Filed: Aug. 11, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 8-11-2005 USA v. Jones Precedential or Non-Precedential: Precedential Docket No. 04-1333 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "USA v. Jones" (2005). 2005 Decisions. Paper 616. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/616 This decision is brought to you for free and open access by the Opinions of the United States Court
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 8-11-2005 USA v. Jones Precedential or Non-Precedential: Precedential Docket No. 04-1333 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "USA v. Jones" (2005). 2005 Decisions. Paper 616. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/616 This decision is brought to you for free and open access by the Opinions of the United States Court ..
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
8-11-2005
USA v. Jones
Precedential or Non-Precedential: Precedential
Docket No. 04-1333
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"USA v. Jones" (2005). 2005 Decisions. Paper 616.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/616
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 04-1333
___________
UNITED STATES OF AMERICA
v.
FELTON JONES
Appellant
___________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 97-cr-00193)
District Judge: The Honorable Berle M. Schiller
___________
ARGUED JUNE 30, 2005
BEFORE: NYGAARD, SMITH, and
FISHER, Circuit Judges.*
(Filed: August 11, 2005)
Paul M. George, Esq. (ARGUED)
McKinney & George
*
The Honorable Richard Lowell Nygaard assumed Senior Status
on July 9, 2005.
239 South Camac Street
Philadelphia, PA 19107
Counsel for Appellant
Thomas M. Zaleski, Esq. (ARGUED)
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Appellant Felton Jones was convicted by a jury of
conspiracy to distribute cocaine and distribution of cocaine
within 1,000 feet of a school, in violation of 21 U.S.C. § 860
and 21 U.S.C. § 846. The District Court determined that Jones’
prior convictions placed him in Criminal History Category II
under the Guidelines and sentenced him to 188 months’
imprisonment. Jones filed a pro se petition under 28 U.S.C. §
2255 to vacate, set aside, or correct his sentence, which was
denied by the District Court. He now appeals. Essentially,
2
Jones contends that his sentencing counsel was ineffective for
failing to argue that he was denied counsel in one of the prior
convictions used to compute his criminal history category. We
will affirm.
I.
The facts relating to Jones’ underlying cocaine conviction
are not relevant for purposes of this habeas petition. After being
convicted by a jury of conspiracy to distribute cocaine, and
distribution of cocaine within 1,000 feet of a school, Jones was
sentenced. Initially, the District Court imposed a sentence of
168 months’ imprisonment, which the Judge described as “very
harsh.” Immediately after this sentence was imposed, however,
the Government objected, arguing that for a defendant with a
Category II criminal history designation, the Sentencing
Guidelines mandated a longer sentence. After reviewing Jones’
criminal history designation and the Guidelines, the District
Court agreed and imposed a sentence of 188 months’
imprisonment.
3
Jones’ criminal history designation was the result of two
prior convictions: a 1991 New Jersey conviction for simple
assault and a 1992 conviction for cocaine possession. At the
time of his sentencing, Jones did not object to the use of the
1991 conviction. Almost a year later, however, Jones filed a pro
se petition under 28 U.S.C. § 2255 to vacate, set aside, or correct
his sentence. He asserted that in his 1991 guilty plea for simple
assault, he was denied his right to counsel, and therefore the
conviction cannot be used to enhance his sentence. More
specifically, Jones alleged that his sentencing counsel was
ineffective for failing to challenge the use of the 1991 simple
assault charge to enhance his sentence.
A Magistrate Judge held a hearing and appointed counsel
to address the limited issue of whether Jones knowingly and
voluntarily waived his right to counsel in the 1991 simple
assault guilty plea. No court records exist to indicate whether
Jones knowingly and voluntarily waived his right to counsel, or
whether he was even advised of his right. Consequently, the
4
Magistrate Judge also addressed the question of whether Jones
or the Government bore the burden of proving that Jones had
waived his right to counsel. The Magistrate Judge concluded
that the presumption of regularity applied to the New Jersey
proceedings, and therefore Jones bore the burden of proving that
he had been unconstitutionally denied his right to counsel. The
Magistrate Judge went on to conclude that Jones had failed to
meet his burden. Accordingly, Jones could not prove that he
suffered any prejudice, even assuming that his counsel had erred
by failing to raise the issue. The District Court adopted the
Magistrate Judge’s Report and Recommendation and denied the
habeas petition.
We granted a certificate of appealability on the narrow
issue of whether a section 2255 movant bears the burden of
proof in demonstrating that a prior uncounseled guilty plea,
which has been employed to enhance the sentence of a
subsequent federal conviction, was not knowing, intelligent, and
voluntary where the record is silent and the movant affirmatively
5
alleges that there was no valid waiver of counsel. We need not
reach that issue. Assuming, without deciding, that Jones did not
knowingly waive his right to counsel, we conclude that Jones
was not constitutionally entitled to counsel for his 1991 simple
assault plea. Thus, his sentencing counsel was not ineffective
in failing to object to his criminal history category.
II.
Because the 1991 simple assault conviction is at the heart
of this appeal, we will address it in some detail. That said, there
are no transcripts of the guilty plea, so we know relatively little
about the conviction. We know that Jones entered a guilty plea
to the charge of simple assault in the Municipal Court of
Phillipsburg, New Jersey. In New Jersey, the crime of simple
assault is considered a disorderly persons offense, or in some
cases, a petty disorderly persons offense. N.J. S TAT. A NN. §
2C:12-1 (1990). We know that Jones was unrepresented when
he entered his plea. We know that Jones was not actually
6
imprisoned for his crime; the only punishment he received was
an order to pay a fine and restitution totaling approximately
$150.2 Finally, we know that there is a “computer printout,”
apparently the only record of the New Jersey proceedings, which
indicates Jones was charged with aggravated assault at some
point during the investigation or court proceedings.
III.
The key fact in this case is that Jones was convicted of
simple assault, a disorderly persons offense, for which he was
not actually imprisoned. Thus, we need not engage in
conjecture regarding what role any charges for aggravated
assault played in Jones’ criminal proceedings. The Supreme
Court has described when a criminal defendant’s Sixth
Amendment right to counsel comes into play in both felony and
misdemeanor cases. In a felony case, the Constitution requires
2
At the hearing before the M agistrate Judge, the M agistrate
Judge indicated that Jones was fined $55 and ordered to pay
restitution. Jones stated that he did not remember paying
restitution, but recalled paying approximately a $150 fine.
In any case, Jones was not imprisoned for the crime.
7
that a criminal defendant be advised of his right to counsel, and
if indigent, that he be offered appointed counsel unless that right
is intelligently and competently waived. Nichols v. United
States, 511 U.S. 738, 743 n.9 (1994) (citing Gideon v.
Wainright,
372 U.S. 335 (1965)). In a misdemeanor case,
however, a criminal defendant is not always entitled to counsel.
In Scott v. Illinois, 440 U.S. 367, 373 (1979), the Court
explained that in misdemeanor cases, the defining line of when
a defendant is entitled to have counsel appointed, is actual
imprisonment. This is so because “actual imprisonment is a
penalty different in kind from fines or the mere threat of
imprisonment.”
Id. Thus, an individual cannot be sentenced to
a term of imprisonment unless the state has complied with the
right to counsel. It also follows that, in misdemeanor cases, the
question of whether the right to counsel has been violated can
only be determined in retrospect because we cannot know
whether a defendant was entitled to counsel until after he or she
has received a sentence. See
id.
8
Following its ruling in Scott, the Court addressed the
effect of a prior uncounseled misdemeanor conviction on a
subsequent sentence. Nichols,
511 U.S. 738. In Nichols, the
Court explained that the Constitution did not prohibit using a
prior uncounseled conviction to enhance the punishment of a
subsequent conviction.
Id. at 749. A prior uncounseled
conviction, valid under Scott, “may be relied upon to enhance
the sentence for a subsequent offense, even though that sentence
entails imprisonment.”
Id. at 746-47. This is so because the
enhancement does not change the penalty imposed for the earlier
conviction.
Id. at 747.
Furthermore, sentencing courts have traditionally relied
on proof of conduct, not necessarily proof of conviction, to
determine whether an individual should be given an enhanced
sentence. Id. at 748. In such a situation, a defendant may face
a more severe sentence if prior criminal conduct is proven by a
preponderance of the evidence.
Id. Thus, the Court reasoned,
“it must be constitutionally permissible to consider a prior
9
uncounseled misdemeanor conviction based on the same
conduct where that conduct must be proved beyond a reasonable
doubt.” Id.
Here, we must determine whether it is appropriate to
consider a prior uncounseled misdemeanor conviction where the
defendant was, at some point, charged with a felony. In some
respects, this brings the two standards into conflict because in a
felony case, the right to counsel attaches early in the
proceedings, but in misdemeanor cases, we look on a conviction
and sentence retrospectively to determine whether the right was
violated. Even assuming that Jones was initially charged with
aggravated assault and that his Gideon rights attached, we still
hold that his enhanced sentence was proper.3
3
Because we do not have the full record of the New Jersey
proceedings before us, we do not speculate as to whether
Jones was entitled to counsel based on those original
charges. As explained below, it is the crime Jones was
convicted of, simple assault, that we examine to determine
whether he was entitled to counsel.
10
The facts before us indicate that Jones pleaded guilty to
the crime of simple assault, which is not a felony. From the
vantage of appellate review on a collateral petition for habeas
corpus relief, we have the benefit of knowing the crime to which
a defendant pleaded guilty or was actually convicted of
committing, and the sentence he received. It is from this
vantage point that right to counsel cases in misdemeanor
convictions must normally be evaluated. Indeed, it is only after
a sentence is imposed for a misdemeanor that a criminal
defendant could mount a valid argument under Scott that his
rights had been violated. Before sentence, a reviewing court
could not know whether there was actual imprisonment. Thus,
we look at Jones’ 1991 simple assault conviction in retrospect,
just as we would any other misdemeanor conviction in which a
criminal defendant claims that a Sixth Amendment right to
counsel was violated.
When Jones entered a guilty plea, it was to the charge of
simple assault. Under New Jersey’s Code of Criminal Justice,
11
simple assault is categorized as “a disorderly persons offense
unless committed in a fight or scuffle entered into by mutual
consent, in which case it is a petty disorderly persons offense.”
N.J. S TAT. A NN. § 2C:12-1 (1990). Because Jones pleaded
guilty to a disorderly persons offense, which is not a felony, we
hold that Jones’ conviction falls squarely within the bounds of
Scott and Nichols. The only remaining question is whether
Jones was imprisoned for this offense. Scott, 440 U.S. at 373.
He was not. Jones received no jail time – he simply paid a fine
and restitution of $150 – hence, he had no constitutional right to
counsel.
In sum, because Jones did not have a Sixth Amendment
right to counsel for his 1991 guilty plea, his sentencing
counsel’s performance in his 1998 cocaine case was not
deficient. Strickland v. Washington, 466 U.S. 668, 687 (1983).
Thus, we will affirm.
