Upon a plea of guilty in a criminal prosecution in a state
court, petitioner was sentenced as a second offender, the length of
the sentence being based partly on a previous conviction. Upon
sentence as a second offender, petitioner had full opportunity, so
far as appears, to contest any infirmity in the previous sentence.
While serving the second sentence, petitioner applied to the court
which had imposed the earlier sentence to vacate the judgment there
rendered against him on the ground of denial of his right to
counsel under the Federal Constitution. The state court denied the
motion, and its judgment is here affirmed. Pp.
332 U. S.
147-149.
Affirmed.
Petitioner's application to a state court to vacate a judgment
there rendered against him was denied without opinion. Under the
state law, no review could be had of this determination. This Court
granted certiorari.
329 U. S. 710.
Affirmed, p.
332 U. S.
149.
Page 332 U. S. 146
MR. JUSTICE FRANKFURTER announced the judgment of the Court in
an opinion in which the CHIEF JUSTICE, MR. JUSTICE REED, and MR.
JUSTICE JACKSON join.
This is another case in which release is sought from confinement
under a sentence by a State court following a plea of guilty, on a
claim of a denial of due process of law through want of benefit of
counsel.
The circumstances are these. On July 15, 1938, Gayes, then a lad
of 16, was arraigned in the County Court of Monroe County, New
York, upon an indictment charging burglary in the third degree and
petty larceny. According to the record of conviction, he was asked,
in accordance with the requirement of § 308 of the New York Code of
Criminal Procedure, whether "he desired the aid of counsel," and he
answered "No." [
Footnote 1]
Imposition of sentence was postponed to July 28. When, on that
day,
Page 332 U. S. 147
Gayes appeared for judgment, he was asked, again according to
the requirements of New York law, whether "he had any legal cause
to show, why judgment should not be pronounced against him." New
York Code of Criminal Procedure, § 480. And "No sufficient cause
appearing," the record continues, Gayes was committed to a New York
State Vocational School to be dealt with there according to law. It
appears from the facts before us that Gayes did not stay at this
correctional institution as long as New York law would have
authorized his detention.
See New York Penal Law,
Consol.Laws, c. 40, §§ 2184-a and 2189, in connection with § 407.
For, on October 14, 1941, he pleaded guilty, in the County Court of
Schenectady, New York, to a new charge of burglary in the third
degree. The record of this latter proceeding does not indicate
whether, this time, he was or was not represented by counsel. But
no claim is made that this plea of guilty, or the sentence under
it, has any infirmity for lack of legal assistance. Gayes' claim is
that he was sentenced as a second offender by the inclusion of the
improper sentence to the vocational school in 1938.
In accordance with New York procedure, Gayes,
pro se,
filed in the County Court of Monroe County, New York, an
application to vacate the judgment rendered against him in that
court on July 28, 1938. He claimed that, in the proceedings which
led to that judgment, he had not been informed of his
"Constitutional Rights of Assistance of Counsel," that he "could
not have understood his rights to Counsel," and that "youths of the
age of 16 years cannot Intelligently and Competently waive their
rights." Since, according to this claim, the first sentence was
void, he challenged the validity of the sentence in 1941 because
the length of the second sentence was partly based upon the 1938
conviction.
Upon this record, the county court denied the motion without
opinion. As New York law then stood, no review
Page 332 U. S. 148
could there be had of this determination.
See People v.
Gersewitz, 294 N.Y. 163, 61 N.E.2d 427. This made the county
court the highest court of the New York for purposes of our review.
Canizio v. New York, 327 U. S. 82,
327 U. S. 85.
But see Chapter 706 of the New York Laws of 1947, amending
Code Cr.Proc. § 517. We brought the case here,
329 U.
S. 710, as one of a series, for further consideration of
the circumstances under which the requirements of due process imply
a duty to supply counsel to defendants in State prosecutions.
The guiding principles bearing on the general problem have been
set forth in the opinion in
Foster v. Illinois, just
decided,
ante, p.
332
U. S. 134. Insofar as the facts of this case present a
particular variant, they are controlled by our decision in
Canizio v. New York, supra. We there held that whatever
doubts may arise from the circumstances of a plea of guilty, if,
before sentence is imposed, the opportunities required by the
Constitution for meeting the legal implications of the plea are
satisfied, the sentence must stand. And so, the questions that may
be raised regarding the circumstances attending the imposition of
Gayes' commitment to the vocational institution in 1938 are not now
open. Gayes is complaining of his sentence following his plea of
guilty in 1941. [
Footnote 2]
What he wants is to be relieved of his imprisonment under that
sentence. That sentence, to be sure, partly took into account his
earlier sentence in 1938. But, upon his subsequent sentence, as a
second offender, in 1941, he had
Page 332 U. S. 149
full opportunity, so far as appears, to contest whatever
infirmity he may have claimed in the earlier sentence when the fact
of that sentence was included in the sentence which he is now
serving. [
Footnote 3] Since the
process leading up to the second sentence is not challenged, he
cannot now, so far as the United States Constitution is concerned,
by a flank attack, challenge the sentence of 1938.
Judgment affirmed.
MR. JUSTICE BURTON concurs in the result.
[
Footnote 1]
Subsequent to the proceedings before the County Court of Monroe
now under review, the minutes of the original proceedings against
Gayes came to light. By stipulation of counsel, these minutes are
here. According to them, the precise question put to Gayes by the
Assistant District Attorney in the presence of the Judge was, "Do
you need a lawyer before you enter a plea of guilty or not guilty
to this indictment?" To which Gayes replied, "No, sir." It may be
inconclusively debated whether, if Gayes was asked "if he desired
the aid of counsel," as stated in the entry in the record of
conviction, he was better informed of his rights than if he was
asked, "Do you need a lawyer?" In view of our disposition, the
difference in significance becomes immaterial, and it is also
immaterial whether, if there were a difference, we could consider,
even in a case involving belated release from State detention, a
matter not before the court whose judgment is here for review. But
the differences that may exist between formal entry in the minutes
of an acceptance of a plea and what was actually said
contemporaneously lends force to the caution frequently expressed
that every intendment must be made in support of the due observance
of law in the rendering of judgments which are collaterally
attacked, often after a considerable passage of time.
[
Footnote 2]
Gayes is detained under the 1941 sentence imposed by the County
Court of Schenectady. A motion attacking that sentence would, under
New York law, have to be made in that court. What he is asking is
the invalidation of the prior sentence, underlying as it were the
Schenectady sentence, presumably as a first step in getting relief
from detention under the latter sentence. We are treating this
proceeding, for our purposes, as one seeking, in effect, relief
from the 1941 sentence without regard to formal distinctions which
might otherwise be relevant.
[
Footnote 3]
According to the State, Gayes could have raised the claim he now
makes against the 1938 conviction at the time he was sentenced in
1941, and from a denial of relief could have appealed to the higher
courts. This was not contradicted by the petitioner, and is not
brought into question in any opinion of the higher courts of New
York. It has been ruled in courts of very limited authority that a
second offender cannot apply for resentence on a claim that there
was a defect in the first sentence imposed by another court.
See People v. Keller, 37 N.Y.S.2d 61
(Gen.Sess.N.Y.County), and
People v. Paterno, 182 Misc.
491, 50 N.Y.S.2d 713 (Chatauqua County Court). Neither case,
however, presented the claim that a violation of the United States
Constitution vitiated the first sentence, and neither case raised
the power of the court at the time of sentencing to consider such a
claim. It is certainly within the power of a duly advised
defendant, before pleading guilty as a second offender, to raise
the constitutional invalidity of the first sentence so as to secure
opportunity appropriately to challenge such invalidity. Nothing
that is herein decided precludes petitioner from raising a denial
of his constitutional right upon a record that discloses
circumstances other than those before us. An order on such a motion
is now reviewable by the New York Supreme Court, and, in certain
instances, by the New York Court of Appeals.
MR. JUSTICE RUTLEDGE, with whom MR. JUSTICE BLACK, MR. JUSTICE
DOUGLAS, and MR. JUSTICE MURPHY concur, dissenting.
A 16 year old boy, indigent and alone, without relatives,
friends, money or counsel to aid him and, according to the undenied
allegations of the petition, without
Page 332 U. S. 150
knowledge of his constitutional rights, [
Footnote 2/1] pleaded guilty in 1938, under an
indictment specifying two highly technical and distinct charges,
[
Footnote 2/2] to the crime of
burglary in the third degree. [
Footnote
2/3] The property he was charged with intending to steal
[
Footnote 2/4] consisted of
cigarettes of the value of 75 cents, two flashlights worth $1.00,
and $3.00 in currency. The sentence imposed on that plea has been
served. [
Footnote 2/5] He is now
confined as a second offender under sentence for another offense of
similar character imposed in 1941, [
Footnote 2/6] when he was 19
Page 332 U. S. 151
and also without relatives, friends, or counsel so far as
appears. [
Footnote 2/7]
One part of the opinion announced in this case, as I understand,
takes the view that, because Gayes did not attack the 1938 sentence
in 1941, when he was sentenced as a second offender, he is forever
foreclosed from doing so on the facts and issues presented on this
record, although, as a second offender, he is now suffering the
consequences of the 1938 sentence. [
Footnote 2/8] For this conclusion, reliance is placed
upon no New York authorities; indeed, as I read the state cases,
the Court's decision is made in the face of their rulings that the
procedure petitioner has followed is the appropriate one for
raising the issues he presents. [
Footnote 2/9]
I am unwilling to subscribe to such a doctrine of forfeitures
concerning constitutional rights, which, in the extreme
circumstances of this case, seems to me shocking.
Page 332 U. S. 152
Under all of the New York decisions which have passed upon the
question, [
Footnote 2/10] the
proper and apparently the necessary procedure,
see People v.
Keller, 37 N.Y.S.2d 61, 62, for attacking a sentence as second
offender, upon the ground that the former conviction was invalid,
is first by motion in the court imposing the initial sentence to
vacate it, after which if the motion is successful the sentence for
the second offense may be attacked and vacated. [
Footnote 2/11] In other words, the second
offender, situated as is petitioner, must first overturn his first
conviction in the court where it was obtained, before he can attack
the second sentence founded in part upon that conviction.
This procedure, in my opinion, is a reasonable one within the
power of a state to require at least where both offenses have taken
place within its jurisdiction. And I know of no reason why this
Court should disregard or override it. Much less is it within our
province to invert the state procedure, if that is the effect of
the dubious suggestion that petitioner's rights perhaps may be
saved upon some other record "that discloses circumstances other
than those
Page 332 U. S. 153
before us," presumably if at all by motion before the court
which imposed the 1941 sentence to vacate it. [
Footnote 2/12]
No state decisions are cited or, it would seem in view of the
contrary authorities cited above, [
Footnote 2/13] can be cited to support such a view. Nor
is it required by anything said or done in
Canizio v. New
York, 327 U. S. 82, if
indeed such a matter could ever be within our function. The
Canizio decision has no relevance to this case, either for
prescribing the state procedure or for the constitutional issue. It
held only that, where a defendant had counsel at the time of his
sentence and could then have moved to withdraw his prior plea of
guilty, he was not prejudiced by the convicting court's previous
failure to inform him of his right to counsel.
Page 332 U. S. 154
That case had nothing to do with the state procedure open to one
convicted as a second offender for challenging his sentence on the
ground that the first conviction was invalid for federal
constitutional reasons. And the facts, on the merits, were very
different from those presented here. Whereas, among other things,
in that case, the petitioner did have counsel before his sentence
was imposed, here, not only was Gayes denied counsel altogether in
the first trial, but, so far as the record discloses, he had none
in the trial for the second offense. I do not think the
Canizio decision can be held to cover such a wholly
different situation as this. It did not rule that, if a convicted
person has never had counsel, the fact that, in a later proceeding,
he conceivably might have had such aid if he had applied for it
cures the denial, more particularly when, so far as appears, he was
treated no better during his trial for the second offense than
during the first, and when, moreover, his present attack is made as
a preliminary one required by state law to showing the second
sentence invalid.
In my judgment, it is for the state, not this Court, to say
whether the attack upon the first sentence as increasing the second
shall be made on the flank or frontally, or perchance in either
way. Indeed, under the law of New York, which is controlling on us,
the so-called "flank" attack is apparently the only one now open to
petitioner. In the face of so clear a violation of constitutional
right as this case presents, we should neither foreclose that
avenue nor substitute for it another dubiously available one of our
own manufacture.
The judgment should be reversed.
[
Footnote 2/1]
No answer was filed to the petition and the trial court
determined the issues on the pleadings without hearing or
appearance of petitioner in court, in person or by counsel. The
allegation of petitioner that, when asked whether he "desired
counsel," he answered "no" in the belief that he would have to pay
the lawyer's fee, and was not informed to the contrary is, of
course, to be taken as true in the absence of denial and of
contrary evidence which might have been tendered on a hearing.
[
Footnote 2/2]
The first count charged that petitioner "broke and entered the
building and garage of Francis Marolow . . . with intent to commit
therein the crime of larceny;" the second count charged petit
larceny of the property described in the text above.
[
Footnote 2/3]
The sentence was to confinement in the New York State Vocational
Institute, which when imposed for an unspecified term under New
York Penal Law, § 2184-a carried a maximum of 10 years, which is
the maximum for burglary in the third degree as a first offense.
N.Y.Penal Law, § 407(3).
[
Footnote 2/4]
Under the second count, for petit larceny or theft, being also
presumably the property with respect to which it was charged in the
first count that petitioner broke and entered with intent to commit
larceny.
[
Footnote 2/5]
Petitioner was held under the first sentence,
see
332
U.S. 145fn2/3|>note 3, until December 14, 1943, when the New
York Board of Parole directed that service of the sentence as
second offender begin. The date of termination of the latter
sentence,
see 332
U.S. 145fn2/6|>note 6, was correspondingly postponed.
[
Footnote 2/6]
The sentence of 10 to 20 years as second offender is mandatory.
N.Y.Penal Law § 1941. Had petitioner been sentenced in 1941 as a
first, rather than a second, offender, the maximum sentence allowed
would have been 5 to 10 years, N.Y.Penal Law, §§ 2189, 407, and he
might have been sent to a reformatory, rather than prison.
N.Y.Penal Law § 2185.
[
Footnote 2/7]
The "Record of Conviction" in the trial for the second offense,
contained in the record here, discloses that petitioner, having
been charged and arraigned, first pleaded not guilty, then withdrew
that plea and entered one of guilty. It is then recited that
petitioner appeared for judgment and,
"having been asked by the clerk whether he had any legal cause
to show why judgment should not be pronounced against him, and no
legal cause having been shown"
or appearing to the court, judgment and sentence were thereupon
pronounced. There is no recital that petitioner was represented by
counsel, was informed of his rights in any manner, or admonished of
the consequences of his plea.
[
Footnote 2/8]
See notes
332
U.S. 145fn2/3|>3,
332
U.S. 145fn2/5|>5, 6,
supra. See also
332
U.S. 145fn2/12|>note 12,
infra, and text.
[
Footnote 2/9]
See 332
U.S. 145fn2/11|>note 11,
infra.
[
Footnote 2/10]
In the absence of determination by a state's highest tribunal,
the rule announced and applied by other state courts is to be taken
by us as determining questions of state law.
Cf. West v. A.T.
& T. Co., 311 U. S. 223.
[
Footnote 2/11]
If the 1938 conviction is held void, under state law, petitioner
then may move to vacate the 1941 sentence in the court which
imposed it, and for resentencing according to state law.
See
People ex rel. Sloane v. Lawes, 255 N.Y. 112, 174 N.E. 80;
People ex rel. Carollo v. Brophy, 294 N.Y. 540, 63 N.E.2d
95;
People v. Keller, 37 N.Y.S.2d 61. And the proper forum
for attacking the 1938 conviction, as a preliminary to attack on
that of 1941, is the one where the former was obtained, by the
motion to vacate which petitioner has employed.
People v.
Bernoff, 61 N.Y.S.2d 46;
People v. Foster, 182 Misc.
73, 42 N.Y.S.2d 831;
People v. Paterno, 187 Misc. 56, 60
N.Y.S.2d 813,
with which compare People v. Paterno, 182
Misc. 491, 50 N.Y.S.2d 713;
cf. People v. Gersewitz, 294
N.Y. 163, 167, 61 N.E.2d 427, 428, 429;
People v. Keller,
supra, 37 N.Y.S.2d 61 at 63.
[
Footnote 2/12]
The opinion announced in conjunction with the Court's judgment
seems to suggest that the decisions establishing the state
procedure followed in this case are not controlling for our
disposition, on what basis I am unable to understand,
see
332
U.S. 145fn2/10|>note 10
supra, unless upon the
untenable one that state rulings upon criminal procedures and the
proper forum for utilizing them are not binding for federal
determinations to the same extent as are such rulings in civil
matters.
Only upon some such basis is the dubious suggestion justified
that petitioner should have raised the question of the validity of
his first sentence at the time of his sentencing as a second
offender and in that forum. Not only is this contrary to the
established state procedure,
see 332
U.S. 145fn2/11|>note 11, but it is expressly qualified by
the further suggestion that petitioner's rights may possibly be
saved "upon a record that discloses circumstances other than those
before us," and it seems to be contradicted by the further
statement that "the questions that may be raised regarding the
circumstances attending the imposition of Gayes' commitment . . .
in 1938 are not now open." It is pertinent to inquire whether Gayes
is to have another chance, through a local procedure prescribed by
this Court alone, or whether the constitutional questions now
presented are foreclosed by his failure to follow a procedure not
prescribed or, so far as appears, permitted by the state.
[
Footnote 2/13]
See 332
U.S. 145fn2/11|>note 11.