State v. Armstrong

• Decision Date: 10 July 1985
• Docket Number: No. 16218,16218
• Citation: 175 W.Va. 381,332 S.E.2d 837
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Bruce ARMSTRONG.

Page 837

332 S.E.2d 837

175 W.Va. 381

STATE of West Virginia v. Bruce ARMSTRONG.

No. 16218.

Supreme Court of Appeals of West Virginia.

Submitted April 23, 1985.

Decided July 10, 1985.

Syllabus by the Court

1. Under the sixth amendment of the federal constitution and article III, section 14 of the West Virginia Constitution, unless an individual convicted of a misdemeanor was represented by counsel or knowingly and intelligently waived the right to counsel, such prior conviction may not be used to enhance a sentence of imprisonment for a subsequent offense.

2. "The constitutional right to assistance of counsel may be waived by an accused by conduct which demonstrates intelligent and understanding waiver." Syl. pt. 1, State v. Britton, 157 W.Va. 711, 203 S.E.2d 462 (1974).

3. "The right of the defendant in a criminal proceeding to the assistance of counsel is a fundamental right, the waiver of which will not be presumed by the failure of the accused to request counsel, by the entry of a guilty plea or by reason of a record silent concerning the matter of counsel and the conviction of a defendant in the absence of counsel or of an affirmative showing of an intelligent waiver of such right is void." Syl. pt. 3, State ex rel. Widmyer v. Boles, 150 W.Va. 109, 144 S.E.2d 322 (1965).

4. "Where the record affirmatively discloses that a person accused of a crime expressly waived his constitutional right to assistance of counsel and his constitutional right to trial by jury and entered a plea of guilty to the charge, such waivers and such plea of guilty will not be held in a habeas corpus [or other collateral attack] proceeding to be void on the ground that such waivers were not made intelligently and understandingly or that the plea of guilty was not entered intelligently and understandingly, unless such contentions are supported by proper allegations and by a preponderance of the evidence." Syl. pt. 6, State ex rel. Powers v. Boles, 149 W.Va. 6, 138 S.E.2d 159 (1964).

Michael W. McGuane, Wheeling, for appellant.

Mary Rich Maloy, Asst. Atty. Gen., Charleston, for appellee.

McGRAW, Justice:

This appeal arises out of the appellant's 1982 conviction for driving under the influence of alcohol (hereinafter DUI), third offense, in the Circuit Court of Ohio County. The appellant, Bruce Armstrong, was arrested upon a DUI charge in Wheeling, Ohio County, on February 5, 1982. Subsequently, in April of 1982, the appellant was indicted by an Ohio County grand jury for third offense DUI, a felony under the applicable State law. ¹

Prior to trial, the appellant filed a "Motion to Dismiss the Indictment, or, in the Alternative, to Strike Prior Convictions," alleging that he was not afforded counsel and did not properly waive his right to counsel before pleading guilty in the two prior misdemeanor DUI convictions. The appellant contended that his two prior uncounseled convictions could not be used to convert the instant DUI charge to a felony as third offense. ² A hearing was held on the matter, and the motion was subsequently denied.

Upon the agreement of the parties, the case was bifurcated for trial purposes. In the first jury trial, the appellant was found guilty of driving while under the influence of alcohol on February 5, 1982. In the second proceeding, another jury found the appellant to be the same person who pleaded guilty to driving while under the influence of alcohol on two prior occasions--June 17, 1977 and September 6, 1978. Subsequently, by order entered January 21, 1983, the Circuit Court of Ohio County sentenced the appellant to imprisonment for a period of one to three years.

The appellant does not challenge the guilty verdict against him for DUI stemming from his arrest on February 5, 1982. Rather, the appellant now seeks appellate review solely upon questions arising out of the use of the two prior DUI convictions to enhance the most recent charge and conviction to a felony for third offense. Based upon the findings and conclusions which follow, we reverse the proceedings below.

In the first assignment of error, the appellant asserts there was lack of counsel or effective waiver of such in both of his two prior DUI convictions, which therefore precluded their collateral use to elevate the penalty for the immediate DUI conviction. In the recent case of Ash v. Twyman, 174 W.Va. 177, 324 S.E.2d 138 (1984), this Court was presented with this issue within the context of an original proceeding in prohibition. Due to the absence of a sufficiently developed factual record to support the petitioner's assertions in Ash, we denied the writ. The legal principles discussed in Ash, however, remain pertinent to our resolution of the right to counsel issue in this appeal, where we are presented with a full factual record of completed proceedings below.

The parameters of the constitutional right to counsel in misdemeanor cases have been well delineated under the state and federal constitutions. To begin, as stated in syllabus point 1 of State v. Blosser, 158 W.Va. 164, 207 S.E.2d 186 (1974), "West Virginia Constitution, Article III, Section 14, guarantees 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." See also State v. Eden, 163 W.Va. 370, 377, 256 S.E.2d 868, 872 (1979); syl. pt. 1, Bullet v. Staggs, 162 W.Va. 199, 250 S.E.2d 38 (1978). The entitlement to representation at all "critical stages" necessarily includes the right to counsel before entering a plea of guilty in a misdemeanor case where imprisonment is imposed. A conviction upon a plea of guilty rather than after a full trial does not diminish the right to counsel. See Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367 (1945).

The holding in Blosser, supra, tracks the language of United States Supreme Court in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). In Argersinger, the Court held that the federal sixth amendment right to counsel previously recognized for those accused of serious crimes ³ also applied to those facing actual loss of liberty for petty or misdemeanor offense. Seven years later, in Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), the Court resolved a question left unanswered by Argersinger, whether the right to counsel is mandated when an individual is charged with a misdemeanor offense for which imprisonment is authorized but not actually imposed. The Scott court, rejecting the petitioner's argument that the right to counsel attached whenever "potential imprisonment" was involved, reiterated the Argersinger rule that the sixth amendment right to counsel is limited in misdemeanor cases to those involving "actual imprisonment." 440 U.S. at 373, 99 S.Ct. at 1162, 59 L.Ed.2d at 389.

Finally, it is well established that if no imprisonment could have been imposed for a particular misdemeanor conviction for the reasons stated in Argersinger and Scott, then that conviction may not be used as part of the basis for imprisonment under an enhancement statute. Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980). Whether or not one was actually imprisoned under a prior misdemeanor conviction is immaterial. An uncounseled conviction, valid under Argersinger and Scott because no imprisonment was imposed, is not valid for all purposes. 446 at 226, 100 S.Ct. at 1587, 64 L.Ed.2d 174 (Marshall, J., concurring). Under the sixth amendment of the federal constitution and article III, section 14 of the West Virginia Constitution, unless an individual convicted of a misdemeanor was represented by counsel or knowingly and intelligently waived the right to counsel, such prior conviction may not be used to enhance a sentence of imprisonment for a subsequent offense.

The record in this appeal clearly indicates that the appellant's two prior DUI convictions resulted from guilty pleas made without the assistance of legal counsel. Accordingly, the only substantial question presented is whether the appellant waived his constitutional right to counsel. "The constitutional right to assistance of counsel may be waived by an accused by conduct which demonstrates intelligent and understanding waiver." Syl. pt. 1, State v. Britton, 157 W.Va. 711, 203 S.E.2d 462 (1974). In syllabus point 3 of State ex rel. Widmyer v. Boles, 150 W.Va. 109, 144 S.E.2d 322 (1965), however, this Court stated the general guidelines which safeguard against the wrongful presumption of such a waiver:

The right of the defendant in a criminal proceeding to the assistance of counsel is a fundamental right, the waiver of which will not be presumed by the failure of the accused to request counsel, by the entry of a guilty plea or by reason of a record silent concerning the matter of counsel and the conviction of a defendant in the absence of counsel or of an affirmative showing of an intelligent waiver of such right is void.

See also Ash v. Tyman, 174 W.Va. at 180, 324 S.E.2d at 141 (citing additional authority). Therefore, whether a waiver of right to counsel was knowingly and understandably made is a question of fact to be determined upon the particular circumstances of each case. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); State ex rel. Powers v. Boles, 149 W.Va. 6, 9, 138 S.E.2d 159, 162 (1964).

In Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975), we set forth guidelines pertaining to matters a trial court judge should endeavor to routinely spread upon the record when a criminal defendant proposes to enter a guilty plea. Related to the right to counsel, we stated that, "If the defendant waives counsel, he should be informed that a waiver of counsel may be accepted only if intelligently and understandingly made and the court should determine this question not only to its own satisfaction, but also on the record for the...