Petitioner in No. 16 pleaded guilty with the advice of
court-appointed counsel to the offense of "joyriding" and was
placed on probation for two years. The imposition of sentence was
deferred under Washington State law. On the ground that petitioner
had thereafter been involved in a burglary, the prosecutor, about
four months later, moved to have petitioner's probation revoked. At
the revocation hearing, petitioner was not represented by counsel,
was not asked about his previous court-appointed counsel, or if he
wanted counsel. He acknowledged his involvement in the alleged
burglary. A probation officer testified without cross-examination
that, according to his information, petitioner had been involved in
the burglary and had previously denied participation. The court,
without further questioning petitioner, thereupon revoked his
probation and, in accordance with state law, imposed the maximum
sentence of 10 years, but stated that it would recommend to the
parole board that he serve only one year. Six years later,
petitioner sought a writ of habeas corpus in the State Supreme
Court claiming that he had been denied the right to counsel at the
proceeding at which his probation was revoked and sentence imposed.
The court denied the petition. In No. 22, petitioner was convicted
of second degree burglary following his guilty plea entered with
the advice of his retained counsel, and was placed on probation for
three years, imposition of sentence being deferred. Over a year
later, he was arrested for forgery and grand larceny allegedly
committed while he was on probation. At the expiration of a week's
continuance of the probation revocation hearing granted to enable
petitioner to retain counsel, petitioner appeared without counsel
and informed the court that he had retained an attorney who was
supposed to be present. After a short wait, the court proceeded
with the hearing in the absence of counsel and without offering
Page 389 U. S. 129
to appoint counsel. The probation officer gave hearsay testimony
that petitioner had committed the acts of forgery and grand
larceny, whereupon the court revoked probation and imposed the
maximum sentence of 15 years on the previous second degree burglary
conviction. A year later, petitioner filed a habeas corpus petition
with the State Supreme Court, claiming a denial of the right to
counsel at the combined probation revocation and sentencing
proceeding. The court denied the petition.
Held: The Sixth Amendment, as applied through the Due
Process Clause of the Fourteenth Amendment, requires that counsel
be afforded to a felony defendant in a post-trial proceeding for
revocation of his probation and imposition of deferred sentencing.
Pp.
389 U. S.
133-137.
(a) The time of sentencing is a critical stage in a criminal
case, and counsel's presence is necessary to ensure that the
conviction and sentence are not based on misinformation or a
misreading of court records.
Townsend v. Burke,
334 U. S. 736
(1948);
Gideon v. Wainwright, 372 U.
S. 335 (1963). Pp.
389 U. S.
133-134.
(b) Though, in the State of Washington, the trial judge is
required at the time of sentencing to impose the maximum term, the
actual length of that term to be served being determined by the
parole board, the judge and prosecutor are required to recommend
the length of time to be served and to supply the board with
information about the crime and the defendant, and the marshaling
of facts in connection with these functions requires the aid of
counsel. P.
389 U. S.
135.
(c) The services of counsel at the deferred sentencing stage are
necessary to ensure that certain rights, such as that of appeal,
are seasonably asserted, and to afford the defendant the
substantial assistance which may be necessary in various other
situations at that stage. Pp.
389 U. S.
135-136.
No. 16,
68 Wash. 2d
882,
416 P.2d
104; No. 22, reversed and remanded.
Page 389 U. S. 130
MR. JUSTICE MARSHALL delivered the opinion of the Court.
These consolidated cases raise the question of the extent of the
right to counsel at the time of sentencing where the sentencing has
been deferred subject to probation.
Petitioner Jerry Douglas Mempa was convicted in the Spokane
County Superior Court on June 17, 1959, of the offense of
"joyriding," Wash.Rev.Code § 9.54.020. This conviction was based on
his plea of guilty entered with the advice of court-appointed
counsel. He was then placed on probation for two years on the
condition,
inter alia, that he first spend 30 days in the
county jail, and the imposition of sentence was deferred pursuant
to Wash.Rev.Code §§ 9.95.200, 9.95.210. [
Footnote 1]
About four months later, the Spokane County prosecuting attorney
moved to have petitioner's probation
Page 389 U. S. 131
revoked on the ground that he had been involved in a burglary on
September 15, 1959. A hearing was held in the Spokane County
Superior Court on October 23, 1959. Petitioner Mempa, who was 17
years old at the time, was accompanied to the hearing by his
stepfather. He was not represented by counsel, and was not asked
whether he wished to have counsel appointed for him. Nor was any
inquiry made concerning the appointed counsel who had previously
represented him.
At the hearing, Mempa was asked if it was true that he had been
involved in the alleged burglary, and he answered in the
affirmative. A probation officer testified without
cross-examination that, according to his information, petitioner
had been involved in the burglary and had previously denied
participation in it. Without asking petitioner if he had anything
to say or any evidence to supply, the court immediately entered an
order revoking petitioner's probation, and then sentenced him to 10
years in the penitentiary, but stated that it would recommend to
the parole board that Mempa be required to serve only a year.
[
Footnote 2]
In 1965, Mempa filed a
pro se petition for a writ of
habeas corpus with the Washington Supreme Court, claiming that he
had been deprived of his right to counsel at the proceeding at
which his probation was revoked and sentence imposed. The
Washington Supreme Court denied the petition on June 23, 1966, by a
vote of six
Page 389 U. S. 132
to three.
Mempa v. Rhay, 68 Wash.
2d 882,
416 P.2d
104. We granted certiorari to consider the questions raised.
386 U.S. 907 (1967).
Petitioner William Earl Walkling was convicted in the Thurston
County Superior Court on October 29, 1962, of burglary in the
second degree on the basis of his plea of guilty entered with the
advice of his retained counsel. He was placed on probation for
three years, and the imposition of sentence was deferred. As
conditions of his probation, he was required to serve 90 days in
the county jail and make restitution. On May 2, 1963, a bench
warrant for his arrest was issued based on a report that he had
violated the terms of his probation and had left the State.
On February 24, 1964, Walkling was arrested and charged with
forgery and grand larceny. After being transferred back to Thurston
County, he was brought before the court on May 12, 1964, for a
hearing on the petition by the prosecuting attorney to revoke his
probation. Petitioner then requested a continuance to enable him to
retain counsel, and was granted a week. On May 18, 1964, the
hearing was called and Walkling appeared without a lawyer. He
informed the court that he had retained an attorney, who was
supposed to be present. After waiting for 15 minutes, the court
went ahead with the hearing in the absence of petitioner's counsel.
He was not offered appointed counsel, and would not have had
counsel appointed for him had he requested it. Whether he made such
a request does not appear from the record.
At the hearing, a probation officer presented hearsay testimony
to the effect that petitioner had committed the acts alleged in the
14 separate counts of forgery and 14 separate counts of grand
larceny that had been charged against petitioner previously at the
time of his arrest.
Page 389 U. S. 133
The court thereupon revoked probation and imposed the maximum
sentence of 15 years on Walkling on his prior second degree
burglary conviction. Because of the failure of the State to keep a
record of the proceeding, nothing is known as to whether Walkling
was advised of his right to appeal. He did not, however, take an
appeal.
In May, 1966, Walkling filed a habeas corpus petition with the
Washington Supreme Court, claiming denial of his right to counsel
at the combined probation revocation and sentencing proceeding. The
petition was denied on the authority of the prior decision in
Mempa v. Rhay, supra. We granted certiorari, 386 U.S. 907
(1967), and the cases were consolidated for argument.
In 1948, this Court held, in
Townsend v. Burke,
334 U. S. 736,
that the absence of counsel during sentencing after a plea of
guilty coupled with "assumptions concerning his criminal record
which were materially untrue" deprived the defendant in that case
of due process. Mr. Justice Jackson there stated in conclusion,
"In this case, counsel might not have changed the sentence, but
he could have taken steps to see that the conviction and sentence
were not predicated on misinformation or misreading of court
records, a requirement of fair play which absence of counsel
withheld from this prisoner."
Id. at
334 U. S. 741.
Then, in
Moore v. Michigan, 355 U.
S. 155 (1957), where a denial of due process was found
when the defendant did not intelligently and understandingly waive
counsel before entering a plea of guilty, this Court emphasized the
prejudice stemming from the absence of counsel at the hearing on
the degree of the crime following entry of the guilty plea, and
stated, "The right to counsel is not a right confined to
representation during the trial on the merits."
Id. at
355 U. S.
160
In
Hamilton v. Alabama, 368 U. S.
52 (1961), it was held that failure to appoint counsel
at arraignment deprived
Page 389 U. S. 134
the petitioner of due process, notwithstanding the fact that he
simply pleaded not guilty at that time, because, under Alabama law,
certain defenses had to be raised then or be abandoned.
See
also Reece v. Georgia, 350 U. S. 85
(1955), and
White v. Maryland, 373 U. S.
59 (1963).
All the foregoing cases, with the exception of
White,
were decided during the reign of
Betts v. Brady,
316 U. S. 455
(1942), and accordingly relied on various "special circumstances"
to make the right to counsel applicable. In
Gideon v.
Wainwright, 372 U. S. 335
(1963), however,
Betts was overruled and this Court held
that the Sixth Amendment, as applied through the Due Process Clause
of the Fourteenth Amendment, was applicable to the States, and,
accordingly, that there was an absolute right to appointment of
counsel in felony cases.
There was no occasion in
Gideon to enumerate the
various stages in a criminal proceeding at which counsel was
required, but
Townsend, Moore, and
Hamilton, when
the
Betts requirement of special circumstances is stripped
away by
Gideon, clearly stand for the proposition that
appointment of counsel for an indigent is required at every stage
of a criminal proceeding where substantial rights of a criminal
accused may be affected. In particular,
Townsend v. Burke,
supra, illustrates the critical nature of sentencing in a
criminal case and might well be considered to support by itself a
holding that the right to counsel applies at sentencing. [
Footnote 3] Many lower courts have
concluded that the Sixth Amendment right to counsel extends to
sentencing in federal cases. [
Footnote 4]
Page 389 U. S. 135
The State, however, argues that the petitioners were sentenced
at the time they were originally placed on probation, and that the
imposition of sentence following probation revocation is, in
effect, a mere formality constituting part of the probation
revocation proceeding. It is true that sentencing in Washington
offers fewer opportunities for the exercise of judicial discretion
than in many other jurisdictions. The applicable statute requires
the trial judge in all cases to sentence the convicted person to
the maximum term provided by law for the offense of which he was
convicted. Wash.Rev.Code § 9.95.010. The actual determination of
the length of time to be served is to be made by the Board of
Prison Terms and Paroles within six months after the convicted
person is admitted to prison. Wash.Rev.Code § 9.95.040.
On the other hand, the sentencing judge is required by statute,
together with the prosecutor, to furnish the Board with a
recommendation as to the length of time that the person should
serve, in addition to supplying it with various information about
the circumstances of the crime and the character of the individual.
Wash.Rev.Code § 9.95.030. We were informed during oral argument
that the Board places considerable weight on these recommendations,
although it is in no way bound by them. Obviously, to the extent
such recommendations are influential in determining the resulting
sentence, the necessity for the aid of counsel in marshaling the
facts, introducing evidence of mitigating circumstances, and in
general aiding and assisting the defendant to present his case as
to sentence is apparent.
Even more important in a case such as this is the fact that
certain legal rights may be lost if not exercised at this stage.
For one, Washington law provides that an appeal in a case involving
a plea of guilty followed by probation can only be taken after
sentence is imposed following revocation of probation.
State v.
Farmer, 39
Page 389 U. S. 136
Wash.2d 675,
237 P.2d
734 (1951). [
Footnote 5]
Therefore in a case where an accused agreed to plead guilty,
although he had a valid defense, because he was offered probation,
absence of counsel at the imposition of the deferred sentence might
well result in loss of the right to appeal. While ordinarily
appeals from a plea of guilty are less frequent than those
following a trial on the merits, the incidence of improperly
obtained guilty pleas is not so slight as to be capable of being
characterized as
de minimis. See, e.g., United States
ex rel. Elksnis v. Gilligan, 256 F.
Supp. 244 (D.C.S.D.N.Y.1966).
Cf. Machibroda v. United
States, 368 U. S. 487
(1962). [
Footnote 6]
Likewise, the Washington statutes provide that a plea of guilty
can be withdrawn at any time prior to the imposition of sentence,
Wash.Rev.Code § 10.40.175,
State v. Farmer, supra, if the
trial judge, in his discretion, finds that the ends of justice will
be served,
State v. Shannon, 60 Wash.
2d 883,
376 P.2d
646 (1962). Without undertaking to catalog the various
situations in which a lawyer could be of substantial assistance to
a defendant in such a case, it can be reiterated that a plea of
guilty might well be improperly obtained by the promise to have a
defendant placed on the very probation the revocation of which
furnishes the occasion for desiring to withdraw the plea. An
uncounseled defendant might very likely be unaware of this
opportunity. The two foregoing factors assume increased
significance when it is considered that, as happened in these
Page 389 U. S. 137
two cases, the eventual imposition of sentence on the prior plea
of guilty is based on the alleged commission of offenses for which
the accused is never tried.
In sum, we do not question the authority of the State of
Washington to provide for a deferred sentencing procedure coupled
with its probation provisions. Indeed, it appears to be an
enlightened step forward. All we decide here is that a lawyer must
be afforded at this proceeding whether it be labeled a revocation
of probation or a deferred sentencing. We assume that counsel
appointed for the purpose of the trial or guilty plea would not be
unduly burdened by being requested to follow through at the
deferred sentencing stage of the proceeding.
The judgments below are reversed and the cases are remanded for
further proceedings not inconsistent with this opinion.
Reversed and remanded.
* Together with No. 22,
Walkling v. Washington State Board
of Prison Term and Parole, also on certiorari to the same
court.
[
Footnote 1]
The State suggests that the Supreme Court of Washington was in
error in stating that Mempa received a deferred, rather than a
suspended, sentence, but we accept that court's characterization of
the sentence as supported by the record.
[
Footnote 2]
Under Washington procedure, the trial judge is required by
statute to impose the maximum sentence provided by law for the
offense, Wash.Rev.Code § 9.95.010, but is also required, along with
the prosecuting attorney, to make a recommendation to the parole
board of the time that the defendant should serve, accompanied by a
statement of the facts concerning the crime and any other
information about the defendant deemed relevant. Wash.Rev.Code §
9.95.030. However, it is the parole board that actually determines
the time to be served. Wash.Rev.Code § 9.95.040.
See infra
at
389 U. S.
135.
[
Footnote 3]
See Kadish, The Advocate and the Expert -- Counsel in
the Peno-Correctional Process, 45 Minn.L.Rev. 803, 806 (1961).
[
Footnote 4]
E.g., Martin v. United States, 182 F.2d 225 (C.A. 5th
Cir.1950);
McKinney v. United States, 93 U.S.App.D.C. 222,
208 F.2d 844 (1953);
Nunley v. United States, 283 F.2d 651
(C.A. 10th Cir.1960).
[
Footnote 5]
State v. Proctor, 68 Wash. 2d
817,
415 P.2d
634 (1966), modified the
Farmer rule only to permit an
appeal following placement on probation in cases involving (1) a
contested trial and (2) the imposition of a jail term or fine as a
condition of probation.
[
Footnote 6]
See generally Newman, Conviction -- The Determination
of Guilt or Innocence Without Trial (1966); Enker, "Perspectives on
Plea Bargaining," in The President's Commission on Law Enforcement
and Administration of Justice, Task Force Report: The Courts
108-119 (1967).