# Respondents Brief — Alabama v. Shelton

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0448%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 654

## Text

Supreme Court, U.S
> : " FILED

AUG 17 200!

No. 00-1214

In The
Supreme Court of the United States

STATE OF ALABAMA,

Petitioner,
VS. :

LEREED SHELTON,

Respondent.

On Writ Of Certiorari
To The Supreme Court Of Alabama

¢

BRIEF OF RESPONDENT

+

WiiuaM H. Miits
Counsel of Record
Reppen, Miiits & CLARK
940 Regions Bank Building
417 North 20th Street
Birmingham, Alabama 35203
(205) 322-0457
Attorney for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

BEST AVAILABLE COPY

i

TABLE OF CONTENTS

Page
Pee Ge GPS R Es 6 0060 cdcedeccedvoccccccoces i
TABLE OF AUTESORITIBG 2. cccccccccccccccvccccces ii
CONSTITUTIONAL PROVISIONS INVOLVED...... 1
SUMMARY OF THE ARGUMENT ................. 1
PEN 66s cd eckcoceccdewésecsdesdeccedesseces 4

ii
TABLE OF AUTHORITIES
Page
Cases

Allgeyer vs. Louisiana, 165 U.S. 578 (1897)........+++. 13
: a vs. Hamlin, 407 U.S. 25 (1972) ....... passim
rf vs. State, 210 Ga. App. 627, 436 S.E.2d 793 a
Bates vs. Little Rock, 361 U.S. 516 (1960)..........++. 13
Berra vs. United States, 221 F.2d 590 (8th Cir. 1955) .... 15
Betts vs. Brady, 316 U.S. 455 (1942).......6.seeees 27, 31
Black vs. Romano, 471 U.S. 606 (1985)..........00005: 23
Board of Regents vs. Roth, 408 U.S. 564 (1972)........ 12
Bolling vs. Sharpe, 347 U.S. 497 (1954) ......-00eeeees 12

Bowers vs. State, 565 So.2d 1203 (Ala. Crim. App.
beh nbechebessecdecrcduccsdcosicccsonccencece 15
Boyd vs. Dutton, 405 U.S. 1 (1972).......sseeeeeeeees 32
Bracy vs. Gramsley, 520 U.S. 899 (1997) ........0.00:. 29

Byrd vs. State, 717 So.2d 874 (Ala. Crim. App.
ERG TOTSTTITT TIT TTTTT TILT 23

Carlton vs. State, 507 So.2d 998 (Ala. Crim. App
BIDE oo vvccccccccccccescvccccccscccccccccccccccece 25
Carnley vs. Cochran, 369 U.S. 506 (1962) ..........+05: 4
Coleman vs. Alabama, 399 U.S. 1 (1970) ........00000: 32

Commonwealth vs. Vincente, 405 Mass. 278, 540
NE.2d 669 (1989).......cccceceeee eee eeeeeeeeenees 25

Consolidated Edison Company vs. Public Service Com-
mission of New York, 447 U. S. 530 (1980)........... 13

iii

TABLE OF AUTHORITIES - Continued

Page

Edwards vs. State, 173 Ga. App. 589, 327 S.E.2d 559
SNe REROSES6bbb06b06ScnC0sécceccedeceecocoece: 14
Elkins vs. United States, 364 U.S. 206 (1960).......... 13
Ex Parte Caffie, 516 So.2d 831 (Ala. 1987)............ 24

Ex Parte Hutchison, 264 Ala. 447, 87 So.2d 847
PPO RGSE SENSES SEGCCRSSeoecdesccceesecccoececeees 6
Frank vs. United States, 395 U.S. 147 (1969).......... 16
Gagnon vs. Scarpelli, 411 U.S. 778 (1973).......... 23, 24

Gibbons vs. State, 775 S.W.2d 790 (Tex. App. 1989) .... 14

Gideon vs. Wainwright, 372 U.S. 335
BEEBPEPPSTTT TTT TTT TT TTT TT TTTee 9, 24, 27, 31, 32

Goolsby vs. State, 283 Ala. 269, 215 So.2d 602 (1968) .... 30
Griffin vs. Wisconsin, 483 U.S. 868 (1987) ......... 13, 15

Hamilton vs. State, 43 Ala. App. 192, 186 So.2d 108
ORC eGSSeGeedeeeseseosbedsnasesdocececcesoses 6

Hoffart vs. State, 686 S.W.2d 259 (Tex. App. 1985) .... 14
Holcomb vs. State, 644 So.2d 46 (Ala. Crim. App.

DP eeeneeeeSebeedesbeeeesedeesedéacecccoceces 24
Hustler Magazine vs. Falwell, 485 U.S. 46 (1988)...... 13
In Re: Griffiths, 413 U.S. 717 (1973)............00005. 13
In Re: Murchison, 349 U.S. 133 (1955)............. 29, 30

Jent vs. State, 495 So.2d 123 (Ala. Crim. App. 1986) ..

Johnson vs. State, 729 So.2d 897 (Ala. Crim. App.
SECS PRS SROs Cebccdeodssecccccecceqcescececcces 24

Katz vs. United States, 389 U.S. 347 (1967) ........... 13

iv

TABLE OF AUTHORITIES - Continued

Page
Kent vs. Dulles, 357 U.S. 116 (1958)........---eeeeee: 12
King vs. State, 574 So.2d 1013 (Ala. Crim. App.

TID)... vccccccccccccccccccccccccccsccccescccecsese 14
Land vs. State, 262 Ga. 898, 426 S.E.2d 370 (1993) .... 14
Lindsay vs. State, 606 So.2d 652 (Fla. App. 1992)..... 16
Lyda vs. State, 428 P.2d 347 (Okla. Crim. App.

BOGP). occccccccescccccscccccccccccceccceseecsecoees 7
Mann- vs. State, 154 Ga. App. 677, 269 S.E.2d 863

(1GBD) oo. cccccceccccccccsccccccccccececccccsescess 15
Mar. vs. State, 507 So.2d 1043 (Ala. Crim. App.

BOB). cccccccccccccccccccssccccccccceccegecessoes 14
Mayer vs. City of Chicago, 404 U.S. 189 (1971)........ 32
McCaskey vs. State, 589 So.2d 790 (Ala. Crim. App.

WDE). ccccccccescccccccccccccecescecccccccccoeess 24
Meyer vs. Nebraska, 260 U.S. 390 (1923)......-.-+++++ 12
Michael H. vs. Gerald D., 491 U.S. 100 (1989) ........ 12
Michigan vs. Harvey, 494 U.S. 344 (1990)...........-- 10
Moore vs. Illinois, 434 U.S. 220 (1977)........+--++++: 32
Morrissey vs. Brewer, 408 U.S. 471 (1972)......-..-- 7, 24
N.A.A.C.P. vs. Alabama, 357 U.S. 449 (1958).......--- 13
Nichols vs. United States, 511 U.S. 738 (1994). .4, 7, 9, 28
People vs. Brockelman, 933 P.2d 1315 (Colo. 1997)..... 14
People vs. DiStefano, 550 N.Y.S.2d 989 (1989)......... 14

People vs. Horton, 628 P.2d 117 (Colo. App. 1980) .... 15

Vv

TABLE OF AUTHORITIES - Continued

Page
People vs. Kimbrell, 291 Ill. App. 3d 605, 684 N.E.2d
SU aie ee Re ee 14
People vs. Mason, 97 Cal. Rptr. 302, 488 P.2d 630
SEPP E owes ebedbnadcecceseuabedeesesebéeeeecssisce 15
People vs. Miller, 256 Cal. Rptr. 587 (Cal. App.
Pe neecedesecdotonscosunecnséuceeseececsccecesse 15
People vs. Mitchell, 178 Cal. Rptr. 188, 125 Cal.
App. 3d 715 (1981)......... . eheeoccecesccceoseces 15
People vs. Pickens, 186 Ill. App. 3d 456, 542 N.E.2d
BD Gee Pe wccvcsccccess ed peeecedecosenaesesedsces 14
People vs. Simmons, 35 Ill. App. 3d 627, 342 N.E.
Bey Geeeeiscesccccedcces ed seeoceseosesese ‘ ee
Persall vs. State, 31 Ala. App. 309, 16 So.2d 332
eee ebSencdandcccudessbecadesenséssivescceseocké 6, 7
Powell vs. Alabama, 287 U.S. 45 (1932)......... 9, 24, 32
Powell vs. State, 485 So.2d 379 (Ala. 1986)........... 24
Roberts vs. United States, 320 U.S. 264 (1943).......... 6
Roe vs. Wade, 410 U.S. 113 (1973) ..............0000. 13
Scott vs. Illinois, 440 U.S. 367 (1979)............. passim
Sherer vs. State, 486 So.2d 1330 (Ala. Crim. App.
See Sdsesentecsécdccsonspanddeccacdiesoessceccees 14
State vs. Adape, 14 Kan. App. 2d 521, 794 P.2d 672
oP Sbadbnnshdnesetanbestocdecedecsdéecccaueccecs 7
State vs. Brown, 165 Vt. 79, 676 A.2d 350 (1996) ...... 8

State vs. Davis, 107 Idaho 215, 687 P.2d 998 (1984) ....
State vs. Fimbres, 108 Ariz. 430, 501 P.2d 14 (1972) ....

vi

TABLE OF AUTHORITIES - Continued

Page

State vs. Janise, 116 Ariz. 557, 570 P.2d 499 (1977)....

State vs. Josephson, 125 Idaho 119, 867 P.2d 993
(1993)... ccccccccccccccccccccccccvesccsesssceescess

(1990)... cccccccccsccccccccccccccccesscescccccens
State vs. Turner, 142 Ariz. 138, 688 P.2d 1030 (1984) ....
State vs. Williamson, 237 So.2d 69 (Fla. App. 1970) ....

Stevenson vs. Holgman, 254 Ore. 94, 458 P.2d 414
(19GB) .. cccccccccccccccsccccccccvcecceesecesccsees

Strickland vs. Washington, 466 U.S. 668 (1984)........
Sutton vs. State, 191 N.E.2d 104 (Ind. 1963)........-.

Thomas vs. State, 508 So.2d 310 (Ala. Crim. App.
BOBT) . .cccccccccccccccccccescccccccvccsvcccesseces

United States vs. Ash, 413 U.S. 300 (1973).........---
United States vs. Bortels, 962 F.2d 558 (6th Cir.

BOGBD. oc cccccccccccccccccccsccdecccccusessevescese
United States vs. Brown, 488 F.2d 94 (5th Cir. 1973) ....
United States vs. Clark, 918 F.2d 843 (9th Cir. 1990) ....
United States vs. Farmer, 512 F.2d 160 (6th Cir.

15

———_—

Vii

TABLE OF AUTHORITIES - Continued

Page
United States vs. Grayson, 438 U.S. 41 (1978)......... 28
United States vs. Johnson, 455 F.2d 932 (5th Cir.

PETS bdanevenshiscosebddedsesoensasussdédcciceses 25
United States vs. Lowe, 654 F.2d 562 (9th Cir. 1981) .... 14
United States vs. Reilley, 948 F.2d 648 (10th Cir.

SED CESSSN cdeeede veces scanscebedvanckocacecets 8, 26
'Inited States vs. Robel, 389 U.S. 258 (1967) .......... 12
United States vs. Tolla, 781 F.2d 29 (2nd Cir. 1986) .... 15
United States vs. Tucker, 404 U.S. 443 (1972) ......... 30
United States vs. Turner, 44 F.3d 900 (10th Cir. 1995) .... 14
United States vs. White, 529 F.2d 1390 (8th Cir.

PMR Ranb eSvecincdensnseddedcddcbisceadsdeceseeses 8
Upchurch vs. State, 289 Minn. 520, 184 N.W.2d 607

PEN Osdoeenasehdondénvcbdantedseedensss siéctcce 15
Washington vs. Gluckenberg, 521 U.S. 702 (1997)...... 12
Washington vs. State, 577 So.2d 473 (Ala. Crim.

SEY MU S0sdScscenewipeddcdesdesneseceséoncnesis 25
Weaver vs. State, 515 So.2d 79 (Ala. Crim. App.

SP NGrESedabntEOSESERL cotetepebsoandsedeseccese 14
Whaley vs. United States, 324 F.2d 356 (9th Cir.

BORD cc ccccces we egteeeeeeeeewessercessesssessceecs 15
Wilcox vs. State, 395 So.2d 1054 (Ala. 1981).......... 20
Wray vs. State, 472 So.2d 1119 (Ala. 1985)............ 6
Zemel vs. Rusk, 381 U.S. 1 (1965).................005 12

viii
TABLE OF AUTHORITIES - Continued

Page
CONSTITUTION |
U.S. Const. Amend. VI .......... see ee eeeeeeees passim
U.S. Const. Amend. XIV........ piciasetoevenibases 1,7
STATUTES AND CODES
18 U.S.C. § 3563(a)(1).. 6. cece cece e cece eee e eee eeeeees 20
18 U.S.C. § 3563(b)(5)...... cece cece cece tence eee eeees 15
18 U.S.C. § 3563(b)(6).. 2... cece cece cece e eee eee nees 14
18 U.S.C. § 3563(b)(10).. 0... cece cece eee eee ee ee eens 15
18 U.S.C. § 3563(b)(13), (14)... 6... cece e eee eee eens 14
18 U.S.C. § 3563(b)(15).. 0... cece eee cece e eee e eens 14
18 U.S.C. § 3563(b)(16), (17)... 2-6 cece cence eee ee eens 15
ALA.CODE § 12-12-3 (1975). ......0ceee eee eeeeeeees 29
ALA.CODE § 12-12-32(a) (1975) ........- see ceeeeeees 29
ALA.CODE § 12-12-70(b) (1975).........++-- Acechene 29
ALA.CODE § 15-22-50 (1975) ........ecscceeeeeeenens 5
ALA.CODE § 15-22-52 (1975) .......0eceeeeeeeeeeees 14
GA. CODE ANN. § 17-10-1(a)(1) (1997) ..........-05: 6
IND. CODE § 35-38-2.6-3 (1976)........2e cc ceeeeeeeee 6
MASS. ANN. LAWS ch. 279 §§ 1, 1A (1991).......... 6
MISS. CODE ANN. § 47-7-33 (1972)......-..+eeeeeee 6
OHIO REV. CODE ANN. § 2929.51 (Baldwin 1953) ..... 6

OKLA. STAT. tit. 22, § 991(a) (1992).........0eeeeenes 6

ix
TABLE OF AUTHORITIES - Continued

TENN. CODE ANN. §§ 40-20-101, 203, 210;

PE NEE oe ondwccccsesseesccnccccescce

RULES AND REGULATIONS
Ala.R.Crim.P. 26.2

Ala.R.Crim.P. 27.2
Ala.R.Crim.P. 27.6(d)(1)
Ala.R.Crim.P. App., Form 99

ALA. CANONS OF JUDICIAL ETHICS 3C(1)(a)
Fed.R.Evid. 1101(d)(3)

OTHER AUTHORITIES

SOURCEBOOK OF CRIMINAL JUSTICE STATIS-
TICS 484, U.S. DEPT. OF JUSTICE (1999)

Bureau of Justice Statistics, U.S. Dept. of Justice,
Press Releases (August 18, 1997, August 16,

1998, August 22, 1999, July 23, 2000)...........

COMPENDIUM OF FEDERAL JUSTICE STATIS-
TICS 81, U.S. DEPT. OF JUSTICE (1997)

SOURCEBOOK OF CRIMINAL JUSTICE STATIS-
TICS 494, U.S. DEPT. OF JUSTICE (1999)

Examining Probationer Recidivism in Michigan,
CORRECTIONS COMPENDIUM (December

Factors samen Fe yey Outcome: A Review of
the Literature, FEDERAL PROBATION 23 (June
1993)

WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 1303 (1971)

eee eeeeeeeeeeeereeeeeeeeeeeee

—— ee oe -

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment provides:

In all criminal prosecutions, the accused shall enjoy
the right . . . to have the assistance of counsel for his
defense.

The Fourteenth Amendment provides:

. . » No state shall make or enforce any law which
shall abridge the privileges or immunities of citizens of
the United States; nor shall any siate deprive any person
of life, liberty or property, without due process or law;
nor deny any person within its jurisdiction the equal
protection of the laws.

+

SUMMARY OF THE ARGUMENT

I. Before a defendant can receive a suspended sen-
tence and probation under the law of Alabama and some
other jurisdictions judgment and sentence must first be
imposed. The judgment and sentence remain in effect in
spite of the subsequent suspension of the sentence and
probation. A suspended sentence after conviction is dif-
ferent from, and more onerous than, a pre-trial threat of
imprisonment from a mere accusation before there is a
conviction. Incarceration will follow if probation is
revoked. A convicted defendant who receives a jail sen-
tence which is suspended is sentenced to a term of
imprisonment within the meaning of Scott vs. Illinois.
Consequently, the Sixth Amendment right to counsel
applies.

Il. The Sixth Amendment right to counsel, as
applied in Argersinger vs. Hamlin and Scott vs. Illinois,
operates to prevent a deprivation of a person's liberty by
insuring a fair trial in misdemeanor prosecutions. This
protection applies to all State ordercd deprivations of
liberty. It is not confined to protection against physical
restraint, which is only one form of deprivation of liberty.
The imposition of a suspended sentence and probation
following conviction of a crime, even if only for a misde-
meanor, imposes upon a defendant onerous burdens
which deprive a person of liberty. Restraints on many
recognized liberties, including the rights to free speech,
travel, association, employment of choice, and privacy,
are universally recognized as proper conditions of proba-
tion. Since the sanction of probation is inherently a depri-
vation of liberty, the Sixth Amendment right to counsel
should apply in cases where a defendant's liberty is
deprived by a suspended sentence and probation the
same as it applies where a defendant's liberty is deprived
by a sentence of immediate incarceration.

III. A. misdemeanant who receives a suspended sen-
tence and probation is subject to having the probation
revoked. Revocation of probation can, and usually does,
result in incarceration. A probationer who is revoked and
incarcerated suffers actual imprisonment. If an uncoun-
seled misdemeanant can be sentenced to a suspended
sentence and probation, and then revoked and incarcer-
ated, the result is no different from that of an uncoun-
seled misdemeanant who is convicted and immediately
incarcerated. Both suffer actual imprisonment from an
uncounseled conviction.

A substantial percentage of misdemeanor proba-
tioners are revoked and incarcerated. No rational basis
exists for a distinction in the application of the Sixth
Amendment's right of counsel to misdemeanants who are
immediately incarcerated and those whose incarceration
is delayed by a suspended sentence and probation that is
subsequently revoked. To prevent this disparity in the
benefit of Sixth Amendment rights the same rule with
respect to right of counsel should apply to defendants
convicted of misdemeanors and given suspended sen-
tences and probation as applies to misdemeanants sen-
tenced to immediate terms of incarceration.

IV. Argersinger vs. Hamlin and Scott vs. Illinois
should be overruled to the extent that they do not extend
the Sixth Amendment’s right to counsel to all cases where
a sentence of imprisonment is an authorized penalty. The
effect of these decisions is to require an awkward and
ethically questionable pre-judging by a trial judge of the
factors which determine the degree and nature of the
penalty for a misdemeanor conviction. Such a pre-
judging necessarily detracts from the ability of a trial
judge, who is usually the trier of fact in misdemeanor
cases, to be an impartial trier of facts because making the
assessments required by Argersinger means that the trial
judge must acquire information in advance of trial about
the nature of the defendant’s conduct and the defendant's
past record. Also, the practice of deciding in advance of
trial about the bounds of punishment denies a trial judge
the power to exercise judicial discretion in determining
the degree of punishment appropriate for a particular
offense after hearing the trial evidence regarding that
offense. A more workable and consistent practice, which

would assure that no uncounseled defendants would be
incarcerated, is to require counsel in all cases where a jail
sentence is an authorized penalty.

V. Assuring a fair trial in criminal prosecutions has
a financial cost. To assure that the adversary judicial
system produces a fair result the public must bear that
financial burden. The financial burden of providing coun-
sel in misdemeanor prosecutions where a jail sentence is
an authorized penalty has not proven to be intolerable. A
great majority of the States now provide this service,
which is a fair indication that the remaining States can
also tolerate the additional cost this will entail.

¢

ARGUMENT

Basing their position on Argersinger vs. Hamlin, 407
U.S. 25 (1972), Scott vs. Illinois, 440 U.S. 367 (1979), and
Nichols vs. United States, 511 U.S. 738 (1994), the Petitioner
and Amici aligned with it argue that the right of counsel
guaranteed by the Sixth Amendment? does not apply to a
person convicted of a misdemeanor and sentenced to a
jail term which is subsequently suspended on the condi-
tion of probation. The Respondent submits that this posi-
tion is (1) not supported by the Argersinger, Scott, and
Nichols decisions, (2) will accomplish results that are

1 The right of counsel when refered to in this brief will refer
to the right of every defendant to be informed of this right as
well as the right of indigents to appointed counsel. See Carnley
vs. Cochran, 369 U.S. 506, 516-17 (1962).

inimical to Argersinger and Scott, and (3) is contrary to
principles firmly established by this Court.

I. A SUSPENDED SENTENCE IS.A SENTENCE TO A
TERM OF IMPRISONMENT, NOT MERELY A
THREAT OF IMPRISONMENT, WITHIN THE
MEANING OF SCOTT VS. ILLINOIS.

The argument that a jail sentence for a misdemeanor
which is subsequently suspended on the condition of
probation is merely a threat of imprisonment, and not a
sentence to a term of imprisonment which invokes the
Sixth Amendment right to counsel described in Scott vs.
Illinois and Argersinger vs. Hamlin, is grounded on a
superficial analysis of those decisions which takes a
restricted view of their rationale and stresses a literal
reading of the term “actual imprisonment”. This analysis
also overlooks the procedure by which a defendant
receives a suspended sentence and probation under Ala-
bama law (and the law of other jurisdictions) and over-
looks the full significance of a suspended sentence and
probation following an adjudication of guilt.

Under Alabama law a court, upon a determination of
guilt, must pronounce judgment against and sentence the
defendant. See Ala.R.Crim.P. 26.2. It is only after judg-
ment has been entered and a sentence imposed (which
means a sentence of confinement if that is the sentence
suspended) that a court is authorized to suspend the
sentence and place the defendant on probation. See
ALA.CODE § 15-22-50 (1975); Ala.R.Crim.P. App., Form
99 (“ .. . has been convicted of __ and has been sen-
tenced to __. It is hereby ordered that said sentence is

hereby suspended, and the defendant is placed on proba-
tion... ”.). That was the procedure followed in Peti-
tioner’s case in the Alabama court (App.26). The laws of
other jurisdictions establish similar procedures. See, e.g.,
GA. CODE ANN. § 17-10-1(a)(1) (1997); IND. CODE
§ 35-38-2.6-3 (1976); MASS. ANN. LAWS ch. 279 §§ 1, 1A
(1991); MISS. CODE ANN. § 47-7-33 (1972); OHIO REV.
CODE ANN. § 2929.51 (Baldwin 1953); OKLA. STAT. tit.
22, § 991(a) (1992); TENN. CODE ANN. §§ 40-20-101, 203,
210; § 40-35-303 (1955).

Under Alabama law the suspension of a sentence and
the grant of probation does not operate to alter or set
aside the judgment and sentence. Even with a suspension
of the sentence and a grant of probation the judgment
and sentence remain in full force and effect, and the
defendant receives no credit on the suspended sentence
for time served on probation if probation is revoked. See
Wray vs. State, 472 So.2d 1119, 1121 (Ala. 1985); Ex Parte
Hutchison, 264 Ala. 447, 87 So.2d 847, 850 (1956); Hamilton
vs. State, 43 Ala. App. 192, 186 So.2d 108, 114 (1965);
Persall vs. State, 31 Ala. App. 309, 16 So.2d 332, 334 (1944).
The suspended sentence can be converted into incarcera-
tion by merely revoking probation.

The concept that a sentence though suspended
remains a sentence to imprisonment has been recognized
by a decision of this Court (which was rendered at a time
when federal sentencing procedures were more like the
present Alabama procedure). See Roberts vs. United States,
320 U.S. 264, 266 (1943) (“Neither probation nor suspen-

sion of execution rescinded the judgment sentencing peti-
tioner to imprisonment . . . ”). Other State courts have

made similar pronouncements. See, e.g., Sutton vs. State,

191 N.E.2d 104, 106 (Ind. 1963); State vs. Adape, 14 Kan.
App. 2d 521, 794 P.2d 672, 676 (1990); Lyda vs. State, 428
P.2d 347 (Okla. Crim. App. 1967). The concept under
Alabama law is that a suspended sentence is still a sen-
tence of imprisonment the probationer is merely serving
outside the prison walls. See Persall vs. State, supra. The
same idea was described by this Court in Morrissey vs.
Brewer, 408 U.S. 471, 477 (1972) where parole, a similar
arrangement to probation with a suspended sentence,
was referred to as a “variation on imprisonment.”

Consequently, if we give full meaning to the words of
the penultimate sentence of the majority opinion in the
Scott case, sentencing under Alabama law to a jail term
with a subsequent suspension of the sentence on the
condition of probation is a sentence to a term of
imprisonment.

Petitioner’s argument that the Scott and Nichols cases
make a distinction between incarceration and a mere
“threat of incarceration” fails to appreciate the fact that
the comparison referred to in those cases was in a differ-
ent context. The threa\ of incarceration referred to in Scott
and Nichols is the pre-trial potential of incarceration
allowed by law for the offense charged if the defendant is
convicted. There is a vast difference between the threat of
incarceration facing an accused, who is presumed inno-
cent, and what faces a defendant already convicted and

2”... [The Sixth and Fourteenth Amendments to the
United States Constitution require only that no indigent
criminal defendant be sentenced to a term of imprisonment unless
the State has afforded him the right to assistance of appointed
counsel in his defense.” (Emphasis added).

under a suspended sentence. The “if convicted” condition
has been removed. Only probation revocation (a subject
more fully discussed in Part III =‘ this brief), which is a
thin reed as compared to the “it «o..victed” status, stands
between the defendant and iacarceration. The argument
which seeks to equate the pre-trial threat and the post-
conviction threat of incarceration should be rejected.

Well reasoned decisions of the Sixth Circuit, the
Tenth Circuit, and the Supreme Court of Vermont have
reached the conclusion that a suspended sentence is a
sentence of imprisonment which invokes the right to
counsel. See United States vs. White, 529 F.2d 1390, 1394
(8th Cir. 1976); United States vs. Reilley, 948 F.2d 648, 654
(10th Cir. 1991) (“If a defendant cannot be ordered to
serve a sentence of imprisonment, it seems obvious that a
conditional sentence of imprisonment is equally
invalid”); State vs. Brown, 165 Vt. 79, 676 A.2d 350, 354
(1996). These decisions merit consideration as being
instructive for this case.

The Petitioner’s argument should, for the simple rea-
son that a suspended jail sentence is a sentence to a term
of imprisonment within the meaning of the Argersinger
and Scott decisions, be rejected.

ll. A SUSPENDED SENTENCE AND PROBATION IS
A DEPRIVATION OF LIBERTY WHICH INVOKES
THE CONSTITUTIONAL RIGHT TO COUNSEL.

The Petitioner's argument over emphasizes the sig-
nificance of the term “actual imprisonment” from the
Scott and Argersinger opinions. It projects “actual

imprisonment” as the only sanction with which the Arger-
singer and Scott cases are philosophically concerned in
the context of the constitutional right to counsel. An
argument cast in these terms misses the full meaning of
the Scott and Argersinger decisions.

A. The Argersinger and Scott cases are concerned
with all uncounseled convictions which result
in deprivation of liberty, not solely with those
which result in physical restraint.

The dominating theme and goal of Argersinger and
Scott is protecting against an uncounseled conviction that
leads to a “deprivation of liberty”. This mission is not
limited to merely preventing a deprivation of liberty by
immediate incarceration. Neither the Scott nor Argersinger
(nor Nichols) holds or infers that a suspended jail sen-
tence and probation in a misdemeanor case does not
invoke the right to counsel. It was not, of course, neces-
sary to consider that issue in either case. Argersinger
involved an immediate jail sentence and Scott and Nichols
involved only a fine. Petitioner's argument seeks to
extend Scott (and Argersinger and Nichols) beyond their
peculiar facts without considering the full import of the
constitutional objective those cases sought to accomplish.

Citing principles established by such landmark deci-
sions as Powell vs. Alabama, 287 U.S. 45 (1932) and Gideon
vs. Wainwright, 372 U.S. 335 (1963), both the Argersinger
and the Scott opinions make it clear that the basic func-
tion of the Sixth Amendment's right to counsel is to
guarantee a fair trial in criminal prosecutions in order to
protect the constitutional right of every person to liberty.

10

The thrust of both decisions is that government may not
deprive a person of liberty through the agency of a crimi-
nal conviction, even if the conviction is only of a misde-
meanor, if that person did not have the benefit of counsel
in the guilt adjudication process. See also United States vs.
Ash, 413 U.S. 300, 309 (1973); Michigan vs. Harvey, 494 U.S.
344, 348 (1990); Strickland vs. Washington, 466 U.S. 668,
684-85 (1984).

The Argersinger opinion speaks often of the right to
counsel being related to the circumstance “where an
accused is deprived of his liberty”. 407 U.S. at 32. It
defines the scope of the Court’s consideration in that ones
by excluding cases “where loss of liberty is not involved”.
407 U.S. at 37. The Argersinger opinion quotes approv-
ingly from Stevenson vs. Holgman, 254 Ore. 94, 102, 458
P.2d 414, 418 (1969), which stated: “We hold that no
person may be deprived of his liberty who has been
denied the assistance of counsel .. . ” 407 U.S. 37-38. The
concluding sentence of the Argersinger majority opinion
stresses the deprivation of liberty theme with these
words:

But in those that end up in the actual deprivation

of a person's liberty, the accused will receive the

benefit of ‘the guiding hand of counsel’ so nec-

essary when one’s liberty is in jeopardy. 407 U.S.

at 40. [Emphasis added]

The Scott opinion quotes the last sentence from the
Argersinger opinion set out above. 440 U.S. at 370. The
Scott opinion further emphasizes the concept that the evil
to be avoided is a deprivation of liberty without the
assistance of counsel in a further reference to the Arger-

11

The Court in its opinion repeatedly referred to
trials ‘where an accused is deprived of his lib-
erty,’ id., at 32, and to ‘a case that actually leads
to imprisonment even for a brief period,’ id., at
33.. The Chief Justice in his opinion concurring
in the result also observed that ‘any deprivation
of liberty is a serious matter’ id., at 41.

The Argersinger and the Scott opinions can only be
read as pronouncements on a broader concern than
purely physical restraint by confinement - the concern
that no defendant be deprived of liberty by a criminal
conviction obtained in a proceeding where the defendant
was not afforded the right to counsel. Actual imprison-
ment, or physical restraint, as the prior decisions of this
Court discussed below make clear, is only one form of
deprivation of liberty. Therefore, a core issue of the pre-
sent case is whether a suspended jail sentence and the
imposition of a term of probation is a deprivation of
liberty. If it is, no apparent rationale exists for the consti-
tutional right to counsel to be denied in such cases.

B. A suspended sentence on the condition of pro-
bation is a deprivation of liberty.

To fully appreciate the concept of “deprivation of
liberty” it is instructive to first fully appreciate the con-
cept of “liberty”. Webster defines liberty as “the quality or
state of being free”, “freedom from usually external
restraint or compulsion”, “the power to do as one
pleases”, and “exemption from subjection to will of
another”. WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 1303 (1971). Decisions of this Court have
elaborated on the meaning of liberty as guaranteed by the

12

Constitution. In Meyer vs. Nebraska, 260 U.S. 390 (1923)
this Court spoke of liberty in broad terms:

Without doubt, it denotes not merely freedom
from bodily restraint but also the right of the
individual to contract, to engage in any of the
common occupations of life, to acquire useful
knowledge, to marry, establish a home and
bring up children, to worship God according to
the dictates of ones own conscience, and gener-
ally to enjoy those privileges long recognized by
common law as essential to the orderly pursuit
of happiness by free men.

260 U.S. at 399. In Bolling vs. Sharpe, 347 U.S. 497 (1954)
this Court made it clear that liberty:

... is not confined to mere freedom from bodily
restraint. Liberty under the law extends to the
full range of conduct which the individual is
free to pursue...

347 U.S. at 499. The same idea that “liberty” is a broad
right and is not confined to mere freedom from physical
restraint can be found in other decisions. See, e.g., Wash-
ington vs. Gluckenberg, 521 U.S. 702, 719 (1997); Michael H.
vs. Gerald D., 491 U.S) 100, 121 (1989); Board of Regents vs.
Roth, 408 U.S. 564, 572 (1972). When Argersinger and Scott
spoke of “liberty” they undoubtedly were referring to the
same concept as described and defined in these cases.

Decisions of this Court have also been specific in
identifying the components of lib@rty. It has been made
clear that the liberty guaranteed by the Constitution
includes: the right to travel (see Zemel vs. Rusk, 381 U.S. 1,
14 [1965]; Kent vs. Dulles, 357 U.S. 116, 125-26 [1958]), the
right of association (see United States vs. Robel, 389 U.S.

13

258, 262-63 [1967]; Bates vs. Little Rock, 361 U.S. 516, 522
[1960]; N.A.A.C.P. vs. Alabama, 357 U.S. 449, 460 [1958)]),
the right to choose and follow an occupation or profes-
sion (see In Re: Griffiths, 413 U.S. 717, 720 [1973]; Allgeyer
vs. Louisiana, 165 U.S. 578, 589-90 [1897], the right of free
speech (see Hustler Magazine vs. Falwell, 485 U.S. 46, 51

'[1988]; Consolidated Edison Company vs. Public Service Com-

mission of New York, 447 U.S. 530, 534 [1980]), and the
right of privacy and freedom from governmental intru-
sion (see Roe vs. Wade, 410 U.S. 113, 152 [1973]; Katz vs.
United States, 389 U.S. 347, 350 [1967]; Elkins vs. United
States, 364 U.S. 206, 213 [1960]). Any restrictions on the
exercise of any of these rights is obviously a deprivation

of liberty.

A suspended sentence and the imposition of proba-
tion following a conviction unquestionably interferes
with the “full range of conduct which the individual is
free to pursue” and invariably operates to deprive a
probationer of some of “those privileges long recognized
by common law as essential to the orderly pursuit of
happiness by free men.”. This conclusion was pointedly
recognized by this Court in Griffin vs. Wisconsin, 483 U.S.
868, 874 (1987) with the statement that probationers “do
not enjoy ‘the absolute liberty to which every citizen is
entitled’.” This is true from the moment probation is
imposed.

A brief reference to some of the liberty-depriving
consequences of probation that are permitted in the
United States will further illustrate the conclusion that
probation is destructive of liberty. A probationer’s free-
dom of association can be impaired in that a probationer
can be restricted from associating with or even contacting

14

certain persons. See, e.g., 18 U.S.C. § 3563(b)(6); United
States vs. Bortels, 962 F.2d 558, 559-60 (6th Cir. 1992); King
vs. State, 574 So.2d 1013, 1014 (Ala. Crim. App. 1990);
State vs. Nickerson, 164 Ariz. 121, 791 P.2d 647, 649 (1990);
State vs. Davis, 107 Idaho 215, 687 P.2d 998, 1000 (1984);
People vs. Kimbrell, 291 Ill. App. 3d 605, 684 N.E.2d 443,
445 (1997); People vs. DiStefano, 550 N.Y.S.2d 989, 992
(1989). A probationer can be required to remain in a
specified geographical area or to refrain from going into a
specified geographical area, thereby restricting freedom
of travel. See, e.g., 18 U.S.C. § 3563(b)(13), (14); United
States vs. Lowe, 654 F.2d 562, 567 (9th Cir. 1981); King vs.
State, 574 So.2d 1013, 1014 (Ala. Crim. App. 1990); Weaver
vs. State, 515 So.2d 79, 82 (Ala. Crim. App. 1987); Sherer
vs. State, 486 So.2d 1330, 1332-33 (Ala. Crim. App. 1986);
People vs. Brockelman, 933 P.2d 1315, 1319-20 (Colo. 1997);
Edwards vs. State, 173 Ga. App. 589, 327 S.E.2d 559, 561
(1985); People vs. Pickens, 186 Ill. App. 3d 456, 542 N.E.2d
1253, 1256 (1989); Gibbons vs. State, 775 S.W.2d 790, 795
(Tex. App. 1989). Most probationers are required to report
as directed to a probation officer, a requirement that may
affect the right to travel and which certainly affects the
right to be free from external compulsion. See, e.g., 18
U.S.C. § 3563(b)(15); ALA. CODE § 15-22-52 (1975). A
probationer may have restrictions placed on participation
in political activities, which impairs free speech and
expression. See United States vs. Turner, 44 F.3d 900, 903
(10th Cir. 1995); Markley vs. State, 507 So.2d 1043, 1050-52
(Ala. Crim. App. 1987); Land vs. State, 262 Ga. 898, 426
S.E.2d 370, 374 (1993); Hoffart vs. State, 686 S.W.2d 259,
264 (Tex. App. 1985). A probationer does not have the
same right of privacy and freedom from unreasonable

15

searches as other persons. See Griffin vs. Wisconsin, supra
at 874. In some jurisdictions a consent to a warrantless
search is recognized as a proper condition for probation.
See, e.g., United States vs. Gordon, 540 F.2d 452, 453 (9th
Cir. 1976); State vs. Turner, 142 Ariz. 138, 688 P.2d 1030,
1036 (1984); People vs. Mason, 97 Cal. Rptr. 302, 488 P.2d
630, 632 (1971); State vs. Josephson, 125 Idaho 119, 867 P.2d.
993, 996 (1993). In this same vein, the federal probation
statute requires a probationer to permit a probation offi-
cer to visit in the probationer’s home and requires a
probationer to answer any inquiries of a probation officer.
See 18 U.S.C. § 73563(b)(16), (17). A probationer can be
required to submit to a polygraph test. See, e.g., People vs.
Miller, 256 Cal. Rptr. 587, 589 (Cal. App. 1989); Mann vs.
State, 154 Ga. App. 677, 269 S.E.2d 863, 866 (1980). A
probationer can be prohibited from engaging in a certain
occupation or profession. See, e.g., 18 U.S.C. § 3563(b)(5);
United States vs. Brockway, 769 F.2d 263, 265 (5th Cir.
1985); United States vs. Tolla, 781 F.2d 29, 34-35 (2nd Cir.
1986); Berra vs. United States, 221 F.2d 590, 598 (8th Cir.
1955); Whaley vs. United States, 324 F.2d 356, 359 (9th Cir.
7963). Probationers can be required to spend part of their
time in custody. See, e.g., 18 U.S.C. § 3563(b)(10); Bowers
vs. State, 565 So.2d 1203, 1205-06 (Ala. Crim. App. 1990);
People vs. Horton, 628 P.2d 117, 119 (Colo. App. 1980); State
vs. Williamson, 237 So.2d 69, 70 (Fla. App. 1970); People vs.
Simmons, 35 Ill. App. 3d 627, 342 N.E.2d 187, 190 (1976).
Probationers can be restricted in the use or consumption of
alcoholic beverages. See, e.g., Jent vs. State, 495 So.2d 123,
126 (Ala. Crim. App. 1986); State vs. Janise, 116 Ariz. 557,
570 P.2d 499, 502 (1977); People vs. Mitchell, 178 Cal. Rptr.
188, 190, 125 Cal. App. 3d 715 (1981); Upchurch vs. State,

16

289 Minn. 520, 184 N.W.2d 607, 608 (1971). Probationers
can be required to issue public apologies or do other
things that call attention to their violation of the law. See,
e.g., United States vs. Clark, 918 F.2d 843, 848 (9th Cir.
1990); Lindsay vs. State, 606 So.2d 652, 657-58 (Fla. App.
1992); Ballenger vs. State, 210 Ga. App. 627, 436 S.E.2d 793,
794-95 (1993). In Alabama the conditions of probation
may be modified by a court without a hearing and with-
out notice, a seemingly obvious due process denial. See
Ala.R.Crim.P. 27.2; Thomas vs. State, 508 So.2d 310, 313-14
(Ala. Crim. App. 1987). While this list is not intended to
be exhaustive, it serves to illustrate that a sentence of
probation, from the time it is entered,_is inherently a
deprivation of a probationer’s liberty. See Frank vs. United
States, 395 U.S. 147, 154 (1969) (Warren, C.J., dissenting).

Further deprivations of liberty face a probationer
who is accused of violating the terms of probation and
threatened with revocation. These restrictions are more
fully discussed in Part III of this brief.

A decision in this case should be a substantiation of
the teachings of Argersinger and Scott that there can be no
deprivation of liberty by a process that does not meet
constitutional standards. The Argersinger and Scott cases
inculcate that a suspended sentence and probation in a
misdemeanor case, being a deprivation of the defendant's
liberty, is a case that requires a defendant be afforded the
right of counsel. The argument that a defendant in such
circumstances has no right of counsel should be rejected.

17

Ill. A PROBATIONER WHO IS INCARCERATED TO
SERVE A SUSPENDED SENTENCE FOLLOWING
REVOCATION OF PROBATION SUFFERS
ACTUAL IMPRISONMENT.

Even if it be conceded for purposes of argument that
a suspended sentence and probation is not “actual
imprisonment” or a “deprivation of liberty” when
imposed, the Petitioner’s argument for a rule that
excludes misdemeanor defendants who receive such a
penalty from the protection of the Sixth Amendment's
right to counsel ignores the effect of such a rule where
probation is revoked and a probationer incarcerated. The
briefs of Petitioner and Amici aligned with it contain no
reference to this aspect of the present issue. By ignoring
this subject they tacitly argue that it is constitutionally
permissible to incarcerate a revoked probationer even
though no right of counsel was afforded before the proba-
tioner’s guilt was established and a suspended sentence
imposed. Argersinger, Petitioner submits, does not sanc-
tion uncounseled incarceration that is merely delayed.

The fact that a revoked and incarcerated probationer
suffers actual imprisonment is, of course, obvious. The
revoked probationer’s imprisonment is no less “actual”
or “real” than that of the defendant who is sentenced and
immediately incarcerated.

Probation, must, of course, carry with it the authority
of the granting court to revoke and incarcerate. Without
such authority probation would be meaningless and inef-
fective. The reality of probation revocation, and its fairly
high incidence, and the stark truth that for many defen-
dants a suspended sentence and probation is only a way

18

station on the road to incarceration, compels a consider-
ation of whether the rule advocated by the Petitioner can
be squared with the standard of the Scott and Argersinger
decisions — i.e., that no person convicted of a misde-
meanor suffer imprisonment who is not afforded the
right to counsel at trial.

A. Substantial numbers of misdemeanor proba-
tioners are incarcerated following revocation of
probation.

The frequency and volume of incarcerations of mis-
demeanants upon revocation of probation is somewhat
difficult to quantify because of lack of precise statistics.
Available statistics and studies point to the certain con-
clusion that many misdemeanor probationers are revoked
and incarcerated. The fact that many of these incarcerated
probationers had no counsel at trial, especially in those
jurisdictions that follow the rule advocated by the Peti-
tioner, seems reasonably certain.

Statistics published by the United States Department
of Justice show that in 1996-1999 time period the numbers
of adults on probation in the United States were:

1996 — 3,164,996

1997 — 3,296,513

1998 - 3,670,591

1999 — 3,773,624
See SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS
484, U.S. DEPT. OF JUSTICE (1999). Press releases issued

19

by the Bureau of Justice Statistics of the Justice Depart-
ment show that in these same years the following per-
centages of those probationers were on probation for
non-felony offenses:

1996 -— 45%
1997 — 46%
1998 -— 43%
1999 — 48%

See Bureau of Justice Statistics, U.S. Dept. of Justice, Press
Releases (August 18, 1997, August 16, 1998, August 22,
1999, July 23, 2000). These same press releases show that
in these years the following numbers of probationers had
their probation terminated for all reasons:

1996 — 1.5 million
1997 — 1.6 million
1998 — 1.5 million
1999 — 1.9 million

Of these terminated probationers the Justice Department
press releases show the following percentages were ter-
minated and reincarcerated for violating the conditions of
probation:

1996 — 18% (or approximately 270,000)

1997 - 17% (or approximately 272,000)

1998 - 18% (or approximately 270,000)
1999 - 14% (or approximately 266,000)

Admittedly, these figures do not show the number or
percentage of re-incarcerated misdemeanor probationers.
However, statistics published by the Department of Jus-
tice for Federal probations for 1997 and 1998 show that
about 30% of Federal misdemeanor probationers who
were terminated in 1997 and about 20% of Federal misde-
meanor probationers who were terminated in 1998 were

20

terminated for violation of probation conditions or new
crimes.? See COMPENDIUM OF FEDERAL JUSTICE
STATISTICS 81, U.S. DEPT. OF JUSTICE (1997); SOURCE-
BOOK OF CRIMINAL JUSTICE STATISTICS 494, U.S.
DEPT. OF JUSTICE (1999). These statistics indicate that
Federal misdemeanor probationers were re-incarcerated
at a higher rate than probationers in general in these
years. Even if the percentage of misdemeanant revoca-
tions for these years were the same as the misdemea-
nants’ percentage of all probationers (i.e., 45%, 46%, 43%
and 48%), the Justice Department figures indicate that for
these four years well over 100,000 misdemeanor proba-
tioners were reincarcerated each year.

Published studies in professional journals indicate
high revocation rates for probationers. A study published
in Corrections Compendium of a survey of probationer
recidivism in 79 counties in Michigan showed 47 percent
of the probationers in that study who left probation had
their probation revoked. See Maxwell, Bingham, Gray,
Combs, Examining Probationer Recidivism in Michigan,
CORRECTIONS COMPENDIUM (December 2000). This
same study reports earlier studies where revocation rates
ranged from 19 percent to 62 percent. A study published
in the June 1993 edition of Federal Probation includes a
review of the literature on the outcome of probation and
concludes that failure rates (which should be a rough
equivalent of revocation and re-incarceration) range from
14 percent to 51 percent. See Morgan, Factors Influencing

3 A new crime, being a violation of law, is a standard
probation violation. See 18 U.S.C. § 3563(a)(1); Wilcox vs. State,
395 So.2d 1054, 1056 (Ala. 1981).

21

Probation Outcome: A Review of the Literature, FEDERAL
PROBATION 23 (June 1993).

While these statistics and studies do not precisely
identify the number or percentage of uncounseled misde-
meanor probationers who are incarcerated upon revoca-
tion of probation, they do illustrate a problem of
considerable magnitude. Obviously, a large number of
probationers are incarcerated because their probation is
revoked. It seems reasonably certain from available statis-
tics that a large number of these revoked probationers are
misdemeanor probationers. Under the rule advocated by
the Petitioner, each of these revoked misdemeanor proba-
tioners could have been constitutionally convicted at a
trial where no counsel was afforded. The incarceration of
even one revoked misdemeanor probationer who was not
afforded counsel at trial is a failure to meet the constitu-
tional standard expressed in Argersinger and Scott that,
absent a knowing and intelligent waiver, “no person may
be imprisoned for any offense . . . unless he was repre-
sented by counsel at his trial”.

B. A suspended sentence and probation present a
“practical possibility” of incarceration.

It is worth noting that the Argersinger opinion, while
not explicitly dealing with the subject of suspended sen-
tences and probation followed by revocation (those were
not the facts of that case), does recognize (seemingly with
approval) a generic event which would include a sus-
pended sentence and probation that is subsequently
revoked as presenting a circumstance where the right of
counsel must be afforded. The opinion quotes at length

22

from the American Bar Association Project on Standards
for Criminal Justice, which somewhat coincides with the
ultimate ruling in Argersinger. Included in the quoted
portions of the Standard is the Standard’s own descrip-
tion of its dividing line between cases which warrant
counsel and cases which do not warrant counsel:

. .. it draws a categorical line at those types of
offenses for which incarceration as a punish-
ment is a practical possibility. (Emphasis added)

407 U.S. at 39.

Incarceration is certainly a “practical possibility”
when there is a suspended jail sentence which can be
made an actual jail sentence upon revocation of proba-
tion. Therefore, the American Bar Association Standard
and the Argersinger opinion appear to recognize that
counsel should be afforded where there is a suspended
sentence which can become, through the “practical possi-
bility” of probation revocation, incarceration.

C. Providing right to counsel will result in no
constitutionally significant disparity between
indigent and non-indigent misdemeanor defen-
dants.

The argument in Amici’s brief that affording counsel
for suspended sentence cases will result in anomalous
treatment of indigent and non-indigent defendants
(Amici brief, p. 22 et seq.) dwells on an irrelevancy and
misses the point of a much more significant anomaly that
results from the position Amici advocate. The perceived
disparity referred to in Amici’s brief between the repre-
sented indigent and the unrepresented non-indigent who

23

chose to waive counsel has no constitutional implications.
It is the result of free choice on the part of the non-
indigent.

The disparity illustrated by the following scenario is
not a result of free choice and does have constitutional
implications: Prisoner A had counsel (either retained or
appointed) at trial and was convicted of a misdemeanor
and sentenced to a jail term and is serving it. Prisoner A’s
incarceration does not violate the Argersinger-Scott princi-
ple. Prisoner A’s cell mate, Prisoner B, an indigent, was
convicted of a similar misdemeanor at a trial with no
counsel and was given a suspended sentence and proba-
tion. Subsequently, Prisoner B’s probation was revoked
and he was incarcerated to serve the previously sus-
pended sentence. Both Prisoner A and Prisoner B are
imprisoned, but Prisoner B’s incarceration violates the
Argersinger-Scott principle that no defendant be incarcer-
ated who did not have the benefit of counsel at trial.

D. The failure to afford the right of counsel at trial
to a convicted misdemeanant cannot be
remedied by providing counsel at a probation
revocation hearing.

The absence of counsel at trial (or plea) for the
revoked probationer cannot be remedied by having coun-
sel at a probation revocation hearing. First, it should be
noted that the assurance of counsel at a probation revoca-
tion hearing is somewhat problematic under the present
state of the law. See Black vs. Romano, 471 U.S. 606, 612
(1985); Gagnon vs. Scarpelli, 411 U.S. 778, 789, 790 (1973);
Byrd vs. State, 717 So.2d 874, 875-76 (Ala. Crim. App.

24

1998). Even if counsel is provided at the revocation hear-
ing, the probationer still has not had the benefit of the
“guiding hand” of counsel at trial for the purpose of
assuring a fair trial before conviction of the offense that
will be the basis for incarceration upon revocation. See
Powell vs. Alabama, 287 U.S. 45, 68-69 (1932); Gideon vs.
Wainwright, 372 U.S. 335, 344 (1963).

A probation revocation hearing cannot, of course, re-
examine the initial adjudication of guilt, which is the only
stage of the proceedings against a defendant where coun-
sel has a constitutional significance (“for his defense”).
Moreover, a probation revocation hearing is not a crimi-
nal trial where the safeguards a defendant has in a crimi-
nal trial are available to protect against unwarranted
revocation and incarceration. See Morrissey vs. Brewer, 405
U.S. 471, 480, 483 (1972); McCaskey vs. State, 589 So.2d
790, 791 (Ala. Crim. App. 1991). At probation revocation
hearings the burden of proof standard is the reasonable
satisfaction standard, not the beyond reasonable doubt
standard. See Powell vs. State, 485 So.2d 379, 380 (Ala.
1986); see also, Gagnon vs. Scarpelli, supra, and Morrissey
vs. Brewer, supra. The rules of evidence do not generally
apply at probation revocation hearings and hearsay and
other normally inadmissible evidence can be received.
See Fed.R.Evid. 1101(d)(3); Ala.R.Crim.P. 27.6(d)(1); John-
son vs. State, 729 So.2d 897, 899 (Ala. Crim. App. 1997). At
a probation revocation hearing illegally seized evidence
may be admissible. See United States vs. Brown, 488 F.2d
94, 95 (5th Cir. 1973); United States vs. Farmer, 512 F.2d
160, 162 (6th Cir. 1975); Ex Parte Caffie, 516 So.2d 831, 833
(Ala. 1987); Holcomb vs. State, 644 So.2d 46, 47-48 (Ala.
Crim. App. 1994). A probationer may be revoked for

25

committing another offense even though no conviction of
the other offense has been obtained through the normal
criminal trial process. See Washington vs. State, 577 So.2d
473, 474 (Ala. Crim. App. 1990); Carlton vs. State, 507
So.2d 998, 1002 (Ala. Crim. App. 1986). Evidence of state-
ments by probationers made in violation of the Miranda
rule have been held admissible in probation revocation
hearings. See United States vs. Johnson, 455 F.2d 932, 933
(5th Cir. 1972); Thompson vs. State, 356 So.2d 757, 761 (Ala.
Crim. App. 1978); State vs. Fimbres, 108 Ariz. 430, 501 P.2d
14, 16 (1972); Commonwealth vs. Vincente, 405 Mass. 278,
540 N.E.2d 669, 671 (1989).

Given these “weaknesses” of a probationer’s position
at a revocation hearing, which enhance the “practical
possibility” of incarceration (see Argersinger, at 404 U.S.
at 39), having counsel at a revocation hearing cannot be
the equivalent of, or compensate for the lack of, counsel
at trial where guilt was determined and where the “guid-
ing hand”, had it been available, may have avoided the
conviction and/or suspended sentence which now man-
dates incarceration.

E. A pre-trial determination by a trial judge that
no suspended sentence will be imposed as the
penalty for a misdemeanor conviction can be
made with the same facility that a determina-
tion can be made that no jail sentence will be
imposed.

The Argersinger decision requires a judge trying a
misdemeanor case where incarceration is an authorized
penalty to engage in a pre-judging of the case because the
judge must decide in advance of trial that no jail sentence

26

will be imposed if the right to counsel is not afforded. See
407 U.S. at 40. This process is somewhat of a venture into
judicial clairvoyance because the judge must determine
the appropriate penalty (or, at least, its upper limits)
before trial. If the rule advocated by the Petitioner is
adopted and judges in misdemeanor cases are permitted
to sentence uncounseled defendants to suspended sen-
tences and probation even greater clairvoyance will be
required. To assure that Argersinger’s requirements that
no uncounseled defendant can be incarcerated is com-
plied with the judge, it seems, will be required to know in
advance of trial that an uncounseled defendant who
receives a suspended sentence and probation will be able
to successfully complete probation without revocation
and incarceration. Otherwise, a suspended sentence and
probation are mere hollow gestures that can never be
enforced. See United States vs. Reilley, 948 F.2d 648, 654
(10th Cir. 1991). Such a rule thrusts upon a judge the task
of precisely predicting the future. This is an impossible
task, but a necessary one under the rule advocated by
Petitioner if probation is to continue as a meaningful
sanction in misdemeanor cases and uncounseled misde-
meanor probationers are not to be incarcerated.

Requiring such an impossible determination or use-
less gesture seems grossly inappropriate as a step in
applying a standard for guaranteeing the constitutional
right to counsel and a fair trial and preventing uncon-
stitutional deprivations of liberty. If a judge can, and is
required to, make a pre-trial determination regarding
incarceration as an appropriate penalty for a particular
charged offense, and to afford counsel on the basis of that
determination, as Argersinger now requires, there is no

27

reason the judge cannot extend that pre-trial determina-
tion and decide before trial whether a suspended sen-
tence and probation (and possible deferred incarceration)
is an appropriate penalty and afford counsel based on
that determination.

IV. ARGERSINGER VS. HAMLIN AND SCOTT VS.
ILLINOIS SHOULD BE OVERRULED TO THE
EXTENT THAT THEY DENY APPLICATION OF
THE SIXTH AMENDMENT RIGHT TO COUNSEL
TO MISDEMEANOR CASES WHERE IMPRISON-
MENT IS AN AUTHORIZED PENALTY.

In Gideon vs. Wainwright, 372 U.S. 335, 345 (1963) the
Court recognized as unsound and reversed its earlier
decision in Betts vs. Brady, 316 U.S. 455 (1942), which
established the rule that whether a defendant has a right
to counsel under the Sixth Amendment depends on a
case-by-case analysis. 372 U.S. at 345. Argersinger and
Scott effectively establish a case-by-case analysis rule for
misdemeanor cases. They impose on a trial judge the
responsibility in each misdemeanor case to determine
whether the Sixth Amendment applies. And, most signifi-
cantly, they require an analysis that easily can jeopardize
the ability of a trial judge to fulfill the venerable role of a
jurist in an independent and ordered judicial system. This
hazard arises from Argersinger’s direction to trial judges
that they know in advance of trial whether a particular
prosecution will merit imprisonment as a penalty and,
armed with that knowledge, decide in advance of trial
whether there is a right to counsel in the particular case.
See 407 U.S. at 40. This, Petitioner submits, is a serious

28

flaw in the Argersinger and Scott decisions that, for the
reasons discussed below, should be corrected.

The Argersinger opinion does not explain the process
by which a trial judge is to obtain the information
required to “have a measure of the seriousness and grav-
ity of the offense” and “know when to name a lawyer”
for a particular defendant in a particular case. If it is not
to be made by whim, a correct determination about the
appropriate penalty for a particular defendant in a partic-
ular case it seems would require the same kinds of infor-
mation a judge would consider in sentencing after
conviction. It is generally recognized that for purposes of
sentencing judges have a right to, and must, acquire
information from a multitude of sources (and are not
restricted to legal evidence) in order to decide on an
appropriate penalty. See, e.g., Nichols vs. United States, 511
U.S. 738, 747 (1994); United States vs. Grayson, 438 U.S. 41,
50 (1978). This would include such in‘ ormation as the
nature of the defendant’s conduct, the harm resulting
from the defendant’s conduct, the defendant’s back-
ground and record, and the type of sanction best suited to
promote deterrence as to the public and rehabilation as to
the defendant.

Such information could be acquired by a trial judge
in a number of ways, but there appear to be two general
methods. One method would be by conducting an open,
adversarial judicial hearing where evidence is presented
under oath and the defendant is allowed to participate.
Such a procedure, while assuring fairness and due pro-
cess, hardly seems feasible. It could expend large
amounts of judicial time and resources in an effort that
has a limited purpose, or possibly no purpose. Such

29

information could be acquired by the judge from a pri-
vate source. The most likely private source would be the
prosecuting attorney or a law enforcement officer. Any
private source (particularly the ones mentioned), it
seems, presents insurmountable due process problems.
Consequently, the Argersinger requirement leaves a trial
judge on the horns of a dilemma as to how to properly
carry it out.

Misdemeanor cases are typically tried without a jury.
The judge is the trier of facts. In Alabama, for instance, all
misdemeanor prosecutions not initiated by indictment
and all prosecutions of municipal ordinance violations
are tried before only a judge (although there is a right of
appeal and trial de novo be* re a jury). See ALA. CODE
§§ 12-12-3, 12-12-32(a), 12-12-70(b) (1975). Due process
requires a fair trial in a fair tribunal. Bracy vs. Gramsley,
520 U.S. 899, 904 (1997). A fair tribunal is unlikely to exist
where the judge and trier of fact is supplied unsworn
information which is not tested by cross examination
about the offense to be tried and about the defendant to
be tried before the trial actually begins. See In Re: Mur-
chison, 349 U.S. 133, 136-38 (1955). Moreover, the posses-
sion of such information might render a judge subject to
disqualification under the Canons of Judicial Ethics as
having personal knowledge of disputed evidentiary facts.
See, e.g., ALA. CANONS OF JUDICIAL ETHICS 3C(1)(a).

The pre-trial determination a trial judge is required
by Argersinger to make is antithetical to the role of the
trial judge as an impartial trier of facts. This is true
whether counsel is appointed or not appointed. The con-
duct of the defendant which is the basis of the charge, the
defendant’s background (including any criminal record),

30

and the harm done to any victim are obviously necessary
considerations in making the required assessment about
an appropriate penalty. Some of this information, partic-
ularly a defendant's record, would not likely be admissi-
ble evidence at trial. To be an impartial trier of facts it is
obviously inappropriate that the judge, in advance of trial
and before hearing the trial evidence and making a deter-
mination of guilt or innocence, have information, some of
which may be highly prejudicial to the defendant (or the
prosecution) and which, as a practical matter, it would be
difficult or impossible for the judge to disregard in decid-
ing guilt or innocence. See In Re: Murchison, supra. A
judge who is informed of such matters in advance of trial
cannot serve as an impartial trier of fact.

Further, making a pre-trial determination about the
bounds of punishment for a particular case undermines
the traditional judicial role in sentencing a defendant in
the event of a conviction. Traditionally, judges exercise
great discretion in determining the appropriate penalty
for a particular offense and a particular defendant after
hearing the trial evidence. See, e.g., United States vs.
Tucker, 404 U.S. 443, 446 (1972); Goolsby vs. State, 283 Ala.
269, 270, 215 So.2d 602 (1968). If a sentencing judge has,
in obedience to the requirements of Argersinger, made a
determination in advance that no sentence of imprison-
ment will be imposed in a particular case the judge is,
after conviction, powerless to impose imprisonment. This
is true even if the facts developed at trial or by informa-
tion secured in an orderly and proper way following
conviction pursuant to a sentencing judge’s inherent
right, which were not known pre-trial, show the defen-
dant’s conduct or record was extremely egregious and

31

imprisonment is manifestly warranted for the particular
defendant and the particular offense. Providing counsel
for all offenses where incarceration is an authorized pen-
alty will eliminate this derogation of inherent judicial
power.

The Court should recognize these flaws in the Arger-
singer and Scott decisions, just as the Court in Gideon vs.
Wainwright recognized the flaw in Betts vs. Brady. These
flaws should be removed by overruling these decisions to
the extent they infringe upon the proper and traditional
role of a trial judge and by replacing them with a rule
that is more philosophically consistent and more work-
able in practice. The obvious replacement, it seems, to the
practice mandated by Argersinger is the rule rejected by
the Argersinger and Scott decisions - that the right of
counsel applies in all cases where imprisonment is an
authorized penalty. Many states now follow this practice
(See App. To Amici brief, pp. 1a-8a). This fact is an
indication that experience has shown it to be a fairer »nd
more workable arrangement.

V. A STRAIN ON PUBLIC RESOURCES DOES NOT
JUSTIFY UNCOUNSELED MISDEMEANOR TRI-
ALS WHICH RESULT IN DEPRIVATION OF LIB-
ERTY.

The argument in the briefs of Petitioner and Amici
that affording the right of counsel to misdemeanor defen-
dants who receive suspended sentences should be denied
because it will severely tax public resources is wrong in
theory and on principle and unsupported factually.

32

The contention that assuring constitutional rights
will impose a burden upon the public treasury is not a
novel argument. It no doubt was raised in Powell vs.
Alabama, 287 U.S. 45 (1932); Gideon vs. Wainwright, 372
U.S. 335 (1963); Coleman vs. Alabama, 399 U.S. 1 (1970);
Boyd vs. Dutton, 405 U.S. 1 (1972); Argersinger vs. Hamlin,
407 U.S. 25 (1972); and Moore vs. Illinois, 434 U.S. 220
(1977). Obviously, the implementation of the decision in
each of those cases has required the expenditure of addi-
tional public funds. As this Court pointed out in Mayer
vs. City of Chicago, 404 U.S. 189, 197-98 (1971), a “State’s
fiscal interest is . . . irrelevant” where the denial of the
constitutional rights of due process and equal protection
are concerned. Constitutional rights cannot be sacrificed
to the contention that they are expensive.

On the factual side, neither Petitioner nor Amici have
undertaken to quantify what is described as a financial
burden. Apparently affording counsel in cases such as the
present case has not been financially unbearable in those
jurisdictions which now do so. From the appendix to the
brief of Amici it appears that probably half of the States
would definitely have afforded counsel for a defendant in
a case like the present case (where a jail sentence was
authorized) and a large number of others would probably
have done so (depending on the meaning of such phrases
as “incarceration is likely”, conviction is a “practical pos-
sibility”, where the accused person may be “deprived of
liberty”, etc.). The concurring opinion of Justice Powell in
Scott vs. Illinois pointed out that at the time that case was
decided the law in at least 33 states (and possibly as
many as 40) would have required counsel be afforded to a

33

defendant faced with a charge like the Respondent faced
in this case. 440 U.S. at 388.

The argument that cost and convenience trump rights
guaranteed by the Constitution should never be adopted
as the law. That is essentially the argument the Petitioner
and Amici are making. That argument, especially where
not articulated quantatively, should be rejected as a rea-
son for not affording the right of counsel in suspended
sentence cases.

¢

CONCLUSION

Respondent prays that the petition be denied and
that the judgment of the Supreme Court of Alabama be
affirmed.

Respectfully submitted,

WituuaM H. Mis

Reppen, Mrits & CLARK

940 Regions Bank Building
417 North 20th Street
Birmingham, Alabama 35203
(205) 322-0457

Attorney for Respondent

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0448%3A06. Public record. Not legal advice.