Brawner v. State
| Decision Date | 27 October 1982 |
| Docket Number | No. 39108,39108 |
| Parties | BRAWNER v. The STATE. |
| Court | Georgia Supreme Court |
Darrell E. Wilson, Dist. Atty., David P. Soulis, Asst. Dist. Atty., Cartersville, for the State.
Ben Lancaster, Cartersville, for Ronnie Brawner.
Ronnie L. Brawner appeals from his convictions of attempted burglary and possession of tools for the commission of a crime.
1. The convictions were authorized by evidence that two deputy sheriffs, who followed the appellant in his automobile into the parking lot of a closed service station at between 2:00 and 3:00 a.m., observed the appellant carry a tire tool over to the locked and well lighted door of the station; that with this tool, he attempted to pry the door open, causing the burglar alarm to sound; that the tire tool, which was found underneath the appellant's automobile when he was arrested, had been used recently, as indicated by a fresh chip thereon; that fresh marks on the door of the service station matched the end of the tire tool; that the restroom, which the appellant testified he was attempting to use, was located on the opposite side of the building; and that neither the station manager nor the supervisor of all of that particular company's service stations in Bartow County had given the appellant permission to enter this building.
2. The appellant contends that the trial judge, in imposing sentence and in refusing to give probation, erred in considering his prior juvenile adjudications--including offenses of burglary, theft, controlled substances, and alcohol--absent an affirmative showing by the state that he had been represented by counsel in the juvenile-court proceedings. A defendant in a misdemeanor criminal prosecution is entitled to counsel only where the defendant is sentenced to actual imprisonment. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979); Houser v. State, 234 Ga. 209, 214 S.E.2d 893 (1975); Stillwell v. State, 161 Ga.App. 230, 231, 288 S.E.2d 295 (1982). The prior adjudications here considered were not criminal, but were juvenile-court adjudications, in which no imprisonment was imposed. Hence, the state had no burden of showing that the appellant was represented by counsel in such proceedings, as it does in criminal proceedings. Cf., Griffin v. State, 142 Ga.App. 362, 364(4), 235 S.E.2d 724 (1977); Dent v. State, 136 Ga.App. 366, 369(7), 221 S.E.2d 228 (1975), cited by the appellant.
The appellant further contends that, to the extent that Code Ann. § 24A-2401 (Ga.L.1971, pp. 709, 736) and § 27-2709 (Ga.L.1980,[250 Ga. 126] pp. 1136, 1137) authorize the sentencing judge to consider the juvenile record of the defendant as to sentence after conviction of a felony, these statutes are unconstitutional and contrary to due process and equal protection under the U.S. and Georgia Constitutions. As the sole authority, the appellant cites Jones v. State, 129 Ga.App. 623, 200 S.E.2d 487 (1973). However, Jones held in Division 2 that "it is clear that Code Ann. §§ 27-2709 and 24A-2401, construed in pari materia as they must be, clearly authorized the...
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