Sargent v. Com., No. 1499-85

• Docket Nº: No. 1499-85
• Citation: 5 Va.App. 143, 360 S.E.2d 895
• Case Date: October 06, 1987
• Court: Court of Appeals of Virginia

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360 S.E.2d 895 5 Va.App. 143 Timmy Joe SARGENT
v.
COMMONWEALTH of Virginia. Record No. 1499-85. Court of Appeals of Virginia. Oct. 6, 1987.

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[5 Va.App. 144] Thomas E. Burks, for appellant.

[5 Va.App. 145] Margaret Poles Spencer, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BENTON and COLE, JJ.

COLE, Judge.

Timmy Joe Sargent was tried by jury and convicted of driving under the influence of intoxicants (DUI), his third offense within five years. The trial court imposed a $1,000 fine and a three month jail sentence. In this appeal Sargent contends that the trial court erroneously relied upon two prior convictions in Prince William County General District Court to enhance the punishment for his DUI conviction in violation of his rights under the United States and Virginia Constitutions. We conclude that the prior convictions were improperly relied upon to enhance punishment and reverse.

On the morning of the trial, October 25, 1985, Sargent by motion sought to prohibit the Commonwealth from introducing into evidence certified copies of the records of the two prior convictions for driving under the influence of intoxicants in violation of § 13-240 of the Code of Prince William County, which adopts by reference Code §§ 18.2-266 and 18.2-270. Sargent's two prior offenses occurred on July 11, and July 23, 1982, and he was convicted on September 1, and September 21, 1982, respectively. On September 1, 1982, he was sentenced to a $200 fine and twelve months license suspension. On September 21, 1982, he was sentenced to a $200 fine and a six months license suspension. In each conviction, the record consisted of a copy of the Virginia Uniform Traffic summons, a Warrant of Arrest, and a form entitled Judgment of the Court, all certified to as a copy teste by a deputy clerk of the Prince William County General District Court. The forms contain spaces to indicate the plea of the defendant and the name of his attorney, but these spaces were left blank in both cases. In each case the name of the Commonwealth's attorney was written on the form. The record does not disclose whether these forms constitute the complete records from the general district court. Without objection, the trial court deferred a ruling on the motion to suppress until after the trial. At the conclusion of the trial, defense counsel moved the court to set aside the jury verdict on the ground that uncounseled misdemeanor convictions were used to enhance punishment. The court overruled both the motion to suppress and the [5 Va.App. 146] motion to set aside the verdict, relying upon the authority of McClure v. Commonwealth, 222 Va. 690, 283 S.E.2d 224 (1981). Sargent was convicted as charged and sentenced.

The predominant issue in this case is whether the two misdemeanor convictions in Prince William County for driving under

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the influence of intoxicants can be used to enhance punishment for a third DUI offense under § 18.2-270. ¹

"It is well settled that the right of an accused to have effective assistance of counsel is guaranteed by the due process clause of the Federal Constitution and the Virginia Bill of Rights." Morris v. Smyth, 202 Va. 832, 833, 120 S.E.2d 465, 466 (1961), cert. denied, 371 U.S. 849, 83 S.Ct. 83, 9 L.Ed.2d 83 (1962); see Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799 (1963). In Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530 (1972), the Supreme Court held: "[N]o person may be imprisoned for any offense ... unless he was represented by counsel at his trial," rejecting the argument that the right to counsel applied only to nonpetty offenses where the defendant had a right to a jury trial. Seven years later, in Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), the Supreme Court "conclude[d] ... that Argersinger did indeed delimit the constitutional right to appointed counsel in state criminal proceedings" and "adopt[ed] ... actual imprisonment as the line defining constitutional right to appointment of counsel." Id. at 373, 99 S.Ct. at 1162 (footnotes omitted). Thus, based on Scott, appointed counsel is not required in misdemeanor cases if imprisonment is not imposed.

Neither Argersinger nor Scott addressed the question whether a valid uncounseled misdemeanor conviction, not resulting in imprisonment, could be used for collateral purposes. This issue arose in Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980). Baldasar was convicted of misdemeanor theft in May 1975, fined $159 and placed on probation for one year. Under Illinois law, this offense was punishable[5 Va.App. 147] by not more than one year imprisonment and a fine of $1,000. A second conviction for the same offense, however, was a felony with a prison term of one to three years. The record indicated that Baldasar was not represented by counsel in the first case and did not waive his right to counsel. In August 1976, he was tried for another theft, second offense, and the prior conviction was introduced into evidence to enhance the offense to a felony. He was convicted of the felony charge and sentenced to prison for one to three years. Five Justices agreed, but for different reasons, that, although an uncounseled misdemeanor conviction is constitutionally valid if the defendant is not imprisoned, such a conviction may not be used to convert a subsequent misdemeanor into a felony with an enhanced prison term. Baldasar's uncounseled misdemeanor conviction resulted only in a fine plus probation, yet a majority of the Court held it could not be used to support a subsequent felony conviction with enhanced punishment. Id. at 223-24, 100 S.Ct. at 1585-86. State and federal courts have been attempting to determine the scope of the Baldasar decision given the absence of a majority opinion and the fact that under Illinois law the prior misdemeanor conviction increased the authorized maximum sentence for the offense beyond what it would have been for a first offense.

Sargent contends that the court records introduced do not affirmatively show that he was represented by counsel at either trial, that he was advised of his constitutional right to counsel, or that he knowingly and intelligently waived his sixth amendment right to counsel. He further argues that since the records of the two convictions do not reflect a knowing and intelligent waiver, the Commonwealth has the burden of proving a waiver of his right to counsel; once the Commonwealth fails to meet its burden of proof to show a waiver,

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then the convictions cannot be used to enhance the crime or punishment for a subsequent offense.

The Commonwealth claims that Sargent's prior DUI convictions are valid uncounseled misdemeanor convictions and were properly used to convict and sentence him as a third offender under Code § 18.2-270. It claims that this is a proper collateral use of the convictions, not prohibited by Baldasar. It further contends that since the conviction records established that the prior convictions were valid, it need not address Sargent's claim that the Commonwealth had to prove the waiver of counsel, since he [5 Va.App. 148] had no right to counsel at those proceedings, and the prior convictions, even if uncounseled, were valid.

The rule is well established that "in every criminal case the evidence of the Commonwealth must show, beyond a reasonable doubt, every material fact necessary to establish the offense for which a defendant is being tried. This burden of proof never shifts." McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978). "Any rule of state law which has the ultimate effect of shifting the burden of persuasion to the accused upon this critical issue is constitutionally infirm." Id. at 562, 248 S.E.2d at 810 (quoting Hodge v. Commonwealth, 217 Va. 338, 341, 228 S.E.2d 692, 695 (1976)).

When the Prince William County convictions occurred in 1982, Code § 19.2-157 provided "[w]henever a person charged with a criminal offense the penalty for which may be ... confinement in ... jail ..., the court shall inform him of his right to counsel." At the same time, Code § 19.2-160 provided:

If the charge against the accused is a misdemeanor the penalty for which may be by confinement in jail, and the accused is not represented by counsel, the court shall ascertain by oral examination of the accused whether or not the accused desires to waive his right to counsel.

In the event the accused desires to waive his right to counsel, and the court ascertains that such waiver is voluntary and intelligently made, then the court shall provide the accused with a statement which shall contain the following:

I have been advised this ... day of ..., 19 ..., by the (name of court) court of my right to representation by counsel in the trial of the charge pending against me. I have been further advised that, if I am unable to afford counsel, one will be appointed for me.

Understanding my right to have counsel appointed for me, I wish to waive that right and have the court proceed with my case without an attorney being appointed for me.

I hereby waive my right to have counsel appointed for me in this court, voluntarily and of my own free will, without [5 Va.App. 149] any threats, promises, force or undue influence.

.....................

(Signature of Accused)

In both convictions the record is silent concerning compliance with Code §§ 19.2-157 and 19.2-160. The records fail to show that the trial court advised Sargent of his right to counsel, or that Sargent did, in...