Wildeblood v. United States

• Decision Date: 29 November 1960
• Docket Number: Misc. No. 1456.
• Citation: 284 F.2d 592
• Parties: Warren O. WILDEBLOOD, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

284 F.2d 592 (1960)

Warren O. WILDEBLOOD, Petitioner, v. UNITED STATES of America, Respondent.

Misc. No. 1456.

United States Court of Appeals District of Columbia Circuit.

November 3, 1960.

Petition for Rehearing Denied November 29, 1960.

Mr. John B. Jones, Jr., Washington, D. C. (appointed by this court) was on the petition for leave to appeal in forma pauperis.

Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher, and John D. Lane, Asst. U. S. Attys., were on respondent's opposition to the petition.

Before EDGERTON, BASTIAN and BURGER, Circuit Judges, in Chambers.

PER CURIAM.

Upon consideration of the petition for leave to prosecute an appeal from the Municipal Court of Appeals without prepayment of costs and of the memoranda in support and in opposition, it is

Ordered by the court that the petition for leave to prosecute an appeal from the Municipal Court of Appeals without prepayment of costs is denied.

EDGERTON, Circuit Judge (dissenting).

"Any party aggrieved by any final order or judgment of The Municipal Court for the District of Columbia * * * may appeal therefrom as of right to The Municipal Court of Appeals for the District of Columbia * * * Provided, however, That reviews of judgments of the small claims and conciliation branch of the Municipal Court of the District of Columbia, and reviews of judgments in the criminal branch of the court where the penalty imposed is less than $50, shall be by application for the allowance of an appeal, filed in said Municipal Court of Appeals. * * *" D.C.Code (1951) § 11-772(a).

The underlying principle of the statute is clear. Appeal is a matter of right in serious cases.

This is a serious case. It involves "grave moral turpitude and an indelible stigma". Wildeblood v. United States, 106 U.S.App.D.C. 338, 339, 273 F.2d 73, 74. It is therefore within the principle of the statute.

The question is whether it is nevertheless outside the language of the statute. I think it is within the language as well as the principle. The sentence imposed upon the petitioner was "$25.00 or 10 days". In my opinion this is not a "penalty * * * less than $50" and petitioner was therefore entitled to appeal as of right. As in previous cases, the Municipal Court of Appeals has held the contrary.

The question is of general importance and this court should decide it because it constantly recurs. Petitioner's poverty should not prevent us from deciding it. I would therefore grant the petition for leave to appeal in forma pauperis.

The nature of the penalty actually inflicted by a sentence of "$25.00 or 10 days" depends on the defendant's financial ability and personal choice. If he chooses, and is able, to pay the fine, he can avoid imprisonment. If he chooses imprisonment, he can avoid the fine. If he cannot pay the fine, he cannot avoid imprisonment.

No one suggests that imprisonment for 10 days is a "penalty * * * less than $50." The theory of the Municipal Court of Appeals is that although "10 days" was part of the sentence, that part of the sentence was no part of the penalty. This seems to me a paradox. The Municipal Court of Appeals has said in defense of its theory: "The alternative of imprisonment is but the mode, authorized by Section 11-616 of the Code, for enforcing payment of the fine imposed, and may be avoided by payment of the fine." Yeager v. District of Columbia, 33 A.2d 629, 630. This overlooks three things. (1) In many cases, imprisonment cannot "be avoided by payment of the fine" because the defendant cannot pay the fine. (2) Payment of the fine can always be avoided by going to prison. (3) Section 11-616 of the District of Columbia Code does not authorize alternative sentences of fine or imprisonment. It provides that "in all cases where the said court shall impose a fine it may, in default of the payment of the fine imposed, commit the defendant for such a term as the court thinks right and proper, not to exceed one year." (Emphasis added.) That is not what the Municipal Court did in petitioner's case. If it was authorized to impose the alternative sentences it did impose, it derived its authority not from § 11-616 but from § 22-2701. Section 22-2701 authorizes, for the offense involved in this case, "a penalty of not more than $250 or imprisonment for not more than ninety days or both." Since this section deals with the penalty of imprisonment and the penalty of a fine in exactly the same way, and the Municipal Court imposed the penalty of imprisonment and the penalty of a fine in exactly the same way, each is as much "the penalty imposed" as the other. Because "10 days" is not a "penalty * * * less than $50", the "penalty imposed" is not "less than $50".

It is clear and undisputed that petitioner's payment of the fine in order to avoid the imprisonment does not moot the case.¹

Because petitioner was not imprisoned, this case does not involve the "question whether an alternative sentence of fine or imprisonment is an invalid discrimination between those who are able to pay and those who are not."² When the person sentenced cannot pay the fine and is therefore imprisoned, the constitutional question arises. The answer seems clear. The cases on which the court relies were decided many years ago,³ and the constitutional question does not appear to have been raised. More recently, the Supreme Court has repeatedly held that "invidious discriminations" in the administration of criminal justice are unconstitutional. Griffin v. Illinois, 1956, 351 U.S. 12, 17, 76 S.Ct. 585, 100 L.Ed. 891; Eskridge v. Washington Prison Board, 1958, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269; Burns v. Ohio, 1959, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209. Specifically, the Court has held that "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 100 L. Ed. 891. Few would care to say there can be equal justice where the kind of punishment a man gets depends on the amount of money he has. That this continues to happen in the fifth year of the Griffin era does not imply that it could withstand appellate review. It escapes review. A defendant who goes to jail because he cannot pay a fine seldom has the means to appeal. And appeals from these short sentences would become moot before they could be decided. Cf. Thompson v. Louisville, 362 U.S. 199, 202, 80 S.Ct. 624, 4 L.Ed.2d 654.

Memorandum in Response to Dissent

BASTIAN, Circuit Judge, with whom BURGER, Circuit Judge, joins.

In order that our position with respect to the order entered this day may be clear, and made of record, this memorandum is written to accompany the dissenting opinion of Judge Edgerton.

Wildeblood was tried and found guilty by the Municipal Court, sitting without a jury, of the offense of soliciting for lewd and immoral purposes. § 22-2701, D.C. Code (1951). He was sentenced to pay a fine of $25.00 or, in lieu thereof, to serve ten days in jail. § 11-616, D.C.Code (1951). He promptly paid the fine, so no question as to petitioner's "poverty" is involved, as Judge Edgerton seems to indicate. Petitioner sought no stay of the sentence pending appeal.

Thereafter, Wildeblood filed a petition for allowance of an appeal in the Municipay Court of Appeals. Acting in accordance with its discretion under § 11-772 of the Code,¹ which makes the allowance of criminal appeal discretionary in cases where penalties less than $50.00 are imposed, that court denied the appeal. As will be seen from the quoted section of the Code, note 1, supra, where appeal has been denied by the unanimous action of the three judges of the Municipal Court of Appeals "there shall be no further appeal." Nevertheless, Wildeblood petitioned this court for review.

Without reaching the question of jurisdiction to entertain the appeal, we remanded the case to the Municipal Court of Appeals, in essence holding that in cases such as this, involving grave moral turpitude and stigma, the Municipal Court of Appeals should appoint counsel to represent an indigent before proceeding on the merits of the application for appeal. We remanded to appoint counsel and to reconsider the disallowance of the appeal. Wildeblood v. United States, 1959, 106 U.S.App.D.C. 338, 273 F.2d 73.

The Municipal Court of Appeals duly complied with our mandate, permitted petitioner to file an amended application for allowance of appeal, appointed new counsel for appellant,² and required that a statement of proceedings and evidence be certified, to aid that court in ruling on the amended application. In compliance with the order, a trial transcript was filed by the court reporter. Prior to the filing of the transcript, an amended application for allowance of appeal had been filed, to which was appended a statement of law, points and authorities. On March 31, 1960, the application for discretionary appeal was denied, the court entering an order reciting their actions on the remand, and reading in part as follows:

"The Chief Judge and the two Associate Judges of this court, having carefully considered the entire record, including the amended application, the transcript and the points and authorities of both counsel, and each of the judges being of the opinion that the appeal should be denied, it is "Ordered that the application be and the same is hereby denied in accordance with Code 1951, 11-772."

When the matter again came before us, a majority voted to deny the petition for review of the action of the Municipal Court of Appeals in denying the appeal. Judge Edgerton dissented and filed a memorandum in which several points are raised, one among them being that petitioner's payment of the fine in order to avoid imprisonment did not moot the case. The majority made no such holding. In the view that we take, it was not and is not necessary to reach or pass on that point. We held simply that this is not a case in which we elect to exercise our discretionary power to...