Cunningham v. United States

¶4HUTCHESON, Chief Judge.

¶5This appeal presents for our determination whether, as found and declared by the district judge, the Federal Youth Corrections Act, 18 U.S.C. §§ 5005-5020, is constitutional and the commitment entered under it in this case is valid as against appellant’s attack upon the Act as unconstitutional as applied here to a conviction for a misdemeanor carrying a maximum punishment of one year.

¶6The question comes up in this way: On Oct. 24, 1956, appellant was convicted on his plea of guilty to an information charging violation of Sec. 661, 18 U.S. C.A., the theft on a government reservation of a radio clock of a value less than one hundred dollars, a misdemeanor providing for a maximum sentence of one year and was “committed to the custody of the Attorney General or his authorized representative for treatment and supervision under the Federal Youth Corrections Act, 18 U.S.C.A., Sec. 5010(b), execution thereof to begin October 29, 1956”. On October 29, 1957, precisely *469one year later, he filed in the sentencing court a “Motion to Correct Sentence under Rule 35, Federal Rules of Criminal Procedure [18 U.S.C.A.] and Title 28 U.S.C., Sec. 2255.”

¶7Putting forward as its sole ground:

“The sentence imposed was in excess of that authorized by the Statute under which defendant was convicted.”

¶8the motion sought an order amending the judgment to provide “for imprisonment for a period of not more than one <1) year”. Contending in his motion:

“ … the court was in error in ordering his commitment for a period of from four (4) to six (6) years, under the Youth Corrections Act, when the offense for which he stands convicted was a misdemeanor, and is punishable by imprisonment for not more than one (1) year.”

¶9and citing United States v. Lynch, 7 Cir., 159 F.2d 198, 199,1 he attacks his commitment under the Youth Corrections Act as in violation of fundamental constitutional provisions.

¶10The district judge, taking time to consider the record 2 made at the time of the *470entry of the plea and of the order of commitment and the state of the law, entered the following order:

“Having considered the foregoing motion, which presents only a legal question, and having studied the Congressional History of enactment of the Federal Youth Corrections Act; being of the opinion that the Act is constitutional and that the sentence imposed was legal and valid; the motion must be and is hereby denied.”

¶11Movant appealing from this order and seeking leave to appeal in forma pauper-is, the district judge, stating: “It appearing that the legal question raised by appellant is not insubstantial and ought to be decided authoritatively by the Court of Appeals”; granted mov-ant’s request.

¶12Here with a well prepared brief, thus putting the questions for decision:

First: “Is the Federal Youth Corrections Act, 18 U.S.C.A., 5005 et seq. applicable to conviction for misdemeanors ?”

Second: “May Congress authorize the imposition of sentences more-severe upon youth offenders than may be imposed upon more mature offenders for violation of the same offense?”

¶13Appellant insists that to impose, as the court did here, upon a person under twenty-one years of age, who has been convicted of a misdemeanor carrying a maximum sentence of only one year, a sentence of from four to six years in the custody of the Attorney General, is to impose cruel and unusual punishment.

¶14Quoting the several statutes, on which he relies for his point,3 he queries: “How *471can a court possibly be empowered to accept a plea of guilty to an offense when the defendant knowingly enters such a plea to an offense, the maximum punishment allowed for which is one year and the court then suddenly receives the power to impose a four to six year sentence?” So querying, he urges upon us that on the first question it must be held that, since he was found guilty of an offense for which he could be sentenced to serve no more than one year and in no event in the penitentiary, and nevertheless he was committed for a term of from four to six years, under which he could be put under any kind of custody including the penitentiary, the sentence sought to be imposed upon him over and above the one year he has served is void and he is entitled to release.

¶15On the second question, invoking the Eighth Amendment and citing O’Neil v. State of Vermont, 144 U.S. 323, 12 S.Ct. 693, 36 L.Ed. 450, he argues that on its face a commitment to the custody of the Attorney General for a term of from four to six years when the offense of which he was convicted provides a maximum punishment of only one year is cruel and excessive and deprives him of due process of law.

¶16For the reasons hereafter briefly stated which apply with equal force to both questions posed by him, we think it clear that both of them must be answered against his contentions and for affirmance.

¶17As pointed out in the Government’s brief,4 the Youth Corrections Act applies to convicted persons under the age of twenty-two years at the time of the conviction and is designed to provide such persons with correctional treatment looking to their complete rehabilitation in lieu of punishment, that is with preventive guidance and training, and all of *472its provisions are designed, enacted and enforced with that end in view.

¶18While no federal case has been cited to us, and we have found none construing the act or otherwise dealing with the precise questions here presented, many well reasoned state cases have been and may be cited holding with respect to them directly contrary to appellant’s contentions. Cases precisely dealing with and authoritatively deciding contrary to his contention, that the Youth Corrections Act is not applicable to a conviction for a misdemeanor, are State v. Heitman, 105 Kan. 139, 181 P. 630, 8 A.L.R. 848, and People v. Scherbing, 93 Cal.App.2d 736, 209 P.2d 796. In each of these cases the court, in an opinion comprehensively canvassing the contentions and counter-contentions made in respect of legislation claimed, as here, to be discriminatory, effectively and correctly set forth the reasons underlying and supporting the enactment of the legislation, and as effectively and correctly, we think, rejected the attacks upon the statute as unfounded.

¶19We turn, then, to the second ground, that the act is unconstitutional and the sentence invalid as depriving the defendant of due process, to say of the attack that when it is examined, in the light of the record made when the plea was entered and the sentence imposed, of the legislative powers of congress, and of the considerations underlying and supporting the act, it will be seen to be equally unfounded in fact and in law.

¶20It is unfounded in fact because the record affirmatively establishes: that the defendant voluntarily waived counsel and entered his plea, stating to the court the circumstances of the offense; and that, carefully advised by the court of the existence and benefits of the Youth Corrections Act and his opportunity to receive its benefits by being committed as a youthful offender “in lieu of the penalty of imprisonment otherwise provided by law”; defendant did not object but tacitly assented thereto. It is unfounded in law because the act is based upon modern and improved penological views and methods, not merely of crime and its punishment but of correction and rehabilitation also, including the extension and new application, in the field of youth corrective penology, of the theory of, and the provisions for indeterminate sentences, long in force and accepted in nearly all of the states. It, therefore, provides for and affords youthful offenders, in the discretion of the judge, not heavier penalties and punishment than are imposed upon adult offenders, but the opportunity to escape from the physical and psychological shocks and traumas attendant upon serving an ordinary penal sentence while obtaining the benefits of corrective treatment, looking to rehabilitation and social redemption and restoration. General in its scope and without limitation, if the power of Congress to provide for correctional, as well as punitive, treatment of offenders is conceded, as we think it must be, no constitutional reason presents itself why Congress could not, indeed should not, make the general distinction made here between the treatment of persons over and those under twenty-two years of age, a distinction long embodied in the law in connection with reform and training schools and other similar measures provided for young offenders. Indeed, the provisions made in the act seem natural and reasonable. Similar acts have been adopted and are in force in many of the states.5 In State v. Meyer, 228 Minn. 286, 37 N.W.2d 3, the Supreme Court of Minnesota, speaking through Justice Knutson, in an eloquent opinion, which will fully repay reading in full, construing and applying one of these acts, the Minnesota Youth Conservation Act, M.S.A. §§ 260.125, 260.13, has in a thorough-going and, we think, unanswerable way not only met and refuted all the objections made against and estab*473lished the undoubted validity of such laws but shown affirmatively their essential benevolence and beneficence, indeed their necessity in dealing with the problems of youth correction control and socialization.

¶21 While appellant does not here invoke, as indeed he cannot, the equal protection clause of the Fourteenth Amendment, against the classification of which he complains, it has been definitely settled by the decisions of state courts in states which have such laws 6 and in general by the decision of the Supreme Court of the United States in State of Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744, that classifications of the general nature of that involved here are not invalid. These and other cases uniformly hold that: while arbitrary or unreasonable classifications may not be set up, there must be differences in character, condition or situation to justify the distinction; that the distinctions and differences in short must bear a due and proper relation to the classification; the equal protection of the laws is afforded if the law in question operates in the same general way on all who belong in the same class. For the same reasons it will not avail appellant under this record to claim under Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884, that the due process secured by the Fifth Amendment has been in any way denied him.

¶22The judgment was right. It is affirmed.

¶31RIVES, Circuit Judge

¶32(dissenting).

¶33I agree that the Federal Youth Corrections Act is constitutional on its face, and I feel sure that it can be constitutionally administered, but, under the facts and circumstances of this case, the application of the Act so as to deprive the appellant of his liberty for more than one year is, in my opinion, an unconstitutional application.

¶34At the time that appellant waived counsel and pleaded guilty [See the proceedings of October 16, 1956 in footnote 2 to the majority opinion.] nothing was said about the Youth Corrections Act. Eight days later, the judge had him confirm his waiver of counsel and plea of guilty, and thereafter announced: “ … All things considered, and having received notice only yesterday that young men of your age can be handled now for the first time under the Federal Youth Corrections Act, the Court is going to declare you to be a youthful offender … (Emphasis supplied.) [See the proceedings of October 24, 1956 in footnote 2 to the majority opinion.]

¶35I cannot find in the record that the appellant assented tacitly or otherwise. He had no alternative but to submit to the Court’s sentence. Indeed, he was not even then informed that he might be deprived of his liberty for more than one year, and he still had the right to assume that such was the maximum limit of his confinement.

¶36A defendant charged with a misdemeanor might be willing to waive counsel and plead guilty if he thought that he could be imprisoned for not more than one year, while, if he realized that he might be imprisoned for as much as six years, he would cry to High Heaven for a lawyer. To be valid, waiver of counsel must be made “with an apprehension of the nature of the charges, … the range of allowable punishments thereunder, … Von Moltke v. Gillies, 1948, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309.

¶37The appellant did not know and was not advised at or before the time he waived counsel and pleaded guilty that he might be deprived of his liberty for more than one year. That was a necessary prerequisite, I think, to his detention for a longer period. I would hold that he has been deprived of his liberty for the maximum time that he *474could have apprehended at the time' of his waiver of counsel and plea of guilty, and that he is therefore entitled to be discharged.

¶38A further unconstitutional application of the Act is evidenced by the hearing before this Court on a record to a ma- ' terial portion of which the appellant is denied access. In my book that is not procedural due process. On both grounds, I respectfully dissent.

¶39Rehearing denied: RIVES, Circuit Judge, dissenting.