*1 thе nation’s establishes. things to the scheme of charter plan, something under that owe more judges, Courts and men negative duty than the to sit silent and blind while for want go way prison, appears, on their for all that rights. hint of their “presumption regularity” Adding to this blindness a mockery to sustain what has thus been done makes a judicial proceedings any sense the administration justice a snarе and a delusion of constitutional rights pay securing for all unable to the cost of their observance.
GAYES NEW YORK. Argued May 2, No. 405. 1947 . Decided June argued Herbert and filed a brief for Wechsler cause petitioner. filed a brief the cause argued L. Rosenthal
Harry respondent. *2 judgment of announced Frankfurter Justice Mr. Justice, Chief Mr. in which in an Court join. Jackson Mr. Justice and Reed Justice from sought is relеase in which is another This following a State court a sentence under confinement of process due denial of of a on a claim plea of of benefit of counsel. want through law Gayes, July 15, 1938, On are these. The circumstances County Court in the sixteen, arraigned was lad of then a charg an indictment York, upon New County, of Monroe larceny. Ac pеtty degree in the third ing burglary in asked, was conviction, he of to the record cording New York 308 of the §of requirement with the accordance the aid “he desired Procedure, whether of Criminal Code 1 Imposition of sen answered “No.” counsel,” and he of day on that July to 28. When postponed was tence County Monroe Court of proceedings Subsequent to the bеfore against proceedings original review, the minutes now under minutes are here. light. By stipulation of counsel these Gayes to came Gayes by precise question put the Assistant According them, to to you Judge was, “Do need a Attorney presence of in the District guilty guilty lawyer you plea or not to this indict- enter á before may Gayes replied, “No, It be inconсlu- To sir.”- ment?” Gayes the aid of sively asked “if he desired debated whether conviction, counsel,” entry in the record of he was as stated asked, you rights, if was “Do need a better informed of his than significance lawyer?” disposition, difference in In view of our whether, immaterial, if there were a and it is also immaterial becomes involving consider, belated releasе difference, even in a case we could judgment detention, from not before the court whose State a matter formal But the exist between here for review. differences actually entry acceptance and what was the minutes an frequently expressed contemporaneously said lends force to the caution every support of thе due observ- intendment must be made rendering judgments collaterally which are ance of law attacked, passage of time. often after a considerable asked, again accord- he was judgment, Gayes appeared “he York law, New ing requirements should not why judgment cause show legal had Code Crim- New York against him.” pronounced appear- cause And “no sufficient inal Procedure 480. § a New Gayes committed continues, ing,” record with there to be dealt York State School Vocational us It from the facts according appears to law. institution stay this correctional did not at de- would authorized long as New law Law New York Penal 2184-a §§ tention. See 14, 1941, For, October § in connection Scheneсtady, County in the Court pleaded guilty, degree. in the third York, charge burglary to a new *3 not does indicate proceeding The record of this latter represented by he or was not this time guilty, of plea no claim is made that this counsel. But of it, any infirmity legal for lack the sentence under has he a Gayes’ claim is that was sentenced as assistance. improper thе of sentence second offender inclusion the to the school in 1938. vocational se, Gayes, pro
In York procedure, accordance with New York, in the Monroe New County County, filed Court of application judgment against an to vacate the rendered July 28, him in 1938. He claimed that that court in the he had proceedings judgment which led that his Rights not been infоrmed of “Constitutional of Assist- Counsel,” ance of his he “could have understood rights “youths Counsel” and that of 16 age years the Intelligently Competently cannot rights.” waive their Since, according to claim, void, this the first sentence was challenged validity the of the in 1941 sentence because length the of the second partly sentence was based upon the 1938 conviсtion.
Upon record, the county this court denied the motion opinion. without As York law stood, New then no re- could be had of this determination. See view there Gersewitz, 2d This made v. 294 N. Y. 61 N. E. 427. highest of New court State county court York, v. New purposes York for of our review. Canizio Chapter U. But see S. here, S. brought Laws of the case 329 U. 1947. We series, for of the circum as one оf a further consideration process of due requirements stances which the under in State imply supply to defendants duty to counsel prosecutions. general problem on the guiding principles bearing Illinois, v.
have been set forth Foster ante, just decided, p. 134. Insofar as the facts our present particular they are controlled variant, York, held supra. decision in Canizio New there We may that whatever doubts arise from circumstances plea if, imposed, sentence is meeting opportunities required the Constitution for legal implications plea satisfied, are the sen And questions tence stand. so, must imposi raised the circumstances regarding attending tion of commitment to the vocational institution Gayes’ open. of his complaining 1938 are not now his following guilty sentence 1941.2 What imprisonment wants is to be under relieved sure, partly sentence. That to be took into sentence, *4 in But upon account his earlier 1938. his sub sentence in sentence, offender, as a he had sequent second 2 County imposed by the is detained under 1941 sentence the attacking would, Schenectady. A that Court of motion sentence law, in he is under New York have to made that court. What sentence, asking prior underlying is of the as it were the invalidation sentence, presumably getting Schenectady step the a first in relief as treating latter are from detention under the sentence. We ceeding, effect, purposes, seeking, as in for our one relief from the regard might sentence otherwise without formal distinctions which be relevant. whatever appears, far to contest opportunity,
full so in earlier sentence have claimed he infirmity in was included the sentence of sentence when the fact up leading serving.3 process is now Since he now, he cannot challenged is not to the second sentence concerned, is a far States Constitution so as the United of flank the sentence attack, challenge
Judgment affirmed. in concurs the result. Mr. Justice Burton Black, whom Mr. Justice Rutledge, Mr. Justice Murphy concur, and Mr. Justice Douglas, Mr. Justice dissenting. sixteen-year-old boy,
A without indigent alone, and ac- relatives, money and, counsel to aid him friends, with- allegations petition, to the undenied cording State, Gayes According raised the claim now to the could have against sentenced makes the 1938 conviction at time higher appealed from to the and a denial relief could have courts. This not contradicted
brought question higher of New into courts authority very limited York. It has been ruled courts apply on a claim that therе a second offender cannot for resentence imposed by was a first sentence another court. See defect (Gen. County), People Keller, v. 37 N. Y. S. 2d 61 N. Y. Sess. Paterno, (Chatauqua Misc. 50 N. Y. 2d 713 S. County Court). case, however, presented the claim that Neither sen- vitiated first a violation of the States Constitution United tence, power raised court at the time and neither case power certainly sentencing a claim. It is within the to consider such defendant, pleading guilty second duly as a advised invalidity sentence offender, of the first to raise the constitutional invalidity. challenge opportunity appropriately to such so as to secure raising Nothing precludes petitioner from is herein decided right upon disсloses circum- denial a record that constitutional such motion is An order on stances other than those before us. Supreme in certain Court and New York now reviewable Appeals. by the New Court instances *5 150 pleaded guilty rights,1 of his constitutional knowledge
out highly tech two specifying in under an indictment in burglary the crime of charges,2 and distinct nical with charged he was property the third degree.3 the value cigarettes to steal4 consisted intending dollar, worth one flashlights two seventy-five cents, imposed The sentence currency. and three dollars in He is now confined on that has been served.5 for another offense second offender under sentence imposed 1941,6 similar in when he was nineteen character 1 pеtition filed to the and the trial court determined No answer was hearing peti- pleadings appearance of the issues on the without or petitioner court, person allegation in tioner or counsel. The counsel,” that when asked “no” “desired answered pay lawyer’s fee, the belief that he would have to and was contrary is, course, informed to the in the to be taken as true contrary might absence denial and of evidence been hearing. tendered on a 2 charged petitioner The first count “broke and entered the building garage of Francis Marlow . . . with intent to commit larceny”; charged petit larceny therein the crime of the second count property described in the text above. 3 The sentence was to confinement in the New York State Voca- Institute, imposed unspecified tional which when for an term under years, Penal Law carried 2184-a a maximum of ten § burglary degree which is the maximum for in the third as a first (3). offense. N. Y. Penal Law § count, petit larceny Under the second theft, being also presumably property respect charged it which was first сount that broke and entered with intent larceny. commit sentence, Petitioner was held under the first see note until 14, 1943, December when the New York Board of Parole directed begin. that service of the sentence as second offender The date of sentence, termination of the latter see correspondingly note was postponed. 6The twenty years sentence of ten to as second offender is manda- tory. N. Y. Penal Law 1941. Had been sentenced § *6 as far so or counsel friends relatives, also without and appears.7 I case, as in this announced part
One not did that because the view understand, takes sentenced when he was 1941, attack the 1938 sentence doing from forever foreclosed offender, a is as second he al record, presented this on the facts and issues so the con suffering now offender he is though as second this conclusion For sequences of the sentence.8 authorities; indeed, placed upon no New York reliance is cases, I decision is made read the state the Court’s petitioner has rulings procedure the fаce their appropriate followed for raising is the one issues presents.9
I unwilling am subscribe to such doctrine of for- concerning feitures constitutional rights, which in the extreme circumstances seems me shocking. offender,
1941 as a first rather than a second the maximum sentence years, allowed would have been five 2189, to ten N. Y. Penal Law §§ might and he reformatоry have been sent to a rather than prison. N. Y. Penal Law 2185. § 7The “Record of Conviction” in offense, the trial for the second here, contained in the record petitioner, having discloses that been charged arraigned, pleaded and first then withdrew that guilty. and entered one of It is then recited that appeared judgment and, “having for been asked the clerk whether any legal why had judgment cause to show should not be against him, legal nounced having and no cause been ap- shown” or pearing court, judgment to the and thereupon pro- sentence were nounced. There is no recital that represented by counsel, rights was informed of manner, or was admonished consequences plea. of his 3, 5, supra. See notes See also note 12 and text. infra 9See note 11infra. passed which New York decisions all of the
Under neces apparently proper question,10 upon Keller, 2d 37 N. Y. S. procedure, see sary upon offender, as second a sentence attacking invalid, the former conviction ground that sentence the initial imposing in the court by motion first mоtion is successful it, to vacate after attacked second for the offense sentence offender, situated words, In second other vacated.11 *7 petitioner, must first overturn his first conviction as is attack the obtained, it was before can the court where part upon founded in second sentence conviction. procedure my opinion This one within reasonable to power require, state at least both where offenses place taken I jurisdiction. within its And know of why no reason Court disregard should or it. override Much less is it within our province to invert state procedure, if that is the effect of the suggestion dubious petitioner’s rights may perhaps upon be saved some other record “that discloses сircumstances than other those
10In the absence of highest determination a state’s tribunal applied by rule announced and other state courts is to taken determining us questions of state Co., law. Cf. West v. A. T. T.& 311 S.U. 11If the void, 1938 conviction is held under state law then move to vacate the 1941 sentence in the court which im posed it, and resentencing according for to People state law. See ex Lawes, rel. Sloane v. 112; 255 People N. Y. ex rel. Carollo v. Brophy, 540; 294 People Keller, N. Y. v. 37 N. Y. 2d 61. S. And proper attacking forum for conviction, preliminary 1938 as a to 1941, attack on that of is the one where the obtained, former was by the motion to vacate which employed. People has Bernoff, v. 46; 61 People Foster, N. Y. 2d 73; S. v. Peoрle 182 Misc. Paterno, v. 187 compare Misc. People Paterno, which v. 491; People 182 Misc. cf. v. Gersewitz, 167; 294 N. Y. Keller, supra, at 63. the court before motion at all us,” presumably it.12 to vacate 1941 sentence imposed in view it would seem or, are cited decisions No state sup cited can be above,13 contrary cited authorities said by anything required is it a view. Nor port such if indeed such York, S.U. v. New in Canizio done Canizio function. The within our ever be a matter could case, prescribing for to this either no relevance decision has It held issue. procedure or for the constitutional the state at the time of a defendant had counsel only that where moved to withdraw and could then have his sentence by the prejudiced he was not prior plea inform him of his previous failure to convicting court’s right to counsel. judg- conjunction with the Court’s announced establishing suggest the state the decisions
ment seems controlling disposition, for our followed in this case are not cedure supra, understand, unless see note what basis I am unable rulings upon procedures upon one that criminal the untenable state utilizing binding federal proper are not and the forum for them rulings in civil matters. to the same extent as are such determinations *8 justified suggestion that Only upon some such basis is the dubious question validity of his first should have raised the sentencing as a second offender and sentence at the time of his only contrary to the established state forum. Not is this that sugges- cedurе, expressly qualified the further see note but it is “upon petitioner’s rights may possibly be saved a record tion that us,” and it seems other than those before that discloses circumstances questions that “the to be contradicted the further statement attending imposition regarding be raised the circumstances per- Gayes’ open.” It is commitment ... in 1938 are not now chance, through inquired Gayes tinent to is to have another prescribed by alone, procedure this Court or whether the a local questions presented are foreclosed his failure constitutional now procedure prescribed or, appears, permitted to follow a not so far as by the state. 13See note 11.
n procedure to do with the stаte nothing That had challenging offender convicted as second open one was conviction ground on the the first his sentence facts, And reasons. invalid for federal constitutional pre- from those merits, very on the were different in that case Whereas, among other things, sented here. did have counsel before his sentence imposed, counsel аlto- only here denied gether in far trial, the first but so as the record discloses he had I none the trial for the second offense. do not think the Canizio decision can to cover be held such wholly different that, situation as this. It did not rule if a person convicted counsel, has never had the fact in a later proceeding conceivably might have had such aрplied aid he had denial, for it particu- cures the more larly when far appears so he was treated no better dur- ing his trial for the first, second offense than during the and when present moreover his attack a pre- is made as liminary one required by state law for showing the second sentence invalid.
In my judgment it is for state, not this Court, say whether the upon attack the first sentence as increas- ing the second shall be made on the flank or frontally, perchance in way. either under the law of Indeed, York, which is controlling on “flank” us, the so-called attack apparently only open one now petitioner. In the face of so clear a violation of right constitutional as this case presents, we should neither foreclose that avenue nor substitute for it dubiously another available one of our own manufacture.
The judgment should be reversed.