BERRY
v.
CITY OF CINCINNATI

U.S. | 1973-11-05
No. 73-5245
414 U.S. 29 Supreme Court of the United States (1973) Positive Treatment
Also reported at: 38 L. Ed. 2d 187 · 94 S. Ct. 193 · 1973 U.S. LEXIS 171 · SCDB 1973-009
Cited by 46 cases

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Synopsis

The Supreme Court reversed the Ohio Supreme Court's refusal to apply the holding from Argersinger v. Hamlin retroactively to a defendant who had been convicted and sentenced without counsel prior to that 1972 decision. The Court held that defendants convicted before Argersinger was decided are entitled to benefit from its constitutional protection guaranteeing counsel in criminal cases, provided they demonstrate an existing case or controversy sufficient for federal court jurisdiction.

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Per_curiam
Per Curiam.

Per Curiam.

Petitioner, who was serving a sentence for a misdemeanor offense when Argersinger v. Hamlin, 407 U. S. 25 (1972), was decided, sought relief in the state courts claiming that because Argersinger should be accorded retroactive effect and because his trial and sentencing were uncounseled, his conviction should be invalidated. The Supreme Court of Ohio refused to apply Argersinger to convictions occurring prior to that decision. City of Cincinnati v. Berry, 34 Ohio St. 2d 106, 296 N. E. 2d 532 (1973).

Petitioner was enlarged on bail pending action on his claim and faces reincarceration should the judgment of the Ohio courts remain undisturbed. The motion to proceed in forma pauperis and the petition for certiorari are granted, and the judgment of the Ohio Supreme Court is reversed. Those convicted prior to the decision in Argersinger are entitled to the constitutional rule enunciated in that case, Kitchens v. Smith, 401 U. S. 847 (1971); Williams v. United States, 401 U. S. 646, 653 and n. 6 (1971) (opinion of White, J.); Burgett v. Texas, 389 U. S. 109, 114 (1967); cf. Adams v. Illinois, 405 U. S. 278 (1972), if they allege and prove a bona fide, existing case or controversy sufficient to invoke the jurisdiction of a federal court. Sibron v. New York, 392 U. S. 40, 50-58 (1968); Carafas v. LaVallee, 391 U. S. 234, 237-238 (1968); Ginsberg v. New York, 390 U. S. 629, 633-634, n. 2 (1968).

So ordered.

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Citator

Cited By (12 total)

  • Blatch v. State, 389 So. 2d 669 (Fla. 3d DCA 1980)
    …, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972). Arger- [*672] singer v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), declaring the right to counsel at misdemeanor trials involving loss of liberty, was held retroactive in Berry v. Cincinnati, 414 U.S. 29, 94 S.Ct. 193, 39 L.Ed.2d 197 (1973). Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), declaring the right to counsel at probation revocation hearings, was held retroactive in McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d…
  • O'Shea v. United States, 491 F.2d 774 (1st Cir. 1974)
    …ecord.5 We note that our uncertainty in United States v. Sawaya, ante, whether Argersinger v. Hamlin, 1972, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, was retrospective has since been resolved in favor of retrospectivity. Berry v. Cincinnati, 1973, 414 U.S. 29, 94 S.Ct. 193, 38 L.Ed.2d 187. Petitioner is entitled to a hearing, and to be resenteneed if his contentions are correct. A question remains, whether the remand should be to the original sentencing judge or to another. As we recognized in Halliday…
  • Thomas v. Savage, 513 F.2d 536 (5th Cir. 1975)
    …on in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), which would only require the appointment of counsel when a sentence of imprisonment is imposed. This right to counsel applies retroactively. Berry v. City of Cincinnati, 414 U.S. 29, 94 S.Ct. 193, 38 L.Ed.2d 187 (1973); Olvera v. Beto, supra. Here, since Thomas was faced with a possible maximum of two years imprisonment and/or a $1,000 fine, he was entitled to appointed counsel if indigent. Thomas, at the time of the [*538] mis…

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