People v. Stratton

• Decision Date: 04 April 1986
• Docket Number: Docket No. 80893
• Citation: 384 N.W.2d 83,148 Mich.App. 70
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry Jay STRATTON, Defendant-Appellant. 148 Mich.App. 70, 384 N.W.2d 83
• Court: Court of Appeal of Michigan — District of US

Page 83

384 N.W.2d 83

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry Jay STRATTON, Defendant-Appellant.

Docket No. 80893.

148 Mich.App. 70, 384 N.W.2d 83

Court of Appeals of Michigan.

Submitted July 9, 1985.

Decided Dec. 17, 1985.

Released for Publication April 4, 1986.

[148 MICHAPP 71] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Judy H. Hughes, Pros. Atty., and Dale A. Crowley, Chief Asst. Pros. Atty., for people.

James H. Fisher, Middleville, for defendant-appellant on appeal.

[148 MICHAPP 72] Before WAHLS, P.J., and ALLEN and RAVITZ ^*, JJ.

PER CURIAM.

Defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor, third offense, M.C.L. Sec. 257.625; M.S.A. Sec. 9.2325. For his sentence, defendant received three years probation with the first year to be spent in jail subject to work release. Defendant's motion for new trial was denied and he appeals as of right. We reverse.

I

Defendant first challenges the enhancement of his conviction for OUIL from a misdemeanor to a felony under the multiple offense provision of M.C.L. Sec. 257.625f; M.S.A. Sec. 9.2325(6). Defendant contends that his prior two convictions for OUIL were obtained without counsel and that he had not waived counsel. The people respond that defendant did have counsel, or that he waived counsel by his actions, and in any event he was not prejudiced. The court below concluded that defendant had the benefit of counsel.

Defendant's prior convictions occurred as follows. He was charged with the first offense on November 27, 1978, and entered a plea of not guilty. He was charged with the second offense on February 2, 1979. At his arraignment on the second charge, defendant indicated that he had an attorney, Henry Blakely. The district court urged defendant to get in touch with Blakely and have the attorney file an appearance. On June 5, 1979, defendant appeared before the district court to plead guilty to both charges. The following colloquy occurred:

[148 MICHAPP 73] "THE COURT: Mr. Stratton, has Mr. Blakely entered his appearance in this matter?

"MR. AGENTS [Prosecutor]: I don't believe he has. However, this morning I did talk with Mr. Blakely concerning these matters. He indicated to me that he had advised his client to enter a plea of guilty on these charges and the city attorney's office is going to make a recommendation that no jail time be imposed on these matters. However, this is merely a recommendation, ya know, as the Court knows.

"THE COURT: Mr. Stratton, is that correct that you did talk to Mr. Blakely this morning?

"THE DEFENDANT: Yes I have, your Honor."

The court then proceeded to take defendant's pleas of guilty.

Defendant now relies on the following statement of this Court in People v. Schneider, 132 Mich.App. 214, 216, 347 N.W.2d 21 (1984):

"Under the Sixth Amendment to the United States Constitution, a conviction for a felony in a state court without counsel being present and without a valid waiver of counsel having been obtained may not be used to support guilt or enhance punishment for another offense. United States v Tucker, 404 US 443; 92 SCt 589; 30 LEd2d 592 (1972); Burgett v Texas, 389 US 109; 88 SCt 258; 19 LEd2d 319 (1967); People v Nelson, 73 MichApp 395; 251 NW2d 602 (1977). Similarly, conviction of a misdemeanor, where the record indicates no counsel or formal waiver of counsel, may not be used to convert a subsequent conviction into a felony under a state's enhanced penalty statute. Baldasar v Illinois, 446 US 222; 100 SCt 1585; 64 LEd2d 169 (1980), reh den 447 US 930; 100 SCt 3030; 65 LEd2d 1125 (1980), and People v Olah, 409 Mich 948; 298 NW2d 422 (1980) [cert den 450 US 957; 101 SCt 1415; 67 LEd2d 381 (1981) ]. See also People v Courtney, 104 MichApp 454; 304 NW2d 603 (1981)."

We might also add, see People v. Kanouse, 131 Mich.App. 363, 369, 346 N.W.2d 101 (1984), on reh. [148 MICHAPP 74] 134 Mich.App. 401, 350 N.W.2d 760 (1984), mod. 421 Mich. 855, 362 N.W.2d 238 (1985).

Although defendant's cited authority appears strong, the people question whether Baldasar, supra, stands for what our courts have said it does. Upon our review of the question, we find some merit in the people's argument but we nevertheless grant defendant the requested relief.

In Schindler v. Clerk of Circuit Court, 715 F.2d 341, 343-344 (CA 7, 1983), the Seventh Circuit Court of Appeals has written an excellent summary of the law concluding with Baldasar:

"We commence our analysis with Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 16 L.Ed.2d 319 (1967), in which the Court extended the rule established in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), that the right to counsel guaranteed by the sixth amendment applies in all state felony proceedings, 'making it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one.' 389 US at 114, 88 S.Ct. at 261. In Burgett the Court held that the prosecution may not offer evidence of a prior uncounseled felony conviction in an effort to enhance the defendant's punishment under the Texas recidivist statute. The Court explained, '[T]he admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright is inherently prejudicial. * * *' Id. 389 U.S. at 115, 88 S.Ct. at 262. Five years later in United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), the Court held that a prior conviction that was constitutionally invalid, having been obtained in violation of Gideon, could not even be considered by the judge in sentencing a defendant convicted of bank robbery.

"In the same term as Tucker, the Court decided Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), and extended the right to counsel to misdemeanor proceedings where the accused is sentenced to a prison term. The Court rejected the notion [148 MICHAPP 75] that simply because crimes punishable by imprisonment for less than six months may be tried without a jury, they may also be tried without a lawyer. Id. at 30-31, 92 S.Ct. at 2009-2010. It observed that although Gideon v. Wainwright, supra, involved a felony prosecution, the rationale of the decision applied to any criminal trial where the accused's liberty is in jeopardy, explaining, '[T]he requirement of counsel may well be necessary for a fair trial even in a petty-offense prosecution.' 407 U.S. at 33, 92 S.Ct. at 2010. The Court therefore held that 'absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.' Id. at 37, 92 S.Ct. at 2012 (footnote omitted).

"In Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), the Court shed some light on the limitations of its prior decisions in Burgett, Tucker, and Argersinger. In Scott, an indigent uncounseled defendant had been convicted of shoplifting and fined $50 in an Illinois state court. Under the applicable statute, he had faced a possible sentence for such an offense of one year in jail, or a $500 fine, or both. The defendant contended that under the Supreme Court's sixth amendment decisions, particularly Argersinger, a state is required to provide counsel whenever imprisonment is an authorized penalty. The Supreme Court rejected this contention. The Court noted that in Argersinger it had drawn the line at actual imprisonment as 'defining the constitutional right to appointment of counsel.' 440 U.S. at 373, 99 S.Ct. at 1162. It therefore held in Scott 'that the Sixth and Fourteenth Amendments to the United States Constitution require only 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.' Id. at 373-74, 99 S.Ct. at 1161-62. Thus, conviction of an uncounseled indigent defendant is constitutionally valid, even if he has not waived his right to counsel, so long as the accused is not sentenced to an actual term of imprisonment.

"Neither Scott nor Argersinger answered the question whether a valid uncounseled misdemeanor conviction[148 MICHAPP 76] not resulting in imprisonment could be used for collateral purposes. This issue arose for the Court's consideration in Baldasar v. Illinois, supra. Baldasar had been convicted of misdemeanor theft in May 1975 without being represented by a lawyer, and was given a fine and placed on probation. Six months later, he was charged with another offense under the same statute. At his trial the state introduced evidence of the prior conviction and asked that Baldasar be punished as a felon under the Illinois enhancement statute. His counsel unsuccessfully objected to the collateral use of his prior uncounseled conviction on the ground 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. Baldasar was convicted of a felony and sentenced to prison for one to three years. The Illinois Supreme Court affirmed his conviction.

"By a 5-4 vote, the Supreme Court reversed the conviction in a cursory per curiam opinion, relying on reasons expressed in three separate concurring opinions. In his brief concurrence, Justice Stewart expressed the view that Baldasar's felony sentence collided with the constitutional rule of Scott v. Illinois, supra, for as an indigent defendant he 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.' Baldasar, supra, 446 U.S. at 224, 100 S.Ct. at 1586 (emphasis in original). In his own concurrence, Justice Marshall likewise concluded that a defendant's 'prior uncounseled misdemeanor conviction could not be used collaterally to impose an...