Amdt6.6.3.5 Post-Conviction Proceedings and Right to Counsel

Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

With respect to post-conviction proceedings, the Court has held that the right to counsel applies at the sentencing stage,1 and where sentencing was deferred after conviction and the defendant was placed on probation, he must be afforded counsel at a hearing on revocation of probation and imposition of the deferred sentence.2 In other contexts such as state criminal appeals and prison disciplinary hearings the Court has eschewed Sixth Amendment analysis, instead delimiting the right to counsel under due process and equal protection principles.3

The seminal precedent on the applicability of the right to counsel at sentencing is the Court’s 1948 opinion Townsend v. Burke, which concluded that the defendant was entitled to counsel at sentencing as a matter of due process under the circumstances of that particular case. 334 U.S. 736, 741 (1948). However, in a later opinion, the Court seemed to indicate Townsend indicates a right to counsel at sentencing as a byproduct of the Sixth Amendment, noting that the opinion “might well be considered to support by itself a holding that the right to counsel applies at sentencing.” Mempa v. Rhay, 389 U.S. 128, 134 (1967). back
Mempa, 389 U.S. at 137 (applied retroactively in McConnell v. Rhay, 393 U.S. 2, 3 (1968) (per curiam)); but see Gagnon v. Scarpelli, 411 U.S. 778, 781, 790 (1973) (concluding that due process does not require appointment of counsel in every post-sentencing parole revocation proceeding, and instead “decision as to the need for counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system” (citing Morrissey v. Brewer, 408 U.S. 471 (1972)). back
For example, the Court has not invoked the Sixth Amendment when determining applicability of the right to counsel to state criminal appeals. See Douglas v. California, 372 U.S. 353, 356 (1963) (concluding that defendant was entitled to counsel in appealing conviction as a matter of equal protection); see also Ross v. Moffitt, 417 U.S. 600, 612 (1974) ( “In this case we do not believe that the Equal Protection Clause, when interpreted in the context of these cases, requires North Carolina to provide free counsel for indigent defendants seeking to take discretionary appeals to the North Carolina Supreme Court, or to file petitions for certiorari in this Court.” ). In addition, using due process analysis, the Court found no constitutional right to counsel in prison disciplinary proceedings. Wolff v. McDonnell, 418 U.S. 539, 560–63, 570 (1974); see also Baxter v. Palmigiano, 425 U.S. 308, 314–15 (1976) (rejecting assertion that Miranda requires appointment of counsel in prison disciplinary hearings and declining to alter holding in Wolff, 418 U.S. at 560–53, 580). back