Caruth v. LaVallee: Right to Appeal
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2d 449
UNITED STATES of America ex rel. Clarence Darrow
CARUTH,
Petitioner-Appellee,
v.
J. Edwin LaVALLEE, Superintendent, Clinton Correctional
Facility, Clinton, New York, Respondent-Appellant.
No. 842, Docket 72-1484.
United States Court of Appeals,
Second Circuit.
Argued May 25, 1972.
Decided July 3, 1972.
Phylis Skloot Bamberger, The Legal Aid Society, New York City (Robert
Kasanof, New York City, on the brief), for petitioner-appellee.
Hillel Hoffman, Asst. Atty. Gen. of State of New York, New York City
(Louis J. Lefkowitz, Atty. Gen. of State of New York, and Samuel A.
Hirshowitz, First Asst. Atty. Gen. of State of New York, New York City,
on the brief), for respondent-appellant.
Before LEVENTHAL, * FEINBERG and TIMBERS, Circuit Judges.
TIMBERS, Circuit Judge:
These appeals seek to present once again the question whether the equal
protection clause of the Fourteenth Amendment requires that a defendant, who
has been convicted of a crime under New York law upon his plea of guilty, be
advised of his right to appeal, including the right to have his appeal prosecuted
by court appointed counsel and without expense to the defendant if he is
indigent. In view of the State's concession referred to below and without
reaching the constitutional question raised, we remand with directions that the
district court enter an order permitting and requiring the State to accord to the
state prisoner his right to appeal in the state courts from his 1948 conviction
based on his guilty plea.
2
Petitioner, Clarence Darrow Caruth, then 15 years of age, was indicted by a
New York County Grand Jury on June 8, 1948 for first degree murder, the
crime having been committed on April 22, 1948. While represented by four
court appointed attorneys, he pleaded guilty on June 23, 1948 to second degree
murder. On November 10, 1948-two days after his sixteenth birthday1 -he was
sentenced to an "indefinite term" and was committed to the Elmira Reception
Center. No appeal was taken from this conviction; nor was he advised that he
had any right to appeal from this conviction entered upon his guilty plea.
Caruth was released from custody on January 13, 1954 pursuant to a state writ
of habeas corpus issued by the Wyoming County Court on the ground that, in
view of the "indefinite term" of his 1948 sentence, his commitment to Elmira
could be for no more than five years.2
Caruth thereafter was indicted by a Queens County Grand Jury on October 4,
1955 for second degree robbery, second degree assault and petit larceny. On
November 14, 1955, in satisfaction of this indictment and upon the advice of
counsel, he pleaded guilty to third degree robbery. He was sentenced on
December 16, 1955 as a second offender to a term of 15 to 20 years
imprisonment, the predicate conviction being that in 1948 for second degree
murder. He did not appeal his 1955 conviction and was not advised of any right
to so appeal.3
Caruth's habeas corpus petitions filed in the district court below in March and
December of 1971 presented numerous claims. The only one involved on the
instant appeals is the claim that the failure of the sentencing court in 1948 to
advise him as an indigent defendant of his right under New York law to appeal
from a conviction entered upon his guilty plea constituted a denial of equal
protection. The district court filed an opinion on March 21, 1972 sustaining this
claim; and it ordered Caruth released within 30 days unless the State provided
him with a right to appeal from his 1948 conviction and provided counsel to
represent him on such appeal. On April 20, 1972, the district court filed a
further opinion denying the State's request that the court amend its March 21
order so as to require petitioner to make an affirmative showing of merit in his
appeal from the 1948 conviction prior to granting the petition; and it again
ordered Caruth released. On May 2, 1972, we stayed the district court orders
pending appeal and expedited the appeal.
The essence of the constitutional claim that petitioner seeks to present in this
Court may be briefly stated. Relying on Douglas v. California, 372 U.S. 353
(1963), we held in United States ex rel. Smith v. McMann, 417 F.2d 648, 654
(2 Cir. 1969) (en banc), cert. denied, 397 U.S. 925 (1970), that the state is under
a duty "to warn every person convicted of crime of his right to appeal and his
right to prosecute his appeal without expense to him by counsel appointed by
the state, if he is indigent." We reaffirmed this holding in United States ex rel.
Witt v. LaVallee, 424 F.2d 421 (2 Cir. 1970) (en banc). Both Smith and Witt
involved convictions following trials. Caruth's conviction here in question was
entered on a guilty plea.4
7
Petitioner contends, however, as the district court held, that New York provides
for an appeal as of right from any judgment of conviction, even where the
defendant pleaded guilty. N.Y. Code of Crim.Proc. Sec. 517; People v. Nixon,
21 N.Y.2d 338, 234 N.E.2d 687, 287 N.Y.S.2d 659 (1967); People v. Garrow,
30 App.Div.2d 618, 290 N.Y.S.2d 694 (3d Dept. 1968). It being undisputed
that petitioner was indigent at the time of his 1948 sentencing and that he was
not informed of his right to appeal without expense to himself, petitioner
further contends, as the district court held, that, once the state provides for
appeal as of right from all convictions, the equal protection clause requires the
state to make certain that the poor are accorded an equal opportunity to exercise
that right. And this in turn requires, so the argument goes, that an indigent
defendant be advised of his right to appeal, even from a conviction entered on a
guilty plea.
The State, in its briefs and oral argument before us, contended that our
decisions in Smith and Witt should not be extended to defendants who have
been convicted upon guilty pleas, rather than after trial. We did say in United
States ex rel. Roldan v. Follette, 450 F.2d 514, 516 (2 Cir. 1971):5
9
"But
both Smith and Witt were criminal convictions after a trial, and it is a large step
to apply the rationale of these decisions to convictions based upon the admission in
open court by a defendant represented by counsel that he did commit the crime
charged. How sizeable the step would be is indicated by the recent proposal of the
Committee on Rules of Practice and Procedure of the Judicial Conference of the
United States that there 'be no duty on the court to advise the defendant of any right
to appeal after sentence is imposed following a plea of guilty."' (citing the
Preliminary Draft of Proposed Amendments to Fed.R.Crim.P. at 32).
10
In the alternative, the State contended before us that the district court erred in
not following People v. Lynn, 28 N.Y.2d 196, 269 N.E.2d 794, 321 N.Y.S.2d
74 (1971), which had held that a defendant, who had been convicted on his plea
of guilty and who wished to have his appeal reinstated, was required to show
that he had a genuine appealable issue which he might have raised had he been
advised of his right to appeal.6
11
In view of developments subsequent to the argument of the instant case before
us, we find that it is neither necessary nor appropriate for us to rule upon the
constitutional question presented. Pursuant to suggestions made by us at the
time of argument, counsel for the State has now informed us by letter dated
June 1, 1972 that, for purposes of the instant appeal, the State concedes "that
petitioner may have an appealable issue in the state courts concerning the denial
of juvenile treatment in his 1948 murder case"; and that, while the New York
County District Attorney reserves the right to oppose petitioner's appeal on the
merits in the state courts, the District Attorney will not oppose the resentencing
of petitioner in order to enable him to appeal the 1948 conviction.
12
This concession on the part of counsel for the State, reflecting in our view
commendably good judgment, makes it unnecessary for us to adjudicate the
constitutional question presented, and we decline to do so. It follows of course
that nothing in this opinion is to be construed as an expression of views on our
part with respect to the merits of the constitutional question raised.
13
We therefore order that those portions of the district court's orders of March 21,
1972 and April 20, 1972, which ordered the release of petitioner, be vacated;
that the case be remanded to the district court with directions that it enter an
order permitting and requiring the State to proceed with all possible speed to
accord petitioner his right to appeal in the state courts from his 1948 conviction
and to be represented on such appeal by court appointed counsel, without
expense to petitioner; and that the district court retain jurisdiction of petitioner's
instant habeas corpus proceeding, pending the outcome of the state proceedings
herein ordered.
14
Remanded with directions.
Of the United States Court of Appeals for the District of Columbia Circuit,
sitting by designation
After his indictment but before he pleaded guilty, an investigation was ordered
pursuant to N.Y.Code of Crim. Proc. Sec. 312(b), in view of Caruth's age at the
time of the indictment, to determine whether the case should be removed from
the Court of General Sessions to the Children's Court where Caruth would have
been treated as a juvenile. After completion of the investigation, the trial judge
ordered that the case not be transferred to the Children's Court
Petitioner's first coram nobis petition in the New York state courts, filed
December 19, 1963, challenged the constitutionality of his 1948 conviction on
the ground that a 15 year old was incapable of homicide under New York law.
The denial of this coram nobis petition by Justice Schweitzer in the New York
Supreme Court, New York County, on January 27, 1964, was affirmed by the
Appellate Division on June 8, 1965, 24 App.Div.2d 558, 260 N.Y.S.2d 1022
(1st Dept. 1965), and the New York Court of Appeals denied leave to appeal.
As we indicate below, the State has now conceded that petitioner "may have an
appealable issue in the state courts concerning the denial of juvenile treatment
in his 1948 murder case."
2
The issue on petitioner's 1954 state habeas corpus proceeding turned on the
distinction between an "indeterminate term" (which the sentencing judge in
1948 apparently intended) and an "indefinite term" (which were the words
actually used in the order of commitment). The resolution of this issue is
immaterial to the question before us, except that Caruth's release in 1954 led to
his next encounter with the law the following year which resulted in his being
sentenced as a second offender
Aside from his 1954 state habeas corpus proceeding (supra note 2) and his
1963 state coram nobis proceeding (supra note 1), petitioner has engaged in
numerous state proceedings intended collaterally to attack his 1948 and 1955
convictions, including at least three other coram nobis proceedings. The one
bearing the most directly on the question here presented was the denial by the
New York Supreme Court, New York County, on October 15, 1970 of a coram
nobis petition claiming that petitioner had not been informed of his right to
appeal his 1948 conviction. On March 23, 1971, the Appellate Division
affirmed. 36 App.Div.2d 796, 319 N.Y.S.2d 594 (1st Dept. 1971)
Our decisions in Smith and Witt have been described (by Judge Judd below) as
having "federalized" the rule announced by the New York Court of Appeals in
People v. Montgomery, 24 N.Y.2d 130, 247 N.E.2d 130, 299 N.Y.S.2d 156
(1969), that the court must inform an indigent criminal defendant of his right to
appeal and may not rely on the defendant's appointed or retained counsel to
fulfill this obligation
For reasons not here material, we declined in Roldan to rule on "the grave issue
whether to extend the rationale of Smith to convictions based on guilty pleas."
450 F.2d at 517
The New York Court of Appeals summed up its holding in Lynn as follows:
"In sum, therefore, where a defendant has pleaded guilty it is not enough that he
allege a failure to have been advised of his right to appeal. He must also show
that at that time he had a genuine appealable issue which he might have raised
had he been advised of his right to appeal." 28 N.Y.2d at 204-05.
