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.
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.
he suggests, sentenced again, and this time to imprisonment, for the first theft conviction."
2 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.
MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN and MR. JUSTICE STEVENS join, concurring.
"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."
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.
"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 MARSHALL, with whom MR. JUSTICE BRENNAN and MR. JUSTICE STEVENS join, concurring.
of Counsel for his defence." Gideon v. Wainwright, 372 U. S. 335, 372 U. S. 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, 407 U. S. 37 (1972), we rejected the suggestion that the right to counsel applied only to non-petty 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."
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.
"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,"
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 446 U. S. 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.
The fact that petitioner could be sentenced to some period of incarceration as a result of his second conviction does not, of course, prevent him from objecting to a further deprivation of liberty on the basis of an uncounseled conviction.
"We are by no means convinced that legal and constitutional questions involved in a case that actually leads to imprisonment, even for a brief period, are any less complex than when a person can be sent off for six months or more."
"The issues that must be dealt with in a trial for a petty offense or a misdemeanor may often be simpler than those involved in a felony trial, and yet be beyond the capability of a layman. . . . There is little ground, therefore, to assume that a defendant, unaided by counsel, will be any more able adequately to defend himself against the lesser charges that may involve confinement than more serious charges."
"Many petty offenses will also present complex legal and factual issues that may not be fairly tried if the defendant is not assisted by counsel. Even in relatively simple cases, some defendants, because of ignorance or some other handicap, will be incapable of defending themselves."
Id. at 407 U. S. 47 (opinion concurring in result).
In fact, as the opinion for the Court recognized, misdemeanor convictions may actually be less reliable than felony convictions.
"[T]he volume of misdemeanor cases . . . may create an obsession for speedy dispositions, regardless of the fairness of the result. . . ."
"The misdemeanor trial is characterized by insufficient and frequently irresponsible preparation on the part of the defense, the prosecution, and the court. Everything is rush, rush. . . ."
"There is evidence of the prejudice which results to misdemeanor defendants from this 'assembly line justice.'"
Id. at 407 U. S. 34-36 (footnote and citations omitted). Moreover, if the case is tried to a jury, as was petitioner's first conviction, it is entirely possible that jurors may be less scrupulous about applying the reasonable doubt standard if the offense charged is "only a misdemeanor."
The dissent expresses concern that our decision will impose unacceptable economic burdens on state and local governments. Post at 446 U. S. 235. I do not share that view. Not all misdemeanor defendants, of course, are indigent. See Scott v. Illinois, 440 U. S. 367, 440 U. S. 385, and n. 16 (1979) (BRENNAN, J., dissenting). Where the defendant is indigent, counsel will be provided in the first trial unless the prosecution does not seek a jail term. A great many States provide counsel in all cases where imprisonment is authorized, even though counsel is not constitutionally required. See id. at 440 U. S. 386-387, n. 18. Further, not all subsequent offenses are subject to enhancement, and not all previous offenses are predicate offenses for enhancement purposes. Thus, the number of cases in which the State must decide whether to provide counsel solely to preserve its ability to enhance a subsequent offense will be only a fraction of the total. In many of those remaining cases, the judgment whether future misconduct is likely, and whether the first offense is serious enough to warrant its use for enhancement, will be a relatively easy exercise of prosecutorial discretion.
The economic effect of our decision today will be miniscule compared to that of Powell v. Alabama, 287 U. S. 45 (1932), Gideon v. Wainwright, 372 U. S. 335 (1963), and Argersinger v. Hamlin, supra. But whatever that cost may be, it cannot outweigh the Sixth Amendment command that no one may be imprisoned as a result of a conviction in which he was denied the assistance of counsel.
"Accordingly, I would hold that an indigent defendant in a state criminal case must be afforded appointed counsel whenever the defendant is prosecuted for a nonpetty criminal offense, that is, one punishable by more than six months' imprisonment, see Duncan v. Louisiana, 391 U. S. 145 (1968); Baldwin v. New York, 399 U. S. 66 (1970), or whenever the defendant is convicted of an offense and is actually subjected to a term of imprisonment, Argersinger v. Hamlin, 407 U. S. 25 (1972)."
that defendants, prosecutors, and trial and appellate courts all deserve and, at the same time, would reconcile on a principled basis the important considerations that led to the decisions in Duncan, Baldwin, and Argersinger."
Id. at 440 U. S. 389-390.
I still am of the view that this "bright line" approach would best preserve constitutional values, and do so with a measure of clarity for all concerned. Had the Court in Scott v. Illinois adopted that approach, the present litigation, in all probability, would not have reached us. Petitioner Baldasar was prosecuted for an offense punishable by more than six months' imprisonment, and, under my test, was entitled to counsel at the prior misdemeanor proceeding. Since he was not represented by an attorney, that conviction, in my view, is invalid, and may not be used to support enhancement.
I therefore join the Court's per curiam opinion and its judgment.
MR. JUSTICE POWELL., with whom THE CHIEF JUSTICE, MR. JUSTICE WHITE, and MR. JUSTICE REHNQUIST join, dissenting.
Last Term, in Scott v. Illinois, 440 U. S. 367 (1979), we rejected the claim that Argersinger v. Hamlin, 407 U. S. 25 (1972), requires the appointment of counsel for an indigent charged with a misdemeanor punishable by imprisonment, regardless of whether the defendant actually is sentenced to jail. We held explicitly that an uncounseled misdemeanor conviction is constitutionally valid if the offender is not jailed.
In 1975, the petitioner in this case was tried without the appointment of counsel and convicted of a misdemeanor theft. Although the statute authorized imprisonment, petitioner only was fined. The circumstances of that conviction, therefore, were precisely like those of the petitioner in Scott v. Illinois, and the conviction was constitutionally valid.
in Scott. This case concerns the enhanced sentence imposed on petitioner Baldasar for a subsequent conviction for misdemeanor theft. Petitioner, who was represented by counsel at the second trial, concedes that he could have been sentenced to one year in jail for the second offense. He challenges only the addition of two years to his sentence, an enhancement that was based on his record as a recidivist. The Court holds that, even though the first conviction was valid, the State cannot rely upon it for enhancement purposes following a subsequent valid conviction. This holding undermines the rationale of Scott and Argersinger and leaves no coherent rationale in its place. A constitutionally valid conviction is now constitutionally invalid if relied upon as the predicate for enhancing the sentence of a recidivist.
In my view, this result is logically indefensible. More seriously, the courts that try misdemeanor cases daily no longer have clear guidance from this Court. No court can predict with confidence whether a misdemeanor defendant is likely to become a recidivist. The option of not imposing a jail sentence on an uncounseled misdemeanant, expressly preserved by Argersinger and Scott, no longer exists unless the court is willing prospectively to preclude enhancement of future convictions. I dissent both because I believe that Scott dictates a contrary result and because the courts of our Nation are entitled, at a minimum, to a clear rule on this important question.
to imprisonment unless retained or appointed counsel is available to the defendant. Although MR. JUSTICE BLACKMUN applies his own "bright line" approach to the question, four Members of the Court agree with petitioner's contentions. See ante, p. 446 U. S. 224 (STEWART, J., concurring); ante, p. 446 U. S. 224 (MARSHALL, J., concurring).
This line of argument misapprehends the nature of enhancement statutes. These laws, commonplace in our criminal justice system, do not alter or enlarge a prior sentence. If, as in this case, a person with a prior conviction chooses to commit a subsequent crime, he thereby becomes subject to the increased penalty prescribed for the second crime. This Court consistently has sustained repeat offender laws as penalizing only the last offense committed by the defendant. E.g., Moore v. Missouri, 159 U. S. 673, 159 U. S. 677 (1895); Oyler v. Boles, 368 U. S. 448, 368 U. S. 451 (1962). Under Illinois law, a second conviction for petty theft may be treated as a felony with a prison term. The sentence imposed upon petitioner was solely a penalty for the second theft.
Moreover, petitioner's argument ignores the significance of the constitutional validity of his first conviction. Petitioner questions neither the factual accuracy nor the legality of that conviction. In order to accept his argument, the Court creates a special class of uncounseled misdemeanor convictions. Those judgments are valid for the purposes of their own penalties as long as the defendant receives no prison term. But the Court holds that these convictions are invalid for the purpose of enhancing punishment upon a subsequent misdemeanor conviction.
Court stated that an uncounseled felony conviction could not be used in a later trial to enhance punishment under a recidivist statute. Loper v. Beto, 405 U. S. 473, 405 U. S. 483 (1972), barred impeachment of a defendant with such a felony conviction, and United States v. Tucker, 404 U. S. 443 (1972), held that a sentencing judge cannot consider a prior uncounseled felony.
will hamper enforcement of important federal statutes long in effect. [Footnote 2/4] Providing counsel for all defendants charged with enhanceable misdemeanors will exacerbate the delays that plague many state misdemeanor courts and will impose unnecessary costs on local governments. Those communities that cannot provide counsel for misdemeanor defendants will lose by default the possibility of enhancing future sentences if criminal conduct persists. The result will be frustration of state policies of deterring recidivism by imposing enhanced penalties.
In addition, as the Illinois Appellate Court predicted, today's ruling will incite further litigation claiming that uncounseled misdemeanor convictions cannot be used to impeach a defendant's testimony, or that judges should not consider such convictions in later sentencing determinations. 52 Ill.App.3d at 310, 367 N.E.2d at 463. Following today's pronouncement, there is no way to predict the outcome of any such claim.
But at least it is clear, regrettably, that the Court has frustrated its own effort in Scott to provide effective guidance to the local courts that try misdemeanor cases every day. I would affirm the decision of the Illinois Appellate Court that faithfully followed our decision in Scott.
Despite reservations, I joined the decision in Scott v. Illinois because it was consistent with Argersinger v. Hamlin, 407 U.S. at 407 U. S. 44 (POWELL, J., concurring in result), and it "provide[d] clear guidance to the hundreds of courts across the country that confront this problem daily." 440 U.S. at 440 U. S. 374 (POWELL, J., concurring).
Although only the opinion of MR. JUSTICE MARSHALL mentions the issue, ante at 446 U. S. 227-228, n. 2, petitioner urges that an uncounseled misdemeanor conviction is too unreliable to support sentence enhancement for later offenses. Compared to a felony judgment, however, most uncounseled misdemeanor convictions are far more likely to be reliable. In my separate opinion in Argersinger, I expressed the view that counsel should be provided in certain misdemeanor cases not involving the possibility of a jail sentence. 407 U.S. at 407 U. S. 47-50. That view was rejected by the Court. It cannot be denied, however, that the issues in the great majority of misdemeanor cases are not complicated, and the facts often are not in dispute. In addition, most such cases are tried to a judge. But there is a more fundamental answer to petitioner's argument. Here, the uncounseled conviction is conceded to be valid, and thus must be presumed reliable.
Today's decision is all the more puzzling in view of the Court's recent ruling in Lewis v. United States, 445 U. S. 55 (1980). Lewis held that an uncounseled felony conviction is a proper predicate for imposing federal sanctions for possession of a firearm by a felon. Although I dissented on statutory grounds in Lewis, the opinion's constitutional holding squarely conflicts with today's decision. Unlike misdemeanors, all uncounseled felony judgments are constitutionally invalid. Gideon v. Wainwright, 372 U. S. 335 (1963). Yet Lewis held that, even though the federal firearm statute imposes a prison sentence solely because the defendant had an uncounseled -- and thus void -- felony conviction on his record, that procedure does not use the void conviction to "support guilt or enhance punishment.'" 445 U.S. at 445 U. S. 67, quoting Burgett v. Texas, 389 U. S. 109, 389 U. S. 115 (1967). In this case, the Court refuses to permit sentence enhancement on the basis of a constitutionally valid misdemeanor conviction. The conflict between the two holdings could scarcely be more violent.
Brief for United States as Amicus Curiae 2, citing 8 U.S.C. § 1325 (illegal entry into United States by alien); and 2, n. 2, citing 15 U.S.C. § 1263 (shipment of misbranded or banned hazardous substances).