# Petition for Writ of Certiorari — Wills v. Georgia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2725%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1984 - **Citation:** 469 U.S. 817 ## Text 83 - 1 563 0 on st ¥ Us. MAR 19 1984 No. 83- ALEXANDER L. STEVAS, CLERK _— AAA In The Supreme State v. Boos, 232 Kan. 864, 659 P.2d 224 (1983) ° . ° * . . . + os - e ° . State ex rel. Bishop v. Blackburn, 384 So.2d 406, 408 (1980) .... State ex rel. Alton v. Conklin, 421 So. 1108 (Fla. App. 1982) State v. Gerwin, 69 Ohio St.2d 488, 432 N.E.2d 828 (1982) e ° . - 7 . ° : . Vv 17 30 16 17 16 18 8,13 20 20 22 17 20 State v. Grenvik, 291 Or. 99, 628 P.2d 1195 (1981) (In banc) © + 2 6 * . . 7 . 18,22 State v. Harder, 650 P.2d 724 (Kan. App. 1982) ... 17,21 State v. Hinson, 164 Ga. App. 66, 296 S.E.2d TE. 5 « «6 6 «@ © «© «© « « 26 State v. Hooker, 131 Ariz. 480, 642 P.2d 477 (1982). 20 State v. Levey, 445 A.2d 589 TCE. « 5 «© «© « @h State v. Nordstrom, Dan memeee wen (Minn. 1983) .... 17,21 State v. Novak, 107 Wis.2d 31, 318 N.W.2d 364 (1982) Dies 6 « «© « « « « 8 State v. Orsini, 187 Conn. 264, 445 A.2d 887 DTT? 5 4 « «© «© «© «© « «© «© « 2a State v. Smith, 213 Neb. 446, 329 N.W.2d 564 ~~~. G 6 6 «© « © « « « « 18,21 State v. Sweeney, 190 N.J. Super. 516 (N.J. App. TITS) 6 6 6 © « « « « « 20 State v. Ulibarri, 96 N.M. 511, 632 P.2d 746 (1981) . 18 vi State v. Vainio, oe ‘moe mee teem, 2963) « « « 0 0 eo Oe State v. Wiggins, 399 So.2d 206 (La. 1981) ..... IL7 Street v. New York, ape UsBe SFO CAPO8) «© «© © we eo oe ew elCUe Thompson v. Estelle, S42 F.20 Bee (oem Cir. 1961) 1. »- is Tucker v. United States, S66 Use GOS CARTES 6 4 8-3 6 & @ & PeRe 14,15 United States v. Rice, S74 V.aa Soo (Asem Cir. 1962) ... s&s United States v. Robles-Sandoval, 637 F.2d 692, 693 n. 1 (9th ee 5 oe 1981) ” ° * e e * 2 . e . e . 18 Vachon v. New Hampshire, See Gea GEO teeter +6 2 oe we eo eo | OO Wade v. State, Zae Gh« Bobs 2860 8.8.26 274 (3972). 26 Ward v. Board of County Commissioners of Love County, 253 U.S. a? (1920) ~ . e e e : e e 31 Williams v. Georgia, 349 U.S. S75, 383 (1955) . 2. «© «© « 30 Wilson v. Estelle, 625 F.2d 1158 (5th Cir. 1980), cert. denied, 451 U.S. 912 (1981) . 19 vil Wright v. Georgia, 373 U.S. 284, 291 (1983) viii No. 83- In The Supreme Court of the United States October Term, 1983 FRANK WILLS, Petitioner Vv. STATE OF GEORGIA, Respondent PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF APPEALS OF THE STATE OF GEORGIA Frank Wills respectively petitions this Court to issue a writ of certiorari to review the judgment of the Court of Appeals of the State of Georgia entered November 23, 1983. (A-3 ) This petition comes after the Supreme Court of Georgia denied certio- rari to the petitioner on January 19, 1984. (A-1 ) arr ae ee eae eis ad RR —— aa SE EO OOOOOOlllOliCi =e OPINION BELOW The opinion of the Court of Appeals of Georgia (A-3) is not officially reported at this time. JURISDICTION The judgment of the Court of Appeals of the State of Georgia was entered on November 23, 1983. A timely petition for rehearing was denied on December 12, 1983. (A-2) Thereafter, on December 30, 1983, a timely application for a writ of certiorari was filed with the Supreme Court of Georgia. On January 19, 1984 the Supreme Court of Georgia denied Mr. Wills’ request for certiorari. (A-l) Jurisdic- tion of this Court to review the judgment of the Court of Appeals of the State of Georgia is conferred by 28 U.S.C. §1257(3). STATEMENT OF CASE Petitioner was convicted of theft by taking (sho, lifting) in a jury trial on February 14 and 15, 1983 in the State Court of Richmond County, Georgia. The item taken was a pair of tennis shoes valued at $16.79. At sentencing the trial judge asked whether the petitioner had "any previous record." (A-19) The prosecutor responded by presenting "for sentencing purposes, a certified copy of [a] conviction from the North Augusta City Recorder's Court... for the offense of shoplifting." (A-19)_ The date of this prior conviction was September 17, 1979. (A-17,18) For some reason, the trial judge did not make the tendered prior conviction a part of the record at that point. In any event, the trial judge specifically relied on the prior conviction to impose a sentence on petitioner of twelve months (A-20), the maximum penalty possible for the offense - 3- which is a misdemeanor under Georgia law. O.C.G.A. §§16-8-2 and 16-8-12. (A-21) At sentencing, petitioner's trial counsel did not object to the trial judge's consideration of the North Augusta shop- lifting conviction. Trial counsel, however, filed a timely motion and amended motion for a new trial. (A-14,15,16) One contention in that motion was that petitioner's sen- tence was illegal because the North Augusta shoplifting conviction was uncounselled and could not be used to enhance petitioner's sentence. (A-14,15) Attached to this motion as Exhibit "B" was a copy of the docket entry for pe- titioner's North Augusta shoplifting con- viction. (A-17,18) It reflected the fol- lowing information: (1) the charge of shoplift- ing; (2) petitioner's plea of nolo contendere; (3) the court's finding of guilt; (4) a sentence of 30 days in jail or payment of a $108.25 fine. (A-22) In the space for the name of the defendant's attorney, there was no entry. The docket entry was also silent as to whether the de- fendant waived his right to the presence of counsel or any other trial rights that he possessed. The trial judge set the motion for hearing and argument on April 21, 1983. No transcript was made of that proceeding. On May 21, 1983, the trial judge denied petitioner's motion and amended motion for new trial. (A-12) Encompassed within this Order was a rejection of petitioner's chal- lenge to the legality of his twelve month sentence. REASONS FOR GRANTING WRIT OF CERTIVCRARI I. INTRODUCTION The ultimate question presented by this petition requires consideration of the scope of Baldasar v. Illinois, 446 U.S. 222 (1980), a decision regarded by many lower courts as having no clear rationale. Can a trial judge explicitly consider and rely upon an uncounseled prior misdemeanor con- viction to increase a sentence of confine- ment in a subsequent criminal case when the uncounseled prior misdemeanor convic- tion did not result in incarceration? To reach this question, however, the Court must first consider three preliminary issues: (1) whether the burden was on the state initially to establish the constitu- tional propriety of reliance upon the pe- titioner's prior shoplifting conviction in sentencing?; (2) if so, whether the stute satisfied its burden by tendering a certi- 6 = fied copy of a prior judgment of conviction which was silent concerning whether the petitioner was represented by counsel?; (3) whether the Court of Appeals denied petitioner due process and equal protection when it refusel to consider petitioner's challeng= to the legality of his sentence? II. THE TRIAL JUDGE'S EXPLICIT RELIANCE UPON A PRIOR UNCOUNSELED MISDEMEANOR CONVICTION IN IMPOSING A MAXIMUM SENTENCE ON PETITIONER IS INCOMPATIB™E WITH THE RESULT IN BALDASAR V. ILLINOIS, 446 U.o. 222 (1980) AND PRESENTS AN OCCASION FOR THIS COURT TO CLARIFY THE RATIONALE OF THAT DECISION. After Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court addressed a series of ques: .ons concerning the secondary use of prior uncounseled felony convictions. In Burgett v. Texas, 389 U.S. 109 (1967), the Court held that a conviction which was invalid under Gideon could not be used for enhancement purposes under the Texas re- cidivist statute. In Tucker v. United States, 404 U.S. 443 (1972), the Court held - 7J7- ee ee ee ee ee ee eS that such a conviction could not even be considered by a court in sentencing a de- fendant after a later conviction. Finally, in Loper v. Beto, 405 U.S. 473 (1972), the Court ruled that a conviction obtained in viclation of Gideon could not be used for the purpose of impeaching the general credi- bility of the defendant. After Argersinger v. Hamlin, 407 U.S. 25 (1972), the rationale of these post-Gideon decisions necessitated Similar restrictions on the use of prior uncounseled misdemeanor convictions at least in those cases in which defendant received a sentence of imprisonment. In Scott v. Illinois, 440 U.S. 367 (1979), however, the Supreme Court brought a halt to the expansion of the Sixth Amend- ment right to counsel. It held that as long as a defendant was not sentenced to a term of imprisonment, an uncounseled con- viction did not violate the sixth amendment. But Scott did not settle the point whether —S_ fe Si a i ae a Tl Tel ceTClC eel ele, lel convictions that were valid under its ra- tionale were valid for other purposes such as sentence enhancement in a later case in- volving a term of imprisonment. Two decisions since Scott have con- sidered the secondary use of uncounseled prior convictions. First, in Lewis v. United States, 445 U.S. 55 (1980), the Court upheld a firearms possession convic- tion under 18 U.S.C. 1202(a)(1). An ele- ment of the government's proof under the statute was that the defendant possessed a firearm after having been previously con- victed of a felony. Without disclaiming the reasoning or results in its prior de- cisions concerning the use of uncounseled prior felony convictions, Loper v. Beto, 405 U.S. 473 (1972); United States v. Tucker, 404 U.S. 443 (1972); Burgett v. Texas, 389 U.S. 109 (1967), the Court rea- soned that Congress had not intended to make criminal liability under section 1202 dependent upon the underlying validity of the prior felony conviction. Rather, a prior felony conviction under section 1202 was seen as a rational indicator of a per- son's dangerousness and thus justified the general firearms ban applicable to all con- victed felons. Although the Court's ruling in Lewis rested entirely on statutory in- terpretation, the tone of the opinion pre- saged disenchantment with Loper, Tucker, and Burgett. After Lewis, one could plausi- bly ask why Congress could take the view that it did of prior felony convictions under section 1202, yet trial courts could not have the same latitude or discretion in sentencing? Less than two months after Lewis, the Supreme Court addressed the question of permissible uses of uncounseled prior mis- demeanor convictions for which no prison term was imposed. In Baldasar v. Illinois, 446 U.S. 222 (1980), Baldasar was charged » 10 - with the November 1975 theft of property (a showerhead) worth less than $150. This was the second such charge against Baldasar within the year. Under Illinois law, the first offense for theft of this type was treated as a misdemeanor; the second as a felony. Baldasar was convicted. At sen- tencing, the prosecutor asked that Baldasar's second theft conviction be treated as a felony. Over the protest of Baldasar's at- torney, who pointed out that her client had been unrepresented in the first case, the trial judge sentenced the defendant as a felon, giving him one to three years in prison. The Illinois Appellate Court af- firmed on the theory that even though the defendant was unrepresented in the first theft trial, Baldasar's prison term was at- tributable entirely to the second theft con- viction. The Supreme Court reversed in a de- cision that really has no majority ra- - il - tionale. Four justices in Baldasar (Brennan, Marshall, Stevens and Stewart) were of the Opinion that had it not been for the pre- vious theft conviction in which Baldasar was unrepresented, he would not have been treated as a felon and received the one to three year sentence that he did. In their view, an uncounseled conviction under the rationale of Scott v. Illinois was valid only for limited purposes. Id. at 224-229. Justice Marshall's concurring opinion sum- marized this point clearly: "[A] conviction which is invalid for the purposes of impos- ing a sentence of imprisonment for the of- fense itself remains invalid for purposes of increasing a term of imprisonment for a subsequent conviction under a repeat- offender statute." Id. at 228 (emphasis added). Justice Blackmun provided the fifth and decisive veto in favor of reversal in Baldasar. He restated the position he took - a7 @ in his Scott dissent that the right to coun- sel ought to attach whenever a defendant is prosecuted for an offense punishable by more than six months' imprisonment. Scott v. Illinois, 440 U.S. 367, 389-90 (1979). Since Baldasar's first theft offense carried a possible penalty of one year, Justice Blackmun found that Baldasar was in fact entitled to counsel in that trial and therefore no collateral use of his wuicoun- seled conviction was permissible. Id. at 229-231. Justice Powell's dissent questioned both the logic and the policy underlying the result reached by the Court. He be- lieved that a conviction which is valid under Scott should be regarded as valid for all purposes, most particularly sentence en- hancement. In his view, the Court's prior cases reflect the premise that uncounseled felony convictions are void because of their unreliability. Justice Powell did not o 13 « (os eg agree that this premise of unreliability carried over to uncounseled misdemeanor convictions. Id. at 233-34, n. 2. Finally, he perceived a "violent" conflict between the Court's reasoning in Lewis and the re- sult reached in Baldasar. How could an uncounseled -- and therefore invalid -- felony be relied upon to sustain the fire- arms conviction in Lewis and yet in fixing Baldasar's sentence no consideration could be given to his prior uncounseled misdemeanor conviction which was valid as imposed? Baldasar reflects an extension of the analysis of Burgett v. Texas, 389 U.S. 109 (1967) to uncounseled misdemeanor convic- tions that are constitutionally valid under Scott. The present petition in effect raises the question whether the rationale of another post-Gideon case, United States v. Tucker, 404 U.S. 443 (1972) will similarly be ex- tended to Scott convictions. The trial judge in this case explicitly relied on » 14 « the North Augusta conviction to impose on the petitioner the maximum penalty possible under Georgia law of twelve months. The certi- fied copy of the North Augusta conviction was blank in the space where the name of defense counsel was supposed to appear. In addition, there is no entry indicating waiver of the right to counsel. Regardless of whether the trial judge in the instant case knew these details when he sentenced petitioner to twelve months, he was made aware of them as a result of a timely post- trial motion in which the legality of pe- titioner's sentence was challenged. The trial judge's sentencing here perfectly parallels the constitutionally invalid action of the trial judge in United States v. Tucker, 404 U.S. 443 (1972) ex- cept for one particular: the petitioner did not serve jail time for the North Augusta shoplifting conviction. Although Baldasar involved a statutorily mandated recharacteri- - 15 - zation of a second theft offense from mis- demeanor to felony with an accompanying en- hancement of penalty, it could be extended to encompass petitioner's case as well. Whether this Court would take such a step, however, depends upon reaching agreement about the underlying premise of Baldasar or perhaps reconsidering the locus of the "bright line" in the Scott decision. The absence of consensus has caused considerable difficulty in the lower federal and state courts. Many state courts have taken the result in Baldasar at face value and have ruled that a subsequent criminal penalty cannot be enhanced based on a prior uncounseled misdemeanor conviction which did not re- sult in imprisonment. Hollingsworth v. State, 410 So.2d 133 (Ala. 1981) (Baldasar applied in probation revocation proceeding) ; People v. Rocha, 659 P.2d 569 (Colo. 1982) reversed on other grounds, 669 P.2d 1366 - 16 - (1983) (habitual traffic offender case); People v. Hampton, 619 P.2d 48 (Colo. 1980) (habitual traffic offender case); State ex rel. Alton v. Conklin, 421 So. 1108 (Fla. App. 1982) (Baldasar applied in proceeding to determine whether juvenile would be tried as adult); McKenney v. State, 388 So.2d 1232 (Fla. 1980) (Baldasar recognized as applicable to habitual misdemeanant charge; waiver of counsel found in prior proceeding); People v. McCarty, 101 Ill. App.3d 355, 427 N.E.2d 1382 (1981) (Baldasar applied in probation revocation proceeding) ; State v. Harder, 650 P.2d 724 (Kan. App. 1982) (Baldasar recognized as applicable; but waiver of counsel found in prior mis- demeanor conviction); State v. Wiggins, 399 So.2d 206 (La. 1981) (cites Baldasar favorably though Louisiana followed same rule since 1974); State v. Nordstrom, 331 N.W.2d 901 (Minn. 1983) (Baldasar applied in case where enhanced punishment was fine not - 17 - a term of imprisonment); State v. Smith, 213 Neb. 446, 329 N.W.2d 564 (1983) (Baldasar applied to deny enchancement of sentence for traffic offense); State v. Ulibarri, 96 N.M. followed 511, 632 P.2d 746 (1981) (Baldasar/in driving under influence case); State v. Grenvik, 291 Or. 99, 628 P.2d 1195 (1981) (In banc) (Baldésar following in driving under influ- ence case to deny enhancement). At the same time, perhaps an equal number of state courts and several federal circuit courts have circumvented the Baldasar decision or appear to have ignored it. A number of these decisions have pointed out the Jack of any controlling ra- tionale in Baldasar as a reason for not fol- lowing it. See, e.g., Schindler v. Clerk of Circuit Court, 715 F.2d 341, 344-46 (7th Cir. 1983); United States v. Robles-Sandoval, 637 F.2d 692, 693 n. 1 (9th Cir. 1981); State v. Novak, 107 Wis.2d 3l, 318 N.W.2d 364 (1982). The fifth circuit has apparently #» 19 - elected to adhere to its pre-Baldasar posi- tion that uncounseled prior convictions which do not result in imprisonment are valid for all purposes. Wilson v. Estelle, 625 F.2d 1158 (5th Cir. 1980), cert. denied, 451 U.S. 912 (1981) (dismissed Baldasar with a "cf." footnote reference). See also, Thompson v. Estelle, 642 F.2d 996 (Sth Cir. 1981) (cites Wilson but does not mention Baldasar). In the only eleventh circuit decision to discuss Baldasar, the court avoided the issue in a probation revo- cation proceeding. It held that, apart from the uncounseled misdemeanor, there was ample independent evidence in the record to justify revocation. United States v. Rice, 671 F.2d 455 (llth Cir. 1982). In a different vein, a number of lower courts have pointed out the conflict be- tween the Lewis and Baldasar decisions and they have relied on Lewis as a means of avoiding the ramifications of Baldasar. » 19 « See, Smith v. State, 248 Ga. 828, 286 S.E.2d 709 (1982); State v. Vainio, 466 A.2d 471 (Me. 1983); McClure v. Commonwealth, 283 S.E.2d 224 (Va. 1981). Other courts have avoided the thrust of Baldasar through un- , 1 if questionably legitimate distinctions. These distinctions have turned on the civil character of the later proceeding, State v. Boos, 232 Kan. 864, 659 P.2d 224 (1983) (later proceeding civil in nature; Baldasar does not preclude consideration of uncoun- seled convictions in determining habitual traffic violator status); LaBarre v. Daneault, 461 A.2d 89 (N.H. 1983) (similar), as well as the fact that even if the later proceeding was criminal, the defendant did not receive a term of imprisonment. State v. Hoc*er, 131 Ariz. 480, 642 P.2d 477 (1982); State v. Sweeney, 190 N.J. Super. 516 (N.J. App. Div. 1983); State v. Gerwin, 69 Ohio St.2d 488, 432 N.E.2d 828 (1982). Finally, several decisions have found «= 20 « Baldasar inapplicable because counsel was waived in the earlier criminal proceeding. See, e.g., State v. Harder, 650 P.2d 724 (Kan. App. 1982); State v. Levey, 445 A.2d 1089 (N.H. 1982). Only one other wade bears on the propriety of granting certiorari in this case. It has to do with burden of proof allocation. The state in this case asked the trial judge to consider a prior convic- tion which on its face indicated that pe- titioner was not represented at his shop- lifting trial in North Augusta. Some jurisdictions place the burden on the state to establish the validity of any prior con- victions if they are offered for considera- tion at sentencing. Hollingsworth v. State, 410 So.2d 133 (Ala. 1981); State v. Orsini, 187 Conn. 264, 445 A.2d 887 (1982); State v. Nordstrom, 331 N.W.2d 901 (Minn. 1983); State v. Smith, 213 Neb. 446, 329 N.W.2d 564 (1983). The decisions of this Court » 23 « also appear to place the burden of sanitiz- ing prior convictions on the state. See, e.g., Burgett v. Texas, 389 J.S. 109 (1967). Under this authority the state in this case could not have met its burden of proof Since it never, as far as the record re- flects, established that petitioner had representation at his North Augusta shop- lifting trial. Indeed, the oniy document in the record concerning that conviction is blank in the space provided for the name of defense counsel. On its face, there- fore, it is constitutionally deficient and should not have been considered by the trial judge. See, State ex rel. Bishop v. Blackburn, 384 So.2d 406, 408 (1980) (minutes of prior misdemeanor conviction indicated "waiver of counsel" but did not establish factual basis; conviction could not be used); State v. Grenvik, 291 Or. 99, 628 P.2d 1195 (1981) (abstract of prior traffic conviction blank in space for name «= 29 « of defense counsel; held no waiver of coun- sel in face of the omission from record). Petitioner contends that Lewis and Baldasar have produced enough difficulty in the lower courts to justify intervention by this Court. What is desperately needed in this area is the "bright line" that members of this Court have so often referred to in their opinions. As the law stands now, lower courts cannot be certain about how to consider prior uncounseled misdemeanor convictions which do not result in imprison- ment. This case provides an opportunity for a clarifying ruling. The procedural considerations in the next section do not suggest otherwise. III. THE PROCEDURAL POSTURE OF THE CASE AT TRIAL AND BEFORE THE COURT OF APPEALS SHOULD NOT PRECLUDE A GRANT OF THE WRIT OF CERTIORARI. A. Procedural Default At sentencing, counsel for petitioner - 23 « ? ~~ did not object to the trial judge's reliance on the North Augusta shoplifting conviction. (A-18,19) Under Georgia law, as will be shown, trial courts have broad authority to amend or correct illegal sentences. In this case, petitioner filed an amended mo- tion for a new trial which contained, among other points, a request for a correction of sentence because the North Augusta convic- tion was uncounseled. (A-14,15) The sen- tencing question was brought to the atten- tion of the trial judge in a timely manner. Furthermore, after conducting a hearing and considering argument, the trial judge re- _ jected petitioner's motion in an order entered May 16, 1983. (A-12) Petitioner's notice of appeal to the Court of Appeals of Georgia followed on June 14, 1983. Despite the fact that one of petitioner's enumerations of error was the denial of the amended motion for new trial, the Court of Appeals refused to consider the challenge - 24 - to the legality of the sentence. (A-9,10) Incomprehensibly, the Court treated the use of the North Augusta conviction as a question of evidentiary admissibility, subject to the contemporaneous objection rule. The confu- sion underlying this approach is almost be- yond clarification. Two propositions ap- pear to underly the Court of Appeals ruling: (1) since the North Augusta conviction was not formally admitted into the record, there was no harm to petitioner; and (2) since petitioner's trial counsel failed to object to the trial judge's actual con- Sideration of the North Augusta conviction, the procedural default forever barred a challenge to the legality of the sentence. The rationale of the contemporaneous rule objection/makes considerable sense when ap- plied to the development of a trial record before a case goes to the jury or to the court for passing judgment on the issues. But at sentencing -- which is not a part of - 26 « the same factfinding process as the trial -- the rules of evidence are relaxed. Trial judges in Georgia routinely rely on information in sentencing which would be inadmissible at trial. It is sufficient procedurally for a criminal defendant to bring a sentencing error to the trial judge's attention at a point when jurisdiction to correct a mistake still exists. Under sec- tion 17-10-11, Official Code of Georgia, the trial judge does not lose this authority until after the expiration of the term of court at which the sentence was imposed. See Wade v. State, 231 Ga. 131, 200 S.E.2d 271 (1972); State v. Hinson, 164 Ga. App. 66, 296 S.E.2d 386 (1982) (both decided under predecessor to §17-10-1; no difference in language). Therefore, even if an objec- tion is not made at or before the moment of sentencing, the trial judge can subsequently considerly the objection under §17-10-1 and, it should be stressed, the trial judge did =. 96 - so in petitioner's case below. Perhaps in its emphasis on the failure to object, the Court of Appeals had in mind the predicate necessary under Georgia law to impeach a witness at trial by proof of prior criminal convictions. In that circumstance, if the impeachment were allowed without proper predicate, the defendant's failure to object surely would be decisive against post-trial or appellate review since the defendant's only remedy would be a new trial. A challenge to the legality of a sentence, however, entails none of those consequences and for that reason at sentencing the con- temporaneous objection rule is simply beside the point under Georgia law. How else can One explain the liberal practice in Georgia permitting challenges to sentence when made curing the same term of court at which the original sentence was imposed? Contrary to what the Court of Appeals appears to have assumed, the illegality of = 27 « . petitioner's sentence under Baldasar has nothing to do with the admissibility into evidence of the North Augusta conviction. As a matter of federal constitutional law, if petitioner's sentence is invalid, it is because of the trial judge's explicit con- sideration of information that should not have been taken into account at all. The trial judge clearly gave petitioner's North Augusta conviction weight because he stated so on the record and then imposed the maxi- mum sentence of twelve months. As this Court observed in Street v. New York, 394 U.S. 576 (1969): "The issue whether a federal question was suf- ficiently and properly raised in the state courts is itself a federal ques- tion, as to which this Court is not bound by the decision of the state courts." Id. at 583. The words of petitioner's amended motion for new trial c:n leave no doubt that the o 36 « challenge to the sentence was based on the impropriety of the trial judge's reliance on the uncounseled North Augusta misdemeanor conviction. Petitioner's claim was surely stated with more specificity than the first amendment claim considered by this Court in Street or the due process claim in Vachon v. New Hampshire, 414 U.S. 478 (1974). As to the timing of petitioner's chal- lenge to the sentence, it came at a point when the trial judge had authority not only to correct any sentencing mistake but when he could have ordered a new trial: Despite that fact, the Court of Appeals treated pe- titioner's Baldasar claim as barred for failure to object to the use of the North Augusta conviction when it was first brought up at sentencing. This is a palpably in- adequate ground for denying appellate re- view to the petitioner. If a state court applies its procedural rules to bar a claim either for improper reasons or in circum- «= 326 « stances where the policy underlying a rule has no relevance, this Court does not defer to state law. Hathan v. Lovorn, 457 U.S. 255, 261-65 (1982); Chambers v. Mississippi, 410 U.S. 284, 290 (1973); Wright v. Georgia, 373 U.S. 284, 291 (1983); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457-58 (1958); Williams v. Georgia, 349 U.S. 375, 383 (1955). Petitioner cannot fathom whether any ulterior motive was behind the Court of Appeals ruling, but given the fact that the trial judge was able to consider his sentencing challenge, petitioner asks what substantial reason could the Court of Appeals have had for invoking procedural de- fault. The contemporaneous objection rule was mentioned but petitioner has already suggested why that justification is bizarre to say the least. An Out of an abundance of caution, per- haps, the Court of Appeals added one final reason for refusing to consider petitioner's - 30 - BEREEBREBEEBESESBS SSBB SB = Baldasar claim. It asserted that the claim was raised on appeal for the first time. That assertion is flatly contradicted by the record. The trial judge considered the claim as a part of petitioner's amended mo- tion for new trial and rejected it. Since there is no fair and substantial support in the record for the Court of Appeals' ruling, this Court can disregard it. Ward v. Board of County Commissioners of Love County, 253 U.S. 17 (1920); Creswill v. Grand Lodge, Knights of Pythias of Georgia, 225 U.S. 246 (1912). Petitioner does not contest the strong policy behind an appellate rule requir- ing a question to be preserved at the trial level in order to make it subject to appel- late review. But, in this instance, neither the letter nor the spirit behind that rule came into play on petitioner's appeal and, for that reason, the rule cannot be an "adequate" state ground for the Court of Appeals' decision below. = 3] - CONCLUSION For the foregoing reasons, petitioner respectfully requests that this Court grant the petition for writ of certiorari on be- half of Frank Wills. Respectfully submitted, WMS esegate Albert M. Pearso University of Georgia School of Law Athens, Georgia 30602 (404) 542-7668 CERTIFICATE OF SERVICE As a member of the Bar of the United States Supreme Court, I hereby certify that on this 19th day of March, 1984, three copies of the enclosed Petition for Certio- rari were maiied, postage prepaid, to: (1) Michael J. Bowers Attorney General State of Georgia 132 State Judicial Bldg. 40 Capitol Square, SW Atlanta, GA 30334 - 32 «- un ” s | (2) Gayle B. Hamrick Solicitor of State Court Richmond County 217 City-County Municipal Bldg. Augusta, GA 30911 I further certify that all parties required to be served have been served. LL pr. iss Lécase [b- Albert M. Pearson, University of Georgia School of Law Athens, Georgia 30602 (404) 542-7668 COUNSEL FOR PETITIONER - 33- A-1 CLERK'S OFFICE, SUPREME COURT OF GEORGIA Atlanta 1/19/84 Case No. 40711, Wills v. The State The Supreme Court today denied the writ of certiorari in this case. All the justices concur, except Smith, J., dissents. Very truly yours, S/ JOLINE B. WILLIAMS, Clerk COURT OF APPEALS OF THE STATE OF GEORGIA Atlanta 12/12/83 The Honorable Court of Appeals met pursuant to adjournment. The following order was passed: 67148 Frank Wills v. The State Upon consideration of the motion for a rehearing filed in this case, it is ordered that it be hereby denied. COURT OF APPEALS OF THE STATE OF GEORGIA CLERK'S OFFICE, ATLANTA I certify that the above is a true ex- tract from the minutes of the Court of Ap- peals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. CLERK A-3 OCTOBER, 1983 AFFIRMED 67148. WILLS V. THE STATE (Bi-206) BIRDSONG, Judge. Frank Wills was convicted of theft by taking (shoplifting) and sentenced to serve twelve months. He brings this appeal enumerating five asserted errors. The operative facts of this appeal indicate that Wills entered a retail establishment in Augusta with his teenage son. Wills went to the shoe department and made inquiry about a certain style tennis shoe and its price. Subsequently, Wills and his son began to exit the store, passing by the cash register without making payment for any purchases. A security em- ployee was standing near the register talking with another employee. It was her responsibility to check all packages not A-4 originating in the store in question. Wills passed by the register and moved to within a few feet of the exit doors when the security employee called him back to the checkout counter stating that she had to check all packages. Though the testi- mony is disputed, the jury was warranted in believing that the employee looked into a "tote" bag being carried by Wills and found therein a pair of tennis shoes of the type about which Wills had made an in- quiry. The shoes were the merchandise of the store and still contained intact a tag that would have been separated had a proper purchase been made. When confronted with the shoes, Wills asked how much he had to pay. Initially the store manager was going to aliow Wills to pay for the shoes but upon learing of his conduct in the store, Wills was detained and subsequently ar- rested. Held: A=-5 l. During the presentation of the state's evidence, the prosecutor inquired why the store manager offered Wills the opportunity to purchase the shoes. This question was objected to by the defense as tending to bolster the testimony of a state's witness. In overruling the objec- tion, the trial court stated to the defen- dant's counsel that there was no purpose in keeping the reason a secret or for not letting it in so that the jury could weigh it in their deliberations. After further argument, the trial court sustained the objection and told the jury the question and answer were not to be considered by them and expressly charged the jury that it was not to place any credence to the question because of the comments made by the court to counsel in the discussion of the objection. A-6 It is clear that the trial court merely explained his reasoning to counsel for the court's ruling. Remarks of a judge as- Signing a reason for his ruling are neither an expression of opinion nor a comment on the evidence. Johnson v. State, 246 Ga. 126, 128 (V) (269 SE2d 18). Moreover, the trial court sustained the objection, re- moved the consideration of the subject from the jury and gave an appropriate charge thereon. Under such circumstances, it is not error for the trial court to refuse to grant a mistrial. Jones v. State, 139 Ga. App. 643, 644 (229 SE2d 121). There is no merit in the first enumeration of error. 2. Likewise during its case in chief, the state asked the store manager how many cases of shoplifting he had experienced. This question was objected to on the grounds of irrelevance. As subsequent testimony A-7 from this witness demonstrated, the state offered the evidence to indicate that it was not unusual for a shoplifter to offer to pay for the merchandise after detection. Also the evidence was offered to show that the conduct of the manager after Wills' detection was identical to his conduct in other cases of shoplifting. For either of these reasons, it was not error for the question to be asked nor the answer to be given. Any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a ma- terial issue or issues is relevant. Harris v. State, 142 Ga. App. 37, 41 (234 SE2d 798). 3. Wills also urges error in the limitation by the trial court of the scope of his cross examination. During the A-8 examination of the employee who searched Wills' tote bag, counsel for Wills asked her to repeat her direct testimony of the stop and search of Wills. When she had completed that statement, counsel asked her, over objection, to again repeat the story, presumably to see if her testimony would be consistent. As soon as she had repeated the testimony she was asked to tell it again. On this third occasion, the etiel court sustained the objection made by the state. Cross examination may be curtailed if the subject matter is repetitious as to matter already developed on cross examina- tion. Thompson v. State, 166 Ga. 758 (10) (144 SE 301). Moreover, prejudice must be shown by its exclusion. Freeman v. State, 230 Ga. 85 (1) (195 SE2d 416); Hudson v. State, 137 Ga. App. 439, 440 (224 SE2d 48). A-9 We discern no abuse of discretion in the situation nor has appellant shown any preju- dice. 4. Wills had testified that he stopped at the register counter, removed the shoes from the bag and had money in his hand to pay for the shoes. He was asked whether he could really dispute the testimony of the employee who found the shoes who had stated that Wills had pro- ceeded past the counter and was three or four feet from the exit of the store when he was called back. Appellant urges error in the question asking him to explain the other witness' testimony. Actually the transcript shows that the original question was never answered. The state rephrased the question and the answer thereto was given without objection. We will not grant a new trial for the simple asking of a question that was not answered, especially A-10 where the substance of the question is sub- sequently posed and answered without ob- jection. Moreover, the question properly served to attack the veracity and credi- bility of appellant's testimony on this subject, an area certainly within the ap- propriate scope of cross examination. We find no abuse of discretion in the action of the trial court in allowing the evidence. Mitchell v. State, 236 Ga. 251, 256 (223 SE2d 650); Bailey v. State, 138 Ga. App. 807, 808 (227 SE2d 516). 5. In his last enumeration, Wills complains the trial court erred in con- sidering a previous conviction which is not shown in the record to have been attended by counsel. The transcript reflects that the state presented to the court a certi- fied copy of an earlier conviction for shop- lifting. The document was not offered in- to evidence and was not formally admitted, A-1l thus it is not a part of the record. Like- wise the record reflects that appellant was shown the certified copy of the prior con- viction but made no objection to the ad- missibility of the document on any ground, nor did appellant voice any objection to a consideration by the trial court in the sentencing process. That being so, appel- lant is not entitled to raise this issue for the first time on appeal and thus pre- sents nothing in this context for this court to review. McKisic v. State, 238 Ga. 644 (5) (234 SE2d 908); Copeland v. State, 160 Ga. App. 786, 789 (12) (287 SE2d 120). Judgment affirmed. Shulman, C.J., and McMurray, P.J., concur. A-12 IN THE STATE COURT OF RICHMOND COUNTY, GEORGIA STATE OF GEORGIA ) vs. CASE NO. A-125296 FRANK WILLS ORDER DENYING MOTION FOR NEW TRIAL AND AMENDED MOTION FOR NEW TRIAL A hearing for a Motion For New Trial and Amended Motion for New Trial having come on for a hearing before the Honorable James E. Slaton, Judge of the State Court of Richmond County, Georgia on April 21, 1983, and after hearing argument from both coun- sels, IT IS THEREFORE, ORDERED AND ADJUDGED that the defendant's Motion For New Trial and Amended Motion For New Trial is denied. This 16th day of May, 1983. S/ JUDGE JAMES E. SLATON JUDGE, STATE COURT RICHMOND COUNTY, GA PRESENTED BY: S/ GAYLE B. HAMRICK, SOLITICOR STATE COURT, RICHMOND COUNTY, GA A-14 IN THE STATE COURT OF RICHMOND COUNTY STATE OF GEORGIA THE STATE OF GEORGIA Vs. eee ee FRANK WILLS AMENDED MOTION FOR NEW TRIAL NOW COMES FRANK WILLS, hereinafter re- ferred to as Movant, and respectfully shows: -2- The Court erred in sentencing Movant to a term of twelve months because such con- viction was allegedly Movant's second of- fense in that: (a) The Court erred in considering evi- dence of an alleged prior offense when his counsel had not been previously apprised of such (see Exhibit "B" attached hereto and by reference made a part hereof) ; A-15 (b) The Court erred in considering an alleged second offense when it was un- clear whether Movant was the same person as included in the previous offense; (c) The Court erred in considering an alleged second offense when it was unclear whether Movant was represented by counsel in the previous case; and (ad) The Court erred in failing and re- fusing to exercise discretion in the sen- tencing process. SEE SE SB SB ERS BES E A-16 WHEREFORE, Movant prays that his Motion for New Trial, as amended, be granted. This day of April, 1983 Respectfully submitted, S/ JOHN H. RUFFIN, JR. COUNSEL FOR MOVANT 1101 ELEVENTH STREET AUGUSTA, GEORGIA 30901 This is to certify that I have this day served counsel for the opposing party in the foregoing matter with a copy of this pleading by depositing in the United States Mail a copy of same in a properly addressed envelope with adequate postage thereon. This day of ,» is Counsel for PERSON(s) SERVED: Mr. Gayle B. Hamrick Solicitor, State Court Richmond County, Georgia Richmond, Georgia 30911 | A-1/ CITY OF NORTH AUGUSTA South Carolina RECORDER'S COURT DOCKET Docket No.: 29673 Citation No.: GK 3639 Name: Frank NMN Wills N/M Defendant Plea Disp. of Court DOB: 2-4-48 Guilty ( ) Guilty ( ) Address: 204 Five Notch Spur Not Guilty ( ) Not Guilty (3 Charge: Shoplifting (First) Nolo Con- Nolle Prossed ( ) Date of Violation: 9-05-79 tendere ( ) Sent to Higher Time: 6:50 PM Court Request Jury ( ) Location of Violation: Harris Teeter Bond Forfeit ( ) Date of Trial: 9-17-79 Bond: $108.25 Fine: $108.25 Or 30 Days Officer: PSO Mosley Susp. $ And _ Days Witness: Days cn Public Works Defendant Atty.: PAID TO CITY TREASURER S/ ; —— Recorder's Signature C Cashiers Stamp EXHIBIT "B" r kxkikei_ ixinaermreinneenrtregnZn£eeexeceen»:nren@ =. A-19 TRANSCRIPT EXCERPT -- SENTENCING THE COURT: All right, Mr. Hamrick, does the defendant have any previous record? MR. HAMRICK: Yes, Your Honor. THE COURT: All right, read it out to the Court. MR. HAMRICK: Let me tender it to defense counsel, Your Honor. We will present, for sentencing purposes, a certified copy of conviction from the North Augusta City Recorder's Court imposed on September 17, 1979 for the offense of shoplifting. THE COURT: In North Augusta? MR. HAMRICK: Yes, sir. THE COURT: When did that happen? MR. HAMRICK: The date of the offense was September of 1979, the date of trial September 17, 1979. A-20 THE COURT: ‘Would you like to make any comments before sentencing on behalf of your client? MR. JAMES: We don't have anything to say at this time, Your Honor. THE COURT: All right, in view of your record of shoplifting, I sentence you to twelve months in the Richmond County Cor- rectional Institution. TRIAL CONCLUDED SEEREEREEASBSEE EB SB BRR = aa as es FF SF ee ee ee ee as = A-21 OFFICIAL CODE OF GEORGIA Offenses Involving Theft §16-8-2. Theft by Taking. A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully ap- propriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated. §16-8-12. Penaities For Violation of Code Sections 16-8-2 Through 16-8-9. A person convicted of violation of Code Sections 16-8-2 through 16-8-9 shall be punished as for a misdemeanor except: (1) If the property which was the sub- ject of the theft exceeded $200.00 in value, by imprisonment for not less than one nor more than ten years or, in the discretion of the trial judge, as for a misdemeanor; FPEEEBRERBEBESBE ERB SRB RB RSS ane ee He He ee ee etktktk = = =| CODE OF LAWS OF SOUTH CAROLINA 1976 §16-13-110. Shoplifting. (A) A person is guilty of shoplifting if he: (1) Takes possession of, carries away, transfers from one person to another or from One area Of a store or other retail mercan- tile establishment to another area, or causes to be carried away or transferred any mer- chandise displayed, held, stored or offered for sale by any store or other retail mer- cantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value. (2) Alters, transfers or removes any label, price tag marking, indicia of value or any other markings which aid in determin- ing value affixed to any merchandise dis- played, held, stored or offered for sale in a store or other retail mercantile establish- A-23 ment and attempts to purchase such merchan- dise personally or in consort with another at less than the full retail value with the intention of “*epriving the merchant of the full retail value of such merchandise. (3) Transfers any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establish- ment from the container in which it is dis- played to any other container with intent to deprive the merchant of the full retail value. (B) Any person violating the provisions of this section shail be deemed guilty of a misdemeanor and upon conviction shall be punished in accordance with the following: (1) By a fine of not more than six hun- dred dollars or imprisonment for not more than six months, or both, for the first of- fense. Provided, however, that if the value of the shoplifted merchandise is less HREREREBR BEE SSSR 532-=°5° A-24 than fifty Aollars, the punishment shall be a fine of not more than one hundred dollars or imprisonment for not more than thirty days. (2) By a fine of not more than one thousand dollars or imprisonment for not more than one year, or both, for a second offense. (3) By imprisonment for not less than one year nor more than five years for a third or subsequent offense. HISTORY: 1978 Act No. 507 §2, eff May 30, 1978. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2725%3A1. Public record. Not legal advice.