STATE of Wisconsin, Plaintiff-Respondent, v. Frank G. NOVAK, Jr., Defendant-Appellant-Petitioner.
No. 81-538-CR
Supreme Court
Argued March 31, 1982.—Decided April 27, 1982.
318 N.W.2d 364
For the plaintiff-respondent the cause was argued by Jerome S. Schmidt, assistant attorney general, with whom on brief was Bronson C. La Follette, attorney general.
DAY, J. This is a review of a decision of the court of appeals which affirmed a judgment of the circuit court for Chippewa county, Hon. Richard H. Stafford, Judge, convicting Frank G. Novak, Jr. (hereinafter defendant) of operating a motor vehicle while under the influence of an intoxicant in violation of
The issue in this case is: Does imposition of five days incarceration as punishment for having been twice convicted within a five year period of operating a motor vehicle while under the influence of an intoxicant, violate defendant‘s constitutional rights under the sixth and
On October 20, 1980, a criminal complaint was issued charging defendant with operating a motor vehicle while under the influence of an intoxicant (hereinafter OWI) in violation of
Defendant pled guilty to the second OWI offense but argued that it would be improper to impose the jail sentence required by
Defendant appealed the part of the conviction which imposed the jail sentence to the court of appeals, which affirmed the circuit court decision. The defendant petitioned this court for review, which we granted.
Defendant argues that, under Baldasar, an uncoun
In Gideon v. Wainwright, 372 U.S. 335 (1963), the United States Supreme Court held that an accused in a criminal proceeding has a constitutional right to be represented by counsel. In Burgett v. Texas, 389 U.S. 109, 115 (1967), the United States Supreme Court held that a prior criminal conviction obtained in violation of the right to counsel set forth in Gideon could not be used to enhance the punishment imposed for a subsequent offense.
Gideon and Burgett involved felony convictions. However, the constitutional right to counsel was extended to defendants accused of misdemeanors in Argersinger v. Hamlin, 407 U.S. 25, 37 (1972). This extension was limited in Scott v. Illinois, 440 U.S. 367, 373-74 (1979), where the United States Supreme Court held that an accused misdemeanant was constitutionally entitled to counsel only if he was actually incarcerated as a result of the conviction. There was no constitutional right to counsel in misdemeanor cases where incarceration was authorized but not actually imposed. There were two dissenting opinions filed in Scott. The first, by Justice Brennan joined by Justices Marshall and Stevens, argued that criminal defendants were entitled to counsel in all cases where incarceration was authorized. 440 U.S. at
Baldasar, 446 U.S. 222, upon which defendant principally relies, is the latest United States Supreme Court decision in this area. Baldasar involved an Illinois theft statute. A first conviction under the statute was a misdemeanor punishable by up to a year‘s imprisonment and a $1,000 fine. A second conviction of the same offense could be treated as a felony, punishable by a one to three year prison term. Mr. Baldasar had been convicted of misdemeanor theft in 1975 in a proceeding at which he was not represented by counsel. He was fined $159 and placed on probation. Since he was not actually incarcerated, this conviction was valid under Scott.
In 1976, Mr. Baldasar was again convicted of theft. After a jury trial, at which he was represented by counsel, he was convicted and sentenced as a second offender to one to three years imprisonment. He challenged the conviction and sentence on the ground that its felony status and the one to three year prison sentence imposed were due to his earlier uncounselled conviction, thereby violating Gideon, Burgett and Scott. The Illinois appellate court rejected this contention. He petitioned the United States Supreme Court, which granted certiorari.
The court reversed in a per curiam order. There was no majority decision, but rather three concurring opinions, authored by Justices Stewart, Marshall and Blackmun, and a dissent. Justice Stewart, who was a member
Justice Marshall who, along with Justices Brennan, Stevens and Blackmun had dissented in Scott, reiterated his dissatisfaction with that ruling but stated that even if one accepted the line drawn in Scott, a prior uncounselled misdemeanor conviction could not be used to impose an increased term of incarceration upon a subsequent conviction. Even though the earlier conviction was valid under Scott because incarceration was not actually imposed, it was invalid for the limited purpose of enhancing the prison sentence imposed by virtue of the defendant‘s status as a repeat offender, 446 U.S. at 225-26.
Justices Brennan and Stevens joined both of the above opinions. Justice Blackmun, the fifth vote, did not join either of the above concurring opinions, nor was his opinion joined by any of the other Justices. Justice Blackmun‘s separate concurrence reiterated the “bright line” test which he proposed in his Scott dissent.
The dissenting opinion, authored by Justice Powell, joined by Chief Justice Burger and Justices Rehnquist and White, stated that since defendant‘s first uncounselled conviction was valid under Scott, it was valid for all purposes, including increasing the term of incarceration imposed because of defendant‘s status as a repeat offender.
Because Baldasar is clearly pertinent to the case at hand, we must determine the rule of law of that case from its several opinions. See Note: The Precedential Value of Supreme Court Plurality Decisions, 80 Colum. L. Rev. 756 (1980) (hereinafter cited as Plurality Decisions); Note: Plurality Decisions and Judicial Deci-
The concurring opinions by Justices Stewart and Marshall which, between them, commanded the support of four Justices, declared that even if the first uncounselled conviction was valid under Scott, it could not provide the basis for imprisonment upon a subsequent conviction. The dissenting opinion stated that an uncounselled conviction which was valid under Scott was valid for all purposes, including enhancement of the sentence imposed upon a subsequent conviction. Thus, the court was evenly split four to four over whether an uncounselled conviction which was valid under Scott was valid for all purposes or invalid insofar as it provided the basis for
“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.” 446 U.S. at 230.
While the Justices who comprise the Baldasar majority agree that an uncounselled conviction of a crime punishable by over six months’ imprisonment may not be used to enhance the sentence imposed upon a subsequent conviction, there is no agreement on the broader issue of whether an earlier uncounselled conviction which is valid because incarceration is not imposed is valid for all purposes or is invalid for the limited purpose of enhancing the sentence imposed upon a subsequent conviction.
Since defendant‘s initial conviction of operating a motor vehicle while intoxicated did not expose him to any term of imprisonment, the specific holding of Baldasar does not apply to this case.
We do not read Baldasar as holding that no uncounselled conviction may be used as the basis for imprisonment under a recidivist statute upon a subsequent conviction. The theory that a valid uncounselled conviction
The Wisconsin Constitution also does not provide a basis for overturning defendant‘s sentence. The right to counsel is contained in article I, sec. 7, of the Wisconsin Constitution, which states:
“Rights of accused. SECTION 7. In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face, to have compulsory process to compel the
attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.”
In State ex rel. Winnie v. Harris, 75 Wis. 2d 547, 556, 249 N.W.2d 791 (1977), this court declared that criminal defendants in Wisconsin state courts were entitled to counsel if the offense for which they were charged was punishable by imprisonment. Since defendant‘s first conviction was not punishable by imprisonment, the fact that he was not represented by counsel does not invalidate it. In Wells v. State, 40 Wis. 2d 724, 730, 162 N.W.2d 634 (1968), this court stated that a criminal conviction in which defendant was entitled to counsel, but neither waived this right nor was represented by counsel, was void for the purpose of a repeater statute.
This court has on occasion accorded criminal defendants a broader right to counsel in state courts than mandated by the United States Supreme Court under the fourteenth amendment to the United States Constitution. State v. Doe, 78 Wis. 2d 161, 171-72, 254 N.W.2d 210 (1977); State v. Taylor, 60 Wis. 2d 506, 522-23, 210 N.W.2d 873 (1973). However, we decline to extend the right to counsel to the extent urged by defendant. Since the first violation of
Four of the nine Justices in Baldasar held that an earlier valid, albeit uncounselled, criminal conviction may not be used to enhance the penalty imposed upon a subsequent criminal conviction. We believe it would be poor public policy to expand that reasoning to include civil forfeiture drunk driving offenses. Were we to do so, the routine drunk driving first offense, often disposed of by bail forfeiture, or pleas of nolo contendere or guilty, would have to include an inquiry into the accused‘s right to counsel. The nonindigent defendant would have to either hire an attorney or convince the court that he is aware of both his rights and the penalties for subsequent convictions, and is knowingly waiving his right to counsel. Because the indigent defendant in such a case is not entitled to counsel at public expense, he would not be subject to the enhanced penalties for subsequent convictions mandated by
Accordingly, the only way to effectuate the sentencing provisions contained in
In summary, we hold that defendant‘s first conviction under a civil forfeiture action of operating a motor
By the Court.—The decision of the court of appeals is affirmed.
CECI, J., took no part.
SHIRLEY S. ABRAHAMSON, J. (dissenting). I agree with Justice Marshall‘s statement in Baldasar v. Illinois, 446 U.S. 222, 227-28 (1980):
“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 US 45, 69 (1932), his conviction is not sufficiently reliable to support the severe sanction of imprisonment. Argersinger v. Hamlin, [407 US 25 (1972)], at 31-36. An uncounseled 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.”
The legislature can not predicate imprisonment on a prior civil conviction unless the defendant had counsel, either at his own expense or, if indigent, at state expense or had properly waived the right to counsel. Deprivation of the defendant‘s liberty as a direct consequence of an uncounseled conviction is forbidden by art I, secs 7 and 8, of the Wisconsin constitution. See State ex rel. Winnie v. Harris, 75 Wis. 2d 547, 249 N.W.2d 791 (1977).
For the foregoing reasons I dissent.