Petition — Burrell v. United States

ee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No. €4~ 1269

BEINE J. BURRELL,

Petitioner,

UNITED STATES oO] AMERICA.

Respondent.

PETITION FOR A WRIT OF CERTIORARI

lO THE DISTRICT OF COLUMBIA

COURT OF APPEALS

GEORGE F. Bason, JR.

+431 Munsey Building

1329 E Street, N.W.

Washington, D.C. 20004

April 30, 1975 Counsel for Petitioner.

Washington, D.C. + THIEL PRESS + (202) 638.452)

Pay

TABLE OF CONTENTS

isecrtneiietnnecstnnngert PETE E CTT

PON bw w 8 dete 00.0 Wa eno wecenccknkm. 2

QUESTION ING 5364 es ao ba ods ot cee enc ice at

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES INVOLVED ...................... 2

STATEMENT OF THE CASE......................: 3

REASONS FOR GRANTING THE WRIT.............. t

1.(a) This Court has not yet determined the impor-

tant Constitutional question whether a motion

for reduction of sentence is a “critical stage”

of a criminal prosecution requiring appoint-

ment of counsel. The Court of Appeals’ deci-

sion denying the constitutional right to appointed

counsel at this stage is not in accord with this

Court’s whole series of right-to-counsel decisions eo

(b) This Court has not yet determined whether the

federal Criminal Justice Act or Court Rules pro-

vide a right to appointment of counsel for a

reduction-of-sentence motion. The Court of

Appeals’ decision denying such a right is con-

trary to the well-established construction given

the Act by the Administrative Office of the United

United States Courts, which is the agency charged

with implementation of the Act.

~

-. Petitioner Burrell also has a due-process right to

counsel, because his motion to reduce sentence

raised substantial claims of post-sentencing rehab-

itation, education, good prison behavior, avail-

ability of a work-release job, and that he would be

eligible for work-release only if his sentence were

reduced. The Court of Appeals’ decision, refusing

to recognize this right to counsel and holding that

post-sentencing rehabilitation et alia are not relevant

considerations, misconstrues and misapplies this

Court's decision in Gagnon v. Si arpelli, 411 U.S.

778 (1973) and other cases... .. 2... Ki eee'e OO

erent een

CONCLUSION

(12)

TABLE OF CITATIONS —_

Cases:

Argersinger v. Hamlin, 407 U.S. 25 (1972)..........+.24-. 4

Coleman v. Alabama, 399 U.S. 1 (1970)..............-. 5

Douglas v. California, 372 U.S. 353 (1963) ..........4.4. 5

Gagnon v. Scarpelli, 411 U.S. 778 (1973) ............ 6, 10

Gerstein v. Pugh, U.S. __, 43 U.S. Law Week

Ge CU, BE SUPE e oe he ese ehh ee ee es eeeeeces 5

Gideon v. Wainwright, 372 U.S. 335 (1963) ..........4.. 4

Hamilton v. Alabama, 368 U.S. 52 (1961). ...........4.. 5

Johnson v. Zerbst, 304 U.S. 458 (1938)... .......42 24. 4

Massiah v. United States, 377 U.S. 201 (1964)........... 5

Mempa v. Rhay, 389 U.S. 128 (1967).............. 5, 6,7

Miranda v. Arizona, 384 U.S. 436 (1966) .............. 5

North Carolina v. Pearce, 395 U.S. 711 (1969)........... ll

Powell v. Alabama, 287 U.S. 45 (1932)............20.. +

Townsend v. Burke, 334 U.S. 736 (1948) .............. 5

United States v. Behrens, 375 U.S. 162 (1963)........... 5

United States v. Benz, 282 U.S. 304 (1931)............ 12

United States v. Ellenbogen, 390 F.2d 537

Se Ge DED cc Bb eRh ere eeeeseceeceneeNaen 6, 11

United States v. Wade, 388 U.S. 218 (1967) ............ 5

White v. Maryland, 373 U.S. 59 (1965). ............... 5

Miscellaneous:

American Bar Association, Criminal Justice Standards,

The Defense Function (1970) ......ccccccccceses 10

District of Columbia Code, §22-3204..............45. 3

District of Columbia Superior Court Criminal

tt ee eee eases BAO ee oe eee 2, 3,6

District of Columbia Superior Court Criminal

ee eee . e

Federal Rules of Criminal Procedure, Rule 35 .....2, 3, 5, II

(222)

Miscellaneous, continued: =

Federal Rules of Criminal Procedure, Rule 44 .. 3, 8,9

Policies and Standards for Sen i. 7

-ntencing (9th Cir.

27 F.R.D. 390 (1960) ..... — 7

United States Code, Title 18, §3006A (1970) . 3, 7 . i)

United States Code, Title 28, §1257(3) ys ce 2

United States Constitution, Fifth Amendment . | 2

United States Constitution, Sixth Amendment. . 2,4

TABLE OF CONTENTS

OF APPENDIX

APPENDIX A

Opinion of D.C. Court of MD 64 aeee bcex la

Judgment of D.C. Court of ee 8a

Order of D.C. Superior Court ....... 9a

APPENDIX B

Constitution of the United States, Fifth Amendment . lb

Constitution of the United States, Sixth Amendment lb

ee ok a a ee aoe ee ne lb

18 U.S.C. 3006A(d)................ lb

Rule 35(a), D.C. Superior Court Criminal Rules... ... . ib

Rule 44, D.C. Superior Court Criminal Rules... ... 2b

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

BEINE J. BURRELL,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE DISTRICT OF COLUMBIA

COURT OF APPEALS

The petitioner, Beine J. Burrell, respectfully prays that

a writ of certiorari issue to review the judgment and

opinion of the District of Columbia Court of Appeals,

entered in this case on January 30, 1975.

OPINION BELOW

The opinion of the District of Columbia Court of

Appeals below is reported at 332A.2d 344 (1975). No

l

2

opinion was rendered by the District of Columbia

Superior Court. Its order and the Court of Appeals’

opinion and judgment are printed in Appendix A hereto.

JURISDICTION

The judgment of the District of Columbia Court of

Appeals Court was entered on January 30, 1975. The

jurisdiction of this Court is invoked under 28 U.S.C.

1257(3).

QUESTIONS PRESENTED

1. Whether an indigent, imprisoned defendant, who

requests appointment of counsel, is entitled thereto on

his motion for reduction of sentence, either (a) under the

Fifth and Sixth Amendments or (b) under the Criminal

Justice Act, 18 U.S.C. 3006A (1970), or Court Rules.

2. Whether, as a matter of due process, counsel should

have been appointed in this case, where petitioner

Burrell’s pro se motion to reduce sentence raised substan-

tial claims of post-sentencing rehabilitation, education,

good prison behavior, availability of a work-release job,

and eligibility for work-release only if his sentence were

reduced.

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES INVOLVED

The Constitutional provisions involved are the due-

process clause of the Fifth Amendment and the right-to-

counsel clause of the Sixth Amendment. The statute

involved is the Criminal Justice Act, 18 U.S.C. 3006A

(1970). The Court Rules involved are Rule 35(a), D.C.

Superior Court Criminal Rules (identical to Federal

Criminal Rule 35), and Rule 44, D.C. Superior Court

5

Criminal Rules, substantially identical to Federal Crim-

inal Rule 44(a). The relevant provisions are printed in

Appendix B hereto.

STATEMENT OF THE CASE

The Petitioner Burrell was convicted in the Superior

Court of the District of Columbia of Possessing a pistol

without a license, in violation of D.C. Code, § 22-3204.

He was sentenced to a term of imprisonment of one to

three years, to run consecutively to another sentence

previously imposed. Petitioner Burrell appealed, but then

voluntarily dismissed his appeal on his own motion on

October 12, 1972. Thereafter and within the 120 days

required by Rule 35(a) of the D.C. Superior Court

Criminal Rules (identical to Federal Criminal Rule 35),

petitioner filed a pro se motion for reduction of seatence,

together with supporting pro se papers. Accompanying

this pro se motion was petitioner Burrell’s letter to the

court stating in part:

“I do not have a lawyer, and I would like to have

é

a lawyer appointed to represent me for this Mo-

tion.”

The trial court ignored this request and denied the

motion without a hearing and without stating any

grounds ‘or its refusal to appoint Counsel.

Petitioner appealed to the District of Columbia Court

of Appeals. The court rejected petitioner Burrell’s claim

to have a Constitutional right to appointed counsel at the

motion-for-reduction-of-sentence Stage of the criminal

proceeding against him. The D.C. Court of Appeals went

on to hold that petitioner Burrell had no right to

appointed counsel under the Criminal Justice Act, 18

U.S.C. 30064 (1970), or Court Rules, on his motion

for reduction of sentence.

4

The Court of Appeals acknowledged a due-process

nght to appointed counsel where the sentence-reduction

motion raises “relevant” considerations (without specify-

ing what considerations it might consider relevant). But

the court held that “Such post-sentencing developments”

as “rehabilitation and good prison behavior,” as well as

education, availability of a work-release job, and eligibil-

ity for work-release only if his sentence were reduced,

“are not considerations relevant to sentencing” but are

“more appropriately considerations for the Board of

Parole . . .”” 332 A.2d at 346.

REASONS FOR GRANTING THE WRIT

1.(a) This Court has not yet Determined the

Important Constitutional Question Whether

a Motion for Reduction of Sentence is a

“Critical Stage” of a Criminal Prosecution

Requiring Appointment of Counsel. The

Court of Appeals’ Decision Denying the

Constitutional Right to Appointed Counsel

at this Stage is not in Accord With This

Court’s Whole Series of Right-to-Counsel

Decisions.

This Court has held that the indigent defendant in a

criminal case “requires the guiding hand of counsel at

every step in the proceedings against him” (Powell v.

Alabama, 287 U.S. 45, 69 (1932)) and has the right,

under the Sixth Amendment, to have counsel appointed

for him in every Court in the United States in every

criminal case involving the possibility of imprisonment.

<irgersinger v. Hamlin, 407 U.S. 25 (1972); Gideon v.

Wamwright, 372 U.S. 335 (1963); Johnson »v. Zerbst, 304

U.S. 458 (1938). This Court has held that the right to

appointed counsel applies at preliminary examination

CD SPAEPEDPNS = ——————————————

5

(Coleman v. Alabama, 399 U.S. 1 (1970); White ».

Maryland, 373 U.S. 59 (1963)); at arraignment (Hamilton

v. Alabama, 368 U.S. 592 (1961)); "at post-indictment

lineup (United States v. Wade, 388 U.S. 218 (1967)); at

custodial interrogation (Miranda v. Arizona, 384 U.S. 436

(1966)); throughout the period from arraignment to trial,

(Massiah v. United States. 377 U.S. 201 (1964)); at initial

sentencing (see Townsend v. Burke, 334 U.S. 736

(1948)); at court proceedings for deferred sentencing or

revocation of probation ((Mempa v. Rhay, 389 U.S. 128

(1967)); at the fixing of final sentence (United States v.

Behrens, 375 U.S. 162 (1963)); and on initial appeal of

night (Douglas v. California, 372 U.S. 353 (1963)). This

Court held that each of these was a “critical stage” of the

criminal proceedings.

This Court has not yet faced the precise issue of

whether an indigent defendant is entitled to counsel at a

motion to reduce sentence. But, we submit, the whole

series of right-to-counsel decisions cited above leaves little

doubt that a reduction-of-sentence motion is likewise a

“critical stage,” because it is a Stage of the criminal

proceedings at which substantial rights of the accused

may be affected. Indeed, the most important right of the

accused in the whole criminal-law process, the final

adjudication of the right to liberty itself, is involved in

the reduction-of-sentence motion.* For “Rule 35. jis

* Gerstein v. Pugh, ____ U.S. » 43 ' U.S. Law Week 4230,

4235, 4237 (Feb. 18, 1975) involved “only the first stage of an

elaborate system.’ That first stage was a preliminary, non-adver-

sary, probable-cause determination “pending further proceedings”,

which could be made by 4 magistrate “either before or promptly

after arrest”, and which could be promptly reviewed, in adversary

proceedings requiring appointed counsel, either on a writ of habeas

corpus or at a preliminary hearing, detention hearing, first appear-

ance or adjourned first appearance.

| footnote continued |

6

intended to give every convicted defendant a second

round before the sentencing judge, and at the same time,

it affords the judge an opportunity to reconsider the

sentence in the light of any further information about the

defendant or the case which may have been presented to

him in the interim.” United States v. Ellenbogen, 390

F.2d 537, 543 (2d Cir. 1968).

The D.C. Court of Appeals’ statement that petitioner

Burrell “had run the gamut of the adjudicatory process”

(332 A.2d at 345) is obviously incorrect. The Rule 35

reduction-of-sentence motion is addressed to the sen-

tencing judge. It is as much a part of the adjudicatory

process, and every defendant has as much right to make

such a motion, as he has the right to appeal.

The Court of Appeals’ reliance upon Gagnon v,

Scarpelli, 411 U.S. 778 (1973), evidently flows from its

erroneous categorization of the reduction-of-sentence

motion as being outside rather than a part of the

adjudicatory process. That reliance is misplaced and leads

the Court of Appeals to an unwarranted extension of

this Court’s holding in Gagnon, as well as an undue

restriction on this Court’s holdings in the right-to-counsel

cases, particularly Mempa v. Rhay, supra. In Gagnon, this

Court distinguished Mempa pre« isely on the grounds that

the probation revocation proceeding in Gagnon, unlike

that in Mempa, was (1) “not a Stage of a criminal

prosecution,” and (2) was and should remain an informal,

administrative proceeding possessing “significant interests

in informality, flexibility and economy,”’ rather than a

court proceeding. A motion for reduction of sentence is

Here, by contrast, the motion for reduction of sentence is

the accused's /ast chance to appeal to the sentencing judge’s other-

wise essentially unreviewable discretion as to the length of the

final sentence.

a

/

of course a stage of the criminal prosecution, and is of

course a formal court proceeding.

What this Court said in Mempa about “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” (389 U.S. at 135) is of course equally

applicable at the stage of a motion for reduction of

sentence. In petitioner Burrell’s case, counsel, having the

necessary skill and mobility, could have obtained affi-

davits and subpoenaed live witnesses to substantiate Mr.

Burrell’s claims that, in the opinion of reliable persons in

authority at Lorton Reformatory, he was fully rehabili-

tated; that a good job was waiting for him outside; and

that he would be permitted to take that job if but only if

his sentence were reduced. In short, counsel could have

presented evidence to show a complete change of

circumstances, fully justifying a reduced sentence.

(b) This Court has not yet Determined Whether

the Federal Criminal Justice Act or Court

Rules Provide a Right to Appointment of

Counsel for a Reduction-of-Sentence Mo-

tion. The Court of Appeals’ Decision Deny-

ing Such a Right is Contrary to the Well-

Established Construction Given the Act by

the Administrative Office of the United

States Courts, Which is the Agency Charged

with Implementation of the Act.

The Criminal Justice Act provides (18 U.S.C. 3006A

(c)):

“A person for whom counsel is appointed shall be

represented at every stage of the proceedings from his

initial appearance before the United States magistrate

or the court through appeal, including ancillary mat-

ters appropriate to the proceedings . . .”

8

And 18 U.S.C. 3006A(d)(2) provides that for “‘repre-

sentation in connection with a post-trial motion made

after the entry of judgment... compensation shall not

exceed $250 for each attorney in each proceeding in each

court.”

Moreover, D.C. Superior Court Criminal Rule 44

(identical to Federal Criminal Rule 44(a) except for

omission of the bracketed matter below) provides:

“Every defendant who is unable to obtain counsel shall

be entitled to have counsel assigned to represent him at

every stage of the proceedings from his initial appear-

ance before (the Federal magistrate or] the Court

{through appeal], unless he waives such appointment.”

In this case, the trial court duly appointed counsel for

petitioner Burrell at the time of his initial appearance,

and that counsel represented him through the filing of

notice of appeal from his conviction. Thereafter the

Court of Appeals duly appointed the undersigned counsel

to represent him in that court. But after the case returned

to the trial court following dismissal of that appeal on his

own motion, the trial court simply ignored his request for

appointment of counsel to represent him in connection

with his post appeal motion for reduction of sentence,

Ihe Court of Appeals, grasping upon the phrase

“through appeal,’ may have construed § 3006A(c)

“Inot] to require the appointment of counsel to assist In

the preparation of a post-appeal motion for a reduction

of sentence’ (332 A.2d at 347; emphasis added),

although leaving it open that §3006A may require such

appointment prior to appeal. There are a number ol

defects in such a construction. (1) This restrictive

construction ignores the Congressional intent that the

statute should be applied and construed liberally in favor

of the right to appointed counsel. (2) This construction

9

leads to the absurd result that an indigent defendant who

wins on appeal the right to retrial or rehearing would not

be entitled to counsel at these post-appeal stages of the

criminal proceedings. (3) This construction ignores and is

irreconcilable with the specific reference in

§3006A(d)(2) to “representation [by appointed coun-

sel] in connection with a post-trial motion made after the

entry of judgment.” (4) This construction ignores the

omission of the phrase “through appeal” in D.C. Superior

Court Criminal Rule 44. (5) This construction creates an

invidious and wholly arbitrary discrimination against

those indigents whose reduction-of-sentence motions are

filed post-appeal rather than after conviction but before

or in lieu of appeal. Thus, this construction is to be

avoided because, so construed, the statute would be of

doubtful constitutionality under due-process, equal-

protection principles.

Finally, this construction is wholly inconsistent with

and contrary to the uniform and well-established con-

struction given to the statute both by the District of

Columbia’s Criminal Justice Act Administrator and by

the Administrative Office of the United States Courts.

Those offices have adopted and they regularly and

uniformly act upon the position that an attorney who

represents an indigent on a motion for reduction of

sentence is entitled to compensation under the Criminal

Justice Act, without regard to whether the motion is

made post-appeal or is made post-conviction but before

or in lieu of appeal. In light of this consistent administra-

tive practice, and in light of the short 120-day period

within which a reduction-of-sentence motion may be

made, explicit recognition by this Court of the right to

appointed counsel for the reduction-of-sentence motion

can be expected to result in only minimal, if any, increase

10

in cost and in judicial and lawyers’ time. Such increase as

there may be will help to implement the American Bar

Association’s Criminal Justice Standards on The Defense

Function, that “the role of counsel [at sentencing] has

been slighted in the past and ought to be expanded” and

that “Defense counsel should present to the Court .. . all

favorable information relevant to sentencing and... be

prepared to suggest a program of rehabilitation based on

his exploration of employment, educational and other

opportunities made available by community services.

(1970, p. 285 and §8.1(b).)

Petitioner Burrell also has a Due-Process

Right to Counsel, Because his Motion to

Reduce Sentence Raised Substantial Claims

of Post-Sentencing Rehabilitation, Educa-

tion, Good Prison Behavior, Availability of a

Work-Release Job, and that he Would be

Eligible for Work-Release Only if his Sen-

tence were Reduced. The Court of Appeals

Decision, Refusing to Recognize this Right

to Counsel and Holding that Post-Sentencing

Rehabilitation et Alia are not Relevant

Considerations, Misconstrues and Misapplies

this Court’s Decision in Gagnon v. Scarpelli,

411 U.S. 778 (1973) and Other Cases.

no

Despite its heavy (but, as we have shown in part I(a)

above, misplaced) reliance upon Gagnon v. Scarpelli, +11

U.S. 778 (1973), in rejecting petitioner Burrell’s sixth-

amendment and statutory rights to appointed counsel,

the Court of Appeals has failed to follow even Gagnon’s

basic, minimal, due-process standards. This Court’s opin-

ion in Gagnon states (411 U.S. at 791):

1]

“In every case in which a request for counsel... is

refused, the grounds for refusal should be stated

succinctly in the record.”

Here, the trial court’s brief, pro forma order failed even

lo mention petitioner Burrell’s request for appointment

of counsel, much less state grounds for its refusal.

The Court of Appeals sought to remedy this fatal

deficiency by holding that “‘such post-sentencing develop-

ments” as “rehabilitation and good prison behavior,”

educational training while in prison, availability of a

work-release job and “that he is prevented from realizing

the foregoing ‘only because his sentence in this case is to

run consecutively to his previous sentence’ ” (332A.2d at

345) all are ‘not considerations relevant to sentencing.”

(332A.2d at 346). This holding flies in the face of the

court’s own approving quotation from The Policies and

Standards for Sentencing adopted by the Ninth Circuit

Court of Appeals (27 F.R.D. 390), that:

“A proper sentence is a composite of taany factors,

including . .. the prospects for the rehabilitation of the

offender, the possibility of a return of the offender to

a normal life in the community, [and] the possibil-

ity... of training of the offender...”

Moreover, this holding is directly contrary to the Second

Circuit Court of Appeals’ statement in United States v.

Ellenbogen, 390 F.2d 537, 543 (1968), that:

“Rule 35...affords the judge an opportunity to

reconsider the sentence in light of any further informa-

tion about the defendant or the case which may have

been presented to him in the interim.”

In addition the D.C. Court of Appeals’ holding com-

pletely ignores and is contrary to this Court’s recognition,

in North Carolina v. Pearce, 395 U.S. 711, 723 (1969),

i2

that sentencing judges have great freedom ‘“‘to consider

the defendant’s conduct subsequent to the first convic-

tion in imposing a new sentence”’ after retrial, and to

resentence “‘in the light of events subsequent to the first

trial that may have thrown new light upon the defend-

ant’s ‘life, health, habits, conduct, and mental and moral

propensities.” ”

The D.C. Court of Appeals’ argument that post-

sentencing developmenis, such as rehabilitation, educa-

tional training and job opportunities, arc somehow “not

relevant”? on a _ reduction-of-sentence motion simply

because they happen to be “appropriately considerations

for the Board of Parole” (332 A.2d at 346) is of course a

non-sequitur. This Court answered such an argument over

forty years ago, in United States v. Benz, 282 U.S. 304,

311 (1931):

“We find nothing in the suggestion that the action of

the district court in reducing the punishment after the

prisoner had served a part of the imprisonment

originally imposed was a usurpation of the pardoning

power of the executive. The judicial power and the

executive power over sentences are readily distin-

guishable. To render judgment is a judicial function.

To carry the judgment into effect is an executive

function. To cut short a sentence by an act of

clemency is an exercise of executive power which

abridges the enforcement of the judgment, but does

not alter it gua judgment. To reduce a sentence by

amendment alters the terms of the judgment itself and

is a judicial act as much as the imposition of the

sentence in the first instance.”

Finally, the D.C. Court of Appeals’ suggestion that

sentencing judges may not reduce sentences because of

post-sentencing developments would require judges to

blind themselves to what all the rest of the world knows.

13

It would require them to act on the basis of what they

know to be untruths. Such a doctrine is so far removed

from accepted and usual standards of the search for truth

in our system of justice as to call for the exercise of this

Court’s power of supervision.

CONCLUSION

For the reasons set forth above, a writ of certiorari

should issue.

Respectfully submitted,

GEORGE F. BASON, JR.

431 Munsey Building

1329 E Street, N.W.

Washington, D.C. 20004

Counsel for Petitioner.

April 30, 1975

b

cc ——CCOC(‘(‘..UUO(#(O#(##N###é#é#é#é#éitw..4geow#oowwwwwwwwwwwwwwwwwwwwwwwwww ee

la

APPENDIX A

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 7175

BEINE J. BURRELL, a/k/a Ronald B. Burrell, APPEL

Vv.

UNITED STATES, APPELLEE.

Appeal from the Superior Court of if F

District of Columbia

(Argued October 16, 1973 Decided January 30,1975)

George F. Bason, Jr., appointed by this court, for ap-

pellant.

Joseph B. Valder, Assistant United States Attorney,

with whom Harold H. Titus, Jr., United States Attorney,

and John A. Terry, Assistant United States Attorney,

were on the brief, for appellee.

Before NEBEKER, YEAGLEY and HARRIS, Associate

Judges.

YEAGLEY, Associate Judge: This appeal follows a

denial of appellant’s pro se motion under Super. Ct. Cr.

R. 35 for reduction of sentence, which was acted upon

by the trial court without the appointment of counsel.

The motion was filed after we granted appellant’s motion

to dismiss his appeal from the conviction of possessing

2a

a pistol without a license. Appellant had been sentenced

to serve a term of from one to three years to run con-

secutively to an earlier sentence resulting from a felony

conviction.

He alleged as reasons for granting the instant motion

that his superiors and others in authority at Lorton

Reformatory are satisfied that he is rehabilitated and

ready for release; that having served in excess of 40

months of his previous sentence he is eligible for ‘work

release or parole; that a neighborhood development center

had made a work release job available to him in Wash-

ington, D.C.; that he is prevented from realizing the

foregoing “only because his sentence in this case is to

run consecutively to his previous sentence, therefore

prompting a transfer to Lewisburg Penitentiary because

of a Federal Sentence imposed.” In his letter to the court

clerk transmitting the motion he said, “I do not have a

lawyer, and I would like to have a lawyer appointed to

represent me for this Motion.” The court, after review-

ing the motion and the papers appended thereto and his

presentence report, denied the motion without acceding

to the request for appointment of counsel. We think the

court acted correctly and affirm.

Appellant is not here questioning the court’s action in

denying the motion for a reduction of sentence. The

sole issue raised on appeal is whether or not the court’s

failure to appoint counsel deprived him of his constitu-

tional right to such representation at a critical stage of

his prosecution.

Supreme Court decisions regarding an accused’s right

to counsel make it clear that appointment of counsel is

required at every stage of a criminal proceeding where

substantial rights of a criminal accused may be affected,

from custodial interrogation through trial and appeal.

3a

Mempa v. Rhay, 389 U.S. 128 (1967). Here, however,

appellant has already lost his liberty and his appeal has

been dismissed. He asks that part of that liberty be

restored.

This is not a situation where an indigent defendant

needs legal representation to defend himself against gov-

ernmental action; that is, it is not an action brought

by the government against the defendant such as one to

revoke probation’ or to revoke his parole.* This pro-

ceeding resembles those only insofar as it likewise arose

after trial, sentencing and appeal. It was initiated by

one who had run the gamut of the adjudicatory process.

Appellant here had the assistance of counsel at the sen-

tencing stage, when both counsel and the appellant were

accorded the right to speak. The sentence imposed was

within the statutory limits. Furthermore, as we shall

see, the motion did not present to the court an appropri-

ate basis for reduction of sentence.

In the probation revocation case of Gagnon v. Scar-

pelli, 411 U.S. 778 (1973), the Supreme Court held that

it was error for the court of appeals to hold that the

State has a constitutional duty to provide indigents with

counsel in all probation or parole revocation cases. /d.

at 787. The Court apparently was of the view that fre-

quently there would be little to be resolved at such a

proceeding, noting that in most cases such a movant

“has been convicted of committing another crime or

has admitted the charges against him.” Jd. (Footnote

omitted.) It said, “The need for counsel] at revocation

hearings derives, not from the invariable attributes of

‘Gagnon v. Scarpelli, 41¥ U.S. 778 (1973).

? Morrissey v. Brewer, 408 U.S. 471 (1972).

ta

those hearings, but rather from the peculiarities of par-

ticular cases.” Jd. at 789. The Court held:

We thus find no justification for a new in-

flexible constitutional rule with respect to the

requirement of counsel. We think, rather, that

the decision as to the need for counsel must be

made on a case-by-case basis in the exercise of

a sound discretion by the state authority charged

with responsibility for administering the pro-

bation and parole system. ... [T)here will re-

main certain cases in which fundamental fair-

ness—the touchstone of due process—will require

that the State provide at its expense counsel for

indigent probationers or parolees. [/d. at 790. |

Although we are not faced with the motion of a pro-

bationer or parole violator, the problem we face is not

entirely dissimilar. Further, we are not cited to any

authority, and we know of none, holding that whenever

one moves for a reduction of sentence he thereby be-

comes constitutionally entitled to counsel. It cannot be

said that appellant has been deprived of a substantive

right. There is no right to work release, which is the

objective underlying his motion, any more than there is

a right to a reduction of confinement time. Green v.

United States, 157 U.S.App.D.C. 40, 481 F.2d 1140

(1973).

The matters alleged in the motion are not considera-

tions relevant to sentencing’ nor are they factors which

* The Policies and Standards for Sentencing adopted by the

9th Circuit Court of Appeals, July 8, 1960, 27 F.R.D. 390,

provides:

3. A proper sentence is a composite of many factors,

including the nature of the offense, the circumstances—

extenuating or aggravating—of the offense, the prior

5a

would ordinarily be considered on a motion for reduc-

tion of sentence. The appellant’s motion was based pri-

marily on his alleged rehabilitation and good prison be-

havior. Such post-sentencing developments quite clearly

represent the sort of factors that are more appropriately

considerations for the Board of Parole in determining a

prisoner’s eligibility for parole. United States v. May-

nard, 485 F.2d 247 (9th Cir. 1973); State v. Dunn, 282

A.2d 675 (N.H. 1971).

The question of whether the appellant had a statutory,

as distinguished from a constitutional, right to counsel

in this case under the Criminal Justice Act‘ was raised

sua sponte by this court at oral argument. The pertinent

statutory provision provides that:

A person for whom counsel is appointed shall

be represented at every stage of the proceedings

from his initial appearance before the United

States magistrate or the court through appeal,

including ancillary matters appropriate to the

proceedings. ... [18 U.S.C. § 3006A(c) (1970).]

criminal record, if any, of the offender, the age of the

offender, the record of the offender as to employment, the

background of the offender with reference to education,

home iife, sobriety and social adjustment, the emotional

and mental condition of the offender, the prospects for

the rehabilitation of the offender, the possibility of a

return of the offender to a normal! life in the community,

the possibility of treatment or of training of the offender,

the possibility that the sentence may serve as a deterrent

to crime by this offender, or by others, and the current

community need, if any, for such a deterrent in respect

to the particular type of offense involved.

*18 U.S.C. §3006A (1970). The Criminal Justice Act is

made expressly applicable in the District of Columbia in 18

U.S.C. § 3006A(1) (1970).

6a

It is noted that this provision is for all practical pur-

poses identical to section 2 of the District of Columbia

Criminal Justice Act, Pub. L. No. 93-412, §2 (Septem-

ber 3, 1974) (now codified as § 11-2603 of the D.C. Code).

We do not construe § 3006A(c) to require the appoint-

ment of counsel to assist in the preparation of a post-

appeal motion for a reduction of sentence. We agree

with the court in Dirring v. United States, 353 F.2d 519,

520 (1st Cir. 1965), that “{alfter final conviction the

appointment of counsel must rest in the discretion of

the court.”

Nor do we find that the law in this regard was changed

when Congress amended § 3006A(c) in 1970 by adding

the phrase “including ancillary matters appropriate to

the proceedings.” The legislative history of this amend-

ment indicates that it was not intended to change exist-

ing law, but rather to clarify it and insure that compen-

sation was available to appointed counsel for remedies

technically outside the scope of the trial such as habeas

corpus ad testificandum and mental competency hearings.’

There is no indication that the amendment was intended

to create a statutory right to counsel to aid in the filing

of motions after final conviction.* The appointment of

°2 U.S. Code Cong. & Ad. News 3989 (1970). We also

note in this regard that the trial court in Green v. United

States, supra, denied the pro se motions for reduction of

sentence filed by two prison inmates. The Circuit Court sub-

sequently denied the pro se motions for leave to proceed on

appeal in forma pauperis filed by both inmates. No mention

was made in that case of a statutory right to counsel under

amended § 3006A(c).

* This decision is not meant to affect any right appointed

counsel may have to claim compensation under the Criminal

Justice Act for motions filed after final conviction on behalf

of one’s client.

7a

counsel in these instances is a matter within the sound

discretion of the court.

We think that an indigent’s right to appointed coun-

sel for a reduction of sentence motion should be re-

stricted by the trial court to situations raising the kind

of an issue, supported by specific factual allegations,

wherein fundamental fairness requires the appointment

of counsel if standards of due process are to be met. No

such issue is raised here. Accordingly we hold that 18

U.S.C. § 3006A(c) (1970) does not require that coun-

sel be appointed upon the defendant’s request before the

court can determine the substance of a Rule 35 motion

which is filed after final conviction and that the motion

before the trial court in this case, being patently de-

ficient, did not present the sort of an issue requiring the

appointment of counsel. No other issue being raised by

this appeal, the order is

Affirmed.

8a

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 7515

January Term, 1975

BEINE J. BURRELL,

a/k/a Ronald B. Burrell, Appellant

V.

UNITED STATES,

Appellee.

Appeal from the Superior Court of the District of

Columbia, Criminal Division.

BEFORE: Nebeker, Yeagley and Harris, Associate

Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the Superior Court of the District of

Columbia, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now here

ordered and adjudged by this Court that the order on

appeal herein denying appellant’s pro se motion for reduc-

tion of sentence be, and the same is hereby, affirmed.

Per Curiam.

For the Court:

/s/ Alexander L. Stevas

Alexander L. Stevas,

Clerk.

Dated: January 30, 1975.

Opinion per Associate Judge J. Walter Yeagley.

9a

SUPERIOR COURT FOR THE

DISTRICT OF COLUMBIA

CRIMINAL DIVISION

UNITED STATES

v. * Criminal No. 65033-71

BEINE J. BURRELL, :

a/k/a Ronald B.

Burrell,

Defendant.

ORDER

Upon consideration of defendant’s motion for reduc-

tion of sentence and it appearing that the motion is filed

within 120 days following dismissal of the appeal and the

Court having had opportunity to review the presentence

report as well as the memorandum of points and authori-

ties in support of the motion and the other documents

appended to the motion, it is by the Court, this 14th day

of February, 1973,

ORDERED that the motion for reduction of sentence,

be and the same, hereby is denied.

/s/ Sylvia Bacon

Copies mailed to the Associate Judge

following on 2-14-73: D.C. Superior Court

George F. Bason, Jr., Esq.

202 Century Building

412 Fifth Street, N.W.

Washington, D.C.

U.S. Attorney’s Office

Washington, D.C.

Mr. Ronald B. Burrell

P.O. Box 1000

Lewisburg, Pennsylvania 17837

lb

APPENDIX B

Constitution of the United States, Fifth Amendment:

“No person shall . . . be deprived of life, liberty, or

property, without due process of law...”

Constitution of the United States, Sixth Amendment:

“In all criminal prosecutions, the accused shall enjoy

the right . . . to have the Assistance of Counsel for his

defence.”

18 U.S.C. 3006A (c):

“A person for whom counsel is appointed shall be

represented at every stage of the proceedings from

his initial appearance before the United States magis-

trate or the court through appeal, including ancillary

matters appropriate to the proceedings... .”’

18 U.S.C. 3006A (d):

ee

.... For representation in connection with a post-

trial motion made after the entry of judgment or ina

probation revocation proceeding or for representation

provided under subsection (g) the compensation shall

not exceed $250 for each attorney in each proceeding

in each court.”

Rule 35(a), D.C. Superior Court Criminal Rules (identical

to Federai Criminal Rule 35):

“The court may correct an illegal sentence at any time

and may correct a sentence imposed in an illegal

manner within the time provided herein for the reduc-

tion of sentence. The court may reduce a sentence

within 120 days after the sentence is imposed, or

within 120 days after receipt by the court of a man-

2b

date issued upon affirmance of the judgment or dis-

missal of the appeal, or within 120 days after entry of

any order or judgment of the Supreme Court denying

review of, or having the effect of upholding, a judg-

ment of conviction. The court may also reduce a sen-

tence upon revocation of probation as provided by

law.”

Rule 44, D.C. Superior Court Criminal Rules (identical

to Federal Criminal Rule 44(a) except for the omission

of the bracketed matter below):

“Every defendant who is unable to obtain counsel shall

be entitled to have counsel assigned to represent him

at every stage of the proceedings from his initial appear-

ance before [the federal magistrate or] the court

[through appeal], unless he waives such appointment.”