United States v. Norman L. Haymer

POLITZ, Chief Judge,

dissenting:

The majority suggests that Haymer went to a penal farm of his own accord or for contempt as a result of his failure to pay a fine. Apart from the speculation of a probation officer, I find no evidence in the record of either and, in any event, perceive no controlling significance in those conclusions, absent evidence that the punishment ultimately assessed was independent of the conviction we now review. Accordingly, I respectfully dissent.

The sixth amendment provides: “In all criminal prosecutions, the accused shall have the right ... to have the Assistance of Counsel for his defence.” That is an important right. Indeed, the Supreme Court has long recognized that it is a fundamental aspect of a fair trial, the denial of which strongly implicates the reliability of the fact-finding process. 1 This constitutional imperative applies to the states through the due process clause of the fourteenth amendment. 2

The majority prudently pretermits review of the district court’s conclusion that Haymer waived counsel and represented himself in his 1991 prosecution. There is no evidence of either. Likewise, there is no evidence that Haymer was sent to the Hinds County Penal *555 Farm for conduct discrete from his theft of a pack of cigarettes. The only thing the record shows is that Haymer admitted stealing a pack of cigarettes from a grocery store, pled guilty, was unable to pay a fine and, according to the completely inadequate state court records, somehow found his way to the county penal farm for 18 or 19 days.

The question before us is not whether a valid uncounseled misdemeanor conviction is being used for a constitutionally invalid purpose. Our prior interpretations of the Supreme Court’s plurality opinion in Baldasar v. Illinois 3 limit that challenge to cases in which a subsequent conviction is being enhanced from a misdemeanor to a felony. Rather, the question before us is whether, in light of the punishment imposed, the prior conviction is itself valid.

In Argersinger v. Hamlin 4 the Supreme Court rejected the argument that petty offenses and misdemeanors are too insignificant to warrant appointment of counsel for indigents. Distinguishing the right to appointed counsel from the right to trial by jury, the Court established- a bright-line rule based on the punishment ultimately imposed, concluding “that incarceration was so severe a sanction that it should not be imposed unless an indigent defendant had been offered appointed counsel.” 5

Any doubt about whether the Court was concerned with the potential or actual punishment imposed was put to rest in Scott v. Illinois. 6 There the Court held that an indigent misdemeanant could not obtain relief from an uncounseled conviction which,' although it could have, did not ultimately result in incarceration. The Court was careful to preserve the Argersinger rule and summarized its previous holding as follows: “The Court in its [Argersinger ] opinion’ repeatedly referred to trials where an' accused is deprived of his liberty and to a case that leads to imprisonment even for a brief period.” 7 Thus, if an indigent defendant has been convicted without the assistance of counsel and without,expressly waiving his right to same,’ incarceration is not an available punishment. 8 Sending Haymer to jail because he could not afford the. fine without first -providing him counsel violated the rule announced in Arger-singer and, moreover, also violated the due process guarantee 9 and controlling state law. 10

I do not suggest that during or after the disposition of the case the defendant is or should be immune from punishment for eon- *556 tempt. 11 I do suggest, however, that when reviewing the validity of the underlying conviction we should ask whether there is a meaningful difference between the punishment for contempt and punishment for the offense.

The majority assumes from a silent record, as did the district court, that Haymer must have been sent to jail for contempt as a result of his failing to pay the fíne. The record gives no indication whatever that this assumed punishment for contempt was distinct 12 from his punishment for stealing cigarettes. 13 Indeed, the government suggested that the contempt charge was really a vehicle for converting the form of Haymer’s punishment in view of his inability to pay. 14 Under these circumstances, characterizing the subsequent jail time as a result of contempt rather than the underlying conviction elevates form over substance.

Ultimately, Haymer’s punishment for stealing cigarettes, and apparently for being too impoverished to afford the fine imposed, was 18 or 19 days hard labor. The conviction is invalid absent some indication either that he waived the right to counsel before that punishment was imposed or that the jail time was for conduct other than that giving rise to the underlying conviction. I would not allow the same conviction to lead to another five months of incarceration.

I respectfully DISSENT.

. Smith v. Collins, 964 F.2d 483 (5th Cir.1992).

. Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963).

. 446 U.S. 222 , 100 S.Ct. 1585 , 64 L.Ed.2d 169 (1980).

. 407 U.S. 25 , 92 S.Ct. 2006 , 32 L.Ed.2d 530 (1972).

. Scott v. Illinois, 440 U.S. 367 , 99 S.Ct. 1158 , 59 L.Ed.2d 383 (1979) (paraphrasing the holding in Argersinger).

. 440 U.S. 367 , 99 S.Ct. 1158 , 59 L.Ed.2d 383 (1979). See also United States v. Eckford, 910 F.2d 216, 218 (5th Cir. 1990) ("If an uncounseled defendant is sentenced to prison, the conviction itself is unconstitutional.”).

. Scott, 440 U.S. at 373 , 99 S.Ct. at 1162 (quotations omitted).

. "The judge can preserve die option of a jail sentence only by offering counsel to any defendant unable to retain counsel on his own." Ar-gersinger, 407 U.S. at 42 , 92 S.Ct. at 2014 (Burger, C.J., concurring). The Court noted that traffic offenses typically do not require counsel. Such prosecutions would only require appointed counsel where "imprisonment actually occurs." The court pointed to a study in Washington as an example and noted that the accused in traffic court in that state only faced the possibility of jail time in three scenarios, including cases in which "the convicted individual was unable to pay the fine imposed." Id. at 38 n. 10, 92 S.Ct. at 2013 n. 10 (citing Junker, The Right to Counsel in Misdemeanor Cases, 43 Wash.L.Rev. 685, 711 (1968)). See also Wang v. Withworth, 811 F.2d 952, 956 (6th Cir.), cert. denied, 481 U.S. 1051 , 107 S.Ct. 2185 , 95 L.Ed.2d 842 (1987); Sweeten v. Sneddon, 463 F.2d 713, 716 (10th Cir.1972); Colson v. Joyce, 646 F.Supp. 102 (D.Me.1986), aff'd, 816 F.2d 29 (1st Cir.1987); United States v. Ramirez, 555 F.Supp. 736 (E.D.Cal.1983); Linkous v. Jordan, 401 F.Supp. 1175 (W.D.Va.1975).

. Bearden v. Georgia, 461 U.S. 660 , 103 S.Ct. 2064 , 76 L.Ed.2d 221 (1983) (state may not convert fine to prison term absent finding that defendant has not made bona fide effort to pay the fine or that no alternative punishment could serve the state’s interests).

. Miss.Code Ann. § 99-19-20(2); Cassibry v. State, 453 So.2d 1298, 1299 (Miss.1984) ("So long as Cassibry is ‘financially unable to pay a fine’ and the trial court so finds,- he may not be imprisoned, period.") (emphasis in original).

. Of course, if the prosecution hopes to punish that contempt with incarceration, then it must provide counsel at that point. Ridgway v. Baker, 720 F.2d 1409 (5th Cir.1983). The existence of the right to counsel varies according to the acuity of the defendant’s jeopardy. Mempa v. Rhay, 389 U.S. 128, 134 , 88 S.Ct. 254, 256 , 19 L.Ed.2d 336 (1967). Sentencing is among those critical stages of trial during which counsel's presence is constitutionally required. Id. Likewise, when a fine is converted to a prison term a quantum leap in severity is affected and counsel’s availability is imperative. See Argersinger.

. If this were true, then one would expect that the fine would not be discharged after his time in jail. Again, the record does not support such a finding. The majority apparently assumes that the jail time was simply substituted for the fine as punishment.

. There is no evidence, for example, that Hay-mer was disrespectful of the court or brazenly refused to pay the fine despite being able financially to do so. The evidence indicates to the contrary; he simply was impecunious and could not afford it.

. Of course, this also would be unconstitutional. Bearden .