Small v. State

• Decision Date: 19 February 1981
• Docket Number: No. 5373,5373
• Citation: Small v. State, 623 P.2d 1200 (Wyo. 1981)
• Parties: Cromwell T. SMALL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1200

623 P.2d 1200

Cromwell T. SMALL, Appellant (Defendant), v.The STATE of Wyoming, Appellee (Plaintiff).

No. 5373.

Supreme Court of Wyoming.

Feb. 19, 1981.

Richard H. Honaker, State Public Defender, signed the brief and appeared in oral argument on behalf of appellant.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Division, and Allen C. Johnson, Senior Asst. Atty. Gen., signed the brief and Mr. Johnson appeared in oral argument on behalf of appellee.

Before ROSE, C. J., and McCLINTOCK, RAPER, THOMAS and ROONEY, JJ.

RAPER, Justice.

Pursuant to a plea bargain arrangement ¹, appellant pled guilty to the offense of possession and use of a firearm as one previously convicted of a crime of violence and not pardoned.²As a result, he received a sentence of one to three years in the Wyoming State Penitentiary.Appellant's only assignment of error challenges that sentence as unconstitutional under the Sixth Amendment to the United States Constitution³and§ 10, Art. I of the Wyoming Constitution.⁴During the oral argument before this court, and before the district court as well, appellant indicated he specifically did not challenge the validity of his guilty plea and the resulting conviction but claims he should not receive a sentence of confinement.

We will affirm.

In 1955, appellant-Cromwell Small entered a plea of guilty in a North Carolina court to two charges of highway robbery with firearms.He had no counsel representing him during those proceedings and, according to his testimony at the time of sentencing in this case, he had not specifically waived his right to such assistance, nor was he asked if he desired an attorney.Following his uncounseled plea to the 1955 offense, Small was sentenced to consecutive terms of imprisonment of 20 to 30 years and 10 to 20 years.After serving just over seven years, appellant was placed on parole.He successfully completed a five-year term of parole.He was never formally pardoned.

During the early part of 1980, appellant came to Wyoming in order to work.On April 14, 1980, defendant was charged with the March 3, 1980, shooting death of Donald Sullivan.The circumstances of the shooting are not entirely clear.The record reflects that appellant's weapon caused the death and that the State is apparently content that the plea bargain arrangement is a satisfactory disposition of the case.Appellant entered his plea of guilty as agreed on May 20, 1980, of having in his possession on March 3, 1980, a firearm.After a full explanation of his rights, including those related to his plea bargain, he admitted that he had been previously convicted of a crime of violence and thus he was guilty of violating § 6-11-115, W.S.1977, 1980 Cum.Supp.Appellant raises no question of any defect in his arraignment.

By his refusal to contest the validity of his conviction in the present case, appellant has waived any challenge to the district court's conclusion that appellant had violated the statute.A plea of guilty made during a lawfully conducted arraignment admits all of the essential elements of the crime charged and waives all non-jurisdictional defenses.United States v. Donohoe, 10th Cir.1972, 458 F.2d 237, cert. denied409 U.S. 865, 93 S.Ct. 157, 34 L.Ed.2d 113; Wright, Federal Practice and Procedure: Criminal§ 175, p. 378.Therefore, we need not determine whether the use of the language "(a)ny person who has previously pleaded guilty or been convicted * * * " in § 6-11-115, W.S.1977, 1980 Cum.Supp., limits the scope of that statute to include only those persons with outstanding or valid convictions.The question raised for us is narrow: can appellant be imprisoned for violating the statute when the previous and underlying conviction was uncounseled.

Appellant cites several United States Supreme Courtcases to support his challenge to his prison sentence.First, he notes Argersinger v. Hamlin, 1972, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530.There the Court stated:

"We hold, therefore, 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.(Footnote omitted.)

"Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel.He will have a measure of the seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts."407 U.S. at 37, 40, 92 S.Ct. at 2012, 2014, 32 L.Ed.2d at 538, 540.

Then appellant argues the case of Scott v. Illinois, 1979, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383, where the Court held:

"Although the intentions of the Argersinger Court are not unmistakably clear from its opinion, we conclude today that Argersinger did indeed delimit the constitutional right to appointed counsel in state criminal proceedings.Even were the matter res nova, we believe that the central premise of Argersinger that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel.Argersinger has proved reasonably workable, whereas any extension would create confusion and impose unpredictable, but necessarily substantial, costs on 50 quite diverse States.We therefore hold that the Sixth and Fourteen 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. * * * "(Footnotes omitted.)440 U.S. at 373-374, 99 S.Ct. at 1162, 59 L.Ed.2d at 389.

But, the main thrust of appellant's argument arises from Baldasar v. Illinois, 1980, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169.There, the facts were:

"Thomas Baldasar, the petitioner, was convicted of misdemeanor theft in Cook County Circuit Court in May 1975.The record of that proceeding indicates that he was not represented by a lawyer and did not formally waive any right to counsel.Baldasar was fined $159 and sentenced to one year of probation.In November 1975the State charged him with stealing a shower head worth $29 from a department store.The case was tried to a jury in DuPage County Circuit Court in August 1976.The prosecution introduced evidence of the prior conviction and asked that Baldasar be punished as a felon under the Illinois enhancement statute.Defense counsel objected to the admission of the 1975 conviction.She argued unsuccessfully 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.App. 7-9.The jury returned a guilty verdict on the felony charge, and Baldasar was sentenced to prison for one to three years."446 U.S. at 223, 100 S.Ct. at 1586, 64 L.Ed.2d at 172.

The Supreme Court reversed in a per curiam opinion; however, its rationale for the decision was discussed in three different concurring opinions of which none were supported by a majority of the court.The consensus was nonetheless that Baldasar's sentence violated Scott v. Illinois, supra, because a previous uncounseled conviction was used to enhance the sentence.

The important but unanswered question in the case concerned the validity of the previous conviction.Was it valid, invalid, or invalid for certain purposes?Justice Blackmun, in an opinion without any concurrences, stated it was invalid.446 U.S. at 229, 100 S.Ct. at 1589, 64 L.Ed.2d at 176.Justice Marshall, joined by Justices Brennan and Stevens, implied that it was at least invalid for imposing a prison term either directly or collaterally.446 U.S. at 224, 100 S.Ct. at 1587, 64 L.Ed.2d at 173.Justice Stewart, also joined by Justices Brennan and Stevens, sidestepped the issue entirely.⁵446 U.S. at 224, 100 S.Ct. at 1586, 64 L.Ed.2d at 172.The dissent concluded that the previous conviction was valid under Scott, supra, because it did not entail imprisonment.

We would further point out that Baldasar involves an habitual criminal charge and sentence.This court has at length discussed the nature of such a proceeding pointing out that being an habitual criminal is not a crime but provides a basis for an enhanced penalty by reason of a status, as determined in a strictly controlled procedure.Chavez v. State, Wyo.1980, 604 P.2d 1341, 1351-1353, citingWaxler v. State, 1950, 67 Wyo. 396, 224 P.2d 514.The case before us involves a prosecution for the new crime of possession and use of a firearm by one having been previously convicted of particularly described felonies, and not yet pardoned.Thus, section 6-11-115, W.S.1977, 1980 Cum.Supp., defined an entirely different crime for which punishment is inflicted independent of any previous criminal conduct.

In order to resolve what on first blush may appear to be a finely drawn distinction, it is best to examine Lewis v. United States, 1980, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198, a case on all fours with the one before us.It holds that an uncounseled felony conviction is not invalid for all purposes and particularly in the type of case we now have before the court:

"In 1961petitionerGeorge Calvin Lewis, Jr., upon his plea of guilty, was convicted in a Florida state court of a felony for breaking and entering with intent to commit a misdemeanor.SeeFla.Stat. § 810.05(1961).He served a term of imprisonment.That conviction has never been overturned, nor has petitioner ever received a qualifying pardon or permission from the Secretary of the Treasury to possess a firearm.See18 U.S.C.App. § 1203(2)and18U.S.C. § 925(c).

"In January 1977, Lewis, on probable cause, was arrested in...