Com. v. Thomas
| Decision Date | 26 March 1986 |
| Citation | 510 Pa. 106,507 A.2d 57 |
| Parties | COMMONWEALTH of Pennsylvania v. James Arden THOMAS, Jr., Appellant. COMMONWEALTH of Pennsylvania v. Emily Clay BRUCE, Appellant. |
| Court | Pennsylvania Supreme Court |
Raymond H. Bogaty, Office of the Public Defender, Mercer, for appellants.
Samuel J. Orr, IV, Dist. Atty., Charles S. Hersh, Asst. Dist. Atty., James P. Epstein, Mercer, for appellee.
Before NIX, C.J., and LARSEN, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.
On May 20, 1982, appellant Emily Clay Bruce was found guilty by a judge of retail theft (second offense) for the theft of a gold necklace valued at $2.84. On September 9, 1982, appellant James Arden Thomas, Jr. pleaded guilty to retail theft (second offense) for the theft of a set of Champion spark plugs valued at $12.71. Because each of the appellants had a prior conviction for retail theft, the aforementioned crimes which are the subject of this appeal were graded as misdemeanors of the second degree, rather than summary offenses, and appellants were sentenced accordingly: appellant Bruce was sentenced to one year probation, and appellant Thomas was sentenced to seven days imprisonment. 1 On appeal, these cases were consolidated and the Superior Court affirmed per curiam, 337 Pa.Super. 632, 487 A.2d 441 (1984).
In these appeals, appellants present two related questions: 1) whether a prior conviction for the summary offense of retail theft, based upon an uncounseled guilty plea, may be used to enhance the grading and sentencing of a second conviction for the same offense; and 2) whether a prior conviction for the summary offense of retail theft, resulting from an uncounseled guilty plea entered when the defendant was a juvenile, may be used to enhance the grading and sentencing of a second conviction for the same offense.
The Crimes Code provides in pertinent part:
Retail theft constitutes a:
(i) Summary offense when the offense is a first offense and the value of the merchandise is less than $150.
(ii) Misdemeanor of the second degree when the offense is a second offense and the value of the merchandise is less than $150.
(iii) Misdemeanor of the first degree when the offense is a first or second offense and the value of the merchandise is $150 or more.
Appellants' first convictions for retail theft constituted summary offenses: In 1978, each appellant pleaded guilty, without the assistance of counsel, to one charge of retail theft; 3 at the times of their respective guilty pleas, appellant Bruce was sixteen years of age and appellant Thomas was seventeen years old. 4
Appellants first contend that defendants in all summary criminal matters should have a right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution, but that even if they do not, the interests of justice dictate that defendants should have the right to counsel in any summary proceeding "if the Commonwealth is to use the summary convictions for enhancement." 5 We disagree.
The United States Supreme Court has "delimit[ed] the constitutional right to appointed counsel in state criminal proceedings," and has held that "the Federal Constitution does not require a state trial court to appoint counsel for a criminal defendant" who is not actually subjected to a term of imprisonment upon conviction. Scott v. Illinois, 440 U.S. 367, 373, 369, 99 S.Ct. 1158, 1162, 1160, 59 L.Ed.2d 383 (1979). See also Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).
This Court has implemented the holdings of these cases by way of Rule 316, Pa.R.Crim.P.:
(a) Counsel shall be assigned in all summary cases to all defendants who are without financial resources or who are otherwise unable to employ counsel when there is a likelihood that imprisonment will be imposed.
....
(c)(i) The court, of its own motion, shall assign counsel to represent a defendant whenever the interests of justice require it.
(Emphasis added.)
Thus, there is no requirement, either under the United States Constitution or under the Pennsylvania Constitution, that defendants in all summary cases be provided with counsel. 6 Further, there was no requirement in this case, either as a matter of federal or state constitutional law, that either appellant be provided with counsel when he or she was charged with a summary offense, since there was no likelihood that imprisonment would be imposed. 7
It is clear that appellants' first convictions were valid at the time they were entered and that appellants' sentences based upon those convictions were legal. The question remains, however, whether appellants' first uncounseled convictions can now be used to raise the degree of their subsequent offenses from summary offenses to misdemeanors, with the attendant enhancement of potential sentences.
A majority of the United States Supreme Court has held that an uncounseled misdemeanor conviction obtained under the Illinois statute for retail theft may not be used under an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term. Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980) (per curiam). 8 Nevertheless, only this disposition, and not the rationale supporting it, was agreed to by a majority of the Court. 9
Thus, in Baldasar, four Justices were of the opinion that a first uncounseled conviction could never be used to enhance the grading and sentencing of a second offense, 446 U.S. at 224, 100 S.Ct. at 1586 (Stewart, J., concurring, joined by Brennan and Stevens, JJ.), 446 U.S. at 224-29, 100 S.Ct. at 1586-89 (Marshall, J., concurring, joined by Brennan and Stevens, JJ.); four Justices would have held that an uncounseled conviction for which no sentence of imprisonment was imposed may always be used to enhance the grading and sentencing of a subsequent conviction, 446 U.S. at 230-35, 100 S.Ct. at 1589-91 (Powell, J., dissenting, joined by Burger, C.J., and White and Rehnquist, JJ.); and one Justice would have held that an uncounseled conviction may be used to enhance the grading and sentencing of a subsequent offense only if the first offense was one which was not punishable by more than six months imprisonment and for which the defendant was not actually sentenced to a term of imprisonment, 446 U.S. at 229-30, 100 S.Ct. at 1588-89 (Blackmun, J., concurring). 10
Viewing the facts of this case in light of these concurring and dissenting opinions, it is clear that appellants' claims must fail. Four Justices would uphold the use of appellants' convictions for their summary offenses to enhance the grading and sentencing for their second offenses, because appellants did not actually receive sentences of imprisonment for their summary offenses. A fifth Justice would uphold the use of appellants' first convictions to enhance the grading and sentencing for their second offenses, because appellants' summary offenses were not punishable by more than six months imprisonment. Thus, a majority of the Supreme Court, had it been asked to consider the facts of this case, would have held that appellant Bruce's and appellant Thomas's uncounseled summary offense convictions obtained under the Pennsylvania statute for retail theft could be used under an enhanced penalty statute to convert their subsequent offenses into misdemeanors which carry longer potential prison terms and larger fines. 11
We hold, therefore, that since appellants' first convictions were validly entered pursuant to the Sixth and Fourteenth Amendments to the United States Constitution, Article I, Section 9 of the Pennsylvania Constitution, the Pennsylvania retail theft statute, and the Pennsylvania Rules of Criminal Procedure, the validity of those convictions was not impugned when appellants were charged with misdemeanors, rather than summary offenses, for their second offenses of retail theft, and were sentenced upon conviction of those misdemeanors. Appellants' subsequent criminal conduct did not create a right to counsel, where none otherwise existed, for their summary offenses of retail theft.
We do not think that the interests of justice dictate a different result. Pa.R.Crim.P. 316(c)(i) grants trial courts discretion to appoint counsel on a case-by-case basis "whenever the interests of justice require it." See Comment, Pa.R.Crim.P. 316. However, the interests of justice do not require the adoption of a rule extending a defendant's right to counsel beyond the rights already granted by the United States and Pennsylvania Constitutions simply because the defendant has been charged with a summary offense, conviction of which may be used to enhance the grading and sentencing of a subsequent crime. The Commonwealth has an important interest in attempting to discourage repeat offenses of retail theft. The scheme adopted by the legislature ably supports this interest, and to hold that appellants should have been provided with counsel at the summary conviction stage of the proceedings would frustrate the purposes of this scheme. See 18 Pa.C.S.A. § 3929(b)(1). The legislature, realizing that retail theft is a not uncommon event, chose to treat the first offense in a mild and expeditious manner. The Commonwealth benefits in that prosecution for a first offense does not require a great expenditure of judicial manpower, and the defendant benefits in that the sentence is very lenient. The legislature could have made a first offense of retail theft a misdemeanor, but instead chose to wait until a second offense occurred before grading the offense a misdemeanor and bringing greater judicial resources and the possibility of a more serious sentence into play. A repeat offender is not deprived of any rights simply because at some earlier time in his or her life, he or she was dealt with in a lenient manner.
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