Hastings, Senior Circuit Judge, and Pell and Sprecher, Circuit Judges.
Henry Edward Smith petitioned for habeas corpus upon the principal ground that he was denied the right to counsel at a juvenile jurisdiction waiver hearing.
When the petitioner was 13 years old, he was committed to the Waukesha Boys School by the Children's Court for purse snatching and was paroled after serving ten months. When he was 15 years old, he was recommitted to the Boys School for burglary and again paroled in 1961 after serving nine months. In 1962, when he was 17 years old, he was apprehended with two other defendants, Jackson and Brent, for masked robbery with a gas pellet gun of a Milwaukee delicatessen, the burglary of a formal-wear company and operation of an automobile without the owner's consent. At that time the petitioner admitted to approximately 30 other burglaries and participation in about 30 other automobile thefts, all of which took place in a sixmonth period from June to December of 1962.
On December 28, 1962, juvenile court jurisdiction was waived by the Milwaukee County Court, Children's Division, at a hearing where the petitioner was not represented by counsel. However, Jackson, one of the petitioner's juvenile accomplices, was represented by an attorney who cross-examined several of the witnesses. Thereafter Jackson, the petitioner and Brent, another juvenile accomplice, were all waived out of the Children's Division after the court determined that it was not in the best interests of the public that the matters pending against those three juveniles be heard in the juvenile court. All three had previously appeared before the Children's Division on two or three other occasions.
The petitioner, Jackson and Brent were each represented by separate counsel of considerable experience when they appeared before the adult court on February 9, 1963. The record reflects detailed interrogation by the court as to voluntariness, understanding, possible coercion or threats, education, nature of the charges and range of possible sentences. The court then accepted the guilty pleas of the three defendants, whereupon testimony was taken from a police officer regarding the offenses charged. The district attorney advised the court of the petitioner's other burglaries and automobile thefts and said that "it would be the desire of the State to include those in the testimony on the condition that the State would not issue further warrants." This was stipulated to in open court by petitioner's counsel and petitioner admitted this additional criminal activity.
Petitioner was sentenced on February 9, 1963, to the Wisconsin State Reformatory for an indeterminate term of not more than 15 years for the robbery, an indeterminate term of not more than ten years for the one burglary charged and an indeterminate term of not more than five years for the operation of an automobile without the owner's consent. The 15- and ten-year sentences were to run consecutively, but concurrently with the unexpired portion of any commitment remaining to be served for violation of parole from the Boys School. The five-year sentence was to run concurrently with the longer sentences.
On March 13, 1968, the petitioner was convicted of a robbery committed on August 26, 1967. He was sentenced for an indeterminate term of five years to be served concurrently with the remainder of the 1963 sentences.
Petitioner challenged only the 1963 convictions and sentences on the grounds that no notice of his initial detention was given to his parents, that he was not informed of his rights and that he was not represented by counsel in the waiver proceedings.
The Supreme Court of Wisconsin denied petitioner's plea for habeas corpus on April 9, 1970. The federal district court denied the petition for habeas corpus on December 2, 1970, but certified that probable cause existed for appeal. The district court was "of the opinion that this is not a proper case for determining the difficult question of the retrospectivity of Kent ;" he denied the petition solely on the ground of waiver, stating:
"The court notes from the record that petitioner was represented in the adult proceedings by counsel known to this court as an experienced, competent attorney. The trial court made full inquiry into the juvenile record, providing fair opportunity to challenge the propriety of the waiver of juvenile court jurisdiction had counsel or petitioner believed that the waiver was not in petitioner's interest or that of the public."
We agree with the district court.
The Supreme Court of the United States decided Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84, on March 21, 1966, construing the District of Columbia Juvenile Court Act*fn1 to require as a condition to a valid waiver by the juvenile court of jurisdiction over a child "a hearing, including access by his counsel to the social records and probation or similar reports which presumably are considered by the court, and to a statement of reasons for the Juvenile Court's decision" (page 557, 86 S. Ct. page 1055). The Court observed that the right to representation by counsel "is of the essence of justice" (page 561, 86 S. Ct. page 1057).
The Supreme Court decided In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527, on May 15, 1967, concluding that "the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile's freedom is curtailed [that is, adjudicatory proceedings as contrasted with waiver proceedings], the child and his parents must be notified of the child's right to be represented by counsel retained by ...