A Texas statute provides for the automatic dismissal of an
appeal by a felony defendant if he escapes from custody pending the
appeal, except that the appeal will be reinstated if he voluntarily
surrenders within 10 days of his escape, or, if he is under
sentence of life imprisonment or death, the appellate court, in its
discretion, may reinstate the appeal if he returns to custody
within 30 days of his escape.
Held: The statute does not violate the Equal Protection
Clause of the Fourteenth Amendment.
(a) It is not rendered unconstitutional by its separate
treatment of prisoners under sentence of life imprisonment or
death. Texas can reasonably balance its concern with deterring
escapes and encouraging surrenders with its alternative interest in
allowing the validity of particularly severe sentences to be tested
by appellate review.
(b) Nor is the statute rendered unconstitutional by its limiting
the appeal-dismissal requirement to those prisoners with appeals
pending at the time of their escape. Texas, as part of its policy
to deter escapes, is free to impose more severe sanctions on those
prisoners whose escape is reasonably calculated to disrupt the very
appellate process that they themselves have set in motion, than it
does on those who first escape, return, and then invoke the
appellate process.
Certiorari granted; 497 F.2d 1007, reversed.
PER CURIAM.
Respondent Jerry Mack Dorrough was convicted in 1963 in a Texas
District Court of robbery, and sentenced to a term of imprisonment
for 25 years. After he was sentenced and had filed an appeal to the
Texas Court of Criminal Appeals, he escaped from the Dallas County
jail by stealing a federal mail truck. He was recaptured
Page 420 U. S. 535
two days after his escape. After his recapture, the Texas Court
of Criminal Appeals removed his appeal from its docket pursuant to
the provisions of Texas Code of Criminal Procedure Ann., Art 44.09
(1966), which provides for the automatic dismissal of such pending
appeals by an escaped felon upon escape, with provision for
reinstatement of the appeal if the felon voluntarily surrenders
within 10 days of his escape. [
Footnote 1]
After recapture, respondent was tried and convicted on federal
charges and given a 25-year federal sentence which he is currently
serving. The State of Texas has filed a detainer warrant with
federal authorities against Dorrough in order to compel him to
serve the remainder of his state sentence upon release from federal
custody. In 1972, respondent filed in the United States District
Court
Page 420 U. S. 536
for the Northern District of Texas a complaint which was treated
by that court as a petition for writ of habeas corpus, alleging
that the 1963 dismissal of his appeal under Art. 44.09 denied him
equal protection of the law in violation of the Fourteenth
Amendment. [
Footnote 2] The
United States District Court denied relief, holding that Art. 44.09
was a rational exercise of legislative power. [
Footnote 3] The United States Court of Appeals for
the Fifth Circuit reversed. It held that Art. 44.09 denied
respondent equal protection of the law, and ordered that the
State's detainer warrant would be voided unless Texas provided
respondent with either a direct appeal or a new trial. [
Footnote 4] Petitioner has now sought
review by certiorari, pursuant to 28 U.S.C. ยง 1254(1), of the
judgment of the Court of Appeals. For the reasons stated, we grant
the writ and reverse the judgment.
The Court of Appeals correctly recognized that there is no
federal constitutional right to state appellate review of state
criminal convictions.
McKane v. Durston, 153 U.
S. 684,
153 U. S. 687
(1894);
Griffin v. Illinois, 351 U. S.
12,
351 U. S. 18
Page 420 U. S. 537
(1956);
Ross v. Moffitt, 417 U.
S. 600,
417 U. S.
610-611 (1974). Disposition by dismissal of pending
appeals of escaped prisoners is a longstanding and established
principle of American law. 18 Geo.Wash.L.Rev. 427, 423 (1950). This
Court itself has long followed the practice of declining to review
the convictions of escaped criminal defendants.
Smith v. United
States, 94 U. S. 97 (1876);
Bonahan v. Nebraska, 125 U. S. 692
(1887);
Eisler v. United States, 338 U.
S. 189 (1949);
id. at 883;
cf. Allen v.
Rose, 419 U.S. 1080 (1974). Thus, in
Molinaro v. New
Jersey, 396 U. S. 365
(1970), we dismissed the appeal of an escaped criminal defendant,
stating that no persuasive reason exists to adjudicate the merits
of such a case and that an escape "dissentitles the defendant to
call upon the resources of the Court for determination of his
claims."
Id. at
396 U. S. 366.
In
Allen v. Georgia, 166 U. S. 138
(1897), we upheld as against a constitutional due process attack a
state court's dismissal of the appeal of an escaped prisoner and
its refusal to reinstate the appeal upon his later recapture.
See also National Union v. Arnold, 348 U. S.
37,
348 U. S. 43
(1954).
The Texas courts have found similar ends served by Art. 44.09.
It discourages the felony of escape and encourages voluntary
surrenders. [
Footnote 5] It
promotes the efficient, dignified operation of the Texas Court of
Criminal Appeals. [
Footnote
6]
The Court of Appeals, however, found two classifications created
by the statute to lack any rational relation to its purposes, and
hence concluded that the statute was unconstitutional as violative
of the Equal Protection
Page 420 U. S. 538
Clause. [
Footnote 7] That
court recognized that appeals from state criminal convictions are
not "explicitly or implicitly guaranteed by the Constitution,"
San Antonio Independent School District v. Rodriguez,
411 U. S. 1,
411 U. S. 33-34
(1973), and that this Court, in dealing with equal protection
challenges to state regulation of the right of appeal in criminal
cases, had applied the traditional rational basis test.
Rinaldi
v. Yeager, 384 U. S. 305
(1966). There, this Court said:
"'The Constitution does not require things which are different,
in fact, . . . to be treated in law as
Page 420 U. S. 539
though they were the same.'
Tigner v. Texas,
310 U. S.
141,
310 U. S. 147. Hence,
legislation may impose special burdens upon defined classes in
order to achieve permissible ends. But the Equal Protection Clause
does require that, in defining a class subject to legislation, the
distinctions that are drawn have 'some relevance to the purpose for
which the classification is made.'
Baxstrom v. Herold,
383 U. S.
107,
383 U. S. 111;
Carrington v. Rash, 380 U. S. 89,
380 U. S.
93;
Louisville Gas Co. v. Coleman, 277 U. S.
32,
277 U. S. 37;
Royster
Guano Co. v. Virginia, 253 U. S. 412,
253 U. S.
415."
Id. at
384 U. S.
309.
The Court of Appeals thought that this test rendered the statute
invalid for two reasons. First, while the statute provides for
reinstatement of the appeal of most escaped felons only if they
voluntarily surrender within 10 days, the Texas Court of Criminal
Appeals may, in its discretion, reinstate the appeals of prisoners
under a sentence of life imprisonment or death if they are returned
to custody within 30 days. [
Footnote 8] Second, the statute applies only to those
prisoners with appeals pending at the time of their escape;
prisoners who have not invoked the appellate process by filing an
appeal at the time of their escape may still appeal after recapture
if applicable appellate time limits have not run. We disagree with
the analysis of the Court of Appeals, and find that neither of
these distinctions offends the Equal Protection Clause
Insofar as the separate treatment of prisoners under a sentence
of life imprisonment or death is concerned, we see no reason why
the Texas Legislature was not free to separate these two most
severe sentences from other
Page 420 U. S. 540
terms of imprisonment, and provide an additional period of
discretionary review for them but not for the remainder. The Court
of Appeals determined that, under Texas law, a prisoner serving a
sentence for a term greater than 60 years would not be eligible for
parole any sooner than a prisoner under life sentence, and from
that fact concluded that there could be no rational distinction
between those serving a life term and those serving a term in
excess of sixty years. 497 F.2d 1007, 1012-1013. It is not
altogether clear how respondent, who himself has been sentenced to
25 years, could assert the rights of those under term sentences of
60 years or more. [
Footnote 9]
But apart from this difficulty, we see no reason why the Texas
Legislature could not focus on the actual severity of the sentence
imposed in making distinctions, rather than on the collateral
consequence of sentence elaborated by the Court of Appeals. The
State of Texas could reasonably balance its concern with deterring
escapes and encouraging surrenders with its alternative interest in
allowing the validity of particularly severe sentences to be tested
by appellate review. In doing so, it was not required to draw lines
with "mathematical nicety."
Lindsley v. National Carbonic Gas
Co., 220 U. S. 61,
220 U. S. 78-79
(1911);
Morey v. Doud, 354 U. S. 457,
354 U. S.
463-464 (1957).
Nor do we find the statutory limitation of the dismissal
requirement to those prisoners with appeals pending at the time of
their escape violative of the Equal Protection Clause. The Court of
Appeals felt that the statute was "underinclusive" for this reason,
since a prisoner who had not invoked the appellate process by
filing an appeal at the time of his escape might still appeal after
recapture if the prescribed time for filing an appeal had not
expired.
Criminal defendants in Texas are subject to relatively
Page 420 U. S. 541
stringent time limits for filing their appeals. [
Footnote 10] Since an escaped defendant
cannot comply with the required appellate steps during the time he
is not confined, these time limits serve much the same function as
Art. 44.09. Whatever difference in treatment exists between the
class of prisoners who escape, return, and are nonetheless able to
file an appeal, and those whose appeals are dismissed pursuant to
Art. 44.09 is sufficiently rational to withstand a challenge based
on the Equal Protection Clause. Texas was free to deal more
severely with those who simultaneously invoked the appellate
process and escaped from its custody than with those who first
escaped from its custody, returned, and then invoked the appellate
process within the time permitted by law. While each class of
prisoners sought to escape, the first did so in the very midst of
their invocation of the appellate process, while the latter did so
before returning to custody and commencing that process. If Texas
is free to adopt a policy which deters escapes by prisoners, as all
of our cases make clear that it is, it is likewise free to impose
more severe sanctions on those whose escape is reasonably
calculated to disrupt the very appellate process which
Page 420 U. S. 542
they themselves have set in motion. [
Footnote 11]
Ross v. Moffitt, 417 U.S. at
417 U. S.
610.
The motion of respondent for leave to proceed
in forma
pauperis and the petition for certiorari are granted, and the
judgment of the Court of Appeals for the Fifth Circuit is
Reversed.
MR. JUSTICE DOUGLAS, dissenting, agrees with much of the
dissenting opinion of MR. JUSTICE STEWART, but, unlike him, would
also arm the judgment for the reasons stated by the Court of
Appeals, 497 F.2d 1007, 1012-1014 (CA5 1974).
[
Footnote 1]
Texas Code of Criminal Procedure Ann., Art. 44.09, provides:
"If the defendant, pending an appeal in the felony case, makes
his escape from custody, the jurisdiction of the Court of Criminal
Appeals shall no longer attach in the case. Upon the fact of such
escape being made to appear, the court shall, on motion of the
State's attorney, dismiss the appeal; but the order dismissing the
appeal shall be set aside if it is made to appear that the
defendant has voluntarily returned within ten days to the custody
of the officer from whom he escaped; and in cases where the
punishment inflicted by the jury is death or confinement in an
institution operated by the Department of Corrections for life, the
court may in its discretion reinstate the appeal if the defendant
is recaptured or voluntarily surrenders within thirty days after
such escape."
This provision was adopted by Texas in 1879, replacing a
somewhat similar common law rule discussed in
Ex parte
Wood, 19 Tex.Ct.App. 46 (1885). The clause authorizing
discretionary reinstatement of an appeal from a sentence of death
or life imprisonment was added by amendment in 1933.Laws 1933, c.
34. Since the statute provides that jurisdiction shall "no longer
attach" upon escape, the escape itself divests the court of
jurisdiction, with later dismissal being a mere formality.
Lafferty v. State, 123 Tex.Cr.R. 570, 60 S.W.2d 222
(1933);
Ex parte Gurley, 104 Tex.Cr.R. 578, 286 S.W. 222
(1926).
[
Footnote 2]
Braden v. 30th Judicial Circuit Court of Kentucky,
410 U. S. 484
(1973), indicates that one under a state detainer warrant is
considered to be in custody for the purpose of federal habeas
relief. The District Court concluded that respondent had properly
exhausted his state remedies, and the petitioner did not urge
failure of exhaustion in the Court of Appeals.
[
Footnote 3]
The only contention presented to the District Court as evidenced
by its opinion was the constitutionality of Art. 44.09, discussed
herein. Respondent seeks here to raise other issues not raised
below, at least some of which were considered and rejected by other
courts during the course of his five prior actions in the federal
system.
See 327 F.2d 667 (CA5 1964); 344 F.2d 125 (CA5
1965); 397 F.2d 811 (CA5),
cert. denied, 394 U.S. 1019
(1969); 440 F.2d 1063 (CA5),
cert. denied, 404 U.S. 840
(1971); 440 F.2d 1336 (CA5),
cert. denied, 404 U.S. 915
(1971).
[
Footnote 4]
The decision of the District Court is unreported. The decision
of the Court of Appeals is reported at 497 F.2d 1007.
[
Footnote 5]
Rodriguez v. State, 457
S.W.2d 555, 556 (Tex.Crim.App. 1970)
[
Footnote 6]
Loyd v. State, 19 Tex.Ct.App.R. 137, 155 (1885).
See also 18 Geo.Wash.L.Rev. 427, 430 (1950).
[
Footnote 7]
497 F.2d at 1012-1013. The court below specifically rejected the
notion that immediate dismissal with refusal to reinstate appeals
of escaped defendants was constitutionally objectionable, and
rested its decision wholly on the asserted lack of rational
connection between the statutory classifications and the statute's
purposes.
But our Brother STEWART resurrects this rejected argument and
adopts it in his dissent, saying that the Texas statute may not
rationally be said to discourage the felony of escape and encourage
voluntary surrender. Such a judgment, of course, is one in the
first instance for the legislature,
Williamson v. Lee Optical
Co., 348 U. S. 483
(1955), and we may strike down such a legislative judgment only if
we conclude that it is indeed irrational. We do not believe that it
is. Nor is it accurate to suggest that the only purpose served by
the Texas statute is the deterrence of escapes: it is also designed
to secure the State's interest in orderly judicial procedure. The
right of appeal from a judgment of conviction in both the federal
and state systems is almost uniformly conditioned, for example,
upon the filing of a notice of appeal within a prescribed time
limit.
See Fed.Rule App.Proc. 4(b);
n 10,
infra. The vindication of orderly
procedure secured by the Texas statute under attack here is no less
a permissible choice for the legislature than is the indication of
that interest by such procedural requirements. In a case
indistinguishable from the present one on this issue, this Court in
Allen v. Georgia, 166 U. S. 138,
166 U. S. 141
(1897), upheld the refusal of the Georgia courts to reinstate the
appeal of a recaptured prisoner, stating that "it seems but a light
punishment for such offence to hold" that he has abandoned such
appeal.
[
Footnote 8]
See n 1,
supra. The statute merely allows the court, in its
discretion, to reinstate such appeals. In the past, the court has
both granted leave to reinstate and refused it under a test of
"good cause shown."
Bland v. State, 224 S.W.2d 479
(Tex.Crim.App. 1949);
Foster v. State, 497
S.W.2d 291 (Tex.Crim.App. 1973).
[
Footnote 9]
Cf. United States v. Raines, 362 U. S.
17,
362 U. S. 21-24
(1960).
[
Footnote 10]
See Tex.Code of Crim.Proc.Ann., Arts. 40.05, 40.09
(1966 ed., and Supp. 1974-1975), 44.08
et seq. For
example, in the cases cited by the lower court as involving
pre-appeal escapes with subsequent appeals, the appellants
forfeited substantially all of their appeal rights through failure
to file a timely record or bill of exceptions.
Webb v.
State, 460
S.W.2d 903 (Tex.Crim.App. 1970);
McGee v.
State, 445
S.W.2d 187 (Tex.Crim.App. 1969). In Texas the trial judge has
the power to file the record with the Court of Criminal Appeals,
and, if he does so prior to recapture of an escaped prisoner, the
appeal is dismissed under Art. 44.09.
Webb v.
State, 449
S.W.2d 230 (Tex.Crim.App. 1969);
Redman v.
State, 449
S.W.2d 256 (Tex.Crim.App. 1970);
Ballage v. State, 459
S.W.2d 823 (Tex.Crim.App. 1970).
[
Footnote 11]
The peculiar problems posed by escape of a prisoner during the
ongoing appellate process were explored in
Loyd v. State,
19 Tex.Ct.App. R., at 155, in the course of upholding the
constitutionality of this statute:
"[L]et us suppose that the convict, pending his appeal, should
escape and remain at large twenty or thirty days; what disposition
should be made of his appeal? . . . Should this court wait until
his return to custody? How long must it wait? Until it suits the
prisoner's convenience? . . . [W]e are of the opinion that [Art.
44.09] is not only reasonable, but eminently wise."
See also Allen v. Georgia, 166 U.S. at
166 U. S.
141.
MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN and MR.
JUSTICE MARSHALL join, dissenting.
If the shortcomings of the challenged Texas statute were only
those addressed by the Court, I could join the Court's opinion. For
I agree that Art. 44.09 is not rendered unconstitutional by its
more lenient treatment of escaped felons under sentence of death or
life imprisonment, nor by its asserted "underinclusive"
inapplicability to a felon who escapes and is returned to custody
involuntarily before his appeal is filed. But I think the Court has
failed to come to grips with the real constitutional defect in the
challenged statute.
Page 420 U. S. 543
In summarily reversing the judgment before us, the Court relies
upon decisions establishing the long-settled "practice of declining
to review the convictions of escaped criminal defendants."
Ante at
420 U. S. 537.
See Smith v. United States, 94 U. S.
97 (1876);
Bonahan v. Nebraska, 125 U.
S. 692 (1887);
Molinaro v. New Jersey,
396 U. S. 365
(1970).
See also Allen v. Georgia, 166 U.
S. 138 (1897). But these decisions have universally been
understood to mean only that a court may properly dismiss an appeal
of a fugitive convict when, and because, he is not within the
custody and control of the court. Until today, this Court has never
intimated that, under the rule of
Smith, Bonahan, and
Molinao, a court might dismiss an appeal of an escaped
criminal defendant at a time when he has been returned to custody,
and thus to the court's power and control.
*
The rationale for the dismissal of an appeal when the appellant
is at large is clearly stated in the Smith decision:
"It is clearly within our discretion to refuse to hear a
criminal case in error, unless the convicted party, suing out the
writ, is where he can be made to respond to any judgment we may
render. In this case, it is admitted that the plaintiff in
error
Page 420 U. S. 544
has escaped, and is not within the control of the court below,
either actually, by being in custody, or constructively, by being
out on bail. If we affirm the judgment, he is not likely to appear
to submit to his sentence. If we reverse it and order a new trial,
he will appear or not, as he may consider most for his interest.
Under such circumstances, we are not inclined to hear and decide
what may prove to be only a moot case."
94 U.S. at
94 U. S. 97.
See
also Bonahan v. Nebraska, 125 U. S. 692
(1887).
Here, as the Court notes, Dorrough was recaptured two days after
his flight. And, as the Court also notes, his appeal was dismissed
after his recapture. In this situation, the rule of
Smith-Bonahan-Molinaro provides no support whatever for
the Texas law that deprived Dorrough of his right to appeal.
If the challenged statute can be sustained, it must rest upon
the alternative ground advanced by the Court -- that, as a punitive
and deterrent measure enacted in the exercise of the State's police
power, it "discourages the felony of escape and encourages
voluntary surrenders." But the statute imposes totally irrational
punishments upon those subject to its application. If an escaped
felon has been convicted in violation of law, the loss of his right
to appeal results in his serving a sentence that, under law was
erroneously imposed. If, on the other hand, his trial was free of
reversible error, the loss of his right to appeal results in no
punishment at all. And those whose convictions would have been
reversed if their appeals had not been dismissed serve totally
disparate sentences, dependent not upon the circumstances of their
escape, but upon whatever sentences may have been meted out under
their invalid convictions. In my view, this random pattern of
punishment cannot be considered a rational means of enforcing the
State's interest
Page 420 U. S. 545
in deterring and punishing escapes.
Cf. McLaughlin v.
Florida, 379 U. S. 184,
379 U. S. 191
(1964);
Rinaldi v. Yeager, 384 U.
S. 305,
384 U. S. 309
(1966);
U.S. Dept. of Agriculture v.
Moreno, 413 U. S. 528,
413 U. S. 538
(1973).
A closely analogous case was considered by the Supreme Court of
Idaho in
In re Mallon, 16 Idaho 737, 740-741, 102 P. 374
(1909). There, the court considered a statute providing:
"' . . . Every state prisoner confined in the state prison for a
term less than for life, who escapes therefrom, is punishable by
imprisonment in the state prison for a term equal in length to the
term he was serving at the time of such escape, said second term of
imprisonment to commence from the time he would otherwise have been
discharged from said prison.'"
The court concluded that the statute at issue was
unconstitutional. Similarly the Supreme Court of Kansas, in
State v. Lewin, 53 Kan. 679, 37 P. 168 (1894), held
unconstitutional a statute providing that, upon escape, a convict
was to be punished by imposition of the full term of the sentence
under which he had initially been imprisoned, without credit for
any time served before the escape.
Under these Idaho and Kansas statutes, two men escaping at the
same time and in the same manner could receive wholly different
sentences, not related at all to the gravity of the offense of
escape. That is precisely the vice of the Texas statute at issue in
the present case.
I would affirm the judgment of the Court of Appeals.
* The Court in
Molinaro v. New Jersey relied upon a
Note, 18 Geo.Wash.L.Rev. 427, 430 (1950), which is cited in the
Court's opinion today.
Ante at
420 U. S. 537.
The rule and its rationale are correctly stated in that Note:
"A review of criminal appeal cases both in state and federal
courts shows that, when an appellant has escaped from custody and
cannot be brought before the court, his case is not left pending
indefinitely. In the absence of any statutory regulation, dismissal
is granted in some form. . . . The basic theory behind all criminal
cases has always been that there must be a defendant in the power
and under the control of the court, and that there be someone who
can respond to the judgment."
18 Geo.Wash.L.Rev. at 428 429.