MR. JUSTICE JACKSON delivered the opinion of the Court.
The Commonwealth of Pennsylvania holds the petitioner prisoner under a life sentence as an habitual criminal. His claim here, protesting denial by the State Supreme Court of his petition for a writ of habeas corpus, is that the Federal Constitution requires Pennsylvania to release him on due process of law grounds because (1) he was sentenced as a fourth offender without counsel or offer of counsel; (2) one of the convictions on which the sentence is based occurred before the enactment of the Pennsylvania Habitual Criminal Act
At the outset, we face the suggestion that the case cannot properly be decided on the merits by this Court because, as a matter of state law, the attack on the life sentence may be premature since petitioner would be validly restrained on prior sentences not expiring until at least February 1949, even if the life sentence were to be invalidated. Some members of the Court prefer to affirm the judgment on that ground. However, since the state law question is not free from difficulty, the issue was not fully litigated in this Court, and since, on the merits,
It rather overstrains our credulity to believe that one who had been a defendant eight times and for whom counsel had twice waged defenses, albeit unsuccessful ones, did not know of his right to engage counsel. No request to do so appears. The only question of fact before the court on the fourth offender charge was whether he was the same person who was convicted in the four cases. This he then admitted and does not now deny. The only other question was sentence, and it does not appear that any information helpful to petitioner was unknown to the court.
We have just considered at length the obligation of the States to provide counsel to defendants who plead guilty to non-capital offenses. Bute v. Illinois, 333 U.S. 640. Notwithstanding the resourceful argument of assigned counsel in this Court, we think that precedent settles the issue here, that no exceptional circumstances are present and that, under the circumstances disclosed by the record before us, the State's failure to provide counsel for this petitioner on his plea to the fourth offender charge did not render his conviction and sentence invalid.
The judgment is
Table of Pleas and Convictions. ---------------------------------------------------------------------------- Date | Charge | Plea | Sentence -------|----------------------------|---------------------|----------------- | | | 1927 _ | Burglary _________________ | Guilty ___________ | 1 year. | | | 1928 _ | Assault and battery; | | | carrying concealed deadly | | | weapon. | Guilty ___________ | 1 year. | | | 1929 _ | Burglary; breaking | Not guilty _______ | Committed | and entering with intent | | to Reformatory | to commit a felony. | | indefinitely. | | | 1930 _ | Armed robbery, armed | Guilty ___________ | 5 to 10 years. | assault, entering with | | | intent to rob. | | | | | 1937 _ | Burglary, carrying | Guilty of receiving | 1 1/2 to 3 | concealed deadly weapon. | stolen goods, and | years. | | carrying concealed | | | deadly weapon. | | | | 1943 _ | Burglary, receiving stolen | Guilty of receiving | 5 to 10 years. | goods — 12 offenses | stolen goods. | | each. | | | | | 1944 _ | Burglary _________________ | Not guilty _______ | 5 to 10 years. | | | 1944 _ | Aggravated assault and | Not guilty _______ | Suspended. | battery. | | ---------------------------------------------------------------------------
MR. JUSTICE RUTLEDGE, with whom MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS and MR. JUSTICE MURPHY join, dissenting.
Even upon the narrow view to which a majority of this Court adhere concerning the scope of the right to counsel
The opinion in that case declares that "the disadvantage from absence of counsel, when aggravated by circumstances showing that it resulted in the prisoner actually being taken advantage of, or prejudiced, does make out a case of violation of due process." In this view the Court finds that Townsend was prejudiced by the trial court's action in sentencing him on the basis either of misinformation submitted to it concerning his prior criminal record or by its misreading of the record and carelessness in that respect. On the same basis Gryger's sentence was invalid, although the Court finds no such exceptional circumstances here inducing prejudice as it finds in Townsend's case.
The record, in my judgment, does reveal such a circumstance, one working to induce prejudice at exactly the same point as with Townsend, namely, upon the critical question of sentence. So far as the record reveals, Gryger was sentenced to life imprisonment by a court working under the misconception that a life term was mandatory, not discretionary, under the Pennsylvania Habitual Criminal Act.
Exactly the opposite is true. In explicit terms the statute puts imposition of life imprisonment upon fourth offenders "in the discretion of the judge."
In spite of his discretion and duty to exercise it, the sentencing judge, remarking that the only question was whether petitioner was the same person who had suffered the prior convictions, repeatedly spoke as if the life sentence were mandatory. The statements quoted in the margin are typical.
It is immaterial that the same sentence might or probably would have been imposed in an exercise of the court's discretion. Petitioner was entitled to have sentence pronounced in that manner, not as an automatic mandate of statute. The denial of the very essence of the judicial process, which is the exercise of discretion where discretion is required, is in itself a denial of due process, not merely an error of state law of no concern to this Court. And we cannot speculate whether the same sentence would have been pronounced if the court's discretion had been exercised.
Moreover, the court's misconception, together with the absence of counsel, deprived the petitioner of any chance
I find it difficult to comprehend that the court's misreading or misinformation concerning the facts of record vital to the proper exercise of the sentencing function is prejudicial and deprives the defendant of due process of law, but its misreading or misconception of the controlling statute, in a matter so vital as imposing mandatory sentence or exercising discretion concerning it, has no such effect. Perhaps the difference serves only to illustrate how capricious are the results when the right to counsel is made to depend not upon the mandate of the Constitution, but upon the vagaries of whether judges, the same or different, will regard this incident or that in the course of particular criminal proceedings as prejudicial.
Section 5108 (d), which authorizes the procedure followed in the instant case, viz, a separate proceeding on an information within two years of the fourth conviction, provides that "the court may sentence him to imprisonment for life as prescribed in clause (b) of this section. . . ."
That the statute vests discretion in the sentencing judge has been clearly recognized by the Commonwealth's highest court. Commonwealth ex rel. Foster v. Ashe, 336 Pa. 238, 240.
"In other words, the law has come to this viewpoint: . . . [a fourth offender] must be removed from the possibility of ever committing the offense again."
Even if petitioner had secured access prior to the hearing to materials needed to prepare a defense, or had been adequately informed by the court as to the statute's terms and his rights thereunder, it is highly unrealistic to assume that petitioner was capable of adequately presenting his own case at the hearing. The pleadings which he filed are telling witness of his limited intelligence and education. And at the hearing it was so obvious that petitioner was unable to comprehend the issues involved that the assistant district attorney representing the Commonwealth remarked, "He doesn't understand."