Opinion of the Court. 348 U.S. This section, the Tennessee Supreme Court has held, clearly authorizes "[a]n issue of fact as to the verity of such record, or as to the identity of the accused with the person named in such record . . . Tipton v. State, 160 Tenn. 664, 678, 28 S. W. 2d 635, 639. Proof of the defendant's prior convictions is ". . . . . a condition precedent to the imposition of the increased punishment provided." Tipton v. State, supra. Section 6 of the Act, moreover, provides that the increased punishment cannot be imposed unless the jury specially finds that the defendant is an habitual criminal as charged." "Under section 6 of the Act," according to the Tennessee Supreme Court, "the question as to whether the defendant is an habitual criminal is one for the jury to decide." McCummings v. State, 175 Tenn. 309, 311, 134 S. W 2d 151, 152. In short, even though the Act does not create a separate offense, its applicability to any defendant charged with being an habitual criminal must be determined by a jury in a judicial hearing. Compare Williams v. New York, 337 U. S. 241. That hearing and the trial on the felony charge, although they may be conducted in a single proceeding, are essentially independent of each other." Thus, for example, it is possible that the jury in the instant case might have found petitioner guilty on the housebreaking and larceny charge and yet found him innocent of being an habitual criminal. Apparently recognizing this possibility, petitioner at the earliest possible moment affirmatively sought an opportunity to obtain counsel on the habitual criminal accusation. Immediately on being informed of the accusation and suddenly finding himself in danger of life imprisonment, he re 8 Williams' Tenn. Code, 1934 (1949 Supp.), § 11863.6. 9 Compare, e. g., the West Virginia procedure which provides for a separate hearing on the habitual criminal issue. See Graham v. West Virginia, 224 U. S. 616. 3 Opinion of the Court. quested a continuance so that he could engage the services of an attorney; but the trial court refused the request and forced him to stand immediate trial. On these undisputed facts, it is clear beyond question that petitioner did not waive counsel on the habitual criminal accusation. See Rice v. Olson, 324 U. S. 786, 788-789. The Tennessee Attorney General denies, however, that petitioner had any federal constitutional right to counsel. He relies on the doctrine enunciated in Betts v. Brady, 316 U. S. 455. But that doctrine has no application here. Petitioner did not ask the trial judge to furnish him counsel; rather, he asked for a continuance so that he could obtain his own. The distinction is well established in this Court's decisions. Powell v. Alabama, 287 U. S. 45, 71; Betts v. Brady, 316 U. S. 455, 466, 468; House v. Mayo, 324 U. S. 42, 46. Regardless of whether petitioner would have been entitled to the appointment of counsel, his right to be heard through his own counsel was unqualified.1 See Palko v. Connecticut, 302 U. S. 319, 324-325. As this Court stated over 20 years ago in Powell v. Alabama, supra, at 68-69: "What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is in 10 Tennessee statutes appear to confer both rights on a defendant in a criminal case. Tenn. Code, 1932, §§ 11733, 11734, 11547, 11548. See also Art. I, §9, of the Declaration of Rights in the Tennessee Constitution. 318107 O - 55 - 7 Opinion of the Court. 348 U.S. This section, the Tennessee Supreme Court has held, clearly authorizes "[a]n issue of fact as to the verity of such record, or as to the identity of the accused with the person named in such record . . . ." "Tipton v. State, 160 Tenn. 664, 678, 28 S. W. 2d 635, 639. Proof of the defendant's prior convictions is ". . . a condition precedent to the imposition of the increased punishment provided." Tipton v. State, supra. Section 6 of the Act, moreover, provides that the increased punishment cannot be imposed unless the jury specially finds that the defendant is an habitual criminal as charged." "Under section 6 of the Act," according to the Tennessee Supreme Court, "the question as to whether the defendant is an habitual criminal is one for the jury to decide." McCummings v. State, 175 Tenn. 309, 311, 134 S. W 2d 151, 152. In short, even though the Act does not create a separate offense, its applicability to any defendant charged with being an habitual criminal must be determined by a jury in a judicial hearing. Compare Williams v. New York, 337 U. S. 241. That hearing and the trial on the felony charge, although they may be conducted in a single proceeding, are essentially independent of each other." Thus, for example, it is possible that the jury in the instant case might have found petitioner guilty on the housebreaking and larceny charge and yet found him innocent of being an habitual criminal. Apparently recognizing this possibility, petitioner at the earliest possible moment affirmatively sought an opportunity to obtain counsel on the habitual criminal accusation. Immediately on being informed of the accusation and suddenly finding himself in danger of life imprisonment, he re 8 Williams' Tenn. Code, 1934 (1949 Supp.), § 11863.6. Compare, e. g., the West Virginia procedure which provides for a separate hearing on the habitual criminal issue. See Graham v. West Virginia, 224 U. S. 616. 3 Opinion of the Court. quested a continuance so that he could engage the services of an attorney; but the trial court refused the request and forced him to stand immediate trial. On these undisputed facts, it is clear beyond question that petitioner did not waive counsel on the habitual criminal accusation. See Rice v. Olson, 324 U. S. 786, 788-789. The Tennessee Attorney General denies, however, that petitioner had any federal constitutional right to counsel. He relies on the doctrine enunciated in Betts v. Brady, 316 U. S. 455. But that doctrine has no application here. Petitioner did not ask the trial judge to furnish him counsel; rather, he asked for a continuance so that he could obtain his own. The distinction is well established in this Court's decisions. Powell v. Alabama, 287 U. S. 45, 71; Betts v. Brady, 316 U. S. 455, 466, 468; House v. Mayo, 324 U. S. 42, 46. Regardless of whether petitioner would have been entitled to the appointment of counsel, his right to be heard through his own counsel was unqualified.1o See Palko v. Connecticut, 302 U. S. 319, 324-325. As this Court stated over 20 years ago in Powell v. Alabama, supra, at 68-69: "What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is in 10 Tennessee statutes appear to confer both rights on a defendant in a criminal case. Tenn. Code, 1932, §§ 11733, 11734, 11547, 11548. See also Art. I, § 9, of the Declaration of Rights in the Tennessee Constitution. 318107 O-55-7 Opinion of the Court. 348 U.S. capable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense." (Italics added.) A necessary corollary is that a defendant must be given a reasonable opportunity to employ and consult with counsel; otherwise, the right to be heard by counsel would be of little worth. Avery v. Alabama, 308 U. S. 444, 446; House v. Mayo, 324 U. S. 42, 46; White v. Ragen, 324 U. S. 760, 764; Hawk v. Olson, 326 U. S. 271, 277-278. By denying petitioner any opportunity whatever to obtain counsel on the habitual criminal accusation, the trial court deprived him of due process of law as guaranteed by the Fourteenth Amendment. It follows that petitioner is being held by respondent under an invalid sentence. The judgment below, sustaining the denial of habeas corpus relief, is accordingly reversed. Judgment reversed. |