No. 77-6219
Argued: November 26, 1979Decided: April 22, 1980
While an uncounseled misdemeanor conviction is constitutionally valid if the offender is not incarcerated, such a conviction may not be used under an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term. Thus, petitioner’s uncounseled misdemeanor-theft conviction, even though it resulted only in a fine, cannot be used upon his later conviction for another misdemeanor theft to support a 1-to-3-year prison sentence under an Illinois statute authorizing such a sentence for a second misdemeanor-theft conviction.
52 Ill. App. 3d 305, 367 N. E. 2d 459, reversed and remanded.
Michael Mulder argued the cause for petitioner. With him on the briefs were Mary Robinson, Ralph Ruebner, and Peter Nolte.
Michael B. Weinstein, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were William J. Scott, Attorney General, and Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General.
PER CURIAM.
In Scott v. Illinois, 440 U.S. 367 (1979), the Court held that an uncounseled misdemeanor conviction is constitutionally valid if the offender is not incarcerated. This case presents the question whether such a conviction may be used under an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term. [446 U.S. 222, 223]
Under Illinois law, theft “not from the person” of property worth less than $150 is a misdemeanor punishable by not more than a year of imprisonment and a fine of not more than $1,000. Ill. Rev. Stat., ch. 38, 16-1 (e) (1), 1005-8-3 (a) (1), 1005-9-1 (a) (2) (1975). A second conviction for the same offense, however, may be treated as a felony with a prison term of one to three years. 1005-8-1 (b) (5).
Thomas Baldasar, the petitioner, was convicted of misdemeanor theft in Cook County Circuit Court in May 1975. The record of that proceeding indicates that he was not represented by a lawyer and did not formally waive any right to counsel. Baldasar was fined $159 and sentenced to one year of probation. In November 1975 the State charged him with stealing a shower head worth $29 from a department store. The case was tried to a jury in Du Page County Circuit Court in August 1976. The prosecution introduced evidence of the prior conviction and asked that Baldasar be punished as a felon under the Illinois enhancement statute. Defense counsel objected to the admission of the 1975 conviction. She argued unsuccessfully that because Baldasar had not been represented by a lawyer at the first proceeding, the conviction was too unreliable to support enhancement of the second misdemeanor. App. 7-9. The jury returned a guilty verdict on the felony charge, and Baldasar was sentenced to prison for one to three years.
The Illinois Appellate Court affirmed by a divided vote. It emphasized that when the right to counsel in misdemeanor cases was recognized in Argersinger v. Hamlin, 407 U.S. 25 (1972), this Court confined that right to prosecutions that “`end up in the actual deprivation of a person’s liberty.'” 52 Ill. App. 3d 305, 307, 367 N. E. 2d 459, 462 (1977), quoting Argersinger, supra, at 40. The Illinois court rejected petitioner’s argument that the Sixth and Fourteenth Amendments prevented the imposition of the enhanced prison term. “The fact is,” the court wrote, “that [Baldasar] was sentenced to imprisonment for his second theft conviction only and not, as [446 U.S. 222, 224] he suggests, sentenced again, and this time to imprisonment, for the first theft conviction.” 52 Ill. App. 3d, at 310, 367 N. E. 2d, at 463. The Supreme Court of Illinois denied leave to appeal, and we granted certiorari. 440 U.S. 956 (1979).
For the reasons stated in the concurring opinions, the judgment is reversed, and the case is remanded to the Appellate Court of Illinois, Second District, for further proceedings.
- It is so ordered.
MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN and MR. JUSTICE STEVENS join, concurring.
In Scott v. Illinois, 440 U.S. 367 , the Court held that “the Sixth and Fourteenth Amendments to the United States Constitution require . . . that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.” Id., at 373-374.
In this case the indigent petitioner, after his conviction of petit larceny, was sentenced to an increased term of imprisonment only because he had been convicted in a previous prosecution in which he had not had the assistance of appointed counsel in his defense.
It seems clear to me that this prison sentence violated the constitutional rule of Scott v. Illinois, supra, and I, therefore, join the opinion and judgment of the Court. *
[ Footnote * ] It is noteworthy that the brief filed by the State of Illinois in Scott expressly anticipated the result in this case:
-
- “When prosecuting an offense the prosecutor knows that by not requesting that counsel be appointed for defendant, he will be precluded from
- enhancing subsequent offenses. To the degree that the charging of offenses involves a great deal of prosecutorial discretion and selection, the decision to pursue conviction with only limited use comes within proper scope of that discretion.” Brief for Respondent in Scott v. Illinois, O. T. 1978, No. 77-1177, p. 20 (emphasis added).
MR. JUSTICE BRENNAN adheres to his dissent in Scott v. Illinois, 440 U.S. 367, 375 .
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN and MR. JUSTICE STEVENS join, concurring.
The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance [446 U.S. 222, 225] of Counsel for his defence.” Gideon v. Wainwright, 372 U.S. 335, 342 (1963), held that the appointment of counsel for an indigent criminal defendant is “fundamental and essential to a fair trial.” Therefore, the guarantee of counsel was made applicable to the States through the Fourteenth Amendment. Gideon, of course, involved a felony prosecution, but nothing in the opinion suggests that its reasoning was not, like the words of the Sixth Amendment itself, applicable to “all criminal prosecutions.” In Argersinger v. Hamlin, 407 U.S. 25, 37 (1972), we rejected the suggestion that the right to counsel applied only to nonpetty offenses where the accused had a right to a jury trial, and held that “no person may be imprisoned for any offense . . . unless he was represented by counsel at his trial.”
Seven years later, in Scott v. Illinois, 440 U.S. 367 (1979), we considered a question expressly reserved in Argersinger, whether counsel must be provided if imprisonment was an authorized punishment but had not actually been imposed. See Argersinger v. Hamlin, supra, at 37. The Court “conclude[d] . . . that Argersinger did indeed delimit the constitutional right to appointed counsel in state criminal proceedings” and “adopt[ed] . . . actual imprisonment as the line defining the constitutional right to appointment of counsel.” Scott v. Illinois, supra, at 373. For the reasons stated in MR. JUSTICE BRENNAN’S dissenting opinion in Scott, I remain convinced that that case was wrongly decided. Nevertheless, even if one accepts the line drawn in Scott as the constitutional rule applicable to this case, I think it plain [446 U.S. 222, 226] that petitioner’s prior uncounseled misdemeanor conviction could not be used collaterally to impose an increased term of imprisonment upon a subsequent conviction.
The court below held that petitioner’s earlier conviction for shoplifting three packages of bacon was constitutionally valid under Scott since he received only a fine and probation, and therefore it could be used to elevate his subsequent conviction from a misdemeanor to a felony and to permit him to be sentenced to three years in prison rather than the one year maximum otherwise applicable. This logic is fallacious for the simple reason that petitioner’s prior conviction was not valid for all purposes. Specifically, under the rule of Scott and Argersinger, it was invalid for the purpose of depriving petitioner of his liberty.
Scott, of course, did not purport to modify or restrict Argersinger. The question in Scott was simply one of “the proper application of our decision” in Argersinger. Scott v. Illinois, supra, at 368. The Court concluded that the precise holding in Argersinger, that counsel was required because Argersinger had been imprisoned as a result of the prosecution, expressed the limit of the right to counsel. Accordingly, the Court declined to extend Argersinger to all cases in which imprisonment was an authorized penalty. In the Court’s view, Argersinger rested primarily on the conclusion “that incarceration was so severe a sanction that it should not be imposed as a result of a criminal trial unless an indigent defendant had been offered appointed counsel to assist in his defense,” 440 U.S., at 372 -373.
That petitioner has been deprived of his liberty “as a result of [the first] criminal trial” could not be clearer. If it had not been for the prior conviction, petitioner could not have been sentenced to more than one year for the present offense. 1 [446 U.S. 222, 227] Solely because of the previous conviction the second offense was transformed from a misdemeanor into a felony, with all the serious collateral consequences that a felony conviction entails, and he received a sentence that may result in imprisonment for two years in excess of that 1-year maximum.
MR. JUSTICE POWELL’S dissenting opinion, post, at 232, asserts that this result is constitutionally permissible because under the enhancement statute the increased punishment was imposed for the second offense rather than the first. I agree that the increased prison sentence in this case is not an enlargement of the sentence for the original offense. If it were, this would be a double jeopardy case. But under the recidivist clause of the Illinois statute, if the State proves a prior conviction for the same offense a completely different range of sentencing options, including a substantially longer term of imprisonment, becomes available. The sentence petitioner actually received would not have been authorized by statute but for the previous conviction. It was imposed as a direct consequence of that uncounseled conviction and is therefore forbidden under Scott and Argersinger.
We should not lose sight of the underlying rationale of Argersinger, that unless an accused has “the guiding hand of counsel at every step in the proceedings against him,” Powell v. Alabama, 287 U.S. 45, 69 (1932), his conviction is not sufficiently reliable to support the severe sanction of imprisonment. Argersinger v. Hamlin, supra, at 31-36. 2 An uncounseled [446 U.S. 222, 228] conviction does not become more reliable merely because the accused has been validly convicted of a subsequent offense. For this reason, a conviction which is invalid for purposes of imposing a sentence of imprisonment for the offense itself remains invalid for purposes of increasing a term of imprisonment for a subsequent conviction under a repeat-offender statute. It is therefore incorrect to say that our decision today creates a “new hybrid” of misdemeanor convictions. Post, at 232 (Powell, J., dissenting). To the contrary, a rule that held a conviction invalid for imposing a prison term directly, but valid for imposing a prison term [446 U.S. 222, 229] collaterally, would be an illogical and unworkable deviation from our previous cases. 3
