ALABAMA v. SHELTON
No. 00-1214
Supreme Court of the United States
Argued February 19, 2002—Decided May 20, 2002
535 U.S. 654
Charles Fried, by invitation of the Court, 534 U. S. 987 (2001), argued the cause and filed a brief as amicus curiae in opposition to the judgment below.
William H. Mills argued the cause and filed a brief for respondent.
Steven Duke argued the cause for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance. With him on the brief were Thomas F. Liotti and David M. Porter.*
JUSTICE GINSBURG delivered the opinion of the Court.
This case concerns the Sixth Amendment right of an indigent defendant charged with a misdemeanor punishable by imprisonment, fine, or both, to the assistance of court-appointed counsel. Two prior decisions control the Court‘s judgment. First, in Argersinger v. Hamlin, 407 U. S. 25 (1972), this Court held that defense counsel must be appointed in any criminal prosecution, “whether classified as petty, misdemeanor, or felony,” id., at 37, “that actually leads to imprisonment even for a brief period,” id., at 33. Later, in Scott v. Illinois, 440 U. S. 367, 373-374 (1979), the Court drew the line at “actual imprisonment,” holding that counsel need not be appointed when the defendant is fined for the charged crime, but is not sentenced to a term of imprisonment.
I
After representing himself at a bench trial in the District Court of Etowah County, Alabama, Shelton was convicted of third-degree assault, a class A misdemeanor carrying a maximum punishment of one year imprisonment and a $2,000 fine,
The Circuit Court sentenced Shelton to serve 30 days in the county prison. As authorized by Alabama law, however,
Shelton appealed his conviction and sentence on Sixth Amendment grounds, and the Alabama Court of Criminal
The Supreme Court of Alabama reversed the Court of Criminal Appeals in relevant part. Referring to this Court‘s decisions in Argersinger and Scott, the Alabama Supreme Court reasoned that a defendant may not be “sentenced to a term of imprisonment” absent provision of counsel. App. 37. In the Alabama high court‘s view, a suspended sentence constitutes a “term of imprisonment” within the meaning of Argersinger and Scott even though incarceration is not immediate or inevitable. And because the State is constitutionally barred from activating the conditional sentence, the Alabama court concluded, “‘the threat itself is hollow and should be considered a nullity.‘” App. 37 (quoting United States v. Reilley, 948 F. 2d 648, 654 (CA10 1991)). Accordingly, the court affirmed Shelton‘s conviction and the monetary portion of his punishment, but invalidated “that aspect of his sentence imposing 30 days of
Courts have divided on the Sixth Amendment question presented in this case. Some have agreed with the decision below that appointment of counsel is a constitutional prerequisite to imposition of a conditional or suspended prison sentence. See, e. g., Reilley, 948 F. 2d, at 654; United States v. Foster, 904 F. 2d 20, 21 (CA9 1990); United States v. White, 529 F. 2d 1390, 1394 (CA8 1976). Others have rejected that proposition. See, e. g., Cottle v. Wainwright, 477 F. 2d 269, 274 (CA5), vacated on other grounds, 414 U. S. 895 (1973); Griswold v. Commonwealth, 252 Va. 113, 116-117, 472 S. E. 2d 789, 791 (1996); State v. Hansen, 273 Mont. 321, 325, 903 P. 2d 194, 197 (1995). We granted certiorari to resolve the conflict. 532 U. S. 1018 (2001).
II
Three positions are before us in this case. In line with the decision of the Supreme Court of Alabama, Shelton argues that an indigent defendant may not receive a suspended sentence unless he is offered or waives the assistance of state-appointed counsel. Brief for Respondent 5-27.3
A
In Gideon v. Wainwright, 372 U. S. 335, 344-345 (1963), we held that the Sixth Amendment‘s guarantee of the right to state-appointed counsel, firmly established in federal-court proceedings in Johnson v. Zerbst, 304 U. S. 458 (1938), applies to state criminal prosecutions through the Fourteenth Amendment. We clarified the scope of that right in Argersinger, holding that an indigent defendant must be offered counsel in any misdemeanor case “that actually leads to imprisonment.” 407 U. S., at 33. Seven Terms later, Scott confirmed Argersinger‘s “delimit[ation],” 440 U. S., at 373. Although the governing statute in Scott authorized a jail sentence of up to one year, see id., at 368, we held that the defendant had no right to state-appointed counsel because the sole sentence actually imposed on him was a $50 fine, id., at 373. “Even were the matter res nova,” we stated, “the central premise of Argersinger—that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment—is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel” in nonfelony cases. Ibid.
B
Applying the “actual imprisonment” rule to the case before us, we take up first the question we asked amicus to address: Where the State provides no counsel to an indigent defendant, does the Sixth Amendment permit activation of a suspended sentence upon the defendant‘s violation of the terms of probation? We conclude that it does not. A suspended sentence is a prison term imposed for the offense of conviction. Once the prison term is triggered, the defendant is incarcerated not for the probation violation, but for the underlying offense. The uncounseled conviction at that point “result[s] in imprisonment,” Nichols, 511 U. S., at 746; it “end[s] up in the actual deprivation of a person‘s liberty,” Argersinger, 407 U. S., at 40. This is precisely what the Sixth Amendment, as interpreted in Argersinger and Scott, does not allow.
Amicus resists this reasoning primarily on two grounds. First, he attempts to align this case with our decisions in Nichols and Gagnon v. Scarpelli, 411 U. S. 778 (1973). See Brief for Amicus Curiae by Invitation of the Court 11-18
Nichols presented the question whether the Sixth Amendment barred consideration of a defendant‘s prior uncounseled misdemeanor conviction in determining his sentence for a subsequent felony offense. 511 U. S., at 740. Nichols pleaded guilty to federal felony drug charges. Several years earlier, unrepresented by counsel, he was fined but not incarcerated for the state misdemeanor of driving under the influence (DUI). Including the DUI conviction in the federal Sentencing Guidelines calculation allowed the trial court to impose a sentence for the felony drug conviction “25 months longer than if the misdemeanor conviction had not been considered.” Id., at 741. We upheld this result, concluding that “an uncounseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction.” Id., at 749. In Gagnon, the question was whether the defendant, who was placed on probation pursuant to a suspended sentence for armed robbery, had a due process right to representation by appointed counsel at a probation revocation hearing. 411 U. S., at 783. We held that counsel was not invariably required in parole or probation revocation proceedings; we directed, instead, a “case-by-case approach” turning on the character of the issues involved. Id., at 788-791.
Considered together, amicus contends, Nichols and Gagnon establish this principle: Sequential proceedings must be analyzed separately for Sixth Amendment purposes, Fried Brief 11-18, and only those proceedings “result[ing] in immediate actual imprisonment” trigger the right to state-appointed counsel, id., at 13 (emphasis added). Thus, the defendant in Nichols had no right to appointed counsel in the DUI proceeding because he was not immediately imprisoned at the conclusion of that proceeding. The uncounseled DUI, valid when imposed, did not later become invalid be-
Gagnon and Nichols do not stand for the broad proposition amicus would extract from them. The dispositive factor in those cases was not whether incarceration occurred immediately or only after some delay. Rather, the critical point was that the defendant had a recognized right to counsel when adjudicated guilty of the felony offense for which he was imprisoned. See Nichols, 511 U. S., at 743, n. 9 (absent waiver, right to appointed counsel in felony cases is absolute). Unlike this case, in which revocation of probation would trigger a prison term imposed for a misdemeanor of which Shelton was found guilty without the aid of counsel, the sentences imposed in Nichols and Gagnon were for felony convictions—a federal drug conviction in Nichols, and a state armed robbery conviction in Gagnon—for which the right to counsel is unquestioned. See Nichols, 511 U. S., at 747 (relevant sentencing provisions punished only “the last offense committed by the defendant,” and did not constitute or “change the penalty imposed for the earlier” uncounseled misdemeanor); Gagnon, 411 U. S., at 789 (distinguishing “the right of an accused to counsel in a criminal prosecution” from “the more limited due process right of one who is a probationer or parolee only because he has been convicted of a crime“).
Thus, neither Nichols nor Gagnon altered or diminished Argersinger‘s command that “no person may be imprisoned for any offense unless he was represented by counsel at his trial,” 407 U. S., at 37 (emphasis added). Far from
Nichols is further distinguishable for the related reason that the Court there applied a “less exacting” standard “consistent with the traditional understanding of the sentencing process.” 511 U. S., at 747. Once guilt has been established, we noted in Nichols, sentencing courts may take into account not only “a defendant‘s prior convictions, but... also [his] past criminal behavior, even if no conviction resulted from that behavior.” Ibid. Thus, in accord with due process, Nichols “could have been sentenced more severely based simply on evidence of the underlying conduct that gave rise” to his previous conviction, id., at 748 (emphasis added), even if he had never been charged with that conduct, Williams v. New York, 337 U. S. 241 (1949), and even if he had been acquitted of the misdemeanor with the aid of appointed counsel, United States v. Watts, 519 U. S. 148, 157 (1997) (per curiam). That relaxed standard has no application in this case, where the question is whether the defendant may be jailed absent a conviction credited as reliable because the defendant had access to “the guiding hand of counsel,” Argersinger, 407 U. S., at 40 (internal quotation marks omitted).
Amicus also contends that “practical considerations clearly weigh against” the extension of the Sixth Amendment appointed-counsel right to a defendant in Shelton‘s situation. Fried Brief 23. He cites figures suggesting that although conditional sentences are commonly imposed, they are rarely activated. Id., at 20-22; Tr. of Oral Arg. 20-21 (speculating that “hundreds of thousands” of uncounseled defendants receive suspended sentences, but only “thousands” of that large number are incarcerated upon violating the terms of their probation). Based on these estimations, ami-
Amicus observes that probation is “now a critical tool of law enforcement in low level cases.” Id., at 22. Even so, it does not follow that preservation of that tool warrants the reduction of the Sixth Amendment‘s domain that would result from the regime amicus hypothesizes. Amicus does not describe the contours of the hearing that, he suggests, might precede revocation of a term of probation imposed on an uncounseled defendant. See id., at 24 (raising, but not endeavoring to answer, several potential questions about the nature of the revocation hearing amicus contemplates). In Alabama, however, the character of the probation revocation hearing currently afforded is not in doubt. The proceeding is an “informal” one, Buckelew v. State, 48 Ala. App. 418, 421, 265 So. 2d 202, 205 (Crim. App. 1972), at which the defendant has no right to counsel, and the court no obligation to observe customary rules of evidence, Martin v. State, 46 Ala. App. 310, 311, 241 So. 2d 339, 340 (Crim. App. 1970).
More significant, the sole issue at the hearing—apart from determinations about the necessity of confinement, see
We think it plain that a hearing so timed and structured cannot compensate for the absence of trial counsel, for it does not even address the key Sixth Amendment inquiry: whether the adjudication of guilt corresponding to the prison sentence is sufficiently reliable to permit incarceration. Deprived of counsel when tried, convicted, and sentenced, and unable to challenge the original judgment at a subsequent probation revocation hearing, a defendant in Shelton‘s circumstances faces incarceration on a conviction that has never been subjected to “the crucible of meaningful adversarial testing,” United States v. Cronic, 466 U. S. 648, 656 (1984). The Sixth Amendment does not countenance this result.
In a variation on amicus’ position, the dissent would limit review in this case to the question whether the imposition of Shelton‘s suspended sentence required appointment of counsel, answering that question “plainly no” because such a step “does not deprive a defendant of his personal liberty.” Post, at 676. Only if the sentence is later activated, the dissent contends, need the Court “ask whether the procedural safeguards attending the imposition of [Shelton‘s] sentence comply with the Constitution.” Ibid.
Severing the analysis in this manner makes little sense. One cannot assess the constitutionality of imposing a suspended sentence while simultaneously walling off the procedures that will precede its activation. The dissent imagines a set of safeguards Alabama might provide at the probation revocation stage sufficient to cure its failure to appoint counsel prior to sentencing, including, perhaps, “complete retrial of the misdemeanor violation with assistance of counsel,” post, at 677. But there is no cause for speculation about Alabama‘s procedures; they are established by Alabama statute and decisional law, see supra, at 666 and this page, and they bear no resemblance to those the dissent invents in its effort to sanction the prospect of Shelton‘s imprisonment on
Nor do we agree with amicus or the dissent that our holding will “substantially limit the states’ ability” to impose probation, Fried Brief 22, or encumber them with a “large, new burden,” post, at 680. Most jurisdictions already provide a state-law right to appointed counsel more generous than that afforded by the Federal Constitution. See
Moreover, even if amicus is correct that “some courts and jurisdictions at least [can]not bear” the costs of the rule we confirm today, Fried Brief 23, those States need not abandon probation or equivalent measures as viable forms of punish-
That option is pretrial probation, employed in some form by at least 23 States. See App. to Reply Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 1a-2a (collecting state statutes). Under such an arrangement, the prosecutor and defendant agree to the defendant‘s participation in a pretrial rehabilitation program,11 which includes conditions typical of post-trial probation. The adjudication of guilt and imposition of sentence for the underlying offense then occur only if and when the defendant breaches those conditions. Ibid.; see, e. g.,
Like the regime urged by amicus, this system reserves the appointed-counsel requirement for the “small percent-
C
Alabama concedes that activation of a suspended sentence results in the imprisonment of an uncounseled defendant “for a term that relates to the original offense” and therefore “crosses the line of ‘actual imprisonment‘” established in Argersinger and Scott. Reply Brief to Amicus Curiae Professor Charles Fried 8. Shelton cannot be imprisoned, Alabama thus acknowledges, “unless the State has afforded him the right to assistance of appointed counsel in his defense,” Scott, 440 U. S., at 374; see Reply Brief 9. Alabama maintains, however, that there is no constitutional barrier to imposition of a suspended sentence that can never be enforced; the State therefore urges reversal of the Alabama Supreme Court‘s judgment insofar as it vacated the term of probation Shelton was ordered to serve.
In effect, Alabama invites us to regard two years’ probation for Shelton as a separate and independent sentence, which “the State would have the same power to enforce [as] a judgment of a mere fine.” Tr. of Oral Arg. 6. Scott, Alabama emphasizes, squarely held that a fine-only sentence does not trigger a right to court-appointed counsel, Tr. of Oral Arg. 6; similarly, Alabama maintains, probation uncoupled from a prison sentence should trigger no immediate right to appointed counsel. Seen as a freestanding sentence, Alabama further asserts, probation could be enforced, as a criminal fine or restitution order could, in a contempt pro-
Alabama describes the contempt proceeding it envisions as one in which Shelton would receive “the full panoply of due process,” including the assistance of counsel. Reply Brief 12. Any sanction imposed would be for “post-conviction wrongdoing,” not for the offense of conviction. Reply Brief to Amicus Curiae Professor Charles Fried 11. “The maximum penalty faced would be a $100 fine and five days’ imprisonment,” Reply Brief 12 (citing
There is not so much as a hint, however, in the decision of the Supreme Court of Alabama, that Shelton‘s probation term is separable from the prison term to which it was tethered. Absent any prior presentation of the position the State now takes,13 we resist passing on it in the first instance. Our resistance to acting as a court of first view instead of one of review is heightened by the Alabama Attorney General‘s acknowledgment at oral argument that he did not know of any State that imposes, postconviction, on a par with a fine, a term of probation unattached to a suspended sentence. Tr. of Oral Arg. 8. The novelty of the State‘s current position is further marked by the unqualified statement in Alabama‘s opening brief that, “[b]y reversing Shelton‘s suspended sentence, the [Supreme Court of Alabama] correspondingly vacated the two-year probationary term.” Brief for Petitioner 6.
*
*
*
Satisfied that Shelton is entitled to appointed counsel at the critical stage when his guilt or innocence of the charged crime is decided and his vulnerability to imprisonment is determined, we affirm the judgment of the Supreme Court of Alabama.
It is so ordered.
JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE KENNEDY, and JUSTICE THOMAS join, dissenting.
In Argersinger v. Hamlin, 407 U. S. 25, 37 (1972), we held that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense... unless he was represented by counsel at his trial.” (Emphasis added.) Although, we said, the “run of misdemeanors will not be affected” by this rule, “in those that end up in the actual deprivation of a person‘s liberty, the accused will receive the benefit” of appointed counsel. Id., at 40 (emphasis added). We affirmed this rule in Scott v. Illinois, 440 U. S. 367 (1979), drawing a bright line between imprisonment and
Today‘s decision ignores this long and consistent jurisprudence, extending the misdemeanor right to counsel to cases bearing the mere threat of imprisonment. Respondent‘s 30-day suspended sentence, and the accompanying 2-year term of probation, are invalidated for lack of appointed counsel even though respondent has not suffered, and may never suffer, a deprivation of liberty. The Court holds that the suspended sentence violates respondent‘s Sixth Amendment right to counsel because it “may ‘end up in the actual deprivation of [respondent‘s] liberty,‘” ante, at 658 (emphasis added), if he someday violates the terms of probation, if a court determines that the violation merits revocation of probation,
But that question is not the one before us, and the Court has no business offering an advisory opinion on its answer. We are asked to decide whether “imposition of a suspended or conditional sentence in a misdemeanor case invoke[s] a defendant‘s Sixth Amendment right to counsel.” Pet. for Cert. i. Since imposition of a suspended sentence does not deprive a defendant of his personal liberty, the answer to that question is plainly no. In the future, if and when the State of Alabama seeks to imprison respondent on the previously suspended sentence, we can ask whether the procedural safeguards attending the imposition of that sentence comply with the Constitution. But that question is not before us now. Given our longstanding refusal to issue advisory opinions, Hayburn‘s Case, 2 Dall. 409 (1792), particularly with respect to constitutional questions (as to which we seek to avoid even non-advisory opinions, Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring)), I am amazed by the Court‘s conclusion that it “makes little
Although the Court at one point purports to limit its decision to suspended sentences imposed on uncounseled misdemeanants in States, like Alabama, that offer only “minimal procedures” during probation revocation hearings, see ante, at 668, n. 5, the text of today‘s opinion repudiates that limitation. In answering the question we asked amicus to address—whether “the Sixth Amendment permit[s] activation of a suspended sentence upon the defendant‘s violation of the terms of probation“—the Court states without qualification that “it does not.” Ante, at 662. Thus, when the Court says it “doubt[s]” that any procedures attending the reimposition of the suspended sentence “could satisfy the Sixth Amendment,” ante, at 668, n. 5, it must be using doubt as a euphemism for certitude.
The Court has no basis, moreover, for its “doubt.” Surely the procedures attending reimposition of a suspended sentence would be adequate if they required, upon the defendant‘s request, complete retrial of the misdemeanor violation with assistance of counsel. By what right does the Court deprive the State of that option?2 It may well be a sensible
option, since most defendants will be induced to comply with the terms of their probation by the mere threat of a retrial that could send them to jail, and since the expense of those rare, counseled retrials may be much less than the expense of providing counsel initially in all misdemeanor cases that bear a possible sentence of imprisonment. And it may well be that, in some cases, even procedures short of complete retrial will suffice.3
Our prior opinions placed considerable weight on the practical consequences of expanding the right to appointed counsel beyond cases of actual imprisonment. See, e. g., Scott, 440 U. S., at 373 (any extension of Argersinger would “impose unpredictable, but necessarily substantial, costs on 50 quite diverse States“); see also Argersinger, 407 U. S., at 56-62 (Powell, J., concurring in result) (same). Today, the Court gives this consideration the back of its hand. Its observation that “[a]ll but 16 States” already appoint counsel for defendants like respondent, ante, at 669, is interesting but quite irrelevant, since today‘s holding is not confined to defendants like respondent. Appointed counsel must henceforth be offered before any defendant can be awarded a suspended sentence, no matter how short. Only 24 States have announced a rule of this scope.4 Thus, the Court‘s deci-
Today‘s imposition upon the States finds justification neither in the text of the Constitution, nor in the settled practices of our people, nor in the prior jurisprudence of this Court. I respectfully dissent.