# Oyler v. Boles/Concurrence Harlan

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United States Supreme Court
368 U.S. 448
Oyler v. Boles
Argued: Dec. 4, 1961. --- Decided: Feb 19, 1962
Mr. Justice HARLAN, concurring.
I join the Court's opinion in Oyler v. Boles and Crabtree v. Boles, Nos. 56 and 57, and concur in the result in Chewning v. Cunningham, No. 63, 368 U.S. 443, 82 S.Ct. 498, 7 L.Ed.2d 442.
In my view, the issues decided in Oyler and Crabtree, on the one hand, and in Chewning, on the other, represent opposite sides of the same coin. Since their interrelationship does not appear from the opinions of the Court, and since I cannot agree with the grounds of decision stated in Chewning, I file this separate opinion.
The statutes of both Virginia and West Virginia provide for enhanced punishment of multiple offenders. Apparently under the practice of neither State is the alleged recidivist given advance notice, either before the trial for his latest offense or after that trial but before sentencing, of the charges that are made in the multiple-offense accusation. It is not until he appears in open court and hears the prosecutor's information read to him that the accused learns on which convictions it is that the State relies in support of its demand for an increased sentence. And it is then and there that he must plead and state what his defense is, if he has any. This procedure was followed in each of the present cases.
For an individual unrepresented by counsel, this is surely too precipitous a procedure to satisfy the standards of fairness required of state courts by the Due Process Clause of the Fourteenth Amendment. In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682; see Williams v. New York, 337 U.S. 241, 245, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337; Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644. One who is untutored in the law cannot help but be bewildered by this sudden presentation of the charges against him and the demand for an immediate response. Without suggesting that advance notice of any particular duration must be afforded, still less that such notice must be given before trial or sentencing on the latest offense, had the petitioners in Oyler and Crabtree been without the aid of counsel at their multiple-offender hearings, I would entertain grave doubts as to the constitutionality of the procedure from which their increased sentences resulted.
But the records in these cases reveal that both Oyler and Crabtree had counsel at hand when the multiple-offender hearing was held and when they were asked to plead. Counsel could have requested a continuance in order to look into the validity of the previous convictions or other possible defenses to the recidivist charges, or, if there was any doubt, to establish the identities of the previous offenders. They chose not to do so, and I think this choice forecloses the petitioners' claims that they were not given adequate notice and opportunity to prepare a defense.
In Chewning, however, the petitioner had no counsel. He was taken from the state penitentiary without any warning of what was in store for him, and was accused in open court of having been convicted on three prior occasions. His allegations that he requested the assignment of counsel, and that such request was denied, are not controverted.
The Court strikes down the enhanced sentence, despite the apparent similarity between this claim and the one rejected in Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683, because it holds that various defenses that were available to Chewning under Virginia law could not have been known to or presented by a layman. To me, the bare possibility that any of these improbable claims could have been asserted does not amount to the 'exceptional circumstances' which, under existing law, e.g., Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, must be present before the Fourteenth Amendment imposes on the State a duty to provide counsel for an indigent accused in a noncapital case. Nor do I think that a decision on these grounds can be reconciled with the holding in Gryger, in which the Court rejected the proposition, made by able appointed counsel, that certain contentions, much like those here suggested by the Court, could have been offered had the petitioner in that case been provided with counsel for his multiple-offender hearing.
What does distinguish this case from Gryger, however, and persuades me that the failure to supply assistance of counsel amounted to a denial of the procedural fairness assured by the Fourteenth Amendment, is the want of adequate notice in advance of the hearing. In Gryger, a copy of the information listing the prior occasions on which the accused had been convicted was served upon him more than six and a half months before he was brought into court and asked to plead. This was more than ample time for him to engage an attorney, request assignment of counsel, or decide for himself what line of defense to take. In the case before us now, Chewning was given no such opportunity. Hence I agree that the least that fairness required was that he be provided with counsel so as to be advised of the courses available to him. With no opportunity to get such advice, I do not think that his own failure to ask for a continuance has any legal significance.
Mr. Justice DOUGLAS, with whom The Chief Justice, Mr. Justice BLACK, and Mr. Justice BRENNAN concur, dissenting.

## Notes

* ↑ Although petitioner did not allege in his habeas corpus petition that he was indigent at the time of the recidivist hearing, the state court apparently proceeded on the assumption that he had met the necessary poverty standard.
* ↑ It is true that a subsidiary claim in Gryger was that the petitioner had been denied access to legal materials which were necessary in the preparation of his defense. But he was at least able to reflect calmly on the factual accusation being made against him and was able to plan in advance what plea to enter and how best to present his case.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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