Halbert, Antonio v. Michigan (06/23/2005)

Questions presented: (1) Does Michigan's law and practice of not appointing counsel to indigent defendants convicted by guilty plea, violate a defendant's 14th Amendment right to due process? (2) Is a defendant entitled to resentencing, where counsel failed to render effective assistance by not objecting to improper scoring under Michigan's sentencing guidelines which resulted in a considerably longer sentence?

BY GABRIEL S. OBERFIELD, MEDILL NEWS SERVICE

Back in July 2000, Antonio Dwayne Halbert faced three counts of criminal sexual conduct.

Prosecutors alleged that the then-37-year-old Saginaw, Michigan, resident had improper contact with three children. One was his stepdaughter.

After Halbert was released on bond, he was charged again in 2001 with sexual misconduct involving the same stepdaughter.

Saginaw's Rodney J. O'Farrell said Halbert and his wife gathered their limited savings to hire him as their lawyer. Thereafter, O'Farrell and prosecutors negotiated a plea agreement.

Prosecutors eliminated two of the three charges from 2000, leaving Halbert to plead no contest to one count from 2000 and to the single charge from 2001.

Prosecutors hoped Halbert would receive a consecutive sentence – meaning Halbert would serve time separately for each crime. Halbert understood his plea would result in concurrent sentencing and an overall briefer sentence.

But the trial judge sided with the prosecution. Halbert received consecutive sentences of 24 months to 15 years and 57 months to 15 years under the state's sentencing guidelines.

The consecutive sentencing disappointed Halbert, who also felt O'Farrell had failed to challenge the unreasonably long minimum sentences.

O'Farrell and Halbert parted ways after the sentencing, leaving the indigent Halbert to pursue an appeal. And with that, Halbert encountered a wall of statutory resistance.

A Michigan law allows those who plead guilty, guilty but mentally ill or no contest to appeal their sentences only if the Michigan Court of Appeals approves. Exceptions exist only when the prosecution initiates an appeal or when a sentence exceeds the maximum permitted under state sentencing guidelines.

In December 2001, after Halbert had been sentenced, the trial court dismissed Halbert's request for appointed appellate counsel. This precluded Halbert from alleging that O'Farrell had ineffectively assisted him.

In September 2002, Halbert again requested appointed counsel from the trial court, but it denied the motion.

Yet Halbert persisted, and two months later, he asked the Michigan Court of Appeals to allow his appeal. Still, he got nowhere.

Thereafter, Halbert filed a pro-se petition with the Michigan Supreme Court that alleged the same ineffective assistance of counsel, but for the first time, also asserted that he was automatically entitled to appointed appellate counsel. On Sept. 19, 2003, the Michigan Supreme Court rebuffed Halbert.

In seeking review from the U.S. Supreme Court, Halbert adjusted his argument. He claimed Michigan's discretionary appellate system violated his due process rights under the U.S. Constitution's 14th Amendment, alleging that due process required appointment of an appellate attorney regardless of one's ability to pay.

Moreover, Halbert reasserted that, on appeal, he would seek to challenge perceived miscalculations in his sentence.

Before the Supreme Court decided whether to hear Halbert's grievances, it first heard arguments in a related case, Kowalski v. Tesmer. Tesmer similarly challenged Michigan's absence of automatic appellate counsel for indigents, on 14th Amendment grounds.

In oral arguments on Oct. 4, 2004, the Court centered on the attorneys' standing to sue, noting they had not been directly harmed.

Michigan Solicitor General Thomas L. Casey, arguing against Tesmer, reminded the Court that it already had received Halbert's petition and said it might prefer Halbert's case because it did not suffer from the standing issues that clouded Kowalski.

On Dec. 13, 2004, the Court held 6-3 that the attorneys indeed lacked standing, and on Jan. 7, 2005, the Court took on Halbert, and allowed him to have his case heard without costs.

"This is really a replacement case for Kowalski v. Tesmer," said Wayne State University's David A. Moran, who will be cooperating with the ACLU of Michigan and will oppose Casey, just as he did in Kowalski v. Tesmer.

Moran said he does not expect the Court to consider Halbert's second question about ineffective assistance of counsel because, if it sides for Halbert on the first question regarding appellate legal counsel, the Court will immediately grant Halbert a lawyer and send his case back to Michigan.

Casey said he expected the same from the Court if it sided against Michigan – but said the Court would find the answer to the first question difficult to reach.

He said the Court must examine two of its previous cases that considered appellate rights for indigents and determine where Halbert fits between them.

In Douglas v. California, the Court in 1963 invalidated a California rule of criminal procedure under the 14th Amendment. The rule allowed for the denial of new counsel to co-defendants who had requested replacement public defenders during their trial – and who were subsequently convicted.

By contrast, in Ross v. Moffitt, the Court held in 1974 that North Carolina did not violate the 14th Amendment's due process or equal protection clauses by mandating appointment of counsel for an indigent's first appeal, but then not doing so on a subsequent discretionary appeal.

Casey said the Court should view Halbert's case as more closely aligned with Ross because Halbert had full assistance of counsel when plea bargaining.

But Moran said if the Court sides against Halbert, it will set dangerous precedent.

"If you're poor, you're out of luck," he said. "But if you have money, our doors are open and you can get your errors fixed."

Moran added that because pleas decide more than 90 percent of criminal cases nationwide, statutory schemes like Michigan's unreasonably curtail a broad swath of defendants – such as Halbert.

O'Farrell, Halbert's original trial lawyer, is behind Halbert even if his former client's claim inherently challenges O'Farrell's work.

"A man like Mr. Halbert shouldn't be left alone," he said.

On April 15, 2005, the Court allowed the state of Louisiana to present oral arguments in the case, and on June 23, the Court held 6-3 that Michigan's appellate process violates both the due process and the equal protection clauses of the constitution.

Writing for the majority, Justice Ruth Bader Ginsburg stressed the difference between access to the first appellate tier and access to a state's highest court; the former tending to address the claims of a a particular defendant, while the latter more often addresses the general importance of the questions presented.

Justices Clarence Thomas, Antonin Scalia and Chief Justice William Rehnquist dissented.