Petitioner was indicted for housebreaking and larceny, which was
punishable by imprisonment for three to ten years. At his trial in
a state court, he was advised orally for the first time that,
because of three prior convictions for felonies, he would be tried
also as an habitual criminal, and, if convicted, would be sentenced
to life imprisonment. He asked for a continuance to enable him to
obtain counsel on the habitual criminal accusation, but this was
denied, and he was forced to stand trial immediately, and without
counsel. He pleaded guilty to housebreaking and larceny, was
convicted on both that charge and the habitual criminal accusation,
and was sentenced to three years on the former charge and to life
imprisonment on the latter.
Held: by denying petitioner any opportunity to obtain
counsel on the habitual criminal accusation, the trial court
deprived him of the due process of law guaranteed by the Fourteenth
Amendment. Pp.
348 U. S.
4-10.
(a) By waiving counsel on the housebreaking and larceny charge,
petitioner did not waive any right to counsel on the habitual
criminal accusation. Pp.
348 U. S. 6-9.
(b) Regardless of whether petitioner would have been entitled to
have counsel appointed by the court, his right to be heard through
his own counsel was unqualified.
Betts v. Brady,
316 U. S. 455,
distinguished. Pp.
348 U. S.
9-10.
Reversed.
After serving a sentence of three years for housebreaking and
larceny, petitioner applied to a Tennessee Circuit Court for
release on a writ of habeas corpus from a life sentence as an
habitual criminal. This was denied, and the Supreme Court of
Tennessee affirmed. This Court granted certiorari. 347 U.S. 933.
Reversed, p.
348 U. S. 10.
Page 348 U. S. 4
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
Petitioner is held in the custody of respondent, Warden of the
Tennessee State Penitentiary, under a sentence of life imprisonment
as an habitual criminal. Challenging the validity of that sentence
under the Fourteenth Amendment, he commenced this action in the
Tennessee courts to obtain his freedom. We granted certiorari, 347
U.S. 933, because of the substantial question presented by his
constitutional claim.
The basic facts are undisputed. Petitioner is a middle-aged
Negro of little education. He was indicted on March 10, 1949, for
the offense of housebreaking and larceny, an offense punishable by
a term of three to ten years. The indictment charged him with
breaking and entering a business house and stealing therefrom
sundry items of the aggregate value of $3. Following his arrest,
petitioner was released on bond while awaiting trial set for May
17, 1949. On that day, without an attorney and without notice of
any habitual criminal accusation against him, petitioner appeared
in court intending to plead guilty to the indictment. He "felt that
an attorney could do him no good on said charge [housebreaking and
larceny]." When his case was called for trial, he was orally
advised by the trial judge that he would also be tried as an
habitual criminal because of three alleged prior felonies.
[
Footnote 1] He
Page 348 U. S. 5
was informed that conviction under the Tennessee Habitual
Criminal Act carries a mandatory sentence of life imprisonment with
no possibility of parole. [
Footnote
2] Petitioner promptly asked for a continuance to enable him to
obtain counsel on the habitual criminal accusation. His request was
summarily denied, a jury was impaneled, and the case proceeded
immediately to trial. Petitioner entered his plea of guilty to the
housebreaking and larceny charge, and the prosecution introduced
evidence in corroboration of the plea. At the conclusion of the
trial, the judge instructed the jury to raise their right hands if
they accepted petitioner's guilty plea on the housebreaking and
larceny charge and if they approved of a three-year sentence on
that charge. The jury responded by raising their right hands. The
judge then instructed the jury to raise their right hands a second
time if they found petitioner to be an habitual criminal. Once
again, the jury, without ever having left the jury box, raised
their right hands. The entire proceeding -- from the impaneling of
the jury to the passing of sentence -- consumed between five and
ten minutes.
Three years later, having served his sentence on the
housebreaking and larceny charge, petitioner applied to the Circuit
Court of Knox County for habeas corpus relief. [
Footnote 3] He alleged that his sentence as an
habitual criminal was invalid on the ground, among others, that he
had been denied an opportunity to obtain counsel in his defense.
[
Footnote 4]
Page 348 U. S. 6
At a hearing on the application, petitioner, his wife, his
brother, a juror, and the prosecuting attorney testified as to
their recollection of petitioner's trial. [
Footnote 5] All five witnesses were in full accord as
to the above-stated facts. They differed only on whether petitioner
had pleaded guilty to the habitual criminal accusation and whether
the prosecution had introduced any evidence concerning petitioner's
prior convictions. The prosecuting attorney, the only witness for
the state, testified that petitioner had pleaded guilty to the
habitual criminal accusation as well as the housebreaking and
larceny charge, and that the record of petitioner's prior
convictions had been read to the jury; the other four witnesses
denied it. In all other respects, the testimony of the prosecuting
attorney substantiated the testimony of the other four witnesses.
Thus, he conceded that petitioner had not been represented by
counsel, that petitioner had not been given any pretrial notice of
the habitual criminal accusation, that petitioner
"said he wanted the case put off as he was advised by the Court
that he was being tried as an habitual criminal in addition to
housebreaking and larceny. He asked that the case be put off so he
could get a lawyer, and [the trial judge] told him he had had since
January up to May to get a lawyer."
The Circuit Court, after hearing the case on the merits,
accepted -- as does the respondent here -- petitioner's factual
allegations as to the denial of counsel. The Circuit Court
nevertheless upheld the validity of petitioner's
Page 348 U. S. 7
sentence, and the Tennessee Supreme Court affirmed. Both courts
emphasized that the Tennessee Habitual Criminal Act, like similar
legislation in other states, does not create a separate offense,
but only enhances a defendant's punishment on being convicted of
his fourth felony.
Tipton v. State, 160 Tenn. 664,
672-678, 28 S.W.2d 635, 637-639.
See also McDonald v.
Massachusetts, 180 U. S. 311,
180 U. S. 313;
Graham v. West Virginia, 224 U. S. 616,
224 U. S.
623-624. From that premise, the courts below reasoned
that petitioner had waived any right to counsel on the habitual
criminal accusation by waiving counsel on the housebreaking and
larceny charge. With this conclusion we cannot agree.
Section 1 of the Act defines "habitual criminal" in considerable
detail. [
Footnote 6] Section 7
prescribes standards for the admissibility of the record of the
prior convictions of a defendant charged with being an habitual
criminal. [
Footnote 7]
Page 348 U. S. 8
This Section, the Tennessee Supreme Court has held, clearly
authorizes "[a]n issue of fact as to the verity of such record or
as to the identity of the accused with the person named in such
record. . . ."
Tipton v. State, 160 Tenn. 664, 678, 28
S.W.2d 635, 639. Proof of the defendant's prior convictions is " .
. . a condition precedent to the imposition of the increased
punishment provided."
Tipton v. State, supra. Section 6 of
the Act, moreover, provides that the increased punishment cannot be
imposed unless the jury specially finds that the defendant is an
habitual criminal as charged. [
Footnote 8] "Under section 6 of the Act," according to the
Tennessee Supreme Court, "the question as to whether the defendant
is an habitual criminal is one for the jury to decide."
McCommings v. State, 175 Tenn. 309, 311, 134 S.W.2d 151,
152. In short, even though the Act does not create a separate
offense, its applicability to any defendant charged with being an
habitual criminal must be determined by a jury in a judicial
hearing.
Compare Williams v. New York, 337 U.
S. 241. That hearing and the trial on the felony charge,
although they may be conducted in a single proceeding, are
essentially independent of each other. [
Footnote 9] Thus, for example, it is possible that the
jury in the instant case might have found petitioner guilty on the
housebreaking and larceny charge and yet found him innocent of
being an habitual criminal. Apparently recognizing this
possibility, petitioner, at the earliest possible moment,
affirmatively sought an opportunity to obtain counsel on the
habitual criminal accusation. Immediately on being informed of the
accusation and suddenly finding himself in danger of life
imprisonment, he requested
Page 348 U. S. 9
a continuance so that he could engage the services of an
attorney; but the trial court refused the request, and forced him
to stand immediate trial. On these undisputed facts, it is clear
beyond question that petitioner did not waive counsel on the
habitual criminal accusation.
See Rice v. Olson,
324 U. S. 786,
324 U. S.
788-789.
The Tennessee Attorney General denies, however, that petitioner
had any federal constitutional right to counsel. He relies on the
doctrine enunciated in
Betts v. Brady, 316 U.
S. 455. But that doctrine has no application here.
Petitioner did not ask the trial judge to furnish him counsel;
rather, he asked for a continuance so that he could obtain his own.
The distinction is well established in this Court's decisions.
Powell v. Alabama, 287 U. S. 45,
287 U. S. 71;
Betts v. Brady, 316 U. S. 455,
316 U. S. 466,
316 U. S. 468;
House v. Mayo, 324 U. S. 42,
324 U. S. 46.
Regardless of whether petitioner would have been entitled to the
appointment of counsel, his right to be heard through his own
counsel was unqualified. [
Footnote 10]
See Palko v. Connecticut,
302 U. S. 319,
302 U. S.
324-325. As this Court stated over 20 years ago in
Powell v. Alabama, supra, at
287 U. S.
68-69:
"What, then, does a hearing include? Historically and in
practice, in our own country, at least, it has always included the
right to the aid of counsel when desired and provided by the party
asserting the right. The right to be heard would be, in many cases,
of little avail if it did not comprehend the right to be heard by
counsel. Even the intelligent and educated layman has small and
sometimes no skill in the science of law. If charged with crime, he
is incapable,
Page 348 U. S. 10
generally, of determining for himself whether the indictment is
good or bad. He is unfamiliar with the rules of evidence. Left
without the aid of counsel, he may be put on trial without a proper
charge, and convicted upon incompetent evidence, or evidence
irrelevant to the issue or otherwise inadmissible. He lacks both
the skill and knowledge adequately to prepare his defense, even
though he have a perfect one.
He requires the guiding hand of
counsel at every step in the proceedings against him. Without
it, though he be not guilty, he faces the danger of conviction
because he does not know how to establish his innocence. If that be
true of men of intelligence, how much more true is it of the
ignorant and illiterate, or those of feeble intellect.
If, in
any case, civil or criminal, a state or federal court were
arbitrarily to refuse to hear a party by counsel, employed by and
appearing for him, it reasonably may not be doubted that such a
refusal would be a denial of a hearing, and, therefore, of due
process in the constitutional sense."
(Italics added.) A necessary corollary is that a defendant must
be given a reasonable opportunity to employ and consult with
counsel; otherwise, the right to be heard by counsel would be of
little worth.
Avery v. Alabama, 308 U.
S. 444,
308 U. S. 446;
House v. Mayo, 324 U. S. 42,
324 U. S. 46;
White v. Ragen, 324 U. S. 760,
324 U. S. 764;
Hawk v. Olson, 326 U. S. 271,
326 U. S.
277-278. By denying petitioner any opportunity whatever
to obtain counsel on the habitual criminal accusation, the trial
court deprived him of due process of law as guaranteed by the
Fourteenth Amendment.
It follows that petitioner is being held by respondent under an
invalid sentence. The judgment below, sustaining the denial of
habeas corpus relief, is accordingly reversed.
Judgment reversed.
[
Footnote 1]
The Tennessee Habitual Criminal Act, at the time of petitioner's
trial, permitted an oral accusation. Williams' Tenn.Code, 1934
(1949 Supp.), § 11863.5. It was subsequently amended to
require the inclusion of the accusation in the indictment on the
substantive offense. Tenn.Code, 1932 (1950 Supp.),
§11863.5.
[
Footnote 2]
Williams' Tenn.Code, 1934 (1949 Supp.), § 11863.2.
[
Footnote 3]
Under Tennessee law, a defendant sentenced on both a felony
charge and an habitual criminal accusation must serve his term on
the felony charge before he can attack the validity of his habitual
criminal sentence in habeas corpus proceedings.
See State ex
rel. Grandstaff v. Gore, 182 Tenn. 94, 98, 184 S.W.2d 366,
367.
[
Footnote 4]
Petitioner also alleged, wholly apart from his claim of denial
of counsel, that he was deprived of due process by the failure of
the trial court to give him any pretrial notice of the habitual
criminal accusation. We find it unnecessary to pass on this
contention in view of our disposition of the case. We also note
that, in 1950, subsequent to petitioner's trial, the Tennessee
Habitual Criminal Act was amended to require pretrial notice.
Tenn.Code, 1932 (1950 Supp.), § 11863.5.
[
Footnote 5]
The record of petitioner's trial consists only of the indictment
and the judgment of conviction. There was no stenographic
transcript of the proceedings. The judgment recites that petitioner
had "counsel present," but it is conceded that the recital is not
true.
[
Footnote 6]
Williams' Tenn.Code, 1934 (1949 Supp.), § 11863.1:
"Any person who has either been three times convicted within
this state of felonies, two of which, under section 11762 of the
Code of Tennessee, rendered him infamous, or which were had under
sections 10777, 10778, 10788, 10790, and 10797 of said Code, or
which were for murder in the first degree, rape, kidnapping for
ransom, treason or other crime punishable by death under existing
laws, but for which the death penalty was not inflicted, or who has
been three times convicted under the laws of any other state,
government or country of crimes, two of which, if they had been
committed in this state, would have rendered him infamous, or would
have been punishable under said sections 10777, 10778, 10788,
10790, and 10797 of said Code, or would have been murder in the
first degree, rape, kidnapping for ransom, treason, or other crime
punishable by death under existing laws, but for which the death
penalty was not inflicted, shall be considered, for the purposes of
this act, and is hereby declared to be, an habitual criminal,
provided that petit larceny shall not be counted as one of such
three convictions, but is expressly excluded, and provided further
that each of such three convictions shall be for separate offenses,
committed at different times, and on separate occasions."
[
Footnote 7]
Williams' Tenn.Code, 1934 (1949 Supp.), § 11863.7.
[
Footnote 8]
Williams' Tenn.Code, 1934 (1949 Supp.), § 11863.5.
[
Footnote 9]
Compare, e.g., the West Virginia procedure which
provides for a separate hearing on the habitual criminal issue.
See Graham v. West Virginia, 224 U.
S. 616.
[
Footnote 10]
Tennessee statutes appear to confer both rights on a defendant
in a criminal case. Tenn.Code, 1932, §§ 11733, 11734,
11547, 11548.
See also Art. 1, § 9, of the
Declaration of Rights in the Tennessee Constitution.