Filed: Sep. 10, 2003
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS September 9, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 03-10451 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE GARCIA-HERNANDEZ, Defendant-Appellant. Appeal from United States District Court for the Northern District of Texas USDC No. 4:03-cr-00016-ALL _ Before HIGGINBOTHAM, STEWART, and PRADO, Circuit Judges. PER CURIAM:* Jose Garcia-Hernandez (“Garcia”) appeals from the di
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS September 9, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 03-10451 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE GARCIA-HERNANDEZ, Defendant-Appellant. Appeal from United States District Court for the Northern District of Texas USDC No. 4:03-cr-00016-ALL _ Before HIGGINBOTHAM, STEWART, and PRADO, Circuit Judges. PER CURIAM:* Jose Garcia-Hernandez (“Garcia”) appeals from the dis..
More
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 9, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10451
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE GARCIA-HERNANDEZ,
Defendant-Appellant.
Appeal from United States District Court
for the Northern District of Texas
USDC No. 4:03-cr-00016-ALL
__________________________________________________
Before HIGGINBOTHAM, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Garcia-Hernandez (“Garcia”) appeals from the district court’s judgment sentencing him
to six months in prison upon revocation of his probation. Garcia contends that the district court’s
imposition of the prison sentence was constitutionally infirm because he did not validly waive his
Sixth Amendment right to counsel before pleading guilty, without the assistance of counsel, to the
misdemeanor offense for which he originally was convicted and sentenced to probation. Because
we find no constitutional infirmity and that, under t he circumstances, Garcia knowingly and
intelligently chose to represent himself, we affirm.
*
Pursuant to 5th CIR. R. 47.5, the court has determined that this opinion should not be published and is not
precedent except under the limited circumstances set forth in 5th CIR. R. 47.5.4.
FACTUAL AND PROCEDURAL BACKGROUND
On June 12, 2000, Jose Garcia-Hernandez (“Garcia”) pled guilty to the misdemeanor offense
of aiding and abetting the illegal entry of aliens into the United States, a violation of 8 U.S.C. §
1325(a) and 18 U.S.C. § 2, and was sentenced to 36 months of probation. At the plea hearing before
a magistrate judge o n that date, Garcia was not represented by counsel, and he appeared with
approximately 20 other defendants. Near the outset of the hearing, the magistrate judge addressed
the defendants en masse and told the defendants about their right to the assistance of counsel, as
follows:
[Y]ou each have the right to have an attorney to represent you
at every stage of these proceedings, whether you’re innocent
or whether you’re guilty of the offense alleged or offenses
alleged, whether you have the financial ability or not with
which to employ an attorney. And if you would not have the
financial ability to do so and would demonstrate this to the
Court and request that I assign an attorney, I would then
assign an attorney to represent you free of charge to you.
You don’t have to have an attorney if you do not wish to. As
with any right, you may waive this right to an attorney; but I
want you each to clearly understand that you do have this
right, that it is a valuable right. . . .(emphasis added).
When the magistrate judge asked all of the defendants whether they would like to proceed
either with or without attorneys, Garcia answered, individually, “[w]ithout an attorney.” The court
later explained that, by pleading guilty, the defendants would waive “certain rights” including “the
right to the assistance of counsel at every stage of the proceedings even free of charge to yo
u.”
Garcia did not appeal this conviction and sentence of probation.
On April 7, 2003, the Government moved to revoke Garcia’s probation on the ground that
he had violated the terms thereof by using drugs, possessing alcohol in a motor vehicle, driving while
intoxicated, and assaulting his wife. With the assistance of appointed counsel, Garcia moved to
dismiss the motion to revoke, arguing that he had not validly waived his right to an attorney at his
plea hearing for the underlying misdemeanor conviction. He emphasized that the magistrate judge
had failed to warn him of the “dangers and disadvantages” of proceeding pro se.
At the ensuing revocation hearing on April 30, 2003, the district court overruled Garcia’s
argument, determining both that there had been a valid waiver of counsel at the prior plea proceeding
and that Garcia’s contentions amounted to an unauthorized collateral attack on the underlying
conviction or sentence. At the April 30, 2003, hearing and at a continued hearing on May 2, 2003,
the court heard testimony regarding the probation violations alleged against Garcia. Garcia was
represented by counsel in these proceedings.
On May 2, 2003, the district court entered a judgment revoking Garcia’s probation and
sentencing him to six months in prison. Garcia timely filed a notice of appeal.1
DISCUSSION
Garcia argues on appeal that when the district court revoked his probation, it had no
authority to sentence him to prison because he did not validly waive his right to counsel during the
guilty plea hearing for his underlying misdemeanor offense. Citing Alabama v. Shelton, 535 U.S.
654, 662 (2002), and United States v. Perez-Macias,
327 F.3d 384 (5th Cir. 2003), he asserts that
a misdemeanor defendant sentenced to probation without counsel or a valid waiver of counsel cannot
be imprisoned upon revocation of the probation.
As a preliminary matter, Garcia could have, but chose not to, file a direct appeal from his
June 12, 2000, misdemeanor conviction and sentence of probation. Garcia maintains that his
1
The district court and this court subsequently denied Garcia’s motions for release
pending bail.
conviction was valid, but that the imposition of the prison sentence was unlawful. The Government
counters that Garcia’s present challenge to the validity of his waiver necessarily constitutes an attack
on the validity of his underlying misdemeanor conviction, which the Government contends cannot be
raised on direct appeal from a probation revocation, but must be collaterally attacked in a 28 U.S.C.
§ 2255 proceeding.2 This Circuit has yet to reach this issue.3 However, we decline to address this
question today because even assuming, arguendo, that a direct appeal is the proper avenue for
2
The Government relies on our decision in United States v. Francischine, in which we
held that the validity of an underlying conviction “cannot be asserted as a defense in a probation
revocation proceeding,” but “may be collaterally attacked under 28 U.S.C. § 2255.” 512 F.2d 827,
828 (5th Cir. 1975). In Francischine, the defendant argued at his probation hearing that his original
conviction was invalid for reasons other than a denial of the Sixth Amendment right to counsel, which
was not implicated in that case. See
id. The Government concedes, however, that more recently, in
United States v. Perez-Macias, we acknowledged in dicta that “[t]he actual imposition of a term of
imprisonment upon probation revocation may pose a Sixth Amendment problem. That is, it may be
the case that a misdemeanor defendant who was convicted without counsel may not be sentenced to
prison upon revocation of his probation.”
335 F.3d 421, 428 (5th Cir. 2003) (holding in part that
“stand-alone probation does not trigger a Sixth Amendment right to counsel”). We further observed
that the Solicitor General has adopted that position.
Id. at 429 n.15.
We note that our holding in Franscischine appears to conflict with our dicta in Perez-Macias,
335 F.3d at 428, as well as the Supreme Court’s decisions in Argersinger v. Hamlin,
404 U.S. 25,
37 (1972) (holding that, absent a knowing and intelligent waiver, no person may be imprisoned for
any offense unless he was represented by counsel at trial), Scott v. Illinois,
440 U.S. 367, 370-74
(1972) (holding that the Sixth Amendment right to counsel applies only when a defendant is
sentenced to “actual imprisonment,” and not merely where imprisonment is an authorized penalty),
and Alabama v. Shelton,
535 U.S. 654, 657-58 (2002) (holding that a defendant who was sentenced
to a suspended prison term and probation and who received monetary penalties was entitled to
counsel under the Sixth Amendment).
This Circuit has not yet reached this issue. As in Perez-Macias, we reserve judgment on
whether a misdemeanor defendant convicted without counsel or a valid waiver of counsel can be
sentenced to prison upon revocation of his probation. We do so because, even assuming arguendo
that, under such circumstances, the Sixth Amendment precludes a prison sentence, Garcia’s claim
would still fail because the record reveals that his waiver of counsel was valid.
Garcia’s challenge, the record evidence shows that under the circumstances he validly waived his right
to counsel, and therefore his claim fails on the merits. Thus, without answering that question, we
assume that Garcia may proceed on direct appeal and we limit our review to consideration of whether
Garcia validly waived his right to counsel.
The validity of the waiver
Garcia asserts that at the June 12, 2000, plea hearing for his misdemeanor offense, his waiver
of his right to counsel was invalid because the presiding magistrate judge failed to admonish him
about the “dangers and disadvantages of self-representation” and, in particular, failed to inquire about
his “age, education, and experience.” Garcia contends that without a valid waiver, the range of
punishments constitutionally available at the original misdemeanor hearing did not include a prison
sentence, and thus the district court had no authority to impose imprisonment when it revoked his
probation. We review constitutional challenges de novo. See United States v. Joseph, 333 F.3d 587,
589 (5th Cir. 2003).
The Sixth Amendment guarantees an accused the right to counsel at all critical stages of the
prosecution, and the right to a trial by jury. U.S. Const. amend. VI. A criminal defendant also “has
a constitutional right to proceed without counsel, but only when he knowingly and intelligently elects
to do so.” Joseph, 333 F.3d at 589-90 (citing Faretta v. California,
422 U.S. 806, 833-35 (1975)).
A misdemeanor defendant, however, has a Sixth Amendment right to counsel only where the
defendant is “actually sentenced to imprisonment and not merely where imprisonment is an authorized
penalty.” Scott v. Illlinois,
440 U.S. 367, 370-74 (1972). Thus, “[a]bsent a knowing and intelligent
waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or
a felony, unless he was represented by counsel at his trial.” Argersinger v. Hamlin,
407 U.S. 25, 37
(1972)(emphasis added). To determine whether a defendant effectively waived his right to counsel,
a court must consider the totality of the circumstances surrounding the waiver. The Supreme Court
has explained that it has taken a “pragmatic approach to the waiver question,” that asks “what
purposes a lawyer can serve at the particular stage of the proceedings in question, and what assistance
he can provide at that stage--to determine the scope the Sixth Amendment right to counsel, and the
type of warnings and procedures that should be required before a waiver of that right will be
recognized.” Patterson v. Illinois,
487 U.S. 285, 298 (1988).
In United States v. Davis, we stated that:
[w]hile there is no “sacrosanct litany for warning defendants against
waiving” their rights, a defendant who wishes to do so should be made
aware by the presiding judge of the “dangers and disadvantages of
self-representation, so that the record will establish that ‘he knows
what he is doing and his choice is made with his eyes open.’”
269 F.3d 514, 518-19 (5th Cir.2001) (quoting Faretta v. California,
422 U.S. 806, 835 (1975)).
More recently, in United States v. Bethurum, ___F.3d___, 2003 WL 21978238 (5th Cir.
Aug. 20, 2003), we held that the district court’s failure “to specifically warn the defendant about the
effect that a guilty plea would have on his ability to possess a firearm” did not render his waiver of
counsel invalid.
Id. at *5-*6. We found that a defendant can make a “knowing and voluntary” “
waiver of his rights even if not informed of ‘all the consequences that may flow from conviction or
the imposition of sentence.’”
Id. at *6 (quoting United States v. Edwards,
911 F.2d 1031, 1035 (5th
Cir. 1990)). In Bethurum, we stated that “specifically warning the defendant about the advantages
of being represented by counsel [coupled with, in that case, a signed waiver form] adequately
ensure[s] that a defendant’s waiver of his rights is both knowing and intelligent.”
Id. at *5 (citing
United States v. Davis,
269 F.3d 514, 518-19 (5th Cir. 2001)) (emphasis added). We also pointed
out that “we have previously held that if a sentencing court informs a defendant of the requirements
of rule 11 [of the Federal Rules of Criminal Procedure], he need be informed of no others. All other
matters are collateral.”
Id. at *6 (quoting
Edwards, 911 F.2d at 1035).3
We find, after a thorough review of the record, that Garcia knowingly and intelligently waived
counsel at the time he pleaded guilty to the misdemeanor for which he was originally convicted and
sentenced to probation. The district court already considered and rejected his argument that his
waiver of counsel made at the original plea hearing was invalid. We agree. Prior to obtaining the
waiver, the magistrate judge told Garcia that he had the right to an attorney or the appointment of
an attorney, free of charge, if he could not afford one, and that the right to counsel is a “valuable
right” which he also had the right to waive if he so chose. In addition, the court explained the
maximum possible sentence that Garcia could receive for the “relatively minor” misdemeanor with
which he was charged, expressly warning him that the available range of punishment could include
a prison sentence of six months. The record also reveals that the magistrate judge gave these
3
Rule 11(c)(2) of the 2000 Federal Rules of Criminal Procedure directed that,
[b]efore accepting a plea of guilty . . ., the court must address
the defendant personally in open court and inform the
defendant of, and determine that the defendant understands,
the following: . . . (2) if the defendant is not represented by an
attorney, that the defendant has the right to be represented by
an attorney at every stage of the proceeding and, if necessary,
one will be appointed to represent the defendant.
FED. R. CRIM. P. 11(c)(2)(2000). This requirement was recently recodified at Rule
11(b)(1)(D).
warnings to Garcia and all the other defendants as a group, and that Garcia, who had matriculated
at the Sixth Grade level, spoke only Spanish and required the services of an interpreter. However,
we note that at no time prior to or during this appeal has Garcia complained that he did not
understand the warnings given, or the consequences of waiving counsel. Garcia was provided with
an interpreter during the proceedings. The court asked the defendants to speak up if any of them did
not understand; Garcia said nothing. When asked if he understood the court’s warning regarding
waiving counsel, Garcia responded that he did. Nor has Garcia ever complained that his waiver was
coerced, or anything less than voluntarily given.
We conclude that, under the circumstances, Garcia knowingly and voluntarily waived his right
to counsel at the time he pleaded guilty to the misdemeanor offenses. Therefore, we affirm the
district court’s judgment revoking Garcia’s probation and sentencing him to prison.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s revocation of probation and prison
sentence.
