Amicus Curiae Brief — Alabama v. Shelton

MOTION FILED

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In The

Supreme Court of the United States

STATE OF ALABAMA,

Petitioner,

V.

LEREED SHELTON,

Respondent.

On Writ of Certiorari

To The Supreme Court of Alabama

MOTION FOR LEAVE TO FILE UNTIMELY BRIEF

AND BRIEF OF AMICUS CURIAE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

IN SUPPORT OF RESPONDENT

STEVEN DUKE* DAVID M. PORTER

Yale Law School Co-Chair. NACDL Amicus

127 Wall Street Committee

New Haven, CT 06511 801 K Street, 10th Floor

(203) 432-4959 Sacramento, CA 95814

(916) 498-5700

THOMAS F. LIOTTI

1001 Franklin Avenue, #300 ADRIAAN LANNI

Garden City, NY 11530 Harvard University

(516) 739-3700 78 Mt. Auburn Street

Cambridge, MA 02138

*Counsel of Record (617) 495-2485

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether the State of Alabama may subject a

defendant to a jury trial of a serious misdemeanor

carrying a potential jail sentence of up to one year while

denying him counsel and then, upon conviction, impose

a suspended thirty-day jail sentence, a fine of $500, and

two years’ probation.

MOTION FOR LEAVE TO FILE LATE BRIEF

Pursuant to Rule 21, Rules of the Supreme Court,

the National Association of Criminal Defense Lawyers

(NACDL) moves this Court for leave to file this brief

amicus curiae in support of the respondent in the above-

entitled matter. The brief was due on August 20, 2001.

The brief was not filed on time because of a

miscommunication between the undersigned and the

primary author of the brief, Professor Steven Duke (for

which the undersigned accepts full responsibility)

regarding who was going to forward the brief to Cockle

Printing.

Mr. Mills, counsel for respondent, has consented

to the late filing of the brief. The undersigned contacted

Ms. Morman, counsel for petitioner, to obtain her

consent, but has not heard back from her.

Good cause for filing this brief amicus curiae out of

time exists because Professor Duke and Mr. Liotti have

written an excellent brief, and the interests of justice

would not be served if the undersigned's oversight

prevented the Court from having the benefit of their

trenchant analysis. Professor Duke wrote the seminal

law review article in this area, The Right to Appointed

Counsel: Argersinger and Beyond, 12 Am. Crim. L. Rev.

601 (1975), which was cited twice by the dissent in Scott

vy. Illinois, 440 U.S. 367, 380, 383 (1979). He was

appointed by the Court to represent the respondent in

the landmark case of United States v. Cronic, 462 U.S.

1128 (1984), and he represented the respondent in United

States v. Jackson, 390 U.S. 570 (1968), as well. Mr. Liotti

- has also written extensively on the right to counsel. See,

e.g., Does Gideon Still Make a Difference?, 2 N.Y.C.L.

Rev. 105 (1998).

As an organization, NACDL files amicus briefs of

consistently high quality, which have been cited in

numerous opinions of this Court. See, e.g., LN.S. v. St.

Cyr, __ U.S. ___, 121 S. Ct. 2271, 2291 n.50 (2001); Texas

v. Cobb, 532 U.S. 162, __, 121 S. Ct. 1335, 1342 (2001);

Lopez v. Davis, 531 U.S. 230, 244 n.6 (2001); United States

v. Rodriguez-Moreno, 526 U.S. 275, 281 (1999); United

States v. Balsys, 524 U.S. 666, 674 n.3 (1998); Bryan v.

United States, 524 U.S. 184, 196 (1998); Almendarez-

Torres v. United States, 523 U.S. 224, 269 (1998); Montana

yv. Egelhoff, 518 U.S. 37, 47 (1996); Ratzlaf v. United

States, 510 U.S. 135, 146 (1994); Godinez v. Moran, 509

U.S. 389, 388 (1993); Georgia v. McCollum, 505 U.S. 42, 69

(1992) (dis. opn.); Riggins v. Nevada, 504 U.S. 127, 144

(1992) (conc. opn.). The Court has granted the relief

sought here on prior occasions. See, e.g., City of Simi

Valley v. Young, 531 U.S. 1104 (2001); American Foreign

Service Ass'n v. Garfinkel, 489 U.S. 1050 (1989); Mansell

vy. Mansell, 488 U.S. 906 (1988); Booth v. Maryland, 487

U.S. 1081 (1987); United States v. Salerno, 479 U.S. 1015

(1986); Johnson v. Transportation Agency, Santa Clara

County 479 U.S. 912 (1986); Arkansas v. Oklahoma, 465

U.S. 1018 (1984); Newport v. Fact Concerts, Inc., 450 U.S.

992 (1981); Flint Ridge Development Co. v. Scenic Rivers

Assoc., 425 U.S. 902 (1976); Bonelli Cattle Co. v. Arizona,

414 U.S. 904 (1973); Goldstein v. California, 414 U.S. 883

(1973); Committee for Public Education & Religious

Liberty v. Nyquist, 411 U.S. 946 (1973); Hunt v. McNair,

410 U.S. 952 (1973); United States v. Enmons, 409 U.S.

1034 (1972); Almeida-Sanchez v. United States, 409 U.S.

1035 (1972); Heller v. New York, 409 U.S. 1021 (1972);

Goldstein v. California, 409 U.S. 976 (1972); Paris Adult

Theatre lv. Slaton, 409 U.S. 945 (1972); United States v.12

200-Ft. Reels of Super 8mm Film, 409 U.S. 909 (1972);

Roaden v. Kentucky, 409 U.S. 910 (1972); Alexander v.

Virginia, 409 U.S. 911 (1972); Victory Carriers, Inc. v.

Law, 404 U.S. 908 (1971);

Accordingly, NACDL requests the Court grant

leave to file this brief amicus curiae out of time.

Respectfully submitted,

DAVID M. PORTER

Co-Chair, NACDL Amicus Committee

TABLE OF CONTENTS

Page

QUESTION PRESENTED .............ccceeeseeee i

TABLE OF AUTHORITIES .............0eeeeeees iv

INTERESTS OF AMICUS CURIAE ............... 1

PTT TTT TT ITT TTT TTT 2

STATEMENT OF THE CASE ................0.5. 4

SUMMARY OF ARGUMENT ...............00055 5

PPO TET TET T LTTE PETTITTE 6

I. The suspended jail sentence was properly

TO eT PeTTTTTeT TTT TT TT ere 11

A. Asuspended jail sentence may not be

carried out or executed if the defendant

was denied counsel. ..............+. 11

B. A sentence that cannot be carried out

without violating the Constitution is itself

unconstitutional, or in any event, plainly

within the power of the State of Alabama

to vacate or decline to impose. ....... 16

Il. Ifasuspended jail term may constitutionally be

imposed without providing counsel, and

ultimately carried out, then this court should

reconsider Scott’s imprisonment-only principle,

ii

revert to the “serious offense” test of Baldwin

and Duncan, and invalidate respondent's

conviction or allow the court below to do so. . 17

CONCLUSION

TABLE OF AUTHORITIES

Page

Cases

«7US (971). WITTITTIIT ITIL TTT Tree passim

bites Udi :

5895 66 (1970)... TUTTI TTT TTT Te 6, 8, 9,11, 17,19

242 Cal. App. 24 73151 Cal Rptr. 771 (1966) ... 7 (n. 3)

Banna Cea Nachlaiese

361 US. 165 (1968). peseserenes 6, 8,9, 10,11, 17,19

S72US. 335 (963) pebesencocvecese 5, 6, 7,11, 17

iments. ;

518 US. 322 (1996). pebbeceeeeoesccesess 19 (n. 10)

511 US. 738 0954). poecdcncoecvers 7 (n. 3), 12, 17

sUa Sr WYTTTTTUTILILT TTT TTT eee passim

Statutes

TE GE co ccccncccaccceccsccsecs 2, 4, 13

SD sccccccccccesvccccsoccece 2, 4, 13

Ala. Code §ISAS-12 20... cc ccesccccccvcceee 2, 4, 13

Ala. Code §13A-22-52 ......... cc cee eeeeeeees 2, 4,13

iv

Ala. Code §15-22-24(d) ...........005: 3, 12, 13 (n. 8)

Be COOGEE ec ccccccccecéccceccccseee 3,13

Ala. Code §15-22-54(d) ..........00ee eee 12, 13 (n. 8)

Conwn. Gem. Statutes $56-S6e 2... ccc ccc ccccccccces 16

8 U.S.C. §1101(a)(43)(F) ...... 6. cee eee eee 18 (n. 9)

8 U.S.C. §1101(a)(48)(B) ........ cee ee eee eee 18 (n. 9)

U.S. CONSTITUTION

os ee case deeeneeuen 8 (n. 4)

OTHER

Comment, Right to Counsel: The Impact of Gideon v.

Wainwright, on the Fifty States, 3 Creighton L. Rev. 103

SUDO os cccescccevcevcenenpencupeaseceiness 7 (n. 2)

S. Duke, The Right to Appointed Counsel: Argersinger

and Beyond, 12 Amer. Crim. L. Rev. 601. (1975) 7 (n. 7)

S. Krantz, C. Smith, D. Rossman, P. Froyd & J.

Hoffman, Right to Counsel in Criminal Cases: The

Mandate of Argersinger v. Hamlin, 69 (1976) .. 9 (n. 7)

T. Liotti, Does Gideon Still Make a Difference?, 2

N.Y.C. L. Rev. 105 (1996) 2... ccccccccccccccccess 17

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS

THE NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS (NACDL) files this amicus curiae

brief pursuant to this Court’s Rule 37.3(a) in support of

respondent Lereed Shelton’s assertion of rights under the

Fourteenth Amendment. Both petitioner and respondent

have granted amicus consent to file this brief, and letters

of consent have been filed with the Clerk of this Court.’

INTERESTS OF AMICUS CURIAE

The NACDL, a nonprofit corporation, is the only

national bar association working in the interest of public

and private criminal defense attorneys and their clients.

NACDL was founded in 1958 to ensure justice and due

process for persons accused of crimes; foster the integrity,

independence and expertise of the criminal defense

profession; and promote the proper and fair

administration of justice. NACDL has 10,000 members

nationwide -- joined by 80 state and local affiliate

organizations with 28,000 members -- including private

criminal defense lawyers, public defenders and law

professors committed to preserving fairness within

America’s criminal justice system. The American Bar

Association recognizes NACDL as an affiliate

1. No counsel for any party to this case authored

this brief in whole or in part, and no person or entity,

other than NACDL, made any monetary contribution to

its preparation or submission. See Rule 37.6. The

petitioner and respondent have consented to the filing of

this brief, and amicus has filed the letters of consent with

the Clerk of the Court, pursuant to Rule 37.3(a).

2

organization and awards it full representation in its

House of Delegates. In this case, the NACDL is

concerned about the denial of counsel to an indigent

charged with a serious crime and required to defend

himself in a jury trial without the guiding hand of

counsel.

STATUTES INVOLVED

ALABAMA CODE

§13A-5-2. Authorized dispositions

(c) Every person convicted of a misdemeanor or

violation shall be sentenced by the court to:

(1) Imprisonment for a term authorized

by Section 13A-5-7; or

(2) Pay a fine authorized by Section 13A-

5-12; or

(3) Both such imprisonment and fine

(d) Every person convicted of a felony,

misdemeanor or violation may be placed on probation

as authorized by law.

(e) This article does not deprive a court of

authority conferred by law to forfeit property, dissolve

a corporation, suspend or cancel a license or permit,

remove a person from office, cite for contempt or

impose any other lawful civil penalty. Such a

judgment, order or decree may be included as part of

the sentence.

§13A-5-7. Sentence of imprisonment for misdemeanors

and violations.

(a) Sentences for misdemeanors shall be a

definite term of imprisonment in the county jail or to

hard labor for the county, within the following

se

— ee

limitations:

| (1) For a Class A misdemeanor, not more

than one year.

§ 13A-5-12. Fines for misdemeanors and violations.

(a) A sentence to pay a fine for a misdemeanor

shall be for a definite amount, fixed by the court,

within the following limitations:

(1) For a Class A misdemeanor, not more

than $2,000.00.

§15-22-52. Conditions of probation.

The court shall determine and may at any time

modify the conditions of probation and may include

among them the following or any other condition.

Such conditions may provide that the probationer

shall:

(1) Avoid injurious or vicious habits;

(2) Avoid persons or places of disreputable or

harmful character;

(3) Report to the probation office as directed;

(4) Permit the probation officer to visit him at his

home or elsewhere;

(5) Work faithfully at suitable employments as

far as possible;

(6) Remain within a specified place;

(7) Pay the fine imposed or costs or such

portions thereof as the court may determine and in

such installments as the court may direct;

(8) Make reparation or restitution to the

aggrieved party for the damage or loss caused by his

offense in an amount to be determined by the court;

and

(9) Support his dependents to the best of his

ability.

§15-22-24(d)

(2) If the court revokes probation, it may, after a

hearing, impose the sentence that was suspended at the

original hearing or any lesser sentence...

kek

(4) The court shall not revoke probation and

order the confinement of the probationer unless the

court finds on the basis of the original offense and the

probationer’s intervening conduct, either of the

following:

a. No measure short of confinement will

adequately protect the community from further

criminal activity by the probationer.

b. No measure short of confinement will

avoid depreciating the seriousness of the violation.

STATEMENT OF THE CASE

Respondent LeReed Shelton was accused of third-

degree assault, a class A misdemeanor carrying a

possibility of a jail sentence of up to one year (Alabama

Code §13A-5-7) and a fine of up to $2,000.00 (Alabama

Code §§13A-5-2, 13A-5-7, 13A-5-12). He was not offered

counsel if indigent. He elected a jury trial and

represented himself before the jury, unsuccessfully. He

was sentenced to 30 days in jail, a $500 fine, and

restitution. The jail sentence was suspended and he was

placed on two years’ probation. The Alabama Supreme

Court affirmed his conviction but vacated the suspended

jail sentence because respondent had not had or waived

counsel and the court believed that the suspended jail

sentence was invalid because it could not be carried out

consistent with respondent’s Fourteenth and Sixth

5

Amendment right to counsel. This Court granted the

State’s petition for a writ of certiorari to consider the

constitutional validity of the Alabama court's decision.

SUMMARY OF ARGUMENT

A jail sentence of any duration cannot be carried

out or executed if the defendant was denied counsel for

his defense. To do so would clearly “imprison” him

contrary to Scott v. Illinois, 440 U.S. 367 (1979) and ©

involve a “loss of liberty” contrary to Argersinger v.

Hamlin, 407 U.S. 25 (1971). Accordingly, it was entirely

lawful for the court below to vacate the thirty-day

suspended sentence imposed on respondent who was

required to defend himself ina jury trial without counsel.

Whether it was “unconstitutional” to “impose” such a

sham sentence on the accused by suspending it and

placing him on probation may be of interest to

theoreticians but is not crucial to the correct resolution of

this case. Clearly, Alabama was not required by the

Constitution to engage in the charade of threatening the

defendant with a jail sentence it could not under any

circumstances actually inflict.

Should this Court conclude that it is

constitutionally permissible to impose a suspended jail

sentence on an uncounseled defendant and then later

revoke probation and send the defendant to jail, it will

have ripped the soul out of Gideon v. Wainwright, 372

U.S. 335 (1963) and Argersinger v. Hamlin, 407 U.S. 25

(1971) and invited the States to circumvent the right to

counsel by sending defendants to prison in stages

without ever subjecting the issue of guilt to serious

adversary testing. At the very least, the Court should cap

that invitation by revisiting Argersinger and Scott and

6

ruling consistent with Argersinger, Duncan v. Louisiana,

391 U.S. 145 (1968), and Baldwin v. New York, 399 U.S.

66 (1970), that anyone who has a Sixth Amendment right

to a jury trial cannot be denied a lawyer to make that

right meaningful. A “criminal prosecution” means no

less when applied to the right to a jury trial than when

applied to the right to assistance of counsel. Therefore,

respondent’s conviction, as well as his sentence, was

unconstitutional.

ARGUMENT

The decision of the court below is correct.

Alternatively, if a suspended jail sentence (in addition to

a substantial fine) can sometimes be imposed on an

indigent defendant who is denied counsel, the

underlying conviction is invalid where, as here, the

defendant faced charges sufficiently serious to guarantee

him a Sixth Amendment right to a jury trial.

Accordingly, if the Court rejects the rationale of the

Alabama Supreme Court, it should invalidate

respondent's underlying conviction or remand to permit

the court below to do so.

Nearly forty years ago, this Court, in Gideon v.

Wainwright, 372 U.S. 335 (1963), found the Sixth

Amendment right to counsel “fundamental and essential

to a fair trial.” Id. at 343. Justice Black, speaking for a

unanimous Court, said that lawyers are “necessities, not

luxuries.” Id. at 344. He said the “noble ideal” of fair

trials “cannot be realized if the poor man charged with

crime has to face his accusers without a lawyer to assist

him,” and declared that “any person haled into court,

who is too poor to hire a lawyer, cannot be assured a fair

trial unless counsel is provided for him.” Id.

7

Although there was nothing in Gideon that limited

its rationale to felony charges, many state courts read

Gideon as not requiring counsel in misdemeanor cases.

Nonetheless, most states in the decade after Gideon did

extend the right to counsel to some misdemeanants.”

Some even went all the way, extending the right to every

indigent accused of any offense, petty or serious.’

This Court returned to the problem in Argersinger

v. Hamlin, 407 U.S. 25 (1971). Argersinger had pled

guilty in a Florida court to carrying a concealed weapon,

an offense punishable by up to six months in jail and a

$1,000 fine, without being informed of his right to

counsel. He was sentenced to a $500 fine or 90 days in

jail. Id. at 26. Alleging that he had been indigent and

unable to afford counsel, he sought a writ of habeas

corpus. The Florida Supreme Court extended the right of

appointed counsel to offenses punishable by more than

six months’ imprisonment but, since Argersinger’s

offense was just under the line, dismissed Argersinger’s

writ.

2. See Comment, “Right to Counsel: The Impact

of Gideon v. Wainwright in the Fifty States,” 3 Creighton

L. Rev. 103 (1970).

3. Blake v. Municipal Court, 242 Cal. App. 2d 731,

51 Cal. Rptr. 771 (1966). “Apparently, in nine states

virtually all misdemeanants have the right to appointed

counsel...” Comment, supra note 2, at 124. That still

seems to be the case. “[MJany, if not a majority of, States

guarantee the right of counsel whenever imprisonment

is authorized by statute rather than actually imposed.”

Nichols v. United States, 511 U.S. 738, 748 (n. 12) (1994).

See also, Brief of Texas, et al., Amici Curiae, 22.

Justice Douglas noted for this Court that the Sixth

Amendment contains standards for “all criminal

prosecutions.” Among the rights guaranteed by that

amendment are the right to a speedy and public trial, the

right to know the charge, the right of confrontation, and

the right to compulsory process.‘ Yet the only right

guaranteed by the Sixth Amendment which had been

limited by type of offense is the right to trial by jury.

Duncan v. Louisiana, 391 U.S. 145 (1968), restricted such

right to offenses punishable by more than six months in

jail (regardless of the actual punishment imposed). See

also, Baldwin v. New York, 399 U.S. 66, 69 (1970) (“no

offense can be deemed ‘petty’ for purposes of the right to

trial by jury where imprisonment for more than six

months is authorized”). Justice Douglas distinguished

Duncan's limitation with the observation that the right to

jury trial “has a different genealogy and is brigaded with

a system of trial to a judge alone.” Argersinger, 407 U.S.

at 29. “While there is historical support for limiting...trial

by jury to ‘serious criminal cases,’ there is no such

support for a similar limitation on the right to assistance

of counsel...” Id. at 30 (citation omitted). The Court

4. The Sixth Amendment provides,

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury..and to be

informed of the nature and cause of the

accusation; to be confronted with the

Witnesses against him; to have compulsory

process for obtaining Witnesses in his

favor, and to have the Assistance of

Counsel for his defence.

9

therefore rejected “ the premise that since prosecutions for

crimes punishable by imprisonment for less than six

months may be tried without a jury, they may also be

tried without a lawyer.” Id. at 30-31.

Putting aside the right to counsel where “loss of

liberty is not involved,”* the Court held that “absent a

knowing and intelligent waiver, no person may be

imprisoned for any offense, whether classified as petty,

misdemeanor or felony, unless he was represented by

counsel at his trial.”°

Commentators read Argersinger as creating a two-

tiered analysis of the right to counsel in misdemeanor

cases.’ The first tier or screen was whether the offense

was sufficiently serious to be a“ criminal prosecution” for

purposes of the right to a jury trial. That ordinarily

meant that any authorized jail term of more than six

months was, per Duncan and Baldwin, a sufficient gauge

of seriousness to trigger the jury trial right regardless of

the sentence actually imposed. If the offense was

“serious” under the Duncan/ Baldwin test, Argersinger

5. Id. at 37.

6. Id.

7. See, e.g., S. Krantz, C. Smith, D. Rossman, P.

Froyd & J. Hoffman, Right to Counsel in Criminal Cases:

The Mandate of Argersinger v. Hamlin 69-117 (1976); S.

Duke, “The Right to Appointed Counsel: Argersinger

and Beyond,” 12 Am. Crim. L. Rev. 601 (1975). Justices

Brennan, Marshall and Stevens advocated this approach

in Scott, 440 U.S. at 375 (dissenting opinion), as did

Justice Blackman, 440 U.S. at 389 (dissenting opinion).

10

left undisturbed the understanding that the charge was

not only a “criminal prosecution” for the right to trial by

jury but also for all other Sixth Amendment rights,

including the right to counsel. Argersinger expressly

dealt only with cases in which “loss of liberty was

involved.” In such cases, the Court said, there is no need

to examine the “seriousness” question, no need to find

the right to trial by jury in order to find the right to

counsel, for the latter is even more fundamental than the

former, and any deprivation of liberty is sufficiently

serious to require the crucial help of counsel. Actual loss

of liberty, then, was a second screen or second stage of

analysis necessary only if no “criminal prosecution” was

otherwise found by applying Duncans criteria.

This Court took a sharply different approach in

Scott _v. Illinois, 440 US. 367 (1979), opining that

Argersinger “ did indeed delimit the constitutional right

to appointed counsel in state criminal proceedings...[and]

[w]e therefore hold that 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.” Id. at 373-74 (emph. added). There was, of

course, nothing in the Argersinger opinion or in Scott's

analysis of it to warrant the injection of “only.” Indeed,

if Scott’s dictum were taken literally, a person could be

lawfully convicted of murder without counsel so long as

he wasn’t imprisoned. As Justice Brennan cogently

observed in his Scott dissent, the majority not only

misread Argersinger, it ignored the well-established

precedents recognizing a constitutional right to a jury

trial for people who are not imprisoned but nonetheless

face charges upon which imprisonment in excess of sixth

S Aewe Rasie in Ae” Rat a Reapers <n a mniti en

tla ae

|

|

|

|

11

months is authorized. Thus, if Scott were correct, a

defendant like respondent Shelton in this case would

have aSixth Amendment right to a jury trial, per Baldwin

and Duncan, but would have to enjoy that constitutional

right without the assistance of counsel if the State elected

to forgo imprisonment upon conviction. How can a

prosecution be a “criminal prosecution” for purposes of

the Sixth Amendment's right to a jury trial but not be a

“criminal prosecution” for purposes of the Sixth

Amendment's right to counsel? The Court in Scott did

not say.

Although the court below did not question the

holding in Scott and respondent will presumably not do

so either, we respectfully urge the Court not to reaffirm

the “imprisonment only” approach of Scott without at

least reconsidering its illogic and its misinterpretation of

Argersinger. We especially urge the Court not to extend

Scott to allow the imposition of a suspended prison

sentence while denying the accused the benefit of

counsel. That would be tantamount to a fundamental

rejection of Gideon itself.

I.

THE SUSPENDED JAIL SENTENCE WAS

PROPERLY VACATED.

A. Asuspended jail sentence may not be carried out

or executed if the defendant was denied counsel.

Argersinger and Scott agree that even a day in jail,

imposed as punishment for a crime, cannot be

constitutionally carried out unless the defendant was

afforded counsel at his trial or guilty plea. Accordingly,

12

LeReed Shelton cannot be jailed if probation is revoked

because he would be jailed not for violating probation

but for the underlying offense upon which he was

originally sentenced. Cf., Johnson v. United States, 529

U.S. 624, 700 (2000) ("[w]e ... attribute postrevocation

penalties to the original conviction). Not only is this the

universal understanding of what happens when

probation is revoked and a suspended sentence

reimposed, it is clearly implicit in the Alabama statutory

scheme. Alabama Code §15-22-54 (d)(2), provides that

upon revocation of probation, the court may impose the

sentence that was suspended or any lesser sentence.

Section (d) (4) provides that when the court revokes

probation and imposes confinement, that decision is

grounded “on the basis of the original offense and the

probationer’s intervening conduct.” (Emphasis added).

Thus, unlike the situation in Nichols v. United States, 511

U.S. 738 (1994), where an uncounseled misdemeanor

conviction resulted ina felony status for a second offense,

the punishment imposed when probation is revoked is

for the original offense, not the subsequent conduct

involved in the probation violation. As the Chief Justice

emphasized in his Nichols opinion, repeat-offender laws

penalize “only the last offense committed by the

defendant.” 511 U.S. at 747. Although Nichols itself was

highly debatable (it overruled a recent decision to the

contrary in Baldasar v. United States, 446 U.S. 222

(1986)), the difference between Nichols and the instant

case is fundamental.

Under a recidivist statute such as that in Nichols,

the defendant can be imprisoned if and only if his second

crime is proved beyond reasonable doubt, with all Sixth

Amendment protections, including assistance of counsel.

In contrast, if respondent could be imprisoned after a

:

eee

a ne ee eee

13

probation revocation, that could be accomplished in

entirely informal, unstructured proceedings where proof

standards are amorphous and far less exacting and

rigorous than those applicable in a criminal prosecution.*

If a suspended sentence could be carried out

although the accused was denied counsel, respondent

could have received a suspended sentence of up to one

year in jail and a $2,000 fine for his Class A misdemeanor

of third-degree assault. See Alabama Code §§13A-5-2,

13A-5-7, 13A-5-12. The conditions of probation could

hardly be broader or vaguer. They include avoiding

“injurious or vicious habits,” “persons or places of

disreputable or harmful character,” and “any other

condition.” Alabama Code §15-22-52. The requirements

of Argersinger and Scott could easily be circumvented if

the state could deny counsel, convict the defendant of a

misdemeanor, sentence him to a suspended term of

imprisonment up to one year, suspend the sentence,

place him on probation, then revoke probation for

injurious or vicious habits, associating with undesirables,

failure to report, or some other vague infraction. He

would go to jail without ever having an opportunity to

defend against the urideriying criminal charges with the

assistance of counsel.

8. Indeed, one who receives a suspended

sentence subject to probation in Alabama can be

imprisoned with virtually no process at all, pending the

revocation proceedings. Alabama Code §15-22-54 (d)

authorizes a probation officer to arrest a probationer

without a warrant and his statement that there has been

a violation is sufficient authorization to detain the

probationer in county jail.

14

We do not understand the petitioner to contend

that such a procedure could be lawful, ie., that a

suspended sentence can be carried out if the defendant

was denied counsel at his trial. Petitioner is unclear

about its position on that issue.

The State seems to argue that a suspended jail

sentence is permissible because there has been no “ actual

imprisonment” and until that happens, there is no

violation of Scott, even though Scott said that no

“indigent criminal defendant [can] be sentenced to a term

of imprisonment” absent assistance of counsel. 440 U.S.

at 374. Petitioner's Brief, at 9. Thus, petitioner seems to

believe that the jailhouse doors must actually be closed

and locked on the defendant's body before he

retroactively acquires a right to counsel. Were that so,

even an unconditional, unprobated jail sentence could

not be invalidated on right to counsel grounds so long as

it was stayed pending appeal. That is manifestly not so.

No coherent argument is made by petitioner that the

State may imprison someone in Shelton’s shoes without

violating the Constitution. Thus, it is hard to understand

just what fault petitioner finds with the decision of the

court below.

Most, if not all, of the lower court decisions cited

by petitioner that suggest that a suspended sentence is

not actual imprisonment (Petitioner’s Brief, 16-19),

involve questions of the validity of the conviction, not the

validity of the sentence. Here, as there, the validity of the

conviction was not questioned by the court below. ‘The

petitioner does not point to any decision that it says

actually allows a defendant to be imprisoned on a

previously suspended sentence when he was denied

counsel.

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15

Petitioner argues that if a suspended sentence

triggers the right to counsel, this would divert “money

and time to resolve misdemeanor offenses and reexamine

the use of uncounseled convictions for enhancement

purposes... Finally, successful challenges would

emasculate anti-recivism statutes....” Petitioner’s Brief, at

21. This would be so, however, only if imposing a

suspended sentence invalidates the underlying

conviction, and the Alabama Supreme Court clearly held

that it does not (J.A. 40). The Brief of Texas, et al., Amici

Curiae, appears equally confused on this point. See id. at

25, 28. Indeed, although Amici repeatedly characterize

the decision of the court below as “expanding” the right

to counsel, it is not clear how Amici think that has been

accomplished. Like petitioner, Amici do not clearly

assert that a suspended sentence can actually be carried

out. Rather, they seem concerned that such a sentence

would invalidate the underlying conviction even if no

effort is made to carry out the sentence. That issue is not

before the Court.

Amici Curiae in support of petitioner imply that

unless a state can impose a suspended jail sentence, it has

no way to impose probation and the decision below

therefore significantly restricts the States in their ability

to utilize probation. Amici Br. at 27. The States,

however, are not required to link probation to a

suspended jail sentence. Connecticut, for example, has a

process called “Accelerated Pretrial Rehabilitation”

under which a defendant, with the permission of the

court, is placed on probation before adjudication. If the

probation is successful, the charge is dismissed and all

records are expunged. If probation is violated, the

defendant does not automatically go to jail, the charges

are simply reinstated and the process begins where it left

16

off before probation. Conn. Gen. Statutes §54-56e.

Assuming that such probation is not a “loss of liberty”

within the meaning of Argersinger, there is no reason

why it could not be imposed without affording counsel.

B. A-sentence that cannot be carried out without

‘olati ho Cunetiell is itself

the power of the State of Alabama to vacate or

Petitioner and Amici Curiae in its support

characterize the holding of the Alabama Supreme Court

as “extending” the right to appointed counsel in

misdemeanor cases where a suspended sentence is

imposed rather than“ actual imprisonment.” While such

would be a defensible position for the court to have

taken, it did not do so. Rather, the Alabama Supreme

Court clearly -- and merely -- held that a conditional or

probationary jail sentence can never actually be carried

out if the defendant was denied counsel and is therefore

a nullity. Had the Alabama Supreme Court held that

Shelton had a constitutional right to counsel that was

violated by his prosecution, rather than by his sentence,

it would have vacated the conviction as well as the

sentence.

Since the Alabama Court was clearly right in

viewing the suspended jail sentence as one that cannot be

executed without running afoul of Argersinger and Scott,

it was also right in vacating that portion of the sentence.

Whether entering a judgment that purports to enter an

invalid sentence, i.e., a sham sentence, is itself a violation

of the Constitution was not reached by the Alabama

17

Court. Arguably, the judgment appears to have been a

straightforward application of Alabama law to vacate a

sham sentence —- one that couldn’t be carried out without

violating the Constitution. As such, it should clearly be

affirmed.

I

IF A SUSPENDED JAIL TERM MAY

CONSTITUTIONALLY BE IMPOSED WITHOUT

PROVIDING COUNSEL, AND ULTIMATELY

CARRIED OUT, THEN THIS COURT SHOULD

RECONSIDER SCOTT’S IMPRISONMENT-ONLY

PRINCIPLE, REVERT TO THE “SERIOUS OFFENSE”

TEST OF BALDWIN AND DUNCAN, AND

INVALIDATE RESPONDENT’S CONVICTION OR

ALLOW THE COURT BELOW TO DO SO.

Good arguments can be made for extending the

Sixth Amendment right to counsel to all crimes for which

imprisonment is authorized, regardless of the sentence

actually imposed. See T. Liotti, Does Gideon Still Make

a_Difference?, 2 N.Y.C. L. Rev. 105, 122 (1998).

Misdemeanor charges are no less complex or legally

arcane than felony charges and the rules of trial

procedure — understood by only a few lawyers — are the

same, whether trial is of a misdemeanor or a felony.

There is some stigma attached to conviction of any

offense for which jail has been authorized. Moreover,

convictions for seemingly insignificant offenses can

become highly prejudicial to the defendant who becomes

again embroiled in the criminal process, for they may

elevate his second misdemeanor to felony status, as in

Nichols, or be used adversely as part of his criminal

history in sentencing. The misdemeanor conviction can

18

also result in loss or denial of an occupational or

professional license, ineligibility for various benefits or

employments, and even deportation.’ Whether the right

to counsel should be so extended is not before the Court.

If, however, the Court is inclined to add a serious hazard

-- possible imprisonment if probation is revoked -- to the

lengthy list of land mines already buried in uncounseled

misdemeanorland, then the “imprisonment only” test of

Scott must be abandoned.

If a valid suspended jail sentence may be imposed

without counsel, it can presumably be one the duration

of which is limited only by the statute authorizing

sentences. In respondent's case, the vulnerability would

be to a jail sentence of up to one year (plus a $2,000 fine).

It is simply unthinkable that a state could be permitted to

imprison someone for up to one year while denying him

counsel, merely by doing it in stages that circumvent the

provision of counsel.

9. The charge for which respondent was convicted

could theoretically cause the deportation of an alien. A

sentence of one year makes a crime of violence an

"aggravated felony", which subjects the violator to

immediate removal. See 8 US.C. §ll0l(a)(43)(F),

§1227(a)(2)(A)(iii). This is true whether the state calls the

offense a misdemeanor or a felony and even though the

entire sentence remains suspended. "Any reference to a

term of imprisonment or a sentence with respect to any

offense is deemed to include the period of incarceration

or confinement ordered by a court of law regardless of

any suspension of the imposition or execution of that

imprisonment or sentence in whole or in part.” 8 U.S.C.

§1101(a)(48)(B).

19

Thus, at the very least, the Court, if inclined to

validate uncounseled suspended sentences, should apply

Baldwin and Duncan and recognize a right to counsel

whenever there is a right to a jury trial, e.g., when a jail

sentence of more than six months is authorized.” That

would at least limit the circumvention of the right to

counsel to cases in which the suspended sentence was for

six months or less.

CONCLUSION

For the foregoing reasons, the decision of the

Alabama Supreme Court should be affirmed.

Respectfully submitted,

STEVEN DUKE

THOMAS F. LIOTTI

Counsel of Record

DAVID M. PORTER

ADRIAAN LANNI

Of Counsel

10. As this Court has often recognized, there may

be other charges so serious that they be deemed not petty

and thus trigger a right to a jury trial even where a jail

sentence of more than six months is not authorized. See

Blanton v. City of North Las Vegas, 489 U.S. 538 (1989);

see also Lewis v. United States, 518 U.S. 322 (1996). In

any such case, there should certainly also be a right to

counsel.