B-156932, JUN. 13, 1966, 45 COMP. GEN. 780

B-156932, JUN. 13, 1966, 45 COMP. GEN. 780

COURTS - CRIMINAL JUSTICE ACT OF 1964 - PROBATIONAL PROCEEDINGS THE PROCEEDINGS TO DETERMINE IF A PROBATION SHOULD BE REVOKED AND A SENTENCE IMPOSED IS A HEARING TO DETERMINE WHETHER AN OFFENDER HAD FORFEITED THE PRIVILEGE OF CONDITIONAL LIBERTY PROVIDED BY THE FEDERAL PROBATION ACT AND THE PROCEEDINGS ARE NOT AN EXTENSION OF THE ORIGINAL CRIMINAL ACTION ENTITLING THE OFFENDER TO LEGAL REPRESENTATION AS A CONSTITUTIONAL RIGHT; THEREFORE, THE CRIMINAL JUSTICE ACT OF 1964 (18 U.S.C. 3006A) PROVIDING FOR REPRESENTATION OF DEFENDANTS FINANCIALLY UNABLE TO OBTAIN AN ADEQUATE DEFENSE DOES NOT APPLY TO A HEARING FOR THE PURPOSE OF REVOKING A PROBATIONAL PRIVILEGE, AND THE FACT THAT AN ORDER REVOKING A PROBATION IS AN APPEALABLE FINAL JUDGMENT DOES NOT ENTITLE THE OFFENDER TO COUNSEL AS A MATTER OF RIGHT UNDER THE SIXTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES OR UNDER RULE 44 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, THE APPEAL RELATING BACK TO THE ORIGINAL JUDGMENT OF CONVICTION.

TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, JUNE 13, 1966:

BY LETTER OF APRIL 26, 1966, YOU REQUESTED OUR OPINION ON THE FOLLOWING QUESTION:

DOES THE CRIMINAL JUSTICE ACT OF 1964 PROVIDE LEGAL AUTHORITY TO USE FUNDS APPROPRIATED TO THE JUDICIARY FOR PAYMENT OF FEES OF COUNSEL APPOINTED BY JUDGES OF COURTS OF THE UNITED STATES TO REPRESENT INDIVIDUALS IN PROCEEDINGS ON APPLICATIONS TO REVOKE PROBATION?

THE CRIMINAL JUSTICE ACT OF 1964, 18 U.S.C. 3006A, PROVIDES THE MEANS "* * * FOR FURNISHING REPRESENTATION FOR DEFENDANTS CHARGED WITH FELONIES OR MISDEMEANORS OTHER THAN PETTY OFFENSES * * * WHO ARE FINANCIALLY UNABLE TO OBTAIN AN ADEQUATE DEFENSE.' THE PROVISIONS OF THE ACT ARE OPERATIVE "IN EVERY CRIMINAL CASE IN WHICH THE DEFENDANT IS CHARGED WITH A FELONY OR A MISDEMEANOR, OTHER THAN A PETTY OFFENSE, AND APPEARS WITHOUT COUNSEL * * *.' THE ACT FURTHER PROVIDES THAT---

A DEFENDANT FOR WHOM COUNSEL IS APPOINTED SHALL BE REPRESENTED AT EVERY STAGE OF THE PROCEEDINGS FROM HIS INITIAL APPEARANCE BEFORE THE UNITED STATES COMMISSIONER OR COURT THROUGH APPEAL.

THE QUESTION PRESENTED ARISES IN CONNECTION WITH AN OPINION BY DISTRICT JUDGE JAMES M. CARTER IN THE CASE OF UNITED STATES V. BOYDEN, 248 F.SUPP. 291 (S.C.CAL; 1965). ON THE BASIS OF THE PROVISIONS OF THE ACT MENTIONED ABOVE, JUDGE CARTER CONCLUDED THAT A HEARING TO REVOKE PROBATION IS A "CRIMINAL CASE" FOR PURPOSES OF THE ACT. HIS OPINION STATES THAT:

* * * IN THE PRESENT CASE THE HEARING WAS TO DETERMINE IF PROBATION SHOULD BE REVOKED AND SENTENCE IMPOSED UNDER THE COUNTS FOR WHICH DEFENDANT WAS CONVICTED BUT FOR WHICH NO TERM HAD BEEN IMPOSED. IT IS THEREFORE AN EXTENSION OF THE ORIGINAL CRIMINAL ACTION.

AN ORDER REVOKING PROBATION AND IMPOSING SENTENCE IS AN APPEALABLE FINAL JUDGMENT. HENSLEY V. UNITED STATES, 257 F.2D 681 (5TH CIR. 1958). BURNS V. UNITED STATES, 287 U.S. 216, 53 S.CT. 154, 77 L.ED. 266 (1932) THE SUPREME COURT REVIEWED AN ORDER REVOKING PROBATION WHERE EXECUTION OF SENTENCE HAD BEEN SUSPENDED. SEE KIRSCH V. UNITED STATES, 173 F.2D 652 (8TH CIR. 1949); BENNETT V. UNITED STATES, 158 F.2D 412 (8TH CIR. 1946).

SINCE THE CRIMINAL JUSTICE ACT COVERS ALL PROCEDURES UP THROUGH APPEAL, A FORTIORI IT COVERS ALL PROCEEDINGS PRIOR TO APPEAL.

JUDGE CARTER'S OPINION IS APPARENTLY THE FIRST CASE SPECIFICALLY INVOLVING APPLICATION OF THE CRIMINAL JUSTICE ACT OF 1964 TO PROBATION REVOCATION PROCEEDINGS. SINCE THE OPINION HAS BROAD IMPLICATIONS STEMMING FROM WHAT APPEARS TO BE A NOVEL INTERPRETATION OF THE ACT AND SINCE THERE EXISTS A DIVERSITY OF OPINION IN THE COURTS ON THE QUESTION INVOLVED, THE COMMITTEE TO IMPLEMENT THE CRIMINAL JUSTICE ACT OF 1964 OF THE JUDICIAL CONFERENCE OF THE UNITED STATES HAS AUTHORIZED YOU TO SUBMIT A TEST CLAIM TO THIS OFFICE ON THE BASIS THAT THE QUESTION IS BASICALLY ONE OF INTERPRETING THE INTENT OF CONGRESS CONCERNING THE USE OF APPROPRIATED FUNDS.

AT THE OUTSET, IT IS TO BE NOTED THAT THE CRIMINAL JUSTICE ACT WAS ENACTED AGAINST A BACKGROUND OF SUPREME COURT DECISIONS CONSTRUING THE CONSTITUTIONAL REQUIREMENTS FOR ADEQUATE LEGAL REPRESENTATION IN CRIMINAL PROCEEDINGS AND TO FULFILL A NEED TO IMPLEMENT THE CONSTITUTIONAL MANDATE OTHER THAN BY THE APPOINTMENT OF COUNSEL ON A VOLUNTARY, UNPAID, AND NONREIMBURSABLE BASIS. S.REPT. NO. 346, 88TH CONG. 1ST SESS., AT PP. 4 AND 5. IN LIGHT OF THE LANGUAGE OF THE ACT AND ITS UNDERLYING PURPOSE, TWO QUESTIONS EMERGE IN CONSIDERING WHETHER THE ACT MAY PROPERLY BE APPLIED IN PROBATION REVOCATION PROCEEDINGS: FIRST, WHETHER SUCH A PROCEEDING INVOLVES A DEFENDANT CHARGED WITH A CRIMINAL OFFENSE AND SECOND, WHETHER THERE IS A CONSTITUTIONAL RIGHT TO LEGAL REPRESENTATION IN SUCH A PROCEEDING. THE GREAT WEIGHT OF CURRENT AUTHORITY IS THAT EACH OF THESE QUESTIONS MUST BE ANSWERED IN THE NEGATIVE. THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT IN THE CASE OF BROWN V. WARDEN, U.S. PENITENTIARY, 351 F.2D 564, 566 (1965), COMMENTED UPON THE NATURE OF PROBATION REVOCATION PROCEEDINGS AND THE RIGHT TO LEGAL REPRESENTATION IN THE FOLLOWING TERMS: (1, 2) AN OFFENDER'S RIGHTS UNDER THE FEDERAL PROBATION ACT HAVE BEEN CONSTRUED IN BURNS V. UNITED STATES, 287 U.S. 216, 53 S.CT. 154, 77 L.ED. 266 (1932), AND IN ESCOE V. ZERBST, 295 U.S. 490, 55 S.CT. 818, 79 L.ED. 1566 (1935). THE ACT IS INTENDED TO PROVIDE A PERIOD OF GRACE IN ORDER TO AID THE REHABILITATION OF A PENITENT OFFENDER. PROBATION IS CONFERRED AS A PRIVILEGE AND CANNOT BE DEMANDED AS A MATTER OF RIGHT. THE OFFENDER STANDS CONVICTED AND FACES PUNISHMENT. THE SOURCE OF HIS RIGHTS UNDER THE FEDERAL PROBATION ACT LIES IN THE LEGISLATIVE MANDATE, NOT IN THE CONSTITUTION OF THE UNITED STATES.

(3) CONGRESS HAS DECLARED THAT A PROBATIONER ACCUSED OF VIOLATING HIS PROBATION "SHALL BE TAKEN BEFORE THE COURT FOR THE DISTRICT HAVING JURISDICTION OVER HIM.' SECTION 3653, TITLE 18 U.S.C.A. ALTHOUGH NO TRIAL IN ANY STRICT OR FORMER SENSE IS REQUIRED, THE LEGISLATIVE DIRECTIVE THAT THE ACCUSED PROBATIONER SHALL BE TAKEN BEFORE A COURT MEANS THAT---

"* * * THERE SHALL BE AN INQUIRY SO FITTED IN ITS RANGE TO THE NEEDS OF THE OCCASION AS TO JUSTIFY THE CONCLUSION THAT DISCRETION HAS NOT BEEN ABUSED BY THE FAILURE OF THE INQUISITOR TO CARRY THE PROBE DEEPER.' ESCOE V. ZERBST, 295 U.S., AT 493, 55 S.CT. AT 820.

(4) THE INQUIRY OF THE COURT AT SUCH A HEARING IS NOT DIRECTED TO THE PROBATIONER'S GUILT OR INNOCENCE IN THE UNDERLYING CRIMINAL PROSECUTION, BUT TO THE TRUTH OF THE ACCUSATION OF A VIOLATION OF PROBATION. HAS THE PROBATIONER ABUSED THE PRIVILEGE OF THE PERIOD OF GRACE EXTENDED TO HIM TO AID HIM IN REHABILITATION?

(5) LIBERTY ON PROBATION IS CONDITIONED ON THE OBSERVANCE OF CERTAIN CONDUCT. A BREACH OF THE REQUIRED CONDUCT--- NOT NECESSARILY THE COMMISSION OF A CRIME--- CONSTITUTES A VIOLATION AND SERVES TO TERMINATE THE PRIVILEGE OF CONDITIONAL LIBERTY. ALTHOUGH REVOCATION RESULTS IN THE DEPRIVATION OF THE PROBATIONER'S LIBERTY, THE SENTENCE HE MAY BE REQUIRED TO SERVE IS THE PUNISHMENT FOR THE CRIME OF WHICH HE HAD PREVIOUSLY BEEN FOUND GUILTY.

(6) THUS IT APPEARS THAT UNDER THE FEDERAL PROBATION ACT AS CONSTRUED BY THE SUPREME COURT, THE SOURCE AND NATURE OF THE OFFENDER'S RIGHTS AND THE ISSUE BEFORE THE COURT ON HEARING OF REVOCATION OF PROBATION DIFFER FROM THOSE ON IMPOSITION OF SENTENCE IN A CRIMINAL PROSECUTION. IT FOLLOWS THAT AN OFFENDER WHO HAS ALREADY BEEN ADJUDGED GUILTY AND SENTENCED IS NOT ENTITLED TO COUNSEL AS A MATTER OF RIGHT UNDER THE SIXTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES OR UNDER RULE 44 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE IN THE HEARING ON REVOCATION WHEREIN IT IS DETERMINED WHETHER OR NOT HE HAS FORFEITED THE PRIVILEGE OF CONDITIONAL LIBERTY. WELSH V. UNITED STATES, 348 F.2D 885 (6TH CIR. 1965); UNITED STATES V. HUGGINS, 184 F.2D 866, 868 (7TH CIR. 1950); GILLESPIE V. HUNTER, 159 F. 120 410 (10TH CIR. 1947); BENNETT V. UNITED STATES, 158 F.2D 412 (8TH CIR. 1946). DECISIONS CONCERNED WITH THE CONSTITUTIONAL RIGHT TO COUNSEL OF AN ACCUSED AT VARIOUS STAGES OF CRIMINAL PROSECUTIONS ARE NOT CONTROLLING. CF. GIDEON V. WAINWRIGHT, 372 U.S. 335, 83 S.CT. 792, 9 L.ED.2D 799 (1963); UNITED STATES V. TRIBOTE, 297 F.2D 598 (2D CIR. 1961).

A SIMILAR INTERPRETATION OF CORRESPONDING STATE LAW IS FOLLOWED IN THOMAS V. MAXWELL, 175 OHIO ST. 233, 193 N.E.2D 150 (1963), AND KENNEDY V. MAXWELL, 176 OHIO ST. 215, 198 N.E.2D 658 (1964).

RECENT DECISIONS CONCERNING THE RIGHTS OF PAROLEES ON REVOCATION PROCEEDINGS SERVE TO EMPHASIZE THE DISTINCTION BETWEEN PENOLOGICAL DEVICES UNDER LEGISLATIVE MANDATE, SUCH AS PROBATION OR PAROLE WHERE THE GUILT AND LIABILITY TO PUNISHMENT OF THE OFFENDER ARE NO LONGER IN ISSUE, AND THE INITIAL CRIMINAL PROSECUTION WHERE THESE MATTERS WERE DETERMINED. SEE HYSER V. REED, 115 U.S.APP.D.C. 254, 318 F.2D 225 (1963), AND RICHARDSON V. MARKLEY, 339 F.2D 967 (7TH CIR. 1965). IT APPEARS CLEARLY FROM THESE DECISIONS THAT THE FEDERAL CONSTITUTIONAL RIGHTS OF AN ACCUSED IN A CRIMINAL PROSECUTION AND THE RIGHTS OF AN OFFENDER IN PROCEEDINGS ON REVOCATION OF CONDITIONAL LIBERTY UNDER PAROLE OR PROBATION ARE NOT COEXTENSIVE.

SEE ALSO YATES V. UNITED STATES, 308 F.2D 737 (C.A. 10, 1962) AND CASE CITED THEREIN, AND DIRRING V. UNITED STATES, 353 F.2D 519 (C.A. 1, 1965) INVOLVING QUESTION AS TO THE APPLICATION OF THE CRIMINAL JUSTICE ACT OF 1964 WITH RESPECT TO PROSECUTION OF A POSTAPPEAL MOTION FOR NEW TRIAL, WHEREIN THE COURT STATED:

(6) THERE REMAINS THE QUESTION OF WHETHER THE COURT ERRED IN FAILING TO APPOINT COUNSEL TO PROSECUTE THE MOTION FOR NEW TRIAL. APPELLANT HAD COUNSEL "THROUGH APPEAL," AS REQUIRED BY THE CRIMINAL JUSTICE ACT, 18 U.S.C. SEC. 3006A (C). WE DO NOT CONSTRUE THAT PHRASE TO INCLUDE MOTIONS FOR NEW TRIAL. NOR DO WE SO INTERPRET THE SIXTH AMENDMENT. THERE MUST BE AN END. CF. UNITED STATES V. JOHNSON, SUPRA. AFTER FINAL CONVICTION THE APPOINTMENT OF COUNSEL MUST REST IN THE DISCRETION OF THE COURT. WE SEE NO ABUSE OF DISCRETION IN THIS CASE. CF. UNITED STATES EX REL. WISSENFELD V. WILKINS, 2 CIR., 281 F.2D 707.

WHILE IT IS TRUE AS JUDGE CARTER POINTS OUT THAT AN APPEAL WILL LIE FROM AN ORDER PROVOKING PROBATION AND IMPOSING SENTENCE SUCH APPEAL IS NOT RELATED TO THE ORIGINAL JUDGMENT OF CONVICTION. SINCE THE ISSUE OF REVOCATION IS A MATTER OF DISCRETION, THE ONLY QUESTION PRESENTED ON APPEAL FROM A REVOCATION ORDER IS WHETHER THE TRIAL JUDGE ABUSE HIS DISCRETION. THE SCOPE OF SUCH REVIEW IS THE SAME WHETHER SENTENCE WAS INITIALLY IMPOSED AND SUSPENDED OR IMPOSITION OF SENTENCE ITSELF SUSPENDED. BROADUS V. UNITED STATES, 317 F.2D 212 (C.A. 5, 1963), CERT. DEN. 375 U.S. 829; YATES V. UNITED STATES, SUPRA; HENSLEY V. UNITED STATES, 257 F.2D 681 (C.A. 5, 1958).

JUDGE CARTER CONCLUDES THAT BECAUSE THE CASE BEFORE HIM WAS A HEARING INVOLVING NOT ONLY THE QUESTION OF REVOKING PROBATION BUT ALSO OF IMPOSING SENTENCE UNDER THE COUNTS FOR WHICH DEFENDANT WAS PREVIOUSLY CONVICTED WITH IMPOSITION OF SENTENCE SUSPENDED, THE REVOCATION HEARING CONSTITUTES AN EXTENSION OF THE ORIGINAL CRIMINAL PROCEEDING. WE RECOGNIZE THAT THERE IS A DISTINCTION BETWEEN A HEARING IN WHICH A SUSPENDED SENTENCE IS REINSTATED AND ONE IN WHICH SENTENCE IS IMPOSED FOR THE FIRST TIME. SEE ROBERTS V. UNITED STATES, 320 U.S. 264, INVOLVING THE QUESTION WHETHER AN INITIALLY IMPOSED SENTENCE WHICH HAS BEEN SUSPENDED MAY BE INCREASED AT A PROBATION REVOCATION HEARING. HOWEVER, WE DO NOT AGREE THAT SUCH A DISTINCTION IS RELEVANT TO THE ISSUE OF WHETHER THE CRIMINAL JUSTICE ACT IS OPERATIVE WHEN CONSIDERATION IS GIVEN TO THE FUNDAMENTAL DIFFERENCES BETWEEN THE ORIGINAL CRIMINAL TRIAL AND THE REVOCATION PROCEEDING. SEE THE VIEWS OF THREE DISSENTING JUSTICES IN THE ROBERTS CASE CITING, AT PAGE 274, KOREMATSU V. UNITED STATES, 319 U.S. 432, FOR THE PROPOSITION THAT "* * * THE DIFFERENCE TO A PROBATIONER BETWEEN IMPOSITION OF SENTENCE FOLLOWED BY PROBATION AND SUSPENSION OF THE IMPOSITION OF SENTENCE ,IS ONE OF TRIFLING DEGREE.'"

IT MAY BE THAT THERE ARE CONSTITUTIONAL ISSUES INHERENT IN THE PERMISSION OF LEGAL REPRESENTATION AT PROBATION REVOCATION HEARINGS FOR THOSE ABLE TO AFFORD IT WITHOUT PROVIDING MEANS FOR THOSE WHO CANNOT AFFORD FEES FOR COUNSEL. SEE OPINIONS OF THE VARIOUS JUDGES IN HYSER V. REED, 318 F.2D 225 (C.A.D.C., 1963) AND JONES V. RIVERS, 338 F.2D 862 (C.A. 4, 1964), INVOLVING PAROLE BOARD HEARINGS, PARTICULARLY THE SPECIALLY CONCURRING OPINION OF CHIEF JUDGE SIMON E. SOBELOFF AT PAGE 875; HOFFMAN V. STATE, 404 F.2D 644 (SUP.CT. OF ALASKA, 1965). BUT SUCH ISSUES HAVE NO BEARING ON THE APPLICABILITY OF THE CRIMINAL JUSTICE ACT IN THE CIRCUMSTANCES. STATED BY CHIEF JUDGE SOBELOFF:

THERE IS MUCH FORCE IN THE COMMENT ON THE GREAT ECONOMIC BURDEN THAT MEMBERS OF THE BAR HAVE BEEN CALLED UPON TO SHOULDER IN THE UNCOMPENSATED REPRESENTATION OF INDIGENTS. IT IS, AS HAS BEEN SAID, GREATLY TO THE CREDIT OF THE PROFESSION THAT ITS MEMBERS HAVE, ALMOST WITHOUT EXCEPTION, ACCEPTED THIS BURDEN WILLINGLY AND OFTEN EVEN EAGERLY. AT LONG LAST CONGRESS HAS ENACTED LEGISLATION TO REMUNERATE LAWYERS FOR SUCH SERVICES RENDERED IN FEDERAL CRIMINAL TRIALS. THE STATES SINCE GIDEON V. WAINWRIGHT, 372 U.S. 335, 83 S.CT. 792, 9 L.ED.2D 799 (1963), ARE DOING LIKEWISE.

THAT CONGRESS HAS NOT PROVIDED THE MEANS FOR THE PAROLE BOARD TO APPOINT COUNSEL IN REVOCATION HEARINGS SHOULD NOT DETER US FROM OUR DUTY TO DECLARE THE PAROLEE'S RIGHTS UNDER THE STATUTE. WHEN THE COURTS MAKE SUCH A DECLARATION, CONGRESS MAY BE EXPECTED TO PROVIDE THE MEANS TO IMPLEMENT IT, AS ILLUSTRATED BY THE CRIMINAL JUSTICE ACT OF 1964, P.L. 88-455, 88TH CONGRESS, S. 1057, APPROVED AUG. 20, 1964. IN THE INTERVAL, IT IS NOT BEYOND THE RESOURCEFULNESS OF THE PAROLE BOARD AND THE DEPARTMENT OF JUSTICE TO MAKE TEMPORARY PROVISION FOR APPOINTED COUNSEL. * * * LIGHT OF THE INHERENT DIFFERENCES BETWEEN REVOCATION OF PROBATION PROCEEDINGS AND THE CRIMINAL TRIALS FROM WHICH THEY FOLLOW IT IS OUR OPINION, IN THE ABSENCE OF ANY POSITIVE INDICATION OF CONGRESSIONAL INTENT IN THE MATTER, THAT THE CRIMINAL JUSTICE ACT OF 1964 WHICH IS DIRECTED TOWARD THE CONSTITUTIONAL RIGHT TO LEGAL REPRESENTATION FOR DEFENDANTS IN CRIMINAL CASES MAY NOT PROPERLY BE CONSTRUED AS BEING APPLICABLE IN THE PROBATION REVOCATION SITUATION.