Wang v. Withworth

• Decision Date: 27 March 1987
• Docket Number: No. 86-3042,86-3042
• Citation: 811 F.2d 952
• Parties: Ryan Hung-Ping WANG, Petitioner-Appellant, v. William WITHWORTH; Lincoln Stokes; Anthony J. Celebrezze, Respondents- Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 952

811 F.2d 952

Ryan Hung-Ping WANG, Petitioner-Appellant, v. William WITHWORTH; Lincoln Stokes; Anthony J. Celebrezze,

Respondents- Appellees.

No. 86-3042.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 2, 1986.

Decided Feb. 11, 1987.

Rehearing and Rehearing En Banc Denied March 27, 1987.

Leonard Kirschner, William E. Breyer (argued), Asst. Prosecutor's Office, Cincinnati, Ohio, for respondents-appellees.

Daniel J. Hoffheimer (argued), James L. Childress (of counsel), Taft, Stettinius & Hollister, Cincinnati, Ohio, for petitioner-appellant.

Before KEITH and WELLFORD, Circuit Judges, and PECK, Senior Circuit Judge.

KEITH, Circuit Judge.

Petitioner-Appellant Ryan Hung-Ping Wang, a Chinese national, appeals the judgment of the United States District Court for the Southern District of Ohio, denying his petition for a writ of habeas corpus. The petition arises out of Wang's conviction and thirty-day prison sentence for misdemeanor theft in the second of two jury trials before the Court of Common Pleas, Hamilton County, Ohio. Wang was indicted in both the first and second trials for grand theft under an enhanced felony statute, Ohio Revised Code Sec. 2913.02(B). ¹

Wang's first trial on the enhanced felony charge ended in mistrial. In the second trial, the jury found Wang guilty of the lesser included offense of misdemeanor theft. In both trials a 1980 uncounseled misdemeanor conviction for shoplifting was proffered as the prior conviction element of the enhanced felony indictment. On appeal, the petitioner contends principally that the prosecution in the first trial lacked sufficient evidence to prove that his prior conviction was with the benefit of legal counsel, as required by Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (per curiam), reh'g denied, 447 U.S. 930, 100 S.Ct. 3030, 65 L.Ed.2d 1125 (1980). Therefore, Wang contends, the first trial, though termed a "mistrial", was in effect an acquittal. As a result, Wang argues, the second indictment on the same enhanced felony charge violated Wang's constitutional protections against double jeopardy. Finding merit in the petitioner's contentions, we reverse the judgment of the district court and grant his petition for habeas corpus.

I. BACKGROUND

Wang, a citizen of the People's Republic of China, entered the United States in June After the state presented its case, Wang moved for acquittal and, alternatively, for a mistrial. In support of the acquittal motion, Wang contended that the state failed to meet its burden of proving that Wang's prior 1980 conviction was with the benefit of counsel. Since the state had not proven that counsel was present, Wang argued that his Sixth Amendment right to counsel had been violated and the prior conviction was not valid as an element of the enhanced grand theft charge. ³ The state trial court denied both motions but counsel for Wang renewed them after resting. Counsel for Wang based his acquittal motion on Baldasar. He argued that Baldasar prohibits the statutory "enhancement" of a misdemeanor to a felony with a prison term when the first proceeding resulting in the required prior conviction is without legal counsel. See Baldasar, 446 U.S. at 224, 100 S.Ct. at 1586 (Stewart, J. concurring). In response, the state argued that the burden of proving the absence of counsel at the time of the prior 1980 conviction remained with Wang. The state also argued in the alternative for the lesser included offense of petty theft.

1980 to attend college and obtain a bachelor's degree in mathematics. In October, 1980, Wang was convicted of petty theft after a guilty plea and fined fifty dollars. He was not represented by counsel in the proceeding. In December of 1982, Wang was arrested and charged with the theft of fifteen greeting cards valued at sixteen dollars. Since Wang had a prior theft conviction, he was charged under Section 2913.02(B) with grand theft, a fourth degree felony. The first trial on the "enhanced" grand theft charge began in March, 1983. The State of Ohio entered in evidence a certified copy of the prior misdemeanor conviction. The state did not, however, produce the transcript of the proceeding nor did it dispute Wang's contention on objection that the 1980 conviction was uncounseled. ²

The state trial judge ruled on both of these motions from the bench, noting that the Baldasar case was "right on point". He stated further:

[T]he record in this particular case, it would indicate to me that there was no representation by a lawyer or that there was no formal waiving of any right to any attorney. We run into a classic Fifth and Sixth Amendment rights [sic] in this particular case. Baldasar, and going all the way back to Gideon v. Wainwright, the right of counsel through the 14th Amendment, and this being a specific element of the particular charge before the Court and there being nothing in the evidence before the Court by virtue of ... the prior conviction, to show that he had an attorney, or that there was a waiver of right to counsel, puts the Court between a rock and a hard spot.

(Emphasis added)

The judge then denied the motion for acquittal but granted "a motion for a new trial" on the grounds that the "admission of the evidence which was offered against the defendant obviously is prejudiced towards his [Wang's] rights in this particular case."

Wang was then indicted a second time on the same enhanced felony charge. Prior to the commencement of the second trial, Wang moved for dismissal on double jeopardy grounds and renewed his motion for acquittal. Wang's motions were again denied. At the second trial, the prior conviction was mentioned once by the visiting judge conducting the proceedings. After Upon Wang's subsequent appeal, the Ohio Court of Appeals rejected his double jeopardy claim and affirmed the trial court. An appeal to the Ohio Supreme Court failed because the court found no substantial constitutional issue. Wang filed his petition for a writ of habeas corpus and obtained a stay of sentence from the federal district court. The district court entered judgment denying the writ in December 1985 and lifted its stay of execution of sentence the following January. After a flurry of motions to stay the execution of sentence in both the state court and federal court, this court entered an order staying execution of sentence pending appeal and also issued a certificate of probable cause upon Wang's motion in February, 1986.

the state again produced no evidence of a prior conviction, the jury found Wang guilty of the lesser included offense of petty theft, sentenced him to thirty days imprisonment and fined him two hundred dollars plus costs. ⁴

II. DISCUSSION

The central issue of this appeal is whether the state trial court's decision in the first trial to grant "a motion for a new trial" had the legal effect of a finding of insufficient evidence on the enhanced felony charge, thus barring the second trial (and conviction) on double jeopardy grounds.

To restate, Wang argued at trial that his prior uncounseled misdemeanor conviction in 1980 should not have been used to enhance a subsequent misdemeanor into a felony with a prison term, citing Baldasar. He contends now that the state trial court concurred with his view but did not follow the legal consequences of its ruling, namely an entry of an acquittal order which would bar retrial. Appellees contend that Baldasar prevents only the imposition of an enhanced prison term; thus, in their view, an enhanced felony charge may be brought against the petitioner, but not an increased felony prison term. As Wang received a thirty-day misdemeanor imprisonment term, there was no increase in the term imposed. Appellees argue further that the Double Jeopardy clause is not involved here because the state trial court's decision was a grant of Wang's alternative motion for mistrial, not an acquittal on the Baldasar issue.

We disagree. Although Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979) held an uncounseled misdemeanor conviction to be constitutionally valid if a prison sentence is not imposed, Baldasar prohibits the use of that uncounseled conviction to "be used collaterally to impose an increased term of imprisonment". 446 U.S. at 226, 100 S.Ct. at 1587 (Marshall, J. concurring). The imposition by Baldasar of a "limited use" requirement on uncounseled convictions is a logical extension of the Court's decision in Scott and Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). In Scott, the Court allowed uncounseled misdemeanor convictions but limited their effect to prevent incarceration of the accused. In Burgett, the Court prohibited admission of an uncounseled felony conviction as evidence in a subsequent trial. The court's holdings in Baldasar, Scott and Burgett each sought to avoid an indigent accused suffering from an earlier inability to benefit from legal counsel. In Burgett, for example, the Court noted that if the uncounseled felony conviction was admitted, "the accused in effect suffers anew from the deprivation of that Sixth Amendment right [to counsel]." 389 U.S. at 115, 88 S.Ct. at 262.

The Baldasar holding reaffirms the concerns raised in Burgett and Scott: "[a] petitioner's prior conviction [is] not valid for all purposes. Specifically, under the rule of Scott and Argersinger, it [is] invalid for the purpose of depriving petitioner of his liberty." 446 U.S. at 226, 100 S.Ct. at 1587 (Marshall, J., concurring) (citing Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972)). Deprivation of liberty was precisely the object and purpose of the enhanced felony indictments in Wang's first and second trials in state court. It does not matter that Wang's prior misdemeanor conviction did not result in imprisonment. Baldasar clearly prevents the use of that uncounseled conviction to subject Wang to the possibility of increased imprisonment at a...