The question is whether the denial of diversion from criminal prosecution because of a prior uncounseled conviction violates defendant’s federal sixth amendment right to counsel. 1
Defendant was convicted of driving under the influencе of intoxicants (DUII) in 1979. The record indicates that this conviction was entered without the assistance of counsel.
2
In late 1982 he was charged with another DUII offense. He petitioned for diversion pursuant to ORS 484.450. The state objected to diversiоn because of defendant’s prior DUII conviction. The trial court denied the petition for diversion in reliance on ORS 484.450(4)(a), which precludes the court from allowing diversion if the defendant has been convicted of DUII within the preceding 10 years. Defendant then proceeded to trial, was found guilty and sentenced.
3
The Court of Appeals affirmed without opinion,
We held in
Brown v. Multnomah County Dist Ct,
The Baldosar decision addressed the collateral use of a prior uncounseled misdemeanor convictiоn. It prohibited the use of a prior uncounseled misdemeanor conviction, for which defendant was not incarcerated but was placed on probation, to elevate a subsequent offense from a misdemeanor to a felony. The reason for the prohibition is expressed in Justice Marshall’s concurrence:
“We should not lose sight of the underlying rationale of Argersinger [v. Hemlin,407 US 25 ,92 S Ct 2006 ,32 L Ed 2d 530 (1972)], that unless an accused has ‘the guiding hand of counsel at every step in the procеedings against him,’ * * * his conviction is not sufficiently reliable to support the severe sanction of imprisonment. * * * 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.” (Citation and footnote omitted.)446 US at 227-28 .
Baldosar
includes three concurring opinions and a dissent by four justices. Blackmun, J., cоncurring, held to his dissenting view in
Scott v. Illinois,
Although Baldasar lends itself to a number of interpretations, 5 the most straightforward is this: If the initial uncounseled misdemeanor conviction cannot be used directly to impose a prison term, then it cannot be used indirectly either to elevate a subsequent charge from a misdemeanor to a felony or to impose an increased term of imprisonment.
In Grenvik, we cited Baldasar probably because that was the case on which the parties placed primary reliance. However, the validity of the prior uncounseled conviction is a theoretically important distinction between Baldasar and Grenvik. It is the point on which the Baldasar court splintered. Both the sixth amendment and article I, section 11 guarаntee the right to counsel in any “criminal prosecution.” With misdemeanor prosecutions, however, the federal right extends only to those cases in which actual imprisonment is imposed, Scott v. Illinois, supra. Article I, section 11 is not so limited. Brown v. Multnomah County Dist Ct, supra, does not confine the definition of “criminal prоsecution” to those misdemeanor cases in which imprisonment is actually or even potentially to be imposed. Other considerations, such as the punitive significance of the penalty, collateral consequences аnd use of pretrial arrest and detention, will determine whether the procedure is criminal and, hence, whether the state must afford the accused the rights, including the right to counsel, guaranteed in a criminal prosecution. Similarly, if we were to consider collateral use of prior convictions under article I, section 11, enhancement of the offense or of the term of imprisonment would be only one consideration. It would be necessary to address, in addition, whethеr the prior conviction causes the second offense to be treated in a punitive manner reflective of criminal rather than civil penalties.
Because Baldasar was not imprisoned for his first
*730
misdemeanor offense, his uncounseled conviction was valid as far as fedеral law was concerned. When analyzing whether the prior conviction could be used in subsequent prosecutions, the Supreme Court examined the effect of the former on the latter. It focused on enhancement of a term of incarceration or elevation of the offense from a misdemeanor to a felony because the sixth amendment compels the assistance of counsel only in the event of a felony charge,
Gideon v. Wainwright,
Unlike
Baldasar,
there was no dispute in
Grenvik,
nor is there here, that the prior uncounseled DUII traffic infraction conviction was invalid. That issue had bеen decided by
Brown v. Multnomah County Dist Ct, supra.
Thus, the state’s attempt to limit the effect of this undisputedly invalid conviction to the facts of
Baldasar
misses the mark. The proper analysis was expressed by Justice Powell in the
Baldasar
dissent. He reasoned that if a prior uncounseled conviction is invalid, it is void and “could not be put to other uses in court.”
The federal Supreme Court cases that control the collateral use of prior invalid convictions and provide primary guidance in this case are
Burgett v. Texas, supra,
and
United States v. Tucker,
Combining these two cases, the federal prohibition *731 may be stated as follows: Thе state cannot use an invalid prior conviction in a subsequent prosecution if to do so would lead to a disposition of the subsequent offense less favorable to defendant than that which would obtain in the absence of the priоr invalid conviction. Thus, an invalid prior conviction may not be used to support guilt or enhance punishment in a subsequent criminal proceeding.
The state relies on the Court of Appeals distinction of
Grenuik
in a recent denial of diversion case,
State v. Wright,
“defendant’s prior conviction was not used to enhance the penalty to which he could be subject for his present conviction. DUII, with or without a prior conviction, is now a Clаss A misdemeanor * * * [for which] defendant could have been punished by a one-year prison term * * * and a fine of $2500 * * * regardless of whether he had a prior conviction.”63 Or App at 485 .
It is not enough to consider the statutory penalty for this charge without alsо examining what effect the opportunity for diversion has on punishment. If a defendant is eligible for diversion, the criminal charge will be suspended pending the completion or termination of the diversion program. ORS 484.460(2). A defendant who has fully comрlied with and performed the conditions of the diversion agreement is entitled to have the charge dismissed with prejudice. ORS 484.470(1). In such a case defendant faces no criminal punishment at all.
On the other hand, a defendant not eligible for diversiоn faces a criminal sanction. Punishment is certainly enhanced as much when one faces a criminal sanction rather than a noncriminal resolution of the offense, as when one faces felony rather than misdemeanor treatment. 7 The collateral use of prior invalid convictions is prohibited not only when it elevates charges and penalties, but also when it *732 imposes a penalty where defendant might avoid a criminal sanction.
The trial court refused tо consider defendant’s eligibility for diversion solely because of his prior DUII conviction, with the result that defendant received a criminal penalty, including a period of incarceration. It may be that the trial judge would have denied defеndant’s petition for diversion for reasons other than the prior conviction which are within his discretionary power to consider, ORS 484.455. It is also possible that defendant would have failed to complete the program. Either of these events could have led to imposition of a criminal sanction for the offense. None of these contingencies, however, should obscure the fact that the prior conviction is, at this point, the only reason defendant was denied diversion and received a criminal sanction.
We hold that under Grenvik, Burgett and Tucker, a defendant is able to challenge the use of a constitutionally invalid prior conviction in a subsequent criminal proceeding whenever the court relies on the prior conviсtion to enhance punishment. When a constitutionally invalid prior conviction leads to punishment more onerous than that to which a defendant might be subjected without the prior offense, the sixth amendment prohibits its use.
Reversed and remandеd for further proceedings in light of this opinion.
Notes
Defendant does not raise any claim under article I, section 11 of the Oregon Constitution.
State v. Grenvik,
Defendant was sentenced to two days in jail, a fine of $260 and a suspended sentence of three years. Imposition of sentence was stayed pending appeal.
Scott v. Illinois,
See Rudstein, The Collateral Use of Uncounseled Misdemeanor Convictions after Scott and Baldasar, 34 U Fla L Rev 517 (1982), for a review of state court interpretations.
The reason fоr prohibition on collateral use of prior uncounseled felonies is expressed in Burgett as follows:
“To permit a conviction obtained in violation of Gideon v. Wainwright, [372 US 335 ,83 S Ct 792 ,9 L Ed 2d 799 (1963)] to be used against a person either to support guilt or enhance punishment for another offense * * * is to erode the principle of thаt case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right.” (Citation omitted.)389 US at 115 .
Judge Buttler dissented in
State v. Wright,