Summary
In State v. Green, 277 N.C. 188, 176 S.E.2d 756 (1970), this Court held that the offense of which this defendant was so convicted in 1963 is of such a nature that appointment of counsel for, or intelligent waiver thereof by, an indigent defendant is not required by the Sixth and Fourteenth Amendments to the United States Constitution.
Summary of this case from Tidwell v. BookerOpinion
No. 22
Filed 14 October 1970
1. Criminal Law 180 — writ of coram nobis Although the writ of coram nobis has been supplanted by statute with reference to any person imprisoned, the writ remains as at common law and is available under our procedure to challenge the validity of a conviction by reason of matters extraneous to the record. G.S. 15-217 et seq.; G.S. 4-1; N.C. Constitution, Art. IV, 10.
2. Criminal Law 180 — coram nobis — application to Supreme Court Since authority for issuance of the writ of coram nobis derives from the supervisory power of the Supreme Court as conferred by the Constitution, it is necessary that an application be made to the Supreme Court for permission to apply for the writ to the court in which the case was tried.
3. Criminal Law 180 — coram nobis — prima facie showing of substantiality Application for writ of coram nobis will be granted by the Supreme Court only upon a prima facie showing of substantiality.
4. Criminal Law 180 — coram nobis is no substitute for appeal Coram nobis is not a substitute for an appeal.
5. Criminal Law 180 — coram nobis — address to trial court The writ of coram nobis must be addressed to the court in which the defendant was tried.
6. Constitutional Law 32; Bastards 1 — willful failure to support illegitimate child — right to counsel The offense of willful failure to support an illegitimate child is not a serious misdemeanor requiring the appointment of counsel or an intelligent waiver thereof. U.S. Constitution, Amendments VI and XIV; G.S. 49-2; G.S. 49-8.
7. Bastards 1; Constitutional Law 32; Criminal Law 142 — willful failure to support illegitimate children — right to counsel — effect of support payments and subsequent prosecutions In a prosecution for willful failure to support an illegitimate child, the support payments that a convicted defendant may be required to make to his illegitimate children are not a part of the punishment and are therefore irrelevant to the question of defendant's right to counsel; the fact that defendant may be prosecuted more than once for the offense and sentenced to successive terms of six months' imprisonment is also irrelevant to the question of right to counsel.
8. Bastards 9 — willful failure to support bastard — punishment The authorized punishment for the willful failure or neglect to support an illegitimate child is limited at most to six months in prison. G.S. 49-8.
9. Criminal Law 4; Constitutional Law 32 — determination of serious offense — punishment Whether an offense is petty or serious is measured, in both state and federal courts, by the punishment authorized by law for the particular offense in question. G.S. 7A-451.
10. Constitutional Law 29, 32 — right to counsel — right to jury — petty misdemeanor Any crime whose maximum authorized punishment does not exceed six months in prison is a petty offense for which the offender may be tried without a jury and without the assistance of counsel.
APPEAL by defendant from decision of the Court of Appeals upholding judgment of Godwin, S.J., at the November 1969 Session of ROCKINGHAM.
Alston, Pell, Pell Weston, attorneys for defendant appellant.
Attorney General Robert Morgan, Deputy Attorney General Jean A. Benoy, Assistant Attorney General Henry T. Rosser and Assistant Attorney General R. S. Weathers for the State.
Justice SHARP dissenting.
Chief Justice BOBBITT and Justice HIGGINS join in dissenting opinion.
On 7 November 1966 defendant was tried in the Reidsville Recorder's Court upon a warrant charging him with willful neglect and refusal to support two named illegitimate children begotten by him upon the body of Zeena Lane. Defendant entered a plea of not guilty but was convicted. The court pronounced judgment that defendant be confined in the common jail of Rockingham County for a term of six months, suspended for two years on condition defendant be of good behavior, pay the costs, and pay into court the sum of $10.00 per week, commencing 12 November 1966, for the support of his two minor illegitimate children. The cause was retained for further orders. Defendant did not appeal.
Thereafter, upon a finding that defendant had failed to comply with the judgment in that he had failed to make the support payments as ordered, the judge of the Reidsville Recorder's Court ordered the suspended sentence into effect. Defendant appealed from that order to the Superior Court of Rockingham County.
On 3 April 1969, while his appeal from the order invoking the suspended sentence was still pending, defendant applied to the Superior Court of Rockingham County for issuance of a writ of error coram nobis, alleging: (1) that on 7 November 1966 he was tried, convicted and sentenced in the Reidsville Recorder's Court for the offense of willful nonsupport of two illegitimate children; that active sentence was suspended and defendant is not now confined to any penal institution specified in G.S. 15-217 so as to come within the purview of the Post-Conviction Hearing Act, but he is prejudiced nevertheless by the sentence imposed in the Reidsville Recorder's Court and his rights under the Constitution of the United States were violated in his original trial; (2) that the terms of the suspension of sentence prejudiced defendant in that they require the payment of money on a continuing basis for support of two children; (3) that at the original trial in Reidsville Recorder's Court defendant was without counsel, was indigent and unable to afford counsel, and the trial judge made no inquiry into his indigency and did not offer to afford him counsel; that he did not intelligently waive his right to counsel; that his trial without the benefit of counsel is a violation of the rights secured to him by the Sixth and Fourteenth Amendments to the United States Constitution; (4) that "the above is an error of fact not appearing in the record of said recorder's court"; (5) that this cause is pending in the superior court by reason of an appeal by defendant from an order of the recorder's court invoking the suspended sentence for alleged noncompliance with the terms thereof; and (6) that defendant has a defense to the crime charged; that, particularly as to the oldest child named in the warrant, said warrant shows on its face that the statute of limitations, G.S. 49-4, has barred the action. Based on the foregoing allegations defendant prayed that the writ of error coram nobis issue "to the end that defendant be afforded a new trial, free from constitutional error."
The presiding judge found facts substantially in accord with the foregoing recitals and concluded as a matter of law that since the maximum punishment provided by law under G.S. 49-8 for willful failure to support illegitimate children was a jail sentence of six months — a petty misdemeanor — defendant was not entitled to counsel as a matter of right. The application for writ of error coram nobis was thereupon denied. Defendant excepted and appealed to the Court of Appeals which affirmed, 8 N.C. App. 234, 174 S.E.2d 8 (1970). Defendant thereupon appealed to this Court under G.S. 7A-30 alleging involvement of a substantial constitutional question which was passed upon erroneously by the court below.
The writ of error coram nobis is an established common law writ available under our procedure to challenge the validity of a conviction by reason of matters extraneous to the record In Re Taylor, 230 N.C. 566, 53 S.E.2d 857 (1949). It has been supplanted by G.S. 15-217, et seq., with reference to "any person imprisoned." Otherwise the writ remains as at common law and is available under our procedure. Its availability in this State stems from G.S. 4-1 which adopts the common law as the law of this State (with exceptions not pertinent here), and authority for the writ stems from Article IV, Section 8 (now Section 10) of the Constitution of North Carolina which gives the Supreme Court authority to exercise supervision over the inferior courts of the State. State v. Daniels, 231 N.C. 17, 56 S.E.2d 2 (1949).
[2, 3] Since authority for issuance of the writ derives from the supervisory power of the Supreme Court conferred by the Constitution, "it is necessary that an application be made to this Court for permission to apply for the writ to the Superior Court in which the case was tried. In Re Taylor (supra), 230 N.C. 566, 569. It is granted here only upon a `prima facie showing of substantiality,' and it is observed in the Taylor case last cited, `the ultimate merits of petitioner's claim are not for us but for the trial court,'" State v. Daniels, supra ( 231 N.C. 17 at 25); State v. Daniels, 231 N.C. 341, 56 S.E.2d 646 (1949).
Coram nobis is not a substitute for an appeal. "Under our practice permission to petition the Superior Court in which the petitioning defendant was tried is given only when the matter on which the petition is based is `extraneous to the record.'" State v. Daniels, 232 N.C. 196, 59 S.E.2d 430 (1950).
Defendant has neither sought nor obtained permission of this Court to apply for the writ. Moreover, his unauthorized application was addressed to the wrong court. "The writ of error coram nobis `is brought for an alleged error of fact, not appearing upon the record, and lies to the same court, in order that it may correct the error, which it is presumed would not have been committed had the fact in the first instance been brought to its notice.'" State v. Merritt, 264 N.C. 716, 142 S.E.2d 687 (1965). A writ of error coram nobis "will lie to any court of record, and as our county courts are courts of record we cannot conceive of a reason why one of them may not correct an error of fact in its judgment, upon a writ of error brought before itself." Roughton v. Brown, 53 N.C. 393, 394 (1861). The Reidsville Recorder's Court is a court of record, Chapter 104, Public Laws of North Carolina, Session 1909, and therefore defendant's petition for writ of error coram nobis should in all events have been addressed to the court in which he was tried. For these reasons the decision of the Court of Appeals, although based on other grounds, affirming the order of the superior court denying defendant's application was correct. Even so, to the end that the question defendant seeks to present may be discussed sufficiently to dispose of this appeal on its merits, we treat the appeal itself as an application to this Court for permission to petition the Reidsville Recorder's Court for the issuance of a writ of error coram nobis.
Defendant poses the following question for decision: Is a conviction of willful failure to support illegitimate children a "serious misdemeanor" so as to require appointment of counsel or intelligent waiver thereof under the Sixth and Fourteenth Amendments to the United States Constitution? The answer is no.
Defendant was charged with and convicted of the willful neglect and refusal to support and maintain his illegitimate children, a violation of G.S. 49-2. The maximum punishment provided by law for this offense is six months in prison. G.S 49-8. The court is authorized to fix by order a specific sum of money to be paid by defendant for the support and maintenance of the child or children in question and to suspend the prison sentence on condition the periodic payments are made as ordered. G.S. 49-7.
Defendant argues that in addition to the maximum punishment of six months other serious consequences are involved, in that, once the issue of paternity is established it cannot again be contested and defendant may then be tried again and again for willful failure to support and may receive successive sentences of six months until all children involved reach eighteen years of age. To avoid those consequences, defendant says he must pay in excess of $9300 under the judgment pronounced in this case. He contends these are serious consequences by any reasonable standard and compel the conclusion that one charged with a violation of G.S. 49-2 is charged with a "serious offense" requiring appointment of counsel for indigent defendants or intelligent waiver thereof.
[7, 8] Defendant's position is unsound. The only prosecution authorized by Chapter 49 of the General Statutes is grounded on the willful neglect or refusal of any parent to support and maintain his or her illegitimate child — the paternity itself is no crime. State v. Robinson, 245 N.C. 10, 95 S.E.2d 126 (1956); State v. Ellis, 262 N.C. 446, 137 S.E.2d 840 (1964). The question of paternity is merely incidental to the prosecution for nonsupport and involves no punishment. The fact that defendant may be prosecuted for a second or third willful failure to support his illegitimate children and receive successive sentences of six months has no logical relevance to the question posed. Every man is subject to prosecution for repeated violations of any criminal statute. Furthermore, the support payments are not part of the punishment. All men have a moral duty to support their children — legitimate or illegitimate — and G.S. 49-2 makes this moral obligation legal and enforceable with respect to illegitimate children. State v. Tickle, 238 N.C. 206, 77 S.E.2d 632 (1953). All these "consequences" are merely side effects that may or may not materialize. They have no relevance on the question of punishment. The only punishment authorized by law for the willful failure or neglect to support an illegitimate child is found in G.S. 49-8 and is limited at most to six months in prison. [9. 10] Whether an offense is petty or serious is measured, in both state and federal courts, by the punishment authorized by law for the particular offense in question. 18 U.S.C. § 1; G.S. 7A-451. Under these statutory yardsticks any crime the maximum authorized punishment for which does not exceed six months in prison is a petty offense for which the offender may be tried without a jury and without the assistance of counsel. State v. Morris, 275 N.C. 50, 165 S.E.2d 245 (1969); Blue Jeans Corp. v. Clothing Workers, 275 N.C. 503, 169 S.E.2d 867 (1969); Cheff v. Schnackenberg, 384 U.S. 373, 16 L.Ed.2d 629, 86 S.Ct. 1523 (1966); Duke v. Taylor Implement Mfg. Co., 391 U.S. 216, 20 L.Ed.2d 538, 88 S.Ct. 1472 (1968); Duncan v. Louisiana, 391 U.S. 145, 20 L.Ed.2d 491, 88 S.Ct. 1444 (1968); Bloom v. Illinois, 391 U.S. 194, 20 L.Ed.2d 522, 88 S.Ct. 1477 (1968).
We hold that defendant was charged with a petty offense and his trial without counsel did not violate his constitutional right to counsel under the Sixth and Fourteenth Amendments.
Defendant's appeals treated as a petition to this court for leave to file a petition in the Recorder's Court of Reidsville for a writ of error coram nobis, is denied. The decision of the Court of Appeals affirming the denial order of Godwin, S.J., is
AFFIRMED.