was denied and dismissed. Therefore petitioner has exhausted her available state remedies in compliance with the provisions of 28 U. S.C. § 2254.

This court originally dismissed the petition on the grounds of lack of jurisdiction. The Court of Appeals for the Fourth Circuit reversed (Mem.Dec. No. 73-1108), holding that the thirty-day suspended sentence and twenty-five dollar fine constituted sufficient "restraint" to put the petitioner "in custody" within the meaning of the habeas statutes (28 U.S.C. §§ 2241 and 2254). The case is now before this court on remand to consider the substantive grounds presented by the petition.

TRIAL BY JURY

The Municipal Court of Roanoke is a court not of record, created by Title 16.1 of the Virginia Code, and as such, could not accord petitioner a trial by jury. Because the maximum penalty for violating § 18.1-238 is more than six months imprisonment, petitioner contends that she was entitled to a trial by jury under the Sixth and Fourteenth Amendments, citing Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L. Ed.2d 437 (1970).

Virginia, like many other states, has a two-tiered system of lower courts that allows for an "appeal" as a matter of right from a court not of record to a court in which a trial de novo may be heard by a jury. This right is embodied in Article I, § 8 of the Constitution of Virginia, which reads in part:

Laws may be enacted providing for the trial of offenses not felonious by a court not of record without a jury, preserving the right of the accused to an appeal to and a trial by jury in some court of record having original criminal jurisdiction.

Petitioner therefore had a right to appeal to the Hustings Court of the City of Roanoke, and could have obtained a trial by jury before that court in a de novo proceeding. Instead, petitioner chose to proceed by way of a writ of habeas corpus to the Supreme Court of Virginia. Petitioner now contends that her right to a jury trial was denied, because she could not have it at the first instance, at the level of the court not of record.

With this proposition we cannot agree. The recent case of Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) forecloses this argument. The facts in Colten are very similar to those in the case at hand. The appellant in Colten was tried and convicted of disorderly conduct in an "inferior" court in Kentucky and fined ten dollars. Kentucky has a two-tiered system for adjudicating certain criminal cases, under which a person charged with a misdemeanor may be tried first in an inferior court and, if dissatisfied with the outcome, may have a trial de novo in a court of general criminal jurisdiction, where he risks a greater punishment if convicted. Exercising his right to a trial de novo, the appellant in Colten was tried for disorderly conduct in the circuit court, convicted, and fined fifty dollars. The Supreme Court held that the two-tired system2 does not violate the Due Process Clause, as it imposes no penalty on those who seek a trial de novo after having been convicted in the inferior court, and it involves a completely fresh determination of guilt or innocence by the superior court. Colten, supra, at 112-119, 92 S.Ct. 1953. Granted, the Kentucky procedure entitled the appellant to a six-man jury at the initial trial level, Colten, at 113, 92 S.Ct. 1953, but the appellant had waived that right, and in view of the language of the Supreme Court, we do not view this a feature to be distinguished from the case at hand.

Petitioner contends that the holding in the case of Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1888), in which the Supreme Court held that the Sixth Amendment was not satisfied by the availability of a trial de novo to persons in the District of Columbia convicted in the first instance by courts unable to accord them trials by jury, should be binding upon the states. This court disagrees. Colten v. Kentucky, supra, clearly holds that the state two-tiered system is permissible, even if a conviction at the second level results in a greater sentence.

The procedure afforded by Virginia for the petitioner to obtain a trial by jury is fully within the requirements of Baldwin v. New York, supra. Justice White has cited two justifications for the type of tribunals not of record that are utilized by Virginia. First, they provide speedier and less costly adjudications than may be possible in the criminal courts of general jurisdiction; and second, the defendant has an unconditional right to a new, unfettered trial in a superior court. Colten v. Kentucky, 407 U.S. at 114, 92 S.Ct. 1953.

The precursor of Baldwin v. New York, the case of Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) extended the Sixth Amendment right of trial by jury to trials in state courts, using the Due Process Clause of the Fourteenth Amendment. In his concurring opinion in that case, Mr. Justice Fortas stated very well why the two-tiered system is permissible:

The Due Process Clause commands us to apply its great standard to state court proceedings to assure basic fairness. It does not command us rigidly and arbitrarily to impose the exact pattern of federal proceedings upon the 50 States. On the contrary, the Constitution's command, in my view, is that in our insistence upon state observance of due process, we should, so far as possible, allow the greatest latitude for state differences. It requires within the limits of the lofty basic standards that it prescribes for the States as well as the Federal Government, maximum opportunity for diversity and minimal imposition of uniformity of method and detail upon the States. Our Constitution sets up a federal union, not a monolith. 391 U. S. 213-214, 88 S.Ct. 1460.

Since the holdings in Duncan and Baldwin, the jury trial standards imposed on the federal courts for a twelve-man jury, Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898) and unanimous verdict, Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597 (1900), have been held inapplicable to prosecutions in state courts by Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) and Apocada v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L.Ed.2d 184 (1972). This court likewise holds that Callan v. Wilson, supra, requiring a jury in the first instance, to be a federal jury standard and applicable only to the federal courts. The Supreme Court of Virginia has reached the same conclusion in Manns v. Commonwealth, 213 Va. 322, 191 S.E.2d 810 (1972), holding that the appeal of right and the trial de novo procedure employed by Virginia fully complied with the guarantee of the Sixth Amendment.

RIGHT TO APPEAL

Petitioner next contends that the power of the Virginia court of record to impose a more severe sentence, had she appealed, had a chilling effect on her right to appeal, and that her failure to appeal was consequently a result of fear, and not voluntary. This court finds no merit in this contention. As respondent correctly notes, there is an element of risk involved at all stages of the criminal justice process, and all that the Constitution prohibits is an unreasonable or unconstitutional injection of fear which would improperly influence her decision. Petitioner concedes that Colten v. Kentucky, supra, has established the proposition that in a trial de novo, the second court may impose a greater penalty than the first. As long as petitioner is entitled to a fresh determination of her guilt or innocence by the superior court, which is not the same court which originally tried the case, an enhanced sentence on reconviction is not prohibited. Colten, 407 U.S. at 119, 92 S.Ct. 1953.

This court is of the opinion that the choice put to petitioner did not place an unconstitutional condition on her exercise of the right to a trial by jury. The Constitution does not dictate that a defendant and his attorney are never to be put to hard decisions regarding which trial tactics should be employed. Cf. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

CONSTITUTIONALITY

Petitioner lastly contends that § 18.1-238 of the Virginia Code, as amended, under which she was convicted, is...

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