Joint Appendix — Bearden v. Georgia

ot aa NO. 81-6633

— RECEIVED

— IN THE JUN 3 1982

ya? SUPREME COURT OF THE UNITED STATES OFFICE OF THE CLERK

SUPREME COURT, U.S.

OCTOBER TERM 1931

D

. DANNY R. BEARDEN,

* Petitioner,

\

s 0.

STATE OF GEORGIA,

Respondent.

ON PETITION FOR WRIT OF

CERTIORARI TO THE COURT OF APPEALS OF GEORGIA

BRIEF FOR THE RESPONDENT IN OPPOSITION

GEORGE M. WEAVER

Staff Assistant Attorney General

Counsel of Record for the

Respondent

MICHAEL J. BOWERS

Attorney General

ROBERT S. STUBBS, II

Please serve: Executive Assistant

Attorney General

GEORGE M. WEAVER

132 State Judicial Bldg. MARION O. GORDON

40 Capitol Square, 8. . Senior Assistant

Atlanta, Georgia 30334 Attorney General

(404) 656-6344

JOHN C. WALDEN

Senior Assistant

Attorney General

QUESTION PRESENTED

Does the Equal Protection Clause of the Fourteenth Amendment

permit the probation of an indigent defendant to be revoked for

failure to pay as directed when completion of his probation under

the Georgia First Offenders Act would result, in effect, in his

acquittal?

STATEMENT OF THE CASE .. +++ + © © # ©

A. PROCEEDINGS IN THE COURTS BELOW

B. STATEMENT OF FACTS .. + «+ «+ « «

SUMMARY OF ARGUMENT . . «© «+ «+ © © © © # @

ARGUMENT . 2. 2- © es ee eee © © © © & *

A. THE PROPER STANDARD OF EQUAL

PROTECTION REVIEW .. + + © « «

B. APPLICATION OF THE RATIONALITY

TEST IN THE INSTANT CASE... .-

CONCLUSION * * * * * * * * * * * * * * *

CERTIFICATION or SERVICE „ * * * * * „ *

10

Ss cited:

Barnett v. Hopper, 548 F.2d 550 (Sth Cir. 1977)

Calhoun v. „ 232 Ga. 467 (1974) ..

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

Griffin v. Illinois, 351 U.S. 12 (1956) .

Hunter v. Dean, 240 Ga. 214 (1977) ...

Hutchinson v. Jones, 477 F.Supp. 51,

* * * ) * „ * „ * „ * * „ *

In re Griffiths, 413 U.S. 717 (1973) ..

Loving v. Virginia, 388 U.S. 1 (1976) ..

Maher v. Roe, 432 U.S. 461 (1977) ....

San Antonio Independent School District v.

Rodriguez, iT V.. I (1973)...

Shapiro v. Thompson, 394 U.S. 618 (1969)

United States », Boswell, 605 F.2d

t ir. „ * „ * „ „ * *

Williams v. Illinois, 399 U.S.

Statutes cited:

Ga. Code Ann. § 27-2709 * * * „ „ * * * „

Ga. Code Ann. 4s 27-2727 * * * * * * * * „

Ga. Code Ann. 4 27-2728 a @ #2 8 8.4.8 _4

- » & 0

STATEMENT OF THE CASE

A. PROCEEDINGS IN THE COURTS BELOW

In the September, 1980 term of the Catoosa County, Georgia,

Superior Court, petitioner, Danny R. Bearden, was indicted for

theft by receiving stolen property and burglary. It was alleged

that the offenses occurred on July 11, 1980 and July 7, 1980,

respectively. (Appendix to Petition [hereafter App. J 51, 55).

Petitioner pled guilty to both charges and was sentenced on

October 8, 1980, under the Georgia First Offenders Act, Ga. Code

$$ 27-2727, 2728, to serve one year on probation for the

theft by receiving charge and three years on probation for the

burglary offense, concurrently. The trial court also sentenced

petitioner to pay $200.00 in restitution in the theft by receiving

case within four months of October 8, 1980. In the burglary case,

appellant was ordered to pay a $500.00 fine and $50.00 in restitution--

$100.00 immediately, $100.00 by the next day (October 9, 1980), and the

remaining $350.00 within four months of October 8, 1980. The fine and

restitution payments were made conditions of probation. (App. 48-53).

On May 27, 1981, the State of Georgia petitioned the trial court

to revoke petitioner's probation. In the petition, the State claimed

that petitioner had failed to pay the “fine and restitution balance

of $550.00, which was to be paid on or before February 2, 1981" and

that he had committed a burglary on May 10, 1981. (App. 2). A

hearing was held on the State's petition on June 3, 1981, in the

Catoosa County Superior Court. Petitioner, his wife, and probation

officer testified. After the hearing, the trial court found that

petitioner had failed to pay and report to his probation officer as

directed, revoked his probation, and sentenced him to serve five years

on the burglary charge and three years for the theft by receiving

offense, concurrently. But, his sentence was modified by the trial

court on September 17, 1981, so as to require him to serve only the

remainder of his original probated sentences entered on October 8,

1980. (App. 61-64). The Georgia Court of Appeals upheld the trial

court’s revocation solely on the trial court's finding that petitioner

had failed to pay as directed. (App - 65-68). The Court of Appeals

denied a motion for rehearing and on April 8, 1982, the Georgia

Supreme Court denied a petition for its writ of certiorari. (App-

69-70).

B. STATEMENT OF FACTS

Petitioner failed to pay 4s directed by the probation order.

With money borrowed from his parents, petitioner paid the $100.00

he was ordered to pay on October 8, 1980 and the $100.00 he was

required to pay by October 9, 1980. (App. 14-16, 19, 25). ne

failed, however, to pay the $550.00 balance during the period allowed

by the trial court. (App - 14-16, 18-19, 23-24).

Petitioner offered evidence to the effect that he lacked the

financial resources to pay the $550.00 balance. He and his wife

testified that he had no job, income, OF assets. (App. 22, 27-29).

He had not worked since November, 1980, when he was laid off from

a Rockwell International plant. (App. 22, 35).

It should be noted that petitioner specifically consented to

the probation order. Both petitioner and his trial counsel consented

in writing to the order directing payment of the fine and restitutuion.

(App. 53, 57, 33).

2

The rationality test of equal protection analysis applies to

the question presented here. The revocation of petitioner's probation

is rationally related to the State of Georgia's legitimate interest in

administering probation in a just and socially useful manner, and

in admitting to probation only those not likely to continue in criminal

conduct. Employment and the related attribute of financial ability

are certainly important considerations in assessing the likelihood

of continued criminal activity.

Petitioner contends that the revocation of his probation

violates the Equal Protection Clause of the Fourteenth Amendment.

A. THE PROPER STANDARD OF

EQUAL PROTECTION REVIEW

The Equal Protection Clause has been held to require varying

levels of scrutiny depending on the classification created by the

state action in question. The highest level is called “strict

scrutiny” and is invoked whenever a suspect criterion is the

basis of the state classification. For example, the Court has held

race, Loving v. Virginia, 388 U.S. 1, 9 (1967), and alienage,

In Re Griffiths, 413 U.S. 717 (1973), to be suspect criteria. Some

cases seem to support the existence of a middle level of scrutiny

which requires that classifications which burden constitutionally

protected interests be closely related to important or substantial

governmental objectives. E... Shapiro v. Thompson, 394 U.S. 618

(1969). Finally, the basic equal protection test requires that there

be a rational relationship between the purpose of the state action

and any classification created by the act.

Wealth has not generally been held to be a suspect criterion.

For example, in San Antonio Independent School District v. Rodriguez,

411 U.S. 1, 28 (1973), the Court declined to “extend its most

exacting scrutiny" to the review of a school-financing system that

allegedly discriminated on the basis of wealth. See also, her v. Roe,

432 U.S. 461 (1977).

On several occasions the Court has invalidated state procedures

which, on the basis of wealth, interfered with a criminal defendant's

ability to obtain review of his conviction. For example, in

Griffin v. Illinois, 351 U.S. 12 (1956), the Court held that

Illinois could not refuse to provide to petitioners, without costs,

a trial transcript when one was necessary in order for them to

obtain appellate review of their convictions. Said the Court,

“Plainly the ability to pay costs in advance bears no rational

relationship to a defendant's guilt or innocence and could not be used

as an excuse to deprive a defendant of a fair trial.“ Id., at 18

(Emphasis supplied). And, in Douglas v. California, 372 U.S. 353

(1963), the Court invalidated on equal protection grounds California's

policy of failing to provide State-paid counsel to indigents for their

rightful appeals. ‘

Regardless of whether an enhanced level of scrutiny has

been employed to review wealth-based discrimination in criminal trials

and direct appeals, only the rationality test should be used to review

probation decisions. Unlike the trial and direct appeal, probation

is not a part of the crucial fact-finding process. Thus, decisions

concerning whom to probate and whose probation to revoke should be eval-

uated only under the rationality test. Also, it appears that in.

Tate v. Short, 401 U.S. 395 (1971), and Williams v. Illinois, 399

U.S. 235 (1970), the state procedures employed to imprison indigent

defendants were evaluated only under the rationality test.

B. APPLICATION OF THE RATIONALITY

TEST IN THE INSTANT CASE.

In order to apply the rationality test, we must first consider

the State interest involved in the revocation of petitioner's probation.

Under Ga. Code Ann. § 27-2709(c) (Supp. 1981),

If it appears to court [sic] upon a

hearing of the matter that the defendant

is not likely to engage in a criminal course

of conduct and that the ends of justice and

the welfare of society do not require that

the defendant shall presently suffer the

penalty imposed by law, the court in its

discretion shall impose sentence upon such

defendant but may stay and suspend the

execution of such sentence or any portion

thereof, or may place him upon probation

under the supervision and control of the

circuit probation supervisor for the

duration of such probation.

Administering probation in accordance with this statute is certainly

a legitimate State interest.

Is the revocation of petitioner's probation for non-payment of his

fine and restitution amounts rationally related to the State interest

described above? This is the central issue presented in this case.

Certainly financial ability is a legitimate and important considera-

tion in the decision to probate. Financial means and gainful

employment-- which is usually related to financial means--certainly

affect the likel Ithood of a defendant] to engage in a criminal

course of conduct” which obviously involves the “ends of justice and

the welfare of society.” Ga. Code Ann. § 27-2709(c). If financial

ability can be considered in making the decision to probate, clearly

it can be considered in revocation. If a defendant's financial

ability was misrepresented to the court or proved to be less than

expected, it might be the case that probation is no longer appropriate

under § 27-2709(c). Thus, revocation would be rational in view of the

State interest involved. As the Georgia Supreme Court has held:

[It a defendant's willingness to pay a

fine is a factor which provides the court added

assurance that the individual is a good risk

for probation, the subsequent or later developed

fact that the individual cannot pay the fine

materially alters the original considerations

which went into the judgment. In such a case

the judgment has already been made for the

defendant -- if the fine cannot be paid, the

defendant is not a good risk for probation and

the sentence must be served.

Hunter v. Dean, 240 Ga. 214, 219 (1977).

Petitioner's probation was properly revoked. He, a convicted

burglar with new burglary charges pending against him,was simply

no longer a good probat ion risk when he lost his job and the

ability to pay his modest fine and restitution amounts. Thus, it

was rational for the trial court to issue the order of revocation.

The principles embodied in Williams v. Illinois, 399 U.S. 235

(1970), and Tate v. Short, 401 U.S. 395 (1971), do not cast doubt

on the constitutionality of the revocation of petitioner's probation.

In both cases the criminal defendants were punished beyond state

statutory maximums solely because of their inability to pay fines.

The question presented here was not reached. In Williams, supra,

at 243, the Chief Justice wrote for the Court:

We hold only that a state may not

constitutionally imprison beyond the maximum

duration fixed by statute a defendant who is

financially unable to pay a fine .... We

have no occasion to reach the question whether

a state is precluded from holding an indigent

accountable for a fine by use of penal sanction.

We hold only that the Equal Protection Clause

of the Fourteenth Amendment requires that the

statutory ceiling placed on imprisonment for

any substantive offense be the same for all

defendants irrespective of their economic status.

The Court went on to say that the State cannot fail to enforce fines

against indigents because to do so would be “inverse discrimination."

Id., at 244. The Court then cited, with approval, statutes of

-7-

California, Michigan, and Pennsylvania -- all of which permitted

imprisonment in the event of a defendant's failure to pay a fine

as directed. Id., at 245 n. 21, 247, 251, 256.

There is disagreement between lower courts on the issue

presented here. The Georgia Supreme Court has approved of

probation revocation in similar situations. Hunter, supra;

Calhoun v. Couch, 232 Ga. 467 (1974). The Fifth Circuit has

disagreed. Barnett v. Hopper, 548 F.2d 550 (5th Cir. 1977),

vacated, 439 U.S. 1041 (1978); United States v. Boswell, 605 F.2d

171 (5th Cir. 1979) (basis of decision unclear). And, at least

one other federal court has held probation revocation in such

circumstances to be a denial of equal protection. Hutchinson v.

Jones, 477 F.Supp. 51, 53 (N.D. Ga. 1979) (specifically disagreeing

with Hunter, supra). At some point this conflict should be resolved.

Finally, de effect of the Georgia First Offenders Act should

be noted. Under that Act, had petitioner's probation not been

revoked he would, had he kept the other conditions, been “completely

exonerate([d) .. . of any criminal purpose and mot...

considered to have a criminal conviction." Ga. Code Ann. § 27-2728

(Supp. 1981). Hence, the State interest served by petitioner's

revocation is especially strong.

CONCLUSION

Petitioner's probation was not revoked in violation of the

Equal Protection Clause. Therefore, the Georgia Court of

Appeals has not “decided a federal question in a way in conflict

with applicable decisions of this Court.” Moreover, no other

“special and important reasons“ militate in favor of review.

S. Ct. Rules 17. Thus, the petition should be denied.

Counsel of Record for the

Respondent

MICHAEL J. BOWERS

Attorney General

ROBERT S. STUBBS, II

Please serve: Executive Assistant

Attorney General

GEORGE M. WEAVER

132 State Judicial Bldg.

40 Capitol Square, S.W. A

Atlanta, Georgia 430334 -

(404) 656-6344 Senior Assistant

Attorney General

N

—

Senior sistant

Attorney General

IN THE

SUPREME COURT OF THE UNITED STATES

NO. 81-6633

DANNY R. BEARDEN,

Petitioner,

v.

STATE OF GEORGIA,

Respondent.

ON PETITION FOR WRIT OF CERTIOARI TO THE

SUPREME COURT OF GEORGIA

CERTIFICATE OF FILING UNDER RULE 28

I, John C. Walden, a Member of the Bar of the Supreme

Court of the United States, hereby certify and swear that I

personally deposited in a United States Post Office on June 1, 1982

with first-class postage pre-paid and properly addressed to the

Clerk of this Court, within the time for filing, an envelope

containing the Brief for the Respondent in Opposition on the

above-styled case.

Sworn to and subscribed

before me this 134 day

of June, 1982.

hut N nat

My Commission Expires:

Motery Public. Georg’ Stete of Lerpe

My Comminon Expores duly 19, 1985