Riсhard Lee NICHOLS, Appellant, v. STATE of Alaska, Appellee.
No. 713.
Supreme Court of Alaska.
March 13, 1967.
Our analysis of the record has convinced us that the facts do not support appellants’ contention that appellee acquiesced in the trustee‘s decision to award the property to appellants. The record does disclose that appellee asserted its rights to the property in question as soon as it was aware that the trustee‘s deed to Lot 3 included a portion of the lаnd it had previously purchased at the foreclosure sale of Alaska Plywood‘s property. We find nothing in the record to indicate that appellants were misled by, or prejudicially relied upon, any act or failure to act on the appellee‘s part.22
The findings of fact, conclusions of law, and judgment entered by the superior court are deemed amended to conform to the foregoing and as amended are affirmed.
Warren C. Colver, Atty. Gen., Juneau, Thomas E. Curran, Jr., Dist. Atty., and William H. Fuld, Asst. Dist. Atty., Anchorage, for appellee.
Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.
DIMOND, Justice.
Appellant waived his right to indictment by a grand jury, entered a plea of guilty to an information charging him with embezzlement, and was sentenced to imprisonment for a term of from one to ten years. Nearly a year later appellant moved the sentencing court to vacate or set aside the sentеnce on the ground that his plea of guilty had been coerced by threats and promises of a state probation officer. After a hearing, the court below denied the motion, and appellant brought this appeal.
Appellant previously had been convicted of another crime and released on parole. The parole had been revoked and defendant was in jail at the time he entered his plea to the crime of embezzlement in this case. In his motion to vacate or set aside sentence, appellant alleged that a state parole and probation officer had coerced him into entering a guilty plea by telling appellant that if he would plead guilty to the charge of embezzlement, his original parole would be reinstated and he would be placed on prоbation with respect to the embezzlement conviction.
At the hearing of appellant‘s motion to vacate sentence, those present were the appellant, the district attorney, and Mr. Renfrew, an attorney, who had represented appellant at the time he entered his plea of guilty to the embezzlement charge and was sentenced. Mr. Renfrew appeared at the request of the court in order that the court could determine whether there was any merit in appellant‘s motion which would necessitate counsel being appointed to represent him. Mr. Renfrew made it clear that he was not representing appellant at this hearing.
In response to questioning by the court, Mr. Renfrew stated that there was no question in his mind but that appellant knew what he was doing when he entered his plea of guilty, аnd that based upon the record and his own recollection, he could see no merit to appellant‘s motion to vacate sentence. However, Mr. Renfrew also stated that at the time the plea of guilty was entered, he was under the impression that the probation officer had promised him, Mr. Renfrew, that he was going to reinstate appellant‘s parole.
Following this exchange between the court and Mr. Renfrew, appellant was placed under oath and interrogated by the court. He testified that the probation officer told him that his parole would be reinstated if he had the power to do so if appellant would plead guilty, and that if he did not plead guilty he, the probation officer, “would see that my parole was revoked completely and that I would be charged * * * as a habitual criminal.” Aрpellant stated that he was not in fact guilty of the crime of embezzlement, and that when he said that he was guilty at the time of his plea, he was lying to get back on parole because of the probation officer‘s alleged promise. Appellant was then cross-examined briefly by the district attorney, and at the conclusion of the cross-examination the court found that appellant was not truthful and denied the motion to vacate.
We are now able to perceive in hindsight that what should have been done at the hearing was to place appellant, his counsel and the probation officer under oath and conduct a full fact hearing on the record on appellant‘s charges, giving full opportunity for cross-examination. The trial court should then have weighed the testimony and filed written findings of fact and a decision.
* * * * * *
Upon remand it shall become the duty of the trial court to resolve the issue of fact presented by appellant‘s charges against his court аppointed counsel and the probation officer and to file written findings and decision.
* * * * * *
At the fact hearing to be held in this case it is suggested to the trial court that the proceeding be expanded sufficiently to create a record upon which specific findings can be made upon as many of the following matters as may be applicable, in addition to any others that may be raised by appellant:
(1) Did the court have jurisdiction; (2) Was the plea of guilty voluntarily made; (3) Was petitioner adequately represented by competent counsel at time of plea or at his trial; (4) If petitioner was not represented by counsel at time of plea, did he intelligently waive counsel after full explanation by the court as to his right to have counsel appointed and the importance of counsel to him; (5) Was there any suppression of evidence or knowing use of perjured testimony by the prosecuting attorney; (6) Were any confessions used which were not voluntarily made or illegally obtained; (7) Was petitioner mentally competent, able to understand the nature of the proceedings and to cooperate with counsel at all stages of the proceedings; and (8) Was the sentence within the statutory range.2
We apply Thompson to this case.3 In the light of appellant‘s sworn testimony that he was coerced into pleading guilty by representations of the probation officer, and Mr. Renfrew‘s statement that he had been promised by the probation officer that appellant‘s parole would be reinstated, we believe it was incumbent upon the court below to have placed the probation officer under oath, in addition to appellant аnd Mr. Renfrew, and to have conducted a full fact hearing on appellant‘s charges, giving full opportunity for cross-examination. Following this, the court should have weighed the testimony and filed written findings of fact and a decision. Because this was not done, the case must be remanded for further proceedings.
The final question to decide on this appeal is whether appellant, who is indigent,4
If appellant were not indigent and had been able to employ his own counsel to represent him, there is no doubt that at the hearing below he would have been entitled to have counsel represent him. For the court to have arbitrarily refused to hear appellant through his retained counsel would have constituted the denial of a hearing and, therefore, of due process of law in the constitutional sense.5 The question we have here is whether appellant, being financially unable to employ counsel, has any constitutional right to have counsel appointed to represent him at a hearing of a motion to vacate and set aside sentence.
The United States Supreme Court in recent years has gone far in establishing and protecting the constitutional rights of indigent defendants in criminal actions. In Griffin v. People of State of Illinois6 the Court found that the failure of the State of Illinois to provide for appellate review in noncapital cases for indigents who could not afford the cost of purchasing a transcript, when such review was available for all defendants able to purchase transcripts, was an invidious discrimination inconsistent with the guarantees of due process and equal protection of the laws of the fourteenth amendment to the federal constitution. In Eskridge v. Washington State Bd. of Prison Terms and Paroles,7 the Supreme Court declared invalid a provision of the State of Washington‘s criminal system which conferred on the trial judge the power to withhold a trial transcript from an indigent upon a finding that “justice would not be promoted * * * in that defendant has been accorded a fair and impartial trial, and in the Court‘s opinion no grave or prejudicial errors occurred therein.” The Supreme Court held that the conclusion of the trial judge that there was no reversible error in the trial could not be an adequate substitute for the right to a full appellate review available to all defendants in Washington who could afford the expense of a transcript. In Burns v. State of Ohio,8 it was held that the State of Ohio could not constitutionally require that an indigent defendant in a criminal case pay a $20 filing fee before permitting him to file a motion for leave to appeal in one of its courts. The Supreme Court said that once the state chooses to establish appellate review in criminal cases, it may not foreclose indigents from access to any phase of that procedure because of their poverty.
In Smith v. Bennett,9 the principles of Griffin10 were extended to state post-conviction remedies other than a direct appeal. The Supreme Court held that an applicant for a writ of habeas corpus was denied equal protection of the laws where an Iowa law required that a filing fee be paid by an indigent before an application for a writ of habeas corpus or the allowance of an appeal could be docketed. The court said that to interpose any financial consideration between an indigent and the
Coppedge v. United States,16 dealt with a situation where an indigent applied to the federal court of appeals for leave to appeal in forma pauperis after the federal district court, under
In all cases the duty of the State is to provide the indigent as adequate and effective an appellate review as that given appellants with funds—the State must provide the indigent defendant with means of presenting his contentions to the appellate court which are as good as those available to a nonindigent defendant with similar contentions.19
In the recent decision of Long v. District Court of Iowa,20 the United States Supreme Court held that the refusal of a state court to furnish an indigent prisoner with a transcript of a habeas corpus proceeding for purpose of appeal was to deny the prisoner the equal protection of the laws.
Other decisions of the United States Supreme Court have dealt with an indigent defendant‘s right to have court appointed counsel represent him. In Johnson v. United States21 the court held that a federal court of appeals must assign counsel to assist one who challenges a certification by a trial court that an appeal was not taken in good faith. In Ellis v. United States22 it was held that the allowance of an appeal in forma pauperis in the federal courts should not be denied until the indigent defendant has had adequate representation by counsel. Gideon v. Wainwright23 establishes the principle that the refusal of a state trial court to appoint counsel for an indigent defendant charged with a felony violates the sixth amendment‘s guarantee of counsel24 made obligatory on the states by the fourteenth amendment. In Douglas v. People of State of California25 indigent defendants were denied the assistance of counsel on appeal. The Supreme Court held this to be a discrimination in violation of the equal protection clause of the fourteenth amendment. The Court said:
The present case, where counsel was denied petitioners on appeal, shows that the discrimination is not between ‘possibly good and obviously bad cases,’ but between cases where the rich man can require the court to listen to argument of counsel before deciding on the merits, but a poor man cannot. There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel‘s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal.26
Finally, Miranda v. State of Arizona,27 decided last year, established the principle that, when an individual is taken into custody in connection with a criminal matter
If an individual indicates that he wishes the assistance of counsel before any interrogation occurs, the authorities cannot rationally ignore or deny his request on the basis that the individual does not have or cannot afford a retained attorney. The financial ability of the individual has no relationship to the scope of the rights involved here. The privilege against self-incrimination secured by the Constitution applies to all individuals. The need for counsel in order to protect the privilege exists for the indigent as well as the affluent. In fact, were we to limit these constitutional rights to those who can retain an attorney, our decisions today would be of little significance. The cases before us as well as the vast majority of confession cases with which we have dealt in the past involve those unable to retain counsel. While authorities are not required to relieve the accused of his poverty, they have the obligation not to take advantage of indigence in the administration of justice. Denial of counsel to the indigent at the time of interrogation while allowing an attorney to those who can afford one would be no more supportable by reason or logic than the similar situation at trial and on appeal struck down in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). [Footnotes omitted.]29
The appellant‘s motion in this case was made under our
One state court that has passed on a similar question has held that an indigent defendant‘s constitutional rights were not abridged by the refusal of a trial court to аssign counsel to represent him on his motion to withdraw a plea of guilty.33
Other state courts, in dealing with post-conviction remedies, have concluded that indigents are entitled to court appointed counsel.34
Although the United States Supreme Court has not held that constitutional standards require the appointment of counsel for an indigent prisoner at a hearing of his motion to vacate sentence, we believe that that Court‘s concern for the constitutional rights of indigent defendants, as exemplified by the cases we have discussed, points the way to that result. We say this because of the fact that the type of hearing a criminal defendant is afforded under
We hold that in such circumstances, an indigent defendant who is not afforded counsel to represent him, is denied “equal rights, opportunities and protection under the law“, to which he is entitled under
The imposition
Our decision todаy was foreshadowed by our earlier decision in Hoffman v. State.39 In that case a state statute provided that in all proceedings for the revocation of a suspended sentence, the defendant is entitled to the right to be represented by counsel.40
We held that an indigent probationer had, by virtue of that statute, the same right to be represented by counsel at a probation revocation proceeding as did the probationer who had funds to hire counsel. We said:
In short, we cannot ascribe to our legislature an intent to draw a distinction, along economic lines, as to which probationers were to be accorded this statutory right to counsel. To construe AS 12.55.110 as embodying an intended dichotomy between probationers unable to afford counsel and others would, in our opinion, render the statute repugnant to the Equal Protection Clauses of both the Federal and Alaska Constitutions. [Footnote omitted.]41
What we did in Hoffman was to refuse to sanction any discriminatory application between indigent probationers and others in the administration of the right to counsel granted by statute. Today we go a step further and hold that where a person seeking relief under
The order denying appellant‘s motion to vacate or set aside sentence is set aside. The case is remanded to the trial court for further proceedings consistent with the views expressed in this opinion. The findings of fact and decision of the trial court shall be forwarded to the clerk of this court when filed. The court expresses its appreciation to counsel appointed by this court to represent appellant on this appeal, and relieves counsel of any further responsibility. Counsel shall be compensated for his services in accordance with Administrative Rule 15, as revised July 30, 1966. The appeal heretofore filed shall remain in force until further order.
RABINOWITZ, Justice (concurring).
I concur in the disposition of the case and in Justice Dimond‘s conclusion that an indigent movant under
In the lower court appellant sought to set aside his guilty plea and the judgment and commitment which was thereafter entered on the basis that his plea had been coerced. Pursuant to
I am of the opinion that once the sentencing court has concluded that a
In Powell v. State of Alabama,* Mr. Justice Sutherland wrote:
What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law.
* 287 U.S. 45, 68-69, 53 S.Ct. 55, 64, 77 L.Ed. 158, 170 (1932).
The rationale of Powell is applicable to the type of hearing involved in this appeal. As Justice Dimond has demonstrated, since Powell was rendered by the Supreme Court of the United States the right to counsel for indigents in state cases has been expanded both as to the typе of proceedings to which the right appertains and to the timing of effective assistance of counsel.**
** As noted by Justice Dimond, the Supreme Court has used both due process (incorporating the sixth amendment‘s right to the assistance of counsel) and the equal protection clauses in deciding these cases.
Under this court‘s supervisory powers over the administration of criminal justice in the State of Alaska, I would require counsel to be appointed for all indigents who have been accorded a factual hearing under
Alternatively, I am of the belief that denial of assistance of counsel to an indigent in regard to a
NESBETT, Chief Justice (concurring in part and dissenting in part).
I agree with the majority that this matter must be remanded to the trial court for further proceedings consistent with our holding in Thompson v. State.1
I must dissent, however, from that portion of the majority opinion which concludes that a petitioner under
* * * that all persons are equal and entitled to equal rights, opportunities, and protection under the law * * *
Nor do I believe that such a right exists on any other constitutional ground.
The majority opinion expresses the view that
although the United States Supreme Court has not held that constitutional standards require the appointment of counsel for an indigent prisoner at a hearing of his motion to vacate sentence, we believe that the Court‘s concern for the constitutional rights of indigent defеndants, as exemplified by the cases we have discussed, points the way to that result.
I do not reach the same conclusion. None of the Supreme Court decisions cited and relied upon by the majority pertain to the rights of an indigent challenging his conviction by collateral attack which is the case now before us. In Douglas v. People of State of California,2 the defendants had been convicted of felonies and requested
We are not here concerned with problems that might arise from the denial of counsel for the preparation of a petition for discretionary or mandatory review beyond the stage in the appellate process at which the claims have once been presented by a lawyer and passed upon by an appellate court. We are dealing only with the first appeal, granted as a matter of right to rich and poor alike * * * from a criminal conviction. We need not decide now whether California would have to provide counsel for an indigent seeking a discretionary hearing from the California Supreme Court after the District Court of Appeal has sustained his conviction * * * or whether counsel must be appointed for an indigent seeking review of an appellate affirmance of his conviction in this Court by appeal as of right or by petition fоr a writ of certiorari which lies within the Court‘s discretion. But it is appropriate to observe that a State can, consistently with the Fourteenth Amendment, provide for differences so long as the result does not amount to a denial of due process or an ‘invidious discrimination.’ * * * Absolute equality is not required; lines can be and are drawn and we often sustain them. * * * But where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor. 372 U.S. at 356-357, 83 S.Ct. at 816, 9 L.Ed.2d at 814. (Emphasis supplied by the U. S. Supreme Court.)
Alaska‘s
[W]e think it clear that the sentencing court has discretion to ascertain whether the claim is substantial before granting a full evidentiary hearing. In this connеction, the sentencing court might find it useful to appoint counsel to represent the applicant. (Emphasis added.)
The federal courts of appeal have uniformly held that the appointment of counsel in a section 2255 proceeding is a matter for the sound discretion of the trial court.4
Where the circumstances of a defendant or the difficulties involved in presenting a particular matter are such that a fair and meaningful hearing cannot be had without the aid of counsel, conceivably the requirements of the due process clause of the fifth amendment would dictate that counsel be appointed.5
In discussing an indigent‘s right to the assistance of court appointed counsel in
The mandatory requirement of the Sixth Amendment regarding right to counsel does not apply to indigent movants under 28 U.S.C. § 2255. This is the
general view, it seems soundly basеd on the underlying purposes of the Amendment.
* * * * * *
By interpreting the Amendment as conferring a right to counsel through direct appeal of the original conviction to the Courts of Appeals * * * the accused is assured of representation by counsel throughout those proceedings in which guilt is finally determined and reviewed as a matter of right. The same need for counsel is not invariably present where post-conviction remedies like motions under § 2255 are involved. They follow original criminal proceedings at every stage of which counsel has been provided * * * they are not a part of the basic processes for determining guilt * * * they may be resubmitted * * * and they are frequently frivolous * * *.6
Here counsel was provided for petitioner at the trial court level. His plea of guilty had been accepted, sentence had been imposed and no appeal was taken. Nearly a year later petitioner moved to vacate sentence on the ground that his plea of guilty had been coerced.
A single uncomplicated question of fact was raised by petitioner‘s allegation that the probation officer had threatened to see that his parole was revoked and that he would be charged as a habitual criminal if he did not enter a plea of guilty to the charge of embezzlement. The question of fact would be resolved by the trial court on the testimony of not more than three persons—the petitioner, his court appointed trial counsel, and the probation officer. In my opinion this situation illustrates the wisdom of the federal rule which leaves to the discretion of the trial judge the question of whether the complexity оf the issue raised requires the appointment of counsel at state expense to represent petitioner.
It must be remembered that proceedings under
The possibilities for alleging legal and factual issues requiring determination under