Oyler v. Boles/Dissent Douglas

Mr. Justice DOUGLAS, with whom The Chief Justice, Mr. Justice BLACK, and Mr. Justice BRENNAN concur, dissenting.

When this Court, years ago, sustained an application of West Virginia's habitual criminal law, it said:

'Full opportunity was accorded to the prisoner to meet the     allegation of former conviction. Plainly, the statute     contemplated a valid conviction which had not been set aside      or the consequences of which had not been removed by absolute      pardon. No question as to this can be raised here, for the     prisoner in no way sought to contest the validity or      unimpaired character of the former judgments, but pleaded      that he was not the person who had thus been convicted. On     this issue he had due hearing before a jury.' Graham v. West      Virginia, 224 U.S. 616, 625, 32 S.Ct. 583, 586, 56 L.Ed. 917.

The issue now presented is broader. It is what the procedure used in making a charge that a person is an habitual criminal is necessary to satisfy the requirements of due process.

It is said that the record fails to show that this precise point was raised at the trial. If so, West Virginia might make that an adequate state ground, though it should be noted in passing that the court in Rhea v. Edwards, D.C., 136 F.Supp. 671, aff'd, 6 Cir., 238 F.2d 850, held that Tennessee's former procedure in habitual-offender cases violated due process where inadequate notice was given, even though the accused apparently had not made this an issue at the trial. Cf. Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131. In these cases, however, West Virginia nowhere suggests that the issue of due process is not properly here. Rather the argument is that the requirements of due process are satisfied though the issue to be tried is restricted to the identity of the accused.

A hearing under these habitual-offender statutes requires 'a judicial hearing' in order to comport with due process. Chandler v. Fretag, 348 U.S. 3, 8, 75 S.Ct. 1, 4, 99 L.Ed. 4. The Chandler case held that denial of an opportunity for an accused to retain a lawyer to represent him deprives him of due process. And see Chewning v. Cunningham, 368 U.S. 443, 82 S.Ct. 498, 7 L.Ed.2d 442. If due process is to be satisfied, the full procedural panoply of the Bill of Rights, so far as notice and an opportunity to defend are concerned, must be afforded the accused. The charge of being an habitual offender is as effectively refuted by proof that there was no prior conviction or that the prior convictions were not penitentiary offenses as by proof that the accused is not the person charged with the new offense. The charge of being an habitual offender is also effectively refuted by proof that the prior convictions were not constitutionally valid as, for example, where one went to trial without a lawyer under circumstances where the appointment of someone to represent him was a requirement of due process. Denial or absence of counsel is an issue raisable on collateral attack of state judgments. Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398. That is an inquiry that should also be permitted in these habitual-offender cases, if the procedure employed is to satisfy due process.

I mention the right of counsel merely to underline the gravity of these accusations. Unless any infirmities in the prior convictions that can be reached on collateral attack can be reached in these proceedings, the wrong done is seriously compounded.

As I understand it, the opinion of the Court concedes as much. But it affirms the convictions, even though no prior notice of the habitual-offender charge was given. Without any advance warning the present informations were filed at times when petitioners were in court in connection with their most recent convictions. The omission of formal notice has been held fatal in proceedings under recidivist statutes. United States ex rel. Collins v. Claudy, 3 Cir., 204 F.2d 624; Edwards v. Rhea, 6 Cir., 238 F.2d 850. I think reasonable prior notice is necessary to satisfy due process-notice given far enough in advance to allow for an opportunity to defend. A 9-day notice was deemed adequate in Johnson v. Kansas, 10 Cir., 284 F.2d 344, 345, the court saying:

'The fundamental requisites of due process, when the statute     is to be invoked, are reasonable notice and an opportunity      for a full and complete hearing, with the right to the aid of      competent counsel.'

Respondent concedes that the notice necessary for a criminal trial was not given. Respondent indeed maintains that no notice is necessary:

'The primary purpose for affording a defendant notice is to     inform him of the charge against him, and to give him a      reasonable time in which to prepare his defense. Such reason     for notice does not exist in the instant cases pertaining to      the application of the West Virginia habitual criminal act.'      Brief, p. 5.

Adequate notice of the charge under these habitual-offender statutes is an important as adequate notice of the charge in an ordinary criminal trial. The notice required must be commensurate with the range and complexity of issues that concededly may be tendered. The requirements of notice, like those for a fair hearing, are basic. As we stated in In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682: 'A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense-a right to his day in court-are basic in our system of jurisprudence * *  * .' That case was one in which a 'one-man grand jury' charged a witness with giving false and evasive testimony and summarily convicted him. Its principle is equally applicable here. Until there is a charge fairly made and fairly tried, procedural due process has not been satisfied.

Unless this principle is adhered to in proceedings under these recidivist statutes, serious penalties may be imposed without any real opportunity to defend.