*1 purposes. for inheritance tax included in the estate involved, however. No such are here properties appel- points the other raised We considered judgment without merit. lant but deem them to be The is therefore below
Affirmed: Justice, MR. Justice Frankfurter Chief Douglas dissent. Mr. Justice BURKE, GRYGER WARDEN. Argued April 26-27, June No. 541. 1948. Decided Archibald the cause and filed a brief for argued Cox *2 petitioner. respondent.
Franklin E. Barr for argued cause him John H. Maurer. With brief was on opinion of the delivered the Mr. Justice Jackson Court. Pennsylvania peti- holds the Commonwealth of prisoner
tioner under a sentence as an habitual crim- by Su- here, protesting inal. His denial the State claim corpus, for a preme petition Court of his writ of habeas Pennsylvania requires the Federal Constitution him he process grounds (1) release on due of law because was sentenced as fourth offender without counsel or offer counsel; which sen- (2) one of convictions on tence based occurred before the enactment the Penn- sylvania Habitual Criminal Act1 and statute is there- unconstitutionally post jacto; fore and retroactive and ex (3) under this Act unconstitutionally subjects him to double jeopardy. outset,
At the we suggestion face the the ease properly by cannot be on decided the merits this Court because, as a matter of state the attack on the life premature be may since be would validly prior on expiring restrained sentences not until February 1949, at least if even the life sentence were invalidated. prefer Some members of Court affirm judgment ground. on that since However, the state law is not difficulty, free from fully Court, issue was not this and on litigated since, merits,2 reached, dispose the same conclusion is we the case in that manner. 1939, 1108 of the Penal Code of Ann. § Stat.
2Respondent contested the below this case and in Court merits. We Supreme passed assume that the Court of seventeen, peti- age at Beginning violence, times crimes eight arrested tioner has been con- guilty instance in each followed deny, not states, petitioner does Respondent and viction. years life, of his over 13 years that of the last convictions pleas A of his schedule spent jail. been in ital- post, p. 732, those appended, data is pertinent an which information was on the basis of being the four ics Brought into a fourth offender. him to be charging filed identity acknowledged he charge, on that limited court previous convict cases he as the in each pursuant to the Act. He was with- life sentence given *3 was out counsel and it is said that he neither advised of his him.3 to nor was offered to right obtain counsel counsel credulity It rather overstrains our to believe that one who had been a defendant times and for whom eight coun- waged defenses, ones, sel had twice albeit unsuccessful right did to engage request not know of his counsel. No only The appears. question to do so of fact before the charge court on the fourth offender was whether he was person the same who was convicted in the four cases. This deny. he then admitted and does not now The only other and it sentence, appear does not any helpful to was unknown information to the court. petitioner’s allegations deprivation of federal constitutional
rights open v. those here. Herndon and that issues are therefore Lowry, 242, S. 301 U. 247. Pennsylvania Supreme frequently held that The Court of has right provision according to be state defendants the constitutional by appointment in non- require heard does not of counsel counsel capital See, example, ex rel. McGlinn v. cases. for Commonwealth Smith, 1; Withers v. 41, 344 Pa. A. ex rel. 2d Commonwealth Brady, 493, 316 U. S. 2d See Betts A. 610. also only require destitute Pennsylvania statutes assigned Act of shall counsel. defendants accused of murder 22, 1907, 19 March Pa. Ann. 784. Stat. judge prejudiced
It said that the de- sentencing aby fendant construing mistake in mandatory regarded Habitual Criminal Act in that he as a discretionary. sentence which is It is neither clear that if statute, court so construed the nor he did that we empowered pronounce are it an error Penn- sylvania law. court, clear that the trial view duty a long defendant’s criminal considered he had record, impose sentence and referred to it one “re- as quired the Act.” by But to indicate that nothing there is he felt to impose penalty constrained as except facts him any before it. And it in for warranted event is the Pennsylvania say duty courts to under law what its may Nothing court had. impeaches temperateness record with fairness judge which the trial approached his task. His action highest has been affirmed court of Common- liberty wealth. at conjecture We are not that the trial interpretation court acted under an of the state law dif- up ferent from that which might adopt' we then set interpretation our own a declaring due basis process has been denied. We cannot treat mere error if occurred, process; state as a denial of one due otherwise, every erroneous decision state court on *4 state law would a federal come here as constitutional question. just
We have at length obligation considered provide plead States to counsel to defendants who guilty Illinois, non-capital v. offenses. Bute S. 640. U. Notwithstanding argument the resourceful assigned Court, precedent counsel we think that settles the here, issue that no exceptional present circumstances are that, under record circumstances disclosed us, before provide the State’s failure to for this counsel petitioner on his did not charge to the fourth offender render his conviction and invalid. of the convictions
Nor
we think the fact
one
do
petitioner
which
into the calculations
that entered
the Act was
a fourth offender occurred before
became
subjects
validly
retroactive
passed, makes
Act
as a
jeopardy.
to double
The sentence
is not to be viewed
fourth
or habitual criminal
offender
jeopardy
penalty
additional
for the
as either a new
penalty
a stiffened
for the latest
earlier crimes.
to be an
offense
crime,
aggravated
which is considered
Missouri,
one. Cf. Moore v.
repetitive
because
Massachusetts,
311;
v.
180 U. S.
673;
S.
McDonald
U.
v.
Virginia,
616;
v.
S.
Carlesi New
Graham West
U.
York,
51;
rel.
233 U. S.
ex
Sullivan
Affirmed. Black, Rutledge, Justice Mr. with whom Mr. Justice Murphy Douglas join, Mr. Justice Mr. Justice dissenting. of this upon a majority
Even the narrow to which view *5 Court scope right to counsel concerning adhere the of the
733 cases, in criminal guaranteed by as Fourteenth of I requirement process due cannot Amendment’s square in in case with that made Town- decision this v. Burke, post, p. 736, send decided today. disadvantage in opinion
The that “the case that declares from of counsel, when circum- aggravated by absence showing prisoner actually stances in it resulted being advantage of, prejudiced, taken does out make a In view process.” case violation due Court finds that Townsend the trial prejudiced by was court’s action in him on the basis of misinforma- either to it concerning prior tion submitted criminal record misreading its in that the record carelessness respect. invalid, On the same Gryger’s basis sentence was although exceptional the Court no such finds circum- inducing prejudice here it finds stances Townsend’s case. record, my judgment, reveal such a cir- does
cumstance, one working prejudice exactly to induce at point Townsend, namely, upon as with same the criti- reveals, cal of sentence. So far as the record Gryger imprisonment aby sentenced to court working misconception a under the life term was mandatory, not discretionary, under the Habitual Criminal Act.1
Exactly opposite In explicit is true. terms puts imposition imprisonment statute of life upon fourth “in Moreover, judge.” offenders discretion Pa. Stat. tit. Ann. (b) provides Section 5108 when prior convictions are offense, upon shown at the for “shall, trial the fourth the defendant sentenced, judge trying conviction ... in the case, imprisonment penitentiary state the term his natural life.” (d), procedure Section which authorizes the followed in case, viz, separate proceeding
instant on an information within *6 alleged as only the “not to appeal of sentence is authorized thereof,” justice with the legal but also as to the errors paid by and to be appeal costs of reasonable counsel fee the Commonwealth.3 it, the duty
In of his spite discretion exercise only question was sentencing judge, remarking that had petitioner person was the same who suffered whether if the sen- prior convictions, repeatedly spoke as quoted mandatory. tence were The statements margin typical.4 are might prob- that the same is immaterial imposed in an of court’s
ably would have been exercise pro- to have sentence discretion. Petitioner entitled mandate of manner, an automatic that not as nounced very judicial of statute. The denial of essence which is the of discretion where discretion process, exercise process, merely in itself a denial of not required, due law And we an of of no concern to this Court. error state would have speculate cannot whether the same sentence if the court’s had been pronounced been exercised.
Moreover, misconception, together with the the court’s counsel, any chance deprived absence years conviction, provides may two the fourth “the court that (b) imprisonment prescribed in sentence him to for life clause as . of this section . . .” sentencing judge
That the statute vests discretion in has been clearly recognized highest the Commonwealth’s court. Common ex rel. wealth Foster (d). §5108 my duty, Assembly, “. . . it becomes under the Act to treat case, person guilty say, is to has such where a been found impose felony prescribed period, the fourth time of a within a required by Act.” the sentence words, viewpoint: “In the law has come to this ... other [a possibility from of ever com- fourth must be removed offender] mitting again.” the offense only sentence,
to be the crucial heard matter vital one after his hearing left assumed, it guilty was received. Even if could says, right the Court knew of his counsel from he frequent prior appearances court,5 still it cannot be assumed, substantially disproves, indeed the record *7 he knew the of Criminal exact the Habitual Act.6 terms therefore, He it language misled would seem the court’s giving no hint of its no discretionary power, made in mitigation and no representative had to correct the court’s misconception present or to considerations which might have a less severe than one pro- induced sentence the paraphrase nounced. To concluding the of the the Townsend opinion case, might “Counsel not have changed the but he could sentence, steps have taken to assumption, seem, A dubious it would in view of the fact that Pennsylvania generally right the in criminal confines to have counsel g., capital See, trials to v. cases. e. Commonwealth ex rel. McGlinn Smith, 41; 344 Pa. Commonwealth ex rel. Withers 493. Pa. Stat. Ann. tit. cf. 3 and But note text. 6Petitioner, charging when served with the information him as offender, a fourth penitentiary was confined the without financial preparing alleged, contradiction, of means a He without defense. prison request copy that authorities of refused his a answer, say course, Habitual Criminal Act. no of to that petitioner no of of had need other statute or assistance because previous trips through knowledge the courts. Whatever of court procedures may acquired, he he was unfamiliar with fourth offender act. petitioner hearing if prior
Even had to secured access adequately prepare defense, materials needed to or been in- a had rights formed the court as to there- the statute’s terms and his under, highly petitioner capable it is unrealistic to assume that was adequately presenting hearing. plead- his own case at the ings intelligence telling which he filed are witness of his limited hearing education. And at it was so obvious that comprehend unable to the issues involved that the assistant district attorney remarked, representing the Commonwealth “He doesn’t understand.” predicated misconcep- was not
see the sentence require- misreading controlling statute, tion or of the from of fair withheld play ment which absence of counsel prisoner.” I find difficult court’s mis- comprehend it reading concerning or misinformation facts of record vital to proper function is exercise prejudicial deprives process of due the defendant misconception controlling but or misreading its statute, mandatory in matter vital as sen- imposing so or has exercising concerning it, tence no such only Perhaps effect. to illustrate difference serves capricious how right are the when the counsel results depend upon made to not the mandate the Constitu- upon tion, vagaries judges, but whether the same different, regard will this incident the course particular proceedings prejudicial. criminal *8 BURKE, WARDEN. TOWNSEND 14, 1948. Argued April 27, 1948. June No. 542. Decided