Reply Brief for Petitioners — Specht v. Patterson

_— er

. Supplemental Statement on Questions Presented ......

INDEX

SUBJECT INDEX ;

| Argument

I.

The Colorado. Sex Offender. Sentencing Act .

Does Not Provide for a Hearing or for Dis-.

_ .glosure of the Facts Relied on to Impose Its”

- Enhanced Penalty and the Reported Decisions

«

Il.

Conctésion.

CASES :

in Petitioner’s Case Clearly Establish That

His Attempts to Obtain These Rights, Have

‘Been Denied on the Ground That He Is Not |

~ Entitled to Them

‘Equal Protection Requires the Retention ‘of 2

Classification Standards in the Sex Offender :

Statute; Due Process Requires the Employ-

ment of a Fair Procedure to Determine Factu-

ally Whether Petitioner Is Within the Class

Punished by the Statute.

CrraTIoNs-

’ Brown v. Brown, 422 P.2d 684 (Colo. 1967) ....

Chandler v. Fretag, 348 U.S. 3 (1959) .........-- |

Kent v. United States, 383 U.S. 541 (1966) nite

‘ Lindsley v. Natural Carbonic Gas Co., 220 U.S.

_ Morey'v. Doud, 354 U.S. 457 (1957)

Oyler v. Bales, 368 U. S. 448 (1962) |

61 (1911)

(1911)

Specht v. Patterson, 357 F.2d 325 (10th, Cir.

1966)

Specht v. Tinsley, 153 Colo. :235,.385 P.2d 423

(1964)

wr

5

INDEX ie

g af

: Trueblood ‘v. Tinsley, 316 F. 2d 183 (10th Cir. .

* 1963). 2

: Trueblood v. Tinsley, 148 Colo. 503, 366 P.2d 655.

(1961), cert. dénied 370 U.S. 929 (1962) ..... 2,7

: United. States v. Claudy, site = 2d 624 (3d Cir, ee

1958), 10

Walters \ v, St. Tadie. 347 U.S. 231 (1954) .. ieee é

Williams yew ¥ York, 337 U.S. 241 (1949) 2... .8,12

STATUTES :- Seat 3 } oC

- Colo. Rev. Stat. Ann. 5» $3918.50 ce) lescenibeins 4

/ MISCELLANEOUS: “

ALL. Model Penal Code, § 6.07 T.D. No. 2- °. .

(4954) inennns eh 9,

A.L.I. ‘Model. Penal Cade, ars T.D. No. 4 aire

(1955). .. : eh

- ALI. Model Penal Code, 7.03 T.D. No. 2:

(1954) . 9, 10, 11

A.L.I. Model Penal. Code, §7.83 T.D. No. 4 :

(1955) ia oe

ALL. Model Penal, Code, § 7.07 T:D. No, 2

(1954) ........ ne O10

' ALI. Model Penal Code, §7. 07 T.D. No. 4 |

(1955) ..... ak? 9

Brief for Respondent, p. 2 1-2

‘+ Brief for Respondent, pp. 2, 3, 5, 6, ote & 17 .. - 4, 8,9 -

_ Brief for Respondent, a: oe a)

Brief for Appellee, Spéché v. Patterson, 357 F. 2d

325 (10th Cir. 1966) - : oe

Brief for Defendant in Error, Specht v. Tinsley, Pye as

153 Colo. 235, 385 P.2d 423 (1963) 6-

_ Brief for. Defendant in Error, Vanderhoof a;

People, = 147, 380 P.2d 903 (1963) -....... 8

IN THE SUPREME count OF THE wNTED suits

| OCTOBER: ‘TERM, 1966 7 hy

eae oe No. 831

e Francis Eppre SpPecut,

By 27. °° Petitioner,

cs te ot ey ae ee

, Wayne K. Parrerson, ‘Warden etal, |

; ‘1° Respondent.

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ON WRIT Hy CERTIORARI TO THE UNITED STATES

COURT OF 4PPEALS ina THE TENTH CIRCUIT oe ee Me.

-. REPLY BRIEF FOR THE PETITIONER © .

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Supplemental § Statement on n Questions Preiented.

Respondent's brief we uncertainty ‘and ph into

the’case by contending thatthe issues as framéd wm the

lower courts and on petition and. response in this Court

are not properly before the Court. The ee: General

says in his answ er brief, page y 2 :

. We-do not agree with ‘siisesty assertion..

that petitioner ' was not afforded a hearing ¢ on his a

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as to what did or dia not occur at that hearing. No

official record of his sentencing | hearing or hearings

exists and no evidentiary hearing has been held by any

court as to what did or. did not occur at his hearing

_to impose sentence and, therefore, any questions in

regard thereto are not properly before this Court. “s

®

The State correctly says no evidentiary hearing has ever

_ been held to determine what occurred at Petitioner’s sen-

- tencing. But the reason for this is that’ the State has con-

sistently argued in ‘this and other “cases that due process

_ does not apply to sentencing and the courts have consist-

ently so held. The petition in this case was dismissed in

the District Court on a point of law and without an evi-

dentiary hearing. Chief Judge’ Arraj-stated in his. memo-

randum (R. 39-40) that although Petitioner’s argument

was not totally unpersuasive, his. contentions had been ¢on- ©

sidered thoroughly by the state courts and that the decision

in Trueblood v. Tinsley, 316 F.2d 783 (10th Cir.. 1963), and

Trueblood v: Tinsley, 148 Colo. 503, 366. P.2d 655 (1961),

cert. denied, 370 U.S..929 (1962), upholding the constitu-

;Monality of the Sex Offender anata Act bound ua ,

court. —~> . : mi

The Court of Appeals stated the issue presented to it

concisely as follows: —

°

' “The statute. does not provide or cE REae We hear-

ing on the exercise. of the discretion of the court to

impose sentence under the Act in lieu of‘ sentence au- . -

thorized under 40-2-32.

“On the constitutional i issue the contention is to the

effect that one convicted of a 40-2-32 offense is gn- .

titled to a due process hearing on the exercise of

the discretion committed to the sentencing court.”

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- “and framed the questions on certiorari by its holding:

“We uphold the constitutionality of the Act... .

, . * * * . _* ‘

--.“In determining whether a-convicted person shall re-

ceive an indeterminate sentence based upon a recég-

_ nized classification or a. ten-year maximum sentence,

‘the sentencing court is free to utilize investigational

. techniqtes unhampered by. due process requirements.”

Specht v. Patterson, 357- F.2d ‘325, 326 (10th Cir. 1966),

R. 49-50. (Citing Williams v. ‘New ¥ ork, 337 U.S. 241 —

(1949).) -

Petitioner ultimately brought the case here on. certiorari

to obtain reversal of the Court of. Appeals’ decision that .

the State’s position is correct and that Williams v. N ew.

. York is controlling. He continues to assert that due process

requires that he be afforded a right to a hearing with the

right of confrontation, evidence production, and evidence |

testing by cross-examination either by explicit statutory :

ah HEE! or by. judicial construction.

"All eourts below have thought that it is: unnecessary and

” irrelevant to inquire into the procedural fairness of pro-

- ceedings by which Petitioner and others Jiké him have been. -

sentenced. This case is here (1) to establish that such |

inquiry is relevant because due process does require a

hearing and (2) to demonstrate that because Colorado and.-

lower federat.courts have interpreted thé Sex Offender . .

statute _so as not to require any hearing, no defendant,.

including Petitioner, has been or will be .afforded due

_ process unless it is required te be gone by this Court.

. x % rad ° ‘ : - a -

ARGUMENT

The Colorado Sex Offender Sentencing Act Does| Not

“Provide for a Hearing or for Disclosure of the Facts Re-

lied on to Impose Its Enhanced Penalty and the Reported

Decisions in Petitioner’s Case Clearly Establish That His

“Attempts to Obtain These Rights Have Been Denied on

the Ground That He Is Not Entitled to Them.

ser The State suggests throughout its brief that ‘the Sex

Offender statute provides for a hearing and that there is

_.. No reason to believe that Petitioner did not receive one in

that the record does not disclose what occurred at his

sentencing. See Brief for Respondents, pp. 2, 3, 5, 6, 11

and 17. The. suggestion is simply erroneous. Nowhere

» ‘does the statute: provide for a hearing. What‘ it does

provide is an arraignment. See Section 39-19.5(1), Ap-

‘pendix A, Brief: for Petitioner. Apparently this is what

the State refers to on page 5 of its brief as “arraignment

or hearing for imposition of sentence.” That Petitioner

had an arraignment at sentencing as opposed to the hear-

ing for which Petitioner here contends conclusively ap-

- pears in statements of the Colorado Supreme Court:

“The record affirmatively discloses that Specht, along

with his counsel, was present in open court when sen- |

tence was imposed-and such is compliance with the -

- statutory requirement that he be ‘arraigned’ at the

. time of sentence under C.B.S. 53, 39-19-1, et-seq.” -

. Specht v. Tinsley, 153 Colo. 235, 385 P.2d 888 (1964).

To be contrasted is the Colorado Supreme Court’s view

of what constitutes a —

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“The word contemplates not only the privilege to be .

-present when the matter is being considered but ‘the.

right to present one’s contention and support the same.

by proof and argument.” (Emphasis added.) Brown

Vv. Brown, 422 P.2d 634, 635 (Colo. 1967). .

The State’s suggestion, i in addition to being erroneous,

constitutes a complete reversal of its. position in the lower

-courts, both state and federal. The State, prior to its brief

in this Court has always maintained that a defendant sub-

"ject to the Sex Offender statute is not afforded a hearing

and that it is absurd to suggest that due process requires

a different rule. :

“Pellucidly, Colorado’s failure to attach to the. im-

position of a sentence under.the Sex Offenders Act all

of the basic aspects of procedural due process offends

no generally accepted concepts of basic standards of

justice.” Brief of Appellee, p. 6, Specht v. Patterson,

357 F.2d 325 (10th Cir. 1966). (Emphasis added.)

_In a somewhat concessionary tone the State now suggests )

- that “due process may require that defendant be given a

“ copy of the psychiatrist’s report and the pre-sentence re-

port,” and that, “It can. be said that, unless such: is done,

“no adequate opportunity to test the. veracity of the infor-

mational process is afforded.” See Brief for Respondent, |

p. 11. The State goes on to say that in this case the ques-

tion is academic, and to create the impression tHat in Col-

orado the question is an open one'which has not been pre-

sented to the Colorado courts; or that the state courts

would afford a defendant these rights if he sought them

¥ ¢ :

6.

° -

there. This is not biieiiati: Petitioner quotes the followi ing.

* from ‘hes same attorneys’ brief to the Colorado Supremé ue

| (} Court in Specht v. Tinsley:

“Under petitioner’s fourth heading he alleges that the

sentencing procedure denied him of equal protection .

‘of the laws and ‘due process. His first basis for this

attack is that at the time of sentencing he was not

afforded due process. This assertion is apparently

“Based on the ‘false premise that the’ sentencing must

be conducted in accordance with the. requirements of”

a. trial, such as examination of the psychiatric report

and right to cross-examine the expert submitting the

- report. We know of. no principle which requires’ an

opportunity to be heard as to the information upon

which a judge may pooreey rely or utilize in deter-

mining the proper sentence.” Brief for Defendant-in-

Efror,:p. 4, Specht v. Tinsley, 153 Colo. 235, 385 P.2d wl

423 (1963). (Emphasis — cass

Although the Colorado Court did not ‘ei this aieiien:

in detail in its opinion, it upheld the statute ‘against all -

‘due process attacks levelled by Specht. Having successfully

argued to the Colorado court that Specht’s assertioris there |

were based on a “false premise,” the Attorney General now

seeks to concede enough of the point to avoid a decision’

here while maintaining his former position with the asser-

tion that the point 3 is: ‘academic. -

1.

“Equal Protection-Requires, the Retention of Classifica-

- tion Standards in the Sex Offender Statute; Due Process

Requires the Employment of a Fair Procedure to Deter- -

_ mine Factually Whether Petitioner Is = the Class ©

___ Punished by the Statute.

Petitioner has seal that . the Sex Offender Sen-

tencing Act requires a finding of fact whichis separate

from and in addition to facts required to be found for the

original conviction, and’ that: the Act unconstitutionally per-

mits’ the finding of fact* Without a hearing incorporating

procedural fairness. The State argues, however, that if

Colorado eliminated the classifications in the Act ahd placed

the imposition of the alternative sentence within the dis-

cretion of the trial court or amended the Indecent Liberties

Act so as to provide within it the alternative sentence now

_provided in the Sex: Offender Sentemeing Act, Petitioner's

argument w ould evaporate. | .

The Colorado Legislature has not so sins the In-

decent Liberties Act or the. Sex ‘Offender Sentencing Act.

Furthermore, no such easy, device exists by which to dispel

Petitioner’s- argament as is suggested by Respondent. Ini-

tially, equal protection: requires classification upon some

_ rational: basis for distinguishing Petitioner from others

- . eonvieted of sex crimes, but not séntenced under the chal-

lenged Act. Morey.v. Doud, 354 U.S. 457 °(1957); Walters

v. St. Louis, 347 U.S. 231 (1954); Lindsley v. Natural

Carbonic Gas Co., 220 U.S. 61 (1941) ; Trueblood v. Tinsley,

_ 148 Colo. 503, 366 P.2d 655 (1961) ; Vanderhoof v. a

152 Colo. 147, 380 P.2d 903° (1963).

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In the Vanderhoof case the Sex Offender statute was

\upheld because it contained the very legislative classifica-_

tions which the State now lightly proposes might be elimi-.

| nated i in order to defeat Petitioner’s contention. In order *

to overcome an argument in that case that the classification

‘in the statute is arbitrary because it is determined in the .

discretion of’ the. court, the same attorneys who sitet

, Respondent. here said:

“The classification -is ‘not determined by ‘the trial court.

_ The trial court makes a finding of fact only to-deter-

- mine whether or not a defendant comes. within the

classification set forth i in the ier? ,

3s Brief of Defendant in Error, ip. 2, Veudorkco} v. Poosle,

- 152 Colo. 147, 380 P.2d 903 (1963). Now that Petitioner

has suggested that the finding of fact is a critical one

which permits an enhanced sentence and should, therefore,

be clothed with the requirements of fairness embodied in

due process, the State seeks-to minimize its. importance

byalling the fact-finding process a label attached by Peti-

tioner to the thought processes of the sentencing: judge

"in determining sentence. See Brief for-Respondent, p. 16.

Such inconsistency cannot go unchallenged. It is the State’s.

interpretation of the Act which has been uniformly accepted

by the Colorado Supreme Court in its decisions and has

been imported into ‘the law by administration | and appli-

: cation. ‘

_ The point which Petitioner is accused: of belaboring is

that the process by which he is, determined to be within

ae the statutory ‘classification must -be governed by rules of

.., elementary fairness. The State’ apparently represents to

‘the Court that “responsible officials” recommend_procedures —

.

Bit”, >

such as the ones followed in Colorado. See Brief of Re-

spondent, Appendix B, referring — other ings to

1% the Model Penal Code.

Indeterminate terms of sentence similar to that imposed ,

upon Petitioner are dealt with by the Model Penal Code

- in terms of an “extended term” of .imprisonment as a de-— :

vice for..dealing with the more difficult. criminal. See.

A.L.I. Move, Penau Cong, § 6. 07 ‘and Comments 1-4, Dp.

- 23-26, and. §7.03 and Comment 1, pp. 37-38, T.D. No. 2

(1954). See also. ALI. Move Pena Cong, § 6.07, p. 43 .

and § 7.08, p. 49, T.D..No.'4 (1955). The Code authorizes

an extended sentence for a term of-years, varying between

. Stated minima and mfaxima depending on the degree of.

- crime, if the court finds that the defendant is a persistent —

_ offender, a professiénal criminal, or a dangerous mentally

con ni aia ,person, whose commitment for.an extended term

is necessary for protection of. the public. Thé procedures *

established «in the Model’ Penal Code for imposing the

- extended ‘sentence differ greatly from. Colorado procedure.

They are set forth in A.L.. Mopet Pena Cone, § 7.07, T.D.

No. 2, p. 52 (1954); T.D. No. 4, p. 55 (1955). Section 7:07

is entitled “Procedure on Sentence ; Pre-Sentence Investi-

gation and Report; Remand for Psychiatric: Examination ;

Transmission | of Records to Department of Correction.”

Subsections 5 and 6 are directly pertinent to the present -

‘case and provide # as follows: ry

. “(5) Before imposing sentence, the Court shall: ad-

vise the defendant or his counsel of the factual contents

_ and conclusions’ of any pre-sentence investigation or

psychiatric examination and afford fair opportunity,

if the defendant so requests, to controvert them. ‘The.

: ——

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10.

* sources of confidential information need set: however,

be disclosed.

— & (6) ‘The Court shall not imapoie a sentence for an

extended term unless. the ground therefor has been

established at @ hebring. after the conviction of. the

defendant and on written notice'to him of the ground

‘proposed. Subject to the limitation of paragraph (5)

-of this section, the defendant shall have the right to.

hear and controvert the evidence against him and to

- offer evidence | upon the issue.” (Emphasis added. )

The sepantinn comments: that. diodenes of the factual con-

tents and conclusions of the pre-sentence report and psy-

chiatric report are essential to elementary fairness. He.

recommends that “fairness demands a hearing focused on

the precise question’ of the existence of the grounds for

such a sentence, with notice to the defendant of.the ground —

proposed. ” A.L.I. Mopet Penau Cope, § 7.07, Comments 2

‘and 3, pp. 54-55, ‘T. D. No. 2 (1954). See also § 7.03, Com-

__ment, p. 42, T.D. No. 2 (1954), to the effect that due process

' requires'a hearing. In the case cited by the Reporter,

- United States v. Claudy, 204 F.2d.624 (3d Cir. 1953), the

question was whether due process required notice and

- hearing prior to imposition of an enhanced penalty for a

second offense. Speaking of sentencing procedure the Court

said: ; :

“It | is reasoned that at this stage the court is deter-

_ mining the extent of culpability after guilt of a crime

has been established. Accordingly, the tendency has

been to move from the stringent requirements of due |

process before conviction. toward the greater latitude

normally allowed in sentencing in cases like: Williams

*

Sean

——

_ v. People. of State of New York, 1949, 337 U.S. 241, 69

S.Ct. 1079, 93 L.Ed. 1337, where, in the absence of any.

question of possible liability to enhanced penalty, the

sentencing judge is permitted to fix punishment, up.

to a statutory maximum already authorized by the

verdict . . . without informing the convicted person

what data is. being considered or granting him any,

. hearing thereon.. At the same time it is established ~ .

‘ that even after conviction the due process clause im-

. poses some significant restraint to. assure the essential

* fairness of the procedure by which a judge shall exer,—

cise discretion in fixing punishment within permissitfe

limits ....

“Such restraint is the more imperative .. . when the

challenged sentence cannot lawfully be imposed upon

' the basis of the finding of guilty as charged in the

indictment without moré. Here: there remains after

conviction an issue to be tried with facts to be proved

in order to. elevate the offense to the aggravated class

defined and punished by the Habitual Criminal Act.” |

204 F.2d 624, re, :

This tntetpredition of what is-required by elementary fair-

ness ‘fully comports with Petitioner’s. He seeks by way of —

-relief nothing more than a judicial declaration that elemen-

tary fairness, in the form of ‘due process of law, require

disclosure to him of the.grounds upon which it is proposed

- that he be sentenced and an opportunity such as is given -

in Section 7.07 of the Model Penal Code and in Claudy to

test and rebut the information on which the court acts in

imposing an i extended sentence.

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Conclusion

Petitioner has saimecnctaly argued te the lower courts

that persons convicted of a crime may not constitutionally

be subjected to. enhanced penalties unless the State pro- —

vides a fair procedure’ incorporating hearing, disclosure -

of evidence used against them, and the right to rebut such

evidence by cross-examination ‘and by scehaeaeeel of evi- .

‘dence of their own. *. /

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Respondent has successfully argued that since due proc-

: ess does not pertain to the sentencing process, it is irrele-.

vant to inguire into the question of ‘what constitutes a

- fair procedure for enhanced penalty sentencing.

‘Petitioner was sentenced under Respondent’s theory of

the law and all his attempts to challenge that theory have.

been summarily rejected « on the basis of Respondent’s prem-

- ise that due process does not pene: < to sentencing.

Under the authority of this Court's: ‘al in Williams. v.

New York, the lower courts have permitted Petitioner and_

others to be sentenced to enhanced punishments without

the procedural safeguards: sought by Petitioner. It has

come necessary for this Court (1) to clarify the extent,

if any, Sto which Williams v. New York applies to révidivism,

mental abnormality: and other like criminal proceedings,

(2) to, decide whether defendants i in those proceedings have

~ any due process rights, : and (3) to specify what, if any,

| rights may be afforded. .

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a Bs 13. : a . , vv.

Petitioner submits that recent deéisions of this. Court

in Oyler v. Boles, 368 U.S. 448 (1962) ; Chandler v. Fretag,

348 U.S. 3:(1959) ; and Kent v. United States, 383 U.S: 541 -

. (1966), clearly point the way for decision in his case. The

_ decision of: the Court of Appeals: must be reversed. _

Respectfully submitted,

eee Te _— A. Buaws |

7 “Micwarn A. Wiuutams

- ™) Gary L. GREER ©

Counsel for Petitioner

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