North Carolina v. Rice

PETITIONER:North Carolina
RESPONDENT:Rice
LOCATION:Stanford University

DOCKET NO.: 70-77
DECIDED BY: Burger Court (1971-1972)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 404 US 244 (1971)
ARGUED: Oct 12, 1971
DECIDED: Dec 14, 1971

ADVOCATES:
Jacob L. Safron – for the petitioner
William W. Van Alstyne – for the respondent

Facts of the case

Question

Audio Transcription for Oral Argument – October 12, 1971 in North Carolina v. Rice

Warren E. Burger:

— in Number 70-77, North Carolina against Rice.

Mr. Safron, you may proceed whenever you are ready.

Jacob L. Safron:

Mr. Chief Justice and may it please the Court.

This case is before this Court upon a petition for writ of certiorari to the United States Court of Appeals for the Fourth Circuit which held in Rice versus North Carolina that upon the strength of Pearce, the imposition of a greater sentence is impermissible in a situation in which a defendant receives a trial de novo in the Superior Court from a Lower Criminal Court.

And that was the legal conclusion without the Courts giving any legal reasoning.

The course then went on to stage in reference to all the cases to the contrary, but they simply disagreed and ordered the State of North Carolina to expunge any record of Mr. Rice’s conviction in the Buncombe County Superior Court.

Wayne Claude Rice was originally arrested on July 2, 1968 for driving under the influence of alcohol.

On July 19, 1968, he was tried in the Buncombe County Court which was then in existence and received a sentence of a nine-month sentence suspended upon payment of a fine of $100.00 and costs.

As was his absolute right, he applied for a trial de novo in the Buncombe County Superior Court.

On August 2, his right to trial de novo was assured and on that day he first pled guilty to twelve offenses of uttering worthless checks and then was tried upon his plea of not guilty on the charge of driving under the influence.

Potter Stewart:

I noticed Mr. Safron in the brief the reference to the worthless check charge, that has nothing to do with the issues before us (Voice Overlap)

Jacob L. Safron:

Only in this regard, Your Honor.

There were these twelve worthless check charges.

Potter Stewart:

Yes.

Jacob L. Safron:

He pled guilty to those, was then tried upon the plea of not guilty as driving under the influence.

The sentence or the sentences that were then imposed, he received a two-year active sentence for driving under the influence, the maximum then permitted under the law, but the same time when the judge sentenced him as to the worthless check charges, he was sentenced to the consecutive one-month sentences to run concurrently with the sentence imposed for driving under the influence.

Potter Stewart:

But was only partially concurrent.

In other words, one with a total of one year and on the driving intoxicated was a two-year sentence?

Jacob L. Safron:

Yes, Your Honor.

It was concurrent —

Potter Stewart:

So, we do not have really the concurrent sentence doctrine?

Jacob L. Safron:

No, not except for — to the first year of the sentences were concurrent whereas the Court could have imposed the sentence consecutively, it was imposed concurrently and he received no greater sentence as result of having pled guilty to the twelve worthless check charges.

Potter Stewart:

Now, we have at least one additional year based on the driving while intoxicated?

Jacob L. Safron:

Yes Your Honor, that is true.

Potter Stewart:

And in the original so-called sub-constitutional court, “your adversary” his sentence was what?

Jacob L. Safron:

His original sentence was nine months suspended upon payment of $100.00 fine and costs.

Potter Stewart:

So, we do have before us — this issue is clearly presented?

Jacob L. Safron:

Oh yes, Your Honor, quite clear!

Potter Stewart:

It is not blunted at all really by the concurrent sentence doctrine?

Jacob L. Safron:

No, not at all.

Jacob L. Safron:

In fact concurrent sentence, Your Honor, I believe is merely something applies to the federal judiciary and it is not applicable to the states.

Thurgood Marshall:

These are two indictments, not in one indictment, was it, the forged check?

Jacob L. Safron:

With all something separate and apart, Your Honor.

He received twelve, there were twelve warrants in the County Court at this stage from January of that year.

Thurgood Marshall:

Well, was the indicted?

Jacob L. Safron:

No, Your Honor, he applied for trial de novo in these cases and —

Thurgood Marshall:

These were his check cases?

Jacob L. Safron:

Yes, Your Honor.

Thurgood Marshall:

And was he convicted by the same judge below?

Jacob L. Safron:

Before whom he appeared in a driving under the influence, Your Honor?

Thurgood Marshall:

Yes.

Jacob L. Safron:

I have no idea.

Thurgood Marshall:

I am very confused as how did worthless checks got involved in this case?

Jacob L. Safron:

Well, only this respect, Your Honor, on the same day when his trial de novo for the worthless checks came up for hearing, he also was on for hearing for his drunk driving charge.

Warren E. Burger:

And that was de novo trial too?

Jacob L. Safron:

Oh yes, Your Honor, these are all de novo.

Warren E. Burger:

What is the maximum sentence for the bank check charge?

Jacob L. Safron:

It defends, Your Honor, upon the amount.

At the present time if it does not exceed $50.00, the maximum is thirty days.

Warren E. Burger:

Were these all under fifty?

Jacob L. Safron:

Apparently so, Your Honor.

Harry A. Blackmun:

How many offenses that were subject to this procedure of trial do novo?

Jacob L. Safron:

Every petty offense, Your Honor.

The right to trial de novo is an absolute right granted in the North Carolina Constitution.

Harry A. Blackmun:

But only for a particular offenses?

Jacob L. Safron:

No, Your Honor, for every offense which is originally tried in what are now say the District Court.

This could be and ordinance violation or could be an overtime parking ticket, traffic violation —

Byron R. White:

Mr. Safron, what offense, could it the other, what offenses are subject first to trial in the District Court?

Jacob L. Safron:

In the District Court, Your Honor or perhaps let me express the other way.

The original jurisdiction of the Superior Court is only applicable to felonies.

Jacob L. Safron:

All other offenses, the District Court has original jurisdiction, that is —

Byron R. White:

And in the District Court, in any other case tried is District Court, no right to trial by jury?

Jacob L. Safron:

There is no right to trial by jury in the District Court Your Honor, criminal matters.

William J. Brennan, Jr.:

Is the offense triable in the District Court?

Is an offense to which on conviction the accused may have a trial de novo of right, is that it?

Jacob L. Safron:

That is exactly right, Your Honor.

William J. Brennan, Jr.:

Are these worthless check charges, would they have been triable in the District Court?

Jacob L. Safron:

Oh yes, Your Honor.

William J. Brennan, Jr.:

I see, and where they in fact in this case?

Jacob L. Safron:

Oh yes, Your Honor.

They were tried in what was in the County Court and — what Your Honor?

(Inaudible)

Jacob L. Safron:

Yes, Your Honor and then he appealed and pled guilty.

William J. Brennan, Jr.:

He pled guilty to the worthless check charge?

Jacob L. Safron:

Yes, Your Honor.

William J. Brennan, Jr.:

What punishment did he get in the District Court or the County Court on those charges?

Jacob L. Safron:

I am really not sure Your Honor.

William J. Brennan, Jr.:

Well, in any event, whatever it was he appealed and got a newer and larger and enhanced sentence?

Jacob L. Safron:

No, Your Honor.

I believe it was the same but I am really not sure.

Harry A. Blackmun:

Mr. Safron is this his first offense?

Jacob L. Safron:

No, Your Honor.

This gentleman has a record dating back to 1948.

I have here the so-called FBI wrap sheet.

It starts in 1948 and he has spent more time in custody.

Harry A. Blackmun:

Was this his first conviction for driving while intoxicated?

Jacob L. Safron:

No, Your Honor.

In 1962 he was convicted of escape, temporary larceny of automobile, larceny of an automobile and drunk driving.

This was not his first.

Harry A. Blackmun:

This explains the nine months sentence originally, below?

Jacob L. Safron:

Your Honor, I would say this.

Unfortunately, the District Courts are the courts of original jurisdiction.

This is where the great mass of cases are tried.

The felony cases are only minuscule part of the total case load in the criminal judicial system and unfortunately in the District Courts, the District Court judge does not have made available to him, all the resources which are available in the Superior Court.

Harry A. Blackmun:

Well, I am confused about two things in Mr. Rice’s brief.

It is stated this was Mr. Rice’s first conviction for driving while intoxicated.

This is a misstatement.

Jacob L. Safron:

This is a misstatement, Your Honor.

Harry A. Blackmun:

And then secondly, I am confused about the nine months sentence for it imposed in the County Court when the statute says for the first conviction, only 30 days?

Jacob L. Safron:

Oh! We are talking now Your Honor of nine months of driving with the influence, 30 days was the bad check charge.

Harry A. Blackmun:

Well, I am not talking about the sentence.

I am talking about the statute.

Does the statute not make the first offense punishable no more than 30 days?

Jacob L. Safron:

No, Your Honor.

There is a problem involved here due to the fact that the sentence for driving under the influence was amended subsequent to Mr. Rice’s trial.

Whether or not that amendment in the statute and the downgrading of the maximum should be part of the issue here, I am merely not sure.

The maximum now I believe is six months for first offense driving under the influence.

Harry A. Blackmun:

In any event he got nine months?

Jacob L. Safron:

Well, he received nine months at the time when two years was a permissible maximum, Your Honor.

Harry A. Blackmun:

Only for a third offense?

Jacob L. Safron:

No, Your Honor, at that time the statute permitted up to two years for first offense driving under the influence.

He did receive the first, the maximum, but this is bogging the issue because of subsequent legislative down grading of the maximum sentence.

Harry A. Blackmun:

Well, it is evident I am referred by your statutes.

I hope Mr. Van Alstyne can straighten it out.

Jacob L. Safron:

But since I have this here, I just want to point out that since 1948, Mr. Rice spent more time in custody than he has out of custody.

Harry A. Blackmun:

One last question.

Even if he were to plead guilty in the Lower Court, does he have the right to a trial de novo (Voice overlap)

Jacob L. Safron:

There is an absolute right to trial de novo in the State of North Carolina, Your Honor.

It does not matter whether or not the defendant pled guilty or not guilty.

If he pleads guilty and is not satisfied with the sentence that is imposed, he can apply for trial de novo that wipes the entire proceeding clean.

Jacob L. Safron:

It is completely off the record and he will then have an opportunity for a jury trial in a Superior Court as if nothing had ever happened before.

I just have been advised that according to Mr. Rice’s prison jacket he received the same sentence in the Superior Court as he had received in the County Court upon the worthless check charges.

Now, subsequent —

Warren E. Burger:

Is it possible, you can clear this up as you go along, is it possible that the information about this prior record came to the attention of the Court, the second Court involved in de novo trial?

Jacob L. Safron:

Your Honor, I am confident that upon his trial in Superior Court which was then the responsibility of the Solicitor to a full jury trial that this information was obtained.

Now, I am familiar with procedures in the District Court, previously the County Courts.

The only record available to the judge at the time is they listed a man’s convictions in that particular court.

The Court does not have available to it due to the tremendous number of case which are processed.

The availability of say FBI record or in our state an SPI record in addition to determine the man’s total background.

I know when I tried cases in the District Courts, we merely have a box which contains a card with the man’s name and his previous convictions from that court, nothing else.

Thurgood Marshall:

Mr. Safron, suppose a man appeals — no, suppose if a man after he is convicted, a month later after the sentence, two months later after the sentence had been pronounced, the judge has come across that wrap sheet, does he do anything about it —

Jacob L. Safron:

Nothing at all, Your Honor.

Thurgood Marshall:

Now, what is different in that case and this case?

Jacob L. Safron:

Well, the point is this, Your Honor.

We are talking now about the District Court judge or Superior Court judge?

Thurgood Marshall:

I am talking about the Courts of North Carolina.

Jacob L. Safron:

Well, I think there is a clear distinction to be made, Your Honor.

The District Court judge once that say one week term is over, could not impose the greater sentence.

In fact, I would say to this.

If the District Court judge had imposed a sentence and then subsequently determined he wished to increase it, he could not increase it, not that particular judge.

But here is a situation where a man exercises absolute and unlimited to right to appeal his conviction to a Superior Court and in the eyes of our case law and our statutes, this wipes the slate clean, as if it never happened and he is given a new opportunity.

Thurgood Marshall:

Does he have any other way of appealing?

Jacob L. Safron:

From the District Court?

Thurgood Marshall:

Yes sir.

Jacob L. Safron:

No, Your Honor.

Thurgood Marshall:

But that is an appeal?

Jacob L. Safron:

Well, I would not call an appeal as such.

Thurgood Marshall:

What is it called in North Carolina?

Jacob L. Safron:

Well, you might — I have marked on the record appeal noted, but an application for brand new trial.

He can still appeal.

Thurgood Marshall:

But it is still appeal?

Jacob L. Safron:

No, I would not call it an appeal, Your Honor.

He has wiped the slate clean, he is given the opportunity —

Thurgood Marshall:

But do you think that State in North Carolina is bound to give him a right of appeal?

Jacob L. Safron:

There are two instances here, Your Honor.

Thurgood Marshall:

Do you think the state of North Carolina under the constitution is bound to give him an appeal?

Jacob L. Safron:

If you permit me to draw a distinction?

Thurgood Marshall:

Sure.

Jacob L. Safron:

One, the cases within the jurisdiction of a District Court are two-fold.

Those which are petty misdemeanors, is only person’s violations, traffic violations.

Two, those which can be noted as serious misdemeanors.

As to those which are serious misdemeanors, constitutional law, federal constitutional law requires that he be given an opportunity to a jury trial.

As to those which are petty misdemeanors, he would have no federal constitutional right to a jury trial.

In any event our state constitution as a part of the organic law of the State of North Carolina, Massachusetts and several others states provides that there shall be a right to trial de novo.

Thurgood Marshall:

But under the constitution is the man convicted in the District Court of North Carolina, entitled to an appeal to test the legality of his conviction?

Jacob L. Safron:

An appeal, if we permit in that context Your Honor, there is no constitution —

Those in Supreme Court of North Carolina?

Jacob L. Safron:

The procedure would be this of course, Your Honor.

If the defendant is tried in the District Court, he can apply for trial de novo in the Superior Court.

If he is unsatisfied with the conviction and, well, I should say sentence, but unsatisfied with conviction in the Superior Court, he may apply, he may appeal as a matter of right to the North Carolina Court of Appeals.

From the North Carolina Court of Appeals he could then if it is a constitutional issue presented which are not previously been determined, apply either by certiorari or direct appeal to Supreme Court, Your Honor.

William J. Brennan, Jr.:

But Mr. Safron, suppose he does not want a trial de novo, but he does want to challenge the validity of his conviction in the District Court, may he go directly to the Court of Appeals?

Jacob L. Safron:

No, Your Honor he may not.

He has to go to the Superior Court.

(Inaudible)

Jacob L. Safron:

Yes, Your Honor, it is.

Thurgood Marshall:

Mr. Safron, if he finds that there is a possibility that is to those who have trial de novo, his sentence will be enhanced?

Is there any other way he can test that judgment?

Jacob L. Safron:

No, Your Honor, the only method of —

Thurgood Marshall:

So on constitutional standard that is an appeal, is it not?

Jacob L. Safron:

In that I will forward an appeal, Your Honor.

Thurgood Marshall:

(Voice Overlap) would he agree if a defendant appealed to sentence him then and there?

Jacob L. Safron:

Your Honor, (Voice Overlap) we have to make a distinction here I believe between the case of North Carolina versus Pearce which is the basis of this and the facts presented here.

In the Pearce case a defendant was convicted in a Superior Court of right.

Ultimately because of the inadmissibility of his confession, the Supreme Court of North Carolina reversed and received a greater sentence upon retrial in the same court which convicted him the first time.

Here, it is an entirely different proposition.I

t is not the same court.

It is not a judge of the same level of jurisdiction.

The trial now is before a judge of Superior Court.

Thurgood Marshall:

But suppose after this judgment he had appealed to the Supreme Court of North Carolina and they had doubled his sentence?

Jacob L. Safron:

Which court Your Honor?

Thurgood Marshall:

What the Highest Court sought?

Jacob L. Safron:

Well, the Highest Court is the Supreme Court.

Thurgood Marshall:

Well.

Jacob L. Safron:

They have no sentencing power at all, Your Honor.

Thurgood Marshall:

But suppose they just send it back to the Superior Court for retrial? (Voice Overlap)

Jacob L. Safron:

Under the doctrine of North Carolina versus —

Thurgood Marshall:

Under the doctrine of Pearce that would be (Inaudible)

Jacob L. Safron:

Well, of course Pearce, Your Honor, does not state that enhanced sentences are invalid unless of course this Court has stated that if the judge places on the record supervening information or conduct as the defendant then enhanced sentences are constitutionally permissible.

Thurgood Marshall:

Well, assuming he did?

Jacob L. Safron:

Assuming he did not that upon a reversal, upon a point of law the Superior Court could not impose a greater sentence than that Superior Court had imposed him in this instance.

Thurgood Marshall:

Well, it did appear the Superior Court here is sitting as the Appellate Court over District Court?

Jacob L. Safron:

No, Your Honor, that is not an Appellate Court.

Thurgood Marshall:

As in this case, what is the case there?

Is not the case there on appeal?

Jacob L. Safron:

This, we have a problem with semantics here, Your Honor.

The case is in the contemplation of the law as if it had originated there in the first instance.

I believe we are using the word “appeal” when I think a proper phrase out would have been application for trial de novo, it is a question of right.

There is no need to point out error to prove error.

A man could take this application even from a guilty plea because he was merely dissatisfied with the sentence.

Warren E. Burger:

Are you going to save sometime to tell is why there is not any case here at all, the mootness upon which you raised?

Have you not questioned the jurisdiction?

Jacob L. Safron:

The jurisdiction?

Warren E. Burger:

Yes.

Jacob L. Safron:

No, Your Honor.

Warren E. Burger:

Has he not been released at the time by the Fourth Circuit?

Jacob L. Safron:

Your Honor, I certainly would not argue an issue of mootness in this case because we have this Fourth Circuit opinion which is hanging as Damocles sword over the head of the State of North Carolina and the other states which have joined with us amicus.

Warren E. Burger:

And where is Mr. Rice now?

Jacob L. Safron:

I have no idea.

Warren E. Burger:

He is not in custody?

Jacob L. Safron:

But we have a Fourth Circuit opinion which — an order which tells us that we must expunge the record and if Mr. Rice comes back as his record appears he probably will, then according to that expunction order this conviction would never have existed and it would be no possibility for number one to impose a sentence which is required upon second conviction driving under the influence or license revocation for that period of time.

Warren E. Burger:

What if we have the case that was moot on the Fourth Circuit, would that solve your problem?

Jacob L. Safron:

No, Your Honor because it is obvious that the Fourth Circuit will merely reinstate and yet another case’s doctrine and we would be faced with exactly what we are facing now.

Warren E. Burger:

But that is, then you want us to give an advisory opinion?

Jacob L. Safron:

I do not believe it is advisory, Your Honor, because we have the order of the Fourth Circuit requiring expunction staring us in the face and this is a valid order and I would say to this Court that this order gives validity to the status of our case before this Court.

Potter Stewart:

You agree, in other words, that the case is not moot?

Jacob L. Safron:

It is not moot Your Honor.

Potter Stewart:

Right.

Jacob L. Safron:

There is an order that we have which has been stayed, but that order is effective.

The American Bar Association has had the opportunity to review this very contingent and the American Bar Association standards relating to jury trial I point this Court’s attention to 1.1 (b) and the American Bar Standards to prove draft issued in 1968 states, defendants in all criminal cases shall have the right to be tried by a jury of twelve whose verdict must be unanimous.

Except that we are not barred by applicable constitution provisions, the right to jury trial may be limited in one or more of the following ways; of requiring trial of that jury for lesser offenses provided there is a right to appeal without unreasonable restrictions to a court in which a trial de novo by jury may be had and that is exactly the situation which our District Court system provides.

In the commentary, in the ABA’s approved draft, it also discusses the various states in which this is a part of the state constitution and that includes Delaware, New Hampshire, North Carolina, Virginia, and Massachusetts.

In fact, I would like to point this Court’s attention to the fact that the Supreme Judicial Council of the State of Massachusetts had just had the opportunity to review this very issue because the Massachusetts as in North Carolina, this is an organic part of our state constitution and the case of Mann versus Commonwealth which was first decided June 15 of this year and is reported in 271 North East Second at 331, a very recent case came out in the (Inaudible) just the end of last month.

The Chief Justice of Massachusetts for a unanimous Court found as has the State Supreme Courts of North Carolina, Virginia, Nebraska, Michigan, Maine and the First Circuit Court of Appeals in the Moe v. Robins that the imposition of a greater sentence upon trial de novo is not viable to the due process and does not contradict this Court’s opinion in North Carolina versus Pearce.

Byron R. White:

You know how recurring it is — the sentences in the Superior Court are considerably higher that in the District Court and how the Courts do the same in the same case?

Jacob L. Safron:

Your Honor, this of course is almost an impossible figure to produce.

I can point —

Byron R. White:

(Inaudible) you really would not be here, would you?

Jacob L. Safron:

I can point this out, Your Honor, that last year, finally in December of last year, a District Court System was fully implemented to the hundred counties in North Carolina and statistics which we have reflect those 83 counties which under the Administrative Office of the courts, last year, in those 83 of the hundred counties for which figures are available, there were 16,751 of such hearings which constituted 57.4% of all cases tried in our Superior Court.

I would submit in disregard that when 57.4% of all trials in Superior Court with all the formalities of the Superior Court are de novo trials.

Byron R. White:

This 57% are cases that came from the District Court?

Jacob L. Safron:

That is right, Your Honor.

Of all criminal cases tried in our Superior Court 57% are de novo hearing.

Byron R. White:

Well, one thing, how would you describe North Carolina’s statute in not being descriptive, in effect it was when they came that rather than the Supreme Court?

Jacob L. Safron:

Your Honor, I would say this that obviously the State has an interest in trying to save a system of criminal justice.

That without the District Courts, the Superior Courts will not be able to function.

If defendants —

Byron R. White:

(Inaudible)

Jacob L. Safron:

This is of course part of it, Your Honor.

We are, if I can just be bluntly or frank and silly that if it is a one way street, if the state and the defendant are not on the parity, if ever defendant knows that the sentence imposed below is the absolute maximum, he has everything to gain and possibly nothing to lose that I doubt if the Superior Courts can long survive.

We are presently trying to keep up with the constitutional requirement of speedy trial.

The leverage factor here is frightening.

Byron R. White:

Well, do you want to say that you would like to handle the great (Inaudible) in criminal litigation without a hearing?

Jacob L. Safron:

I am saying this, Your Honor.

If a defendant wishes to apply for trial de novo from a District Court judge —

Byron R. White:

The judge was not less in the District Court and in Superior Court perhaps it would be satisfied if you tried it on jury?

Jacob L. Safron:

A trial in the Superior Court, Your Honor, brings forth a great deal additional evidence.

It is tried before a jury.

It is tried by the Solicitor.

It is tried before a Superior Court judge, more evidence is brought out.

The cross-examination is more intense, more records are made available to the court.

I say that the authority, the discretion of the judge at Superior Court is at question that if judges of the Superior Court where there because we expect their expertise and who developed an expertise in that particular case before them cannot exercise their judgment and their discretion, then how long can the court system continue?

Byron R. White:

How about the case that to have this system that you have, but to have a formal rule that on re-trial de novo, the sentence may not be larger than what is imposed below?

Jacob L. Safron:

Your Honor, there are many different states.

Now, some states, now, in the petitioner’s brief he cites, excuse me, in professor’s brief, he cites the DaBonus (ph) case from New Jersey which was determined by the Supreme Court of New Jersey as a policy issue.

As a matter of policy the Supreme Court of New Jersey took the opportunity to criticize the structuring of their municipal courts which were locally appointed part-time judges.

In North Carolina, we have a District Court system with full-time judges.

It is a unified system which has taken 15 years to implement.

The professor cites comments from a report in the mid 50s and that report we took to heart and the State of North Carolina revamped its entire judicial system.

We have a completely unified system now with full-time judges who are paid a very respectable salary.

Thurgood Marshall:

Mr. Safron, do I gather what you are saying is that in order to limit the number of appeals, de novo is necessary to enhance the sentence —

Jacob L. Safron:

Your Honor, no.

There are very few cases in which that occurs and that —

Thurgood Marshall:

What are you saying then?

You say you want to leave this intact, why?

Jacob L. Safron:

Well, there are several reasons.

Thurgood Marshall:

You said because you do not want to increase the number of cases in the Superior Court?

Jacob L. Safron:

Let me say this.

Number one, the professor states in his brief there is no provision for representation in the District Court that is wrong.

He cites as precedent for one point, the case of State versus Mars which he cites for the proposition that the Supreme Court of North Carolina has refused to adapt the holding in the Patent case which was the basis for Pearce.

But in that very case State versus Mars, Associate Justice Suzie Sharp (ph) held that a man has a constitutional right to representation by counsel if he is indigent in the District Court in a serious misdemeanor.

We have counsel in those courts and if that man wishes to appeal, it goes on to the Superior Court, that same counsel paid for by the state.

If he wishes to appeal to the Court of Appeals, we pay for counsel.

This year we funded $1.8 million with the appointment of counsel.

We have public defenders in two of our counties.

We have counsel in on those courts.

The public defenders office in their report to the Court which, excuse me Your Honor, I see that I —

Warren E. Burger:

You may continue, complete the sentence.

Jacob L. Safron:

In the public defenders office and under our statutory scheme which provides for the appointment of counsel any felony case and any misdemeanor case for which the authorized punishment exceeds six months in prison or $500.00 we have counsel.

And to illustrate this very point, the public defender’s office and the two test counties where we presently have public defenders, in one county they were appointed to represent 949 persons during the year, that was 877 felonies and they also were involved in 396 serious misdemeanors in the state.

The course of its representation, the office made 612 appearances in the District Court, 404 in the Superior Court.

The other office, the office made 601 appearances in District Court, 239 in the Superior Court.

We do have counsel in the District Court System.

(Voice Overlap) If there any questions left —

Warren E. Burger:

Mr. Alstyne.

William W. Van Alstyne:

Mr. Chief Justice and may it please the Court.

If I might rather than launching into an original argument, attempt to respond to some of the questions which were directed to Mr. Safron, simply by way of helpful clarification.

So far as the technicality of what it is called in 16 (a) new trial against the correction of what he may believe to be an injustice committed in the course of his original trial, in the General County Court or now in the District Court, it is perfectly clear that even in the view of state itself it is an appeal.

Indeed or by turning to page 17 of petitioner’s appendix, one of the note that the statute so defined it itself, it is called an appeal to the Superior Court, subsequently appeal from District Court, subsequently appeal from justice trial de novo.

Potter Stewart:

Unlike, the only point I suppose best been outlined is that unlike conventional appeal, one need not even allege any error?

William W. Van Alstyne:

Indeed, that is —

Potter Stewart:

One has an absolute right to this new trial without even claiming any error in the original trial?

William W. Van Alstyne:

Unquestionably correct.

What needs to be observed side by side that observation, however, is it that it is also the exclusive recourse one has from any grievance which he may honestly feel to pervade that original trial.

In this respect it seems to me therefore most important that one take the accurate measure of the character of the Court in which he is first tried.

Potter Stewart:

In that connection Mr. Van Alstyne, does this mean that if he feels there is error below in the District Court that he may not even move for a new trial in that court, his only avenue of relief is to take this so-called appeal?

William W. Van Alstyne:

To the best of my knowledge that is the case.

That is correct, there is no other recourse.

The Court in which he is first tried is not a Court that merely tries petty offenses.

I quite take exception to that description.

Indeed the original and exclusive jurisdiction, original and exclusive jurisdiction of a District Court runs to misdemeanors which in North Carolina are defined as offenses punishable by as much as two years in prison.

Indeed that is exactly this case and that is how it originated.

I think it is quite then begs the question.

William J. Brennan, Jr.:

On which offense?

William W. Van Alstyne:

On the drunk driving offense itself to be sure the legislator has since revised the maximum penalty downward, Mr. Justice Brennan, but at the time in question it was punishable by two years.

There is no doubt or fault between us.

That the sole jurisdiction in the first instance was in the General County Court that there is no possible relief from the sanction and result of that decision in the County Court, other than to an appeal for trial de novo.

Harry A. Blackmun:

(Inaudible) one point in 179 as I read it, says for the first conviction, it is punishable by a fine and not in less than $100.00.

William W. Van Alstyne:

That is correct Mr. Justice Blackmun.

In that respect I think the clarification we were seeking earlier may be in front of us.

Harry A. Blackmun:

Alright.

Warren E. Burger:

What about the point that has been raised on whether the Superior Court information about the man’s prior record is available which was not in the record of the first court?

William W. Van Alstyne:

That of course is a possibility, respectfully Mr. Chief Justice.

It was the burden of the state, so to demonstrate in the Court below that there was that kind of evidence in front of the Superior Court judge not present before the County Court judge.

That evidence was not produced.

It now is a matter of retrospective idle speculation based upon the subsequent security of the wrap sheet and other data that, that is a possible explanation.

Warren E. Burger:

Is there a date on that sheet?

William W. Van Alstyne:

There is, it has been made available to me.

I can only report to you a direct quotation from a Federal Court of Appeals that says in the respect “the record reveals nothing which warrants the increased punishment.”

Thurgood Marshall:

Mr. Van Alstyne, do you mean that you have never seen this document?

William W. Van Alstyne:

I have not.

Thurgood Marshall:

And it was not before the court below?

William W. Van Alstyne:

It was not.

Potter Stewart:

If you are right in your basic contention, this is wholly irrelevant?

William W. Van Alstyne:

It is.

Potter Stewart:

I mean, even if the reason had before the enhanced sentence had been information in the wrap sheet, it was not available in the lower court?

William W. Van Alstyne:

Indeed, it is Your Honor.

Potter Stewart:

You are right that you still prevail, this is irrelevant?

William W. Van Alstyne:

Indeed, I do not rest upon this outside observation.

It is critical to an affirmance of the decision below.

Indeed, a reasonable reading of the decision for this Court in the opinion of your authorship confines that permissibility of harsher sentencing pursuant to a subsequent trial to evidence respecting the conduct of the accused which conduct must itself occur subsequent to the first trial.

And it seems to me in retrospect that the manner in which that line was drawn, they well have anticipated this kind of case whereby definition when the retrial occurs in a more formal court, following a trial in a court which does not even make a record, necessarily therefore there is no record of the earlier trial for the Superior Court judge to compare and thus to determine whether there has been new evidence introduce respecting aggravating circumstances of a crime or indeed additional data respecting the background of the accused.

Byron R. White:

(Inaudible) I take it that the trial de novo was (Inaudible) I mean, there is no (Inaudible) as you set aside as error, it is questionably viewing the sufficiency of the evidence like that, it is a brand new proceeding?

William W. Van Alstyne:

It is new, in no respect different.

Byron R. White:

Or I think that one has to deal with the Superior Court (Inaudible)?

William W. Van Alstyne:

Indeed, that possibility is there.

Byron R. White:

It is not really the question here whether the state may impose between him and a constitutional trial, a trial in the District Court without a jury and a without —

William W. Van Alstyne:

I think that is certainly among the questions and if —

Byron R. White:

Is that not a little different question than your Pearce argument which really an expected argument a deal and just following the rule of Pearce.

The real problem here is that he could not get the Superior Court in the first place.

William W. Van Alstyne:

That is true and respectfully I do wish to suggest that the case is a clearer instance than Pearce itself, but this is an instance where a man is placed in jeopardy of a substantial penalty without even the rudimentary safeguards of Fourteenth Amendment due process.

Byron R. White:

Yes, but he could point it out without any problem?

William W. Van Alstyne:

Indeed, but Mr. Justice White, is it not in fact an instance where the state first submits the man to trial with no election for trial elsewhere in denial of his constitutional rights.

Byron R. White:

Your point is that — your real point is that if he runs to this mode twice, (Inaudible)

William W. Van Alstyne:

I think it is a crucial part to the case unlike the outcome in the court below quite right on that basis below.

I do not understand how any reasonable concept of due process can contemplate the power of a state to subject a man to trial and punishment without any due process.

Indeed, the judge may not be law trained, I take exception to the description of these judges.

There is no record to determine the voluntariness, if it please or the inadmissibility of evidence.

These are very stripped down economically operated courts.

They are operated now as the state concedes without access to trial by jury with offenses punishable by two years.

Byron R. White:

Identify the harm raised to the defendant when he first subject to a trial by District Court before he can get to Superior Court?

William W. Van Alstyne:

I think the harm is possible and addresses itself to every man’s common sense that to the extent the state says that if you are willing to succumb to the punishment that has been imposed upon you by trading off that which the Fourteenth Amendment guarantees then we will to that extent insulate you from the risk of more severe treatment.

It is a kind of bargain that is made in the background without any of the overt circumstances, however, which might ordinarily participate in honest guilty plea bargaining.

Byron R. White:

Well, would you have (Voice Overlap)

William W. Van Alstyne:

There is no election here.

Byron R. White:

You have to make the same argument that the defendant has a choice in (Inaudible)?

William W. Van Alstyne:

It seems to me that the case is somewhat different and it is harder and closer.

My frank position would be that result should be the same because I do think that there are other course in these elements to this time of procedure.

But it is true that if we had an election in the first instance, respecting the court in which you might first be tried, there would be less reason for this Court to be apprehensive that the Superior Court judges would harbor the motive to discourage seeking access to the District Court in the first instance through the menace diminish hardship sentencing. It is also true that with that election in front of him, honestly to be made, in the initial preference for the District Court it may consciously be entertained by the accused that he may be more leniently treated.

That at least comes closer to an honest kind of negotiation of election, but that is not this case.

Byron R. White:

On your argument, I do not see how the Pearce rationale really solve the, you make this objection?

William W. Van Alstyne:

No, my objection would exist quite apart from Pearce.

Byron R. White:

I mean, even if the Court of Appeals is correct, even if we affirm this case, it seems to me that basic objection to the two tier procedure still remain.

William W. Van Alstyne:

Yes, (Voice Overlap) I did not attempt in my brief —

William J. Brennan, Jr.:

And indeed it would remain, even if it were North Carolina to provide at some state (Inaudible) that the sentence may not exceed in the Superior Court?

William W. Van Alstyne:

Indeed, I think there is an individual —

William J. Brennan, Jr.:

You would still have the same argument?

William W. Van Alstyne:

Mr. Justice Brennan (Voice Overlap) question of law.

William J. Brennan, Jr.:

(Voice Overlap)

William W. Van Alstyne:

Respectfully no because it is not necessary for the court to affirm to anticipate a next case, that is to say the appropriate case in which this issue would be raised it seems to me —

Byron R. White:

Without this basic objection it seems to be that Pearce point — that the Pearce point is only (Inaudible)?

William W. Van Alstyne:

Well, respectfully I think it has separate strength.

Indeed the reasoning of Pearce, if I may quote the Court’s opinion was this, “Due process of law requires that vindictiveness against a defendant for having successfully attacked this first conviction, must play no part in the sentence he received after a new trial and since the fear of such vindictiveness may constitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction.

Due process also requires that a defendant be freed of apprehension of such retaliatory motivation on the part of the sentencing judge.”

Now, respectfully I submit that, that at least is the rationale of due process.

William J. Brennan, Jr.:

In the absence of (Inaudible) subsequent to the initial sentence?

William W. Van Alstyne:

Indeed.

William J. Brennan, Jr.:

And which would justify an increased sentence (Inaudible)?

William W. Van Alstyne:

Yes.

William J. Brennan, Jr.:

This would come down I gather in resubmission.

William J. Brennan, Jr.:

All we decide in this case are put with each state refer is that that approach by as much in this claim of reference as it did in what we have recourse to.

William W. Van Alstyne:

Yes.

William J. Brennan, Jr.:

And that would still leave what?

William W. Van Alstyne:

It is still leaves a constitutional flaw remaining in the system which this Court would doubtless have to consider in the course of trail.

William J. Brennan, Jr.:

(Voice Overlap) you have to argue with other point which —

William W. Van Alstyne:

Indeed, I would.

William J. Brennan, Jr.:

Since there I think it is by (Inaudible)?

William W. Van Alstyne:

Yes.

William J. Brennan, Jr.:

They may not impose reference?

William W. Van Alstyne:

That is correct.

William J. Brennan, Jr.:

I should say.

William W. Van Alstyne:

That is correct.

I have no doubt that they are consistent with United States versus Jackson.

There is now a fundamental flaw.

Now, I think there is an additional relevance to that observation.

Mr. Safron essentially says that the judicial system of the state is at stake to the extent that is separately flawed because of this observation with respecting juries, it seems to me, therefore, we cannot argue against affirmance in this instance on basis of preserving a system which already has at fatal flaw in it and will require some immediate revision.

Warren E. Burger:

Is it possible that one response to what Circuit holding if it stands would be for all of the sentences in the first court, now, the District Court, to be the maximum?

William W. Van Alstyne:

It is possible Mr. Chief Justice.

Respectfully that argument was presented by counsel for the State of North Carolina in Pearce itself.

A speculation was made that if this Court were to accept the argument at that time, a pernicious reaction might set in among Superior Court judges always in the first instance to place the maximum sentence upon the accused.

It is my opinion therefore that, that argument having been made previously in this Court not entertaining and quite so negative in attitude for the Superior Court judges and observing also that if they were to do so, if anything, it would then merely accelerate and prompt further appeals in every instance under such regime.

Warren E. Burger:

What is the remedy that Pearce prescribes for the enhanced sentence on the second time around?

William W. Van Alstyne:

The remedy is to permit the enhancement of sentence only by a mode which makes practical then, a subsequent in judicial review.

Warren E. Burger:

My question is when they find the sentence, why not merit it under Pearce?

What is the remedy?

William W. Van Alstyne:

I beg your pardon, I misunderstood.

The appropriate remedy I take it would be to enter a contingent order of habeas if that is the way the case came up, specifically that the state must correct the record and reduce the sentence.

It does not require the obliteration of the finding of conviction.

I agree with that and to that extent I think that there was a clerical error by the Fourth Circuit.

The correction to be made is the correction of the record respecting the intensity of sentence.

Warren E. Burger:

It did not read like a clerical error to me Mr. Alstyne and you think it is just an oversight?

William W. Van Alstyne:

Respectfully Mr. Chief Justice, I earnestly do.

Nothing in the argument presented below, nothing in the fabric of Pearce suggests that a conviction subsequently secured pursuant to a fair trial is obliterated or that all go free.

It is rather that the excess of service attributable to the constitutionally improper harsher sentence must be relieved to the extent, therefore, that the order was to expunge the whole conviction rather than to let the public record show that the sentence is merely that originally imposed in the General County Court.

Warren E. Burger:

Which is the language that led merely down the other road?

I am reading from the opinion.

“Rice is not to be held to his conviction which means the conviction is set aside, now is that the remedy prescribed by Pearce?

William W. Van Alstyne:

It is not.

Warren E. Burger:

But then, this is not a clerical error, but a judicial error, is it not?

William W. Van Alstyne:

Yes, Mr. Chief Justice and for this Court appropriately in the disposition of the case to note that and call for its correction seems to me eminently appropriate.

There is nothing in the argument of Pearce or this case that means to overthrow the conviction, it does.

Potter Stewart:

Does that point of the Chief Justice taken even further down the road, if you agree that as I think you are quite right in conceding that there is nothing invalid about this conviction and since he has now served his sentence, the only invalidity went to the length of the sentence which he now served, why is this case not moot?

William W. Van Alstyne:

In my judgment that issue was an honest issue which was litigated in the Fourth Circuit.

The Fourth Circuit position was that consistent with this Court’s opinion in Carafas and Sibron and one of its own decisions, a case called Hewett versus North Carolina, the citation of which I can provide.

There were collateral legal consequences.

Potter Stewart:

From the conviction?

William W. Van Alstyne:

I beg you pardon.

In the argument that I presented respecting mootness to the Fourth Circuit, collaterally legal consequences, assigned to record of sentence that the degree or intensity of sentence might itself have traceable collateral legal consequence.

One of these of course, bears upon the possibility of subsequent conviction for another offense, that sentence imposed pursuant to the subsequent conviction might foreseeably of course be harsher than it would, otherwise in light of previous sentences, that is to say not really the record of conviction, but surely the degree of sentence, the severity, a punishment.

Potter Stewart:

The Fourth Circuit did not apparently, either they did not understand or they did not accept your argument because they say in juries consequences because of the conviction might still obtain and you are now conceding that the convictions were improperly set aside?

William W. Van Alstyne:

Yes, respectfully.

I do not mean that as a concession, it is never been my position that Pearce meant anything other than a correction of the sentence.

Potter Stewart:

Right.

William W. Van Alstyne:

The mootness issue was not only, not raised by the state here in this petition.

It is not briefed, and therefore, it seems to me unseemly to try to respond.

The state did not contest the viability of the case below.

William J. Brennan, Jr.:

What would you suggest would be upon conviction of some other offense if he again committed an offense?

The fact that the record show two years of that was it shows rather than having it two years expunged might result in the subsequent conviction a harsher sentence than otherwise.

Byron R. White:

Well, it would not be expunging in two years, it would just be say, it should have been nine months?

William W. Van Alstyne:

Suspended on payment of $100.00 fine.

William W. Van Alstyne:

That is right.

It was position in the Fourth Circuit that consistent with Sibron and Carafas that is a foreseeable collateral legal punishment.

Byron R. White:

Let us assume it was decided that his confinement beyond nine months is unconstitutional, would he have any civil remedy against the North Carolina

William W. Van Alstyne:

Unfortunately he would not.

Byron R. White:

(Voice Overlap)There is no provision for it?

William W. Van Alstyne:

Apparently Congress authorizes none even for compensation of people who spent time in deprivation of constitutional rights, there is no remedy.

May I —

Thurgood Marshall:

Assuming that Mr. Rice gets to (Inaudible) and does not commit any more crimes, he does not have a word on?

William W. Van Alstyne:

I suppose he does not.

He has been unconditionally released by the state, there is no doubt of that.

Thurgood Marshall:

And now we have sort of conflict between you and the Fourth Circuit, I am at loss as to how you solve it.

You say the convictions are right.

The Fourth Circuit says it is not.

You say it is the sentence that is wrong and the Fourth Circuit does not, so where that comes out?

William W. Van Alstyne:

Respectfully Mr. Justice —

Thurgood Marshall:

I have to decide between you and the Fourth Circuit manner?

William W. Van Alstyne:

I do not think so.

I think if the Court will attend the opinion of the Fourth Circuit, the opinion is exactly modeled on Pearce.

Indeed, the court’s reasons parallels Pearce.

It is we see again the more drastic sentence on the second trial as a denied of federal due process and by discouragement it impinges upon the state given appeal.

Thurgood Marshall:

Was there one word in Pearce that says you were aiming at the conviction?

William W. Van Alstyne:

Nothing, nothing.

Thurgood Marshall:

One word?

William W. Van Alstyne:

Nothing.

I can assure you that nothing in my submission or in the briefs submitted to the Fourth Circuit invited that to be the case.

I merely mean to suggest that in the appropriate disposition of the case, surely the order can fittingly be described so to cure that part of the judgment.

Byron R. White:

So, you are — you are assuming here that the convictions are valid?

William W. Van Alstyne:

Indeed.

Yes.

May I observe also with regard to the alleged parade of horribles that is foreseen to flow from an affirmance in that regard as a perfectly ordinary decision.

William W. Van Alstyne:

That at least nine states sort of examined this problem have already set their face systematically against harsher sentencing even in the context of these absolute rights for appeals for trial de novo.

Five of these have based it on Pearce itself and the reasoning is identical all the way through.

Indeed, as the Indiana Supreme Court has observed this year, exactly with respect to this situation.

“we failed to see whether de novo aspect of the trial in criminal court has any bearing upon the logic of the Pearce case which is simply that the threat or possibility of having a greater sentence imposed should not be a deterrent to the exercise of one’s right of appeal. The states include Arizona and Indiana, Hawaii and Maryland.

New Mexico by statute and not merely by judicial fiat, the Louisiana since about 1950 has had a dual trial system, but under a construction of the state’s own constitution, has for more than a decade forbidden harsher sentencing.

The alleged parade of horribles has simply not materialized.

Byron R. White:

Are there any plea bargains in the District Courts?

William W. Van Alstyne:

Indeed, I have no personal doubt that there are many.

Byron R. White:

Let us assume there is an outright bargain which is you plead guilty and you get nine months and they present it to the judge and the judge says alright that is satisfactory and everybody’s perfectly of — and then he exercise his right to appeal.

William W. Van Alstyne:

Yes.

Byron R. White:

And then, you would make the same argument?

William W. Van Alstyne:

No, I would have to answer because of the failure of District Courts to make a record at all that under the decisions of this Court, there being no record made to allow a subsequent court to ascertain the —

Byron R. White:

Let us assume everybody agrees that, I mean, on a habeas corpus after his conviction in higher sentence in the Superior Court, the record is perfectly clear.

If there was a plea bargain, everybody testifies.

The facts are clear and he says nevertheless I am limited, limited to nine months?

William W. Van Alstyne:

No, I think that a consistent with the Court’s decision in Parker and Brady and McMinn is perfectly possible to find that this is an honest bargain that the accused has indeed received the benefit and exchange for knowingly giving up that to which he is entitled.

Byron R. White:

And you do not think that this whole system can be interpreted there is sort of an enormous plea bargain in the sense that they are saying to him we are going to run you through.

Let us assume the state says we are going to have an administrative determination of your guilt and then a suggested sentence.

If you are satisfied with it you take it.

If not satisfied with it, you get a trial by jury.

William W. Van Alstyne:

Mr. Justice White, respectfully there is no possible basis for binding a bargain.

Mr. Rice did not plea guilty and he had no election to be tried elsewhere.

He pleaded not guilty.

Byron R. White:

Is the choice not after the District Court trial more effective than the choice before?

William W. Van Alstyne:

Oh it seems to be clearly, not sir.

Byron R. White:

Why not?

You know the state case?

William W. Van Alstyne:

And they know yours and indeed one has had to incur the expense and the delay and the ordeal and the harassment of the first trial.

It is just no one threw up a picket fence (Voice Overlap).

Byron R. White:

In terms of a due process choice it is better afterwards than before?

William W. Van Alstyne:

Yes, indeed.

Byron R. White:

Yes.

Warren E. Burger:

What percentage of all the cases are in forma pauperis to the District Court?

William W. Van Alstyne:

I do not know whether the figures are even available Mr. Chief Justice.

I would suppose that it is relatively a substantial percentage.

Warren E. Burger:

But do you not think it might be substantial like 90%?

William W. Van Alstyne:

I cannot, no honestly and it seems a sensible guess respectfully, but I do not have the figures, perhaps Mr. Safron does.

Warren E. Burger:

If after the guilty plea derived that hypothetical case that Mr. Justice White suggested, the man then asserts his right to a trial de novo, is his guilty plea under the North Carolina law admissible in evidence against him in the new trial?

William W. Van Alstyne:

I will appreciate assistance by counsel of the state because I am not certain I am advised by some local attorneys that it is admissible, but I do not know that and would willingly stand corrected on the matter.

Byron R. White:

I mean after this there has been an error on the retrial the Superior Court, if he still can produce evidence of what his testimony was in the District Court, is that admissible?

William W. Van Alstyne:

I do not know, I cannot answer that clearly.

But part of the difficulty is again that there simply is no record or transcript of that first situation.

May I, in a few remaining moments —

William J. Brennan, Jr.:

But may I ask (Inaudible) there was a record in the Superior Court in this case?

William W. Van Alstyne:

Yes, so far as I know that was never made a part of the record in the case now presented to the court.

William J. Brennan, Jr.:

But at least on the on bad check charges that was a guilty plea presumably?

William W. Van Alstyne:

Yes.

William J. Brennan, Jr.:

And (Inaudible) was there a trial of the (Voice Overlap)?

William W. Van Alstyne:

Indeed, there was.

William J. Brennan, Jr.:

And evidence taken?

William W. Van Alstyne:

Indeed, there was.

William J. Brennan, Jr.:

And if you do not know whether the record indicates any cross-examination based on testimony given in the —

William W. Van Alstyne:

No, I do not.

It is true Mr. Rice is represented in the course of that trial by court assigned counsel as well, but there is simply no record with (Voice Overlap).

William J. Brennan, Jr.:

And we got no transcript to the Superior Court?

William W. Van Alstyne:

We do not.

A question was raised earlier as to the ascertain frequency of harsher sentencing in North Carolina in this configuration of cases.

I tried to determine that and there are no records kept of this matter.

Indeed, I think one can understand the readily why, since the General County Court and now the District Court makes no record and the state normally treats it as though it were indeed a new ball game.

We have nothing to compare to work that.

William W. Van Alstyne:

This Court however did rely upon a relatively informal survey in Pearce itself that was published in the Court Journal, finding by sample of the judges and their records in the Pearce profile allocations, that harsher sentencing was imposed upon new trial in roughly 70% of all retrials following successful appeal.

Now, I am not a practitioner in the North Carolina District Court.

I can merely assure the Court that there is wide spread interest in the bar because it is habitual for attorneys to advise the clients pursuant to the District Court proceeding.

And unless they are confident of success there ought not to appeal for trial de novo for the frequency harsher sentencing is believed to be quite widespread.

But there are no figures available, as I say I do not believe that the condition of records makes it possible together that information at all.

Respectfully then, I want to return to our regard the central issue.

The court has establish a set of sub-constitutional courts that systematically deny an accused his fundamental Fourteenth Amendment safeguards.

It does not give him an opportunity to pray that off against the Superior Court.

This is not a case of bargaining of any kind.

He stood upon his plea of innocence and he sought recourse to the only mechanism which the state possibly allows him.

The state then essentially sets up a kind of electric fence, but if one is brazen enough to press forward with a demand for rudimentary fair play, he is made to take the risk of judicially un-reviewable and unexplained harsher sentencing.

That is in the essence is this case.

I say the great majority of case State Supreme Courts, not Federal Courts, State Supreme Courts which have reexamined this system subsequent to Pearce, have pronounced it absolutely inadequate and I can anticipate no parade of horribles.

Byron R. White:

Let me ask you this, let us assume that North Carolina has the system of trying people in the District Court and having assigned them (Inaudible) that postponed the sentencing and then trying to appeal and to appeal from your conviction.

William W. Van Alstyne:

The sentence respectfully to be then determined and imposed by whom and what they —

Byron R. White:

Well, by then I get to — you could appeal from your conviction or you can appeal with your sentence.

Now, if he did not appeal for this conviction within ten days then he accepted in the District Court, but the conviction is —

William W. Van Alstyne:

If he did not appeal from his conviction within ten days sentence will then be imposed, as I understand and the question is —

Byron R. White:

Does conviction (Inaudible)?

William W. Van Alstyne:

Yes, I think that raises at least a very substantial procedural due process question.

Byron R. White:

Do you believe in fact that the question (Voice Overlap)?

William W. Van Alstyne:

Yes, indeed.

I think the hypothetical is very well taken.

The question for this Court is to extent to which the state may suspend this sort of damage pleas or placing the accused in a dilemma for a certain critical period of time and I would have serious doubts as to whether that procedure in the absence of very compelling government interest to be served which I can discern in my hypothetical itself should be allowed consistent with the due process.

Warren E. Burger:

Would you see a constitutional question if it developed on a survey that every judge in every case in the District Court imposed the maximum sentence on that in a given percentage, 10% or 15%, they later entertained motions for modification of the sentence and did reduce the sentence?

William W. Van Alstyne:

Mr. Chief Justice —

Warren E. Burger:

Is there due process question there too?

William W. Van Alstyne:

I do indeed, if firm figures of that kind would be forthcoming in a given piece of litigation then it seems to me at least to yield a prima facie inference of punitive original sentencing which would at least shift a burden of coming forward with some explanation so to account for such an odd and peculiar pattern.

Byron R. White:

Well, your argument though right across the board in so-called petty and —

William W. Van Alstyne:

It need not of course.

William W. Van Alstyne:

The extent to which Fourteenth Amendment somehow be advocated when the maximum punishment a man may endure may be as light as 90 days is of course an open question.

I am not prepared quite frankly to take position that no aspect to the Fourteenth Amendment whatever applies though the penalty cannot exceed 90 days.

Possibly counsel, but at least the impartiality of the trier of facts, for instance, and the requisite of hearing itself, these are all hardcore elements of due process and an absolute notion that they can all universally be dispensed with because a man may be subjected to no more that 90 days laws of freedom.

It strikes me as quite implausible for not —

Potter Stewart:

(Voice Overlap) cases of the Fourteenth Amendment, the question is what does the Fourteenth Amendment require in those circumstances?

William W. Van Alstyne:

Yes, of course.

That serves a proper rephrasing of it, I announce a view I suppose in taking that position.

Warren E. Burger:

(Voice Overlap) We have given a little bit of extra time so we give you two to three minutes if you need it.

Jacob L. Safron:

Thank you, Your Honor.

I have here the annual report of the Administrative Office of the Courts for the year 1970 and in answer to the question concerning representation of indigents.

The report reads, “Concern has been expressed as to incident of indigency among the defendants and criminal cases processed by our courts.

As to the Trial Court’s this data not available.

In the appellate division it is available and interesting.

Of the criminal appeals docketed in the Court of Appeals during calendar year 1968, 70.3% involved indigents.

The figures for 1969 and 1970 were 72.2% and 76.1% respectively.

In the Supreme Court 73.1% of the criminal appeals docketed in 1968 were brought by indigents.

During the two succeeding years the percentages were 71.8% and 81.1% respectively.

This data which seem to support the inference already drawn by some on the basis of the records on appeal that many indigents have come to the appellate court for no other apparent reason and that the court is there.”

There are some other comments —

(Inaudible) That led to conclusion, does it?

Jacob L. Safron:

No, Your Honor and I am not reading further because there are some other comments.

I would just to point out that in this year, we have budgeted $1,822,797.00 for indigent counsel and I am advised in discussion yesterday with the administrator director of the courts, the courts will run out of money.

Warren E. Burger:

Thank you, Mr. Safron.

Thank you Mr. Alstyne.

The case is submitted.