State v. Novak

• Decision Date: 27 April 1982
• Docket Number: No. 81-538-CR,81-538-CR
• Citation: 107 Wis.2d 31,318 N.W.2d 364
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Frank G. NOVAK, Jr., Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 364

318 N.W.2d 364

107 Wis.2d 31

STATE of Wisconsin, Plaintiff-Respondent, v. Frank G. NOVAK, Jr., Defendant-Appellant-Petitioner.

No. 81-538-CR.

Supreme Court of Wisconsin.

Argued March 31, 1982.

Decided April 27, 1982.

Charles Bennett Vetzner, State Public Defender, Madison, for defendant-petitioner.

Jerome S. Schmidt, Asst. Atty. Gen. (argued), for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

DAY, Justice.

This is a review of a decision of the court of appeals, 315 N.W.2d 729, which affirmed a judgment of the circuit court for Chippewa county, Hon. Richard H. Stafford, Judge, convicting Frank G. Novak, Jr. (hereinafter defendant) of operating a motor vehicle while under the influence of an intoxicant in violation of section 346.63(1), Stats.1979-80, ¹ and sentencing the defendant to five days in jail which sentence was stayed pending further order of the trial court.

The issue in this case is: Does imposition of five days incarceration as punishment for having been twice convicted within a five year period of operating a motor vehicle while under the influence of an intoxicant, violate defendant's constitutional rights under the sixth and fourteenth amendments to the United States Constitution and article 1, section 7 of the Wisconsin Constitution, where the first conviction was obtained under a municipal ordinance and the defendant did not have an attorney at that time. We hold that the constitutional rights of a defendant represented by counsel in proceedings leading to a second conviction of violating section 346.63(1), Stats., are not violated when he is incarcerated pursuant to section 346.65(2)(a)2, Stats.1979-80, ² even though he did not have counsel in the proceedings leading to his initial conviction which subjected him to a civil forfeiture. We therefore affirm the decision of the court of appeals which affirmed the judgment of conviction.

On October 20, 1980, a criminal complaint was issued charging defendant with operating a motor vehicle while under the influence of an intoxicant (hereinafter OWI) in violation of section 346.63(1), Stats. The defendant pled guilty on December 3, 1980. At that hearing, in which defendant was represented by counsel, it was stipulated that defendant had been previously convicted within five years of OWI. It was also stipulated that defendant did not have an attorney in the proceedings which resulted in that earlier conviction.

Defendant pled guilty to the second OWI offense but argued that it would be improper to impose the jail sentence required by section 346.65(2)(a)2, Stats., upon conviction of a second OWI within a five-year period because he did not have counsel in the case resulting in his first conviction, relying on Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980). The trial court rejected this argument and sentenced defendant to five days in jail pursuant to section 346.65(2)(a)2. The sentence was stayed pursuant to section 346.65(2)(b)2, because of defendant's participation in a rehabilitation program.

Defendant appealed the part of the conviction which imposed the jail sentence to the court of appeals, which affirmed the circuit court decision. The defendant petitioned this court for review, which we granted.

Defendant argues that, under Baldasar, an uncounselled civil forfeiture conviction may not be used to impose incarceration for a subsequent conviction. A first conviction of operating a motor vehicle while intoxicated subjects the person convicted to a civil forfeiture only. A second conviction within five years is a criminal misdemeanor requiring a minimum five-day jail sentence. Defendant does not contend that his lack of counsel in the case leading to his first conviction makes that conviction invalid for all purposes. Rather, he asserts that the absence of counsel in the case leading to his first conviction precludes using that conviction as the basis for subjecting him to incarceration as a repeat offender.

In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the United States Supreme Court held that an accused in a criminal proceeding has a constitutional right to be represented by counsel. In Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 262, 19 L.Ed.2d 319 (1967), the United States Supreme Court held that a prior criminal conviction obtained in violation of the right to counsel set forth in Gideon could not be used to enhance the punishment imposed for a subsequent offense.

Gideon and Burgett involved felony convictions. However, the constitutional right to counsel was extended to defendants accused of misdemeanors in Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530 (1972). This extension was limited in Scott v. Illinois, 440 U.S. 367, 373-74, 99 S.Ct. 1158, 1161-62, 59 L.Ed.2d 383 (1979), where the United States Supreme Court held that an accused misdemeanant was constitutionally entitled to counsel only if he was actually incarcerated as a result of the conviction. There was no constitutional right to counsel in misdemeanor cases where incarceration was authorized but not actually imposed. There were two dissenting opinions filed in Scott. The first, by Justice Brennan joined by Justices Marshall and Stevens, argued that criminal defendants were entitled to counsel in all cases where incarceration was authorized. 440 U.S. at 382. Justice Blackmun, in a separate dissent, argued for adoption of a "bright line" test where a criminal defendant is entitled to counsel if he is actually incarcerated or is prosecuted for an offense punishable by more than six months imprisonment. ³ 440 U.S. at 390, 99 S.Ct. at 1170.

Baldasar, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169, upon which defendant principally relies, is the latest United States Supreme Court decision in this area. Baldasar involved an Illinois theft statute. A first conviction under the statute was a misdemeanor punishable by up to a year's imprisonment and a $1,000 fine. A second conviction of the same offense could be treated as a felony, punishable by a one-to-three-year prison term. Mr. Baldasar had been convicted of misdemeanor theft in 1975 in a proceeding at which he was not represented by counsel. He was fined $159 and placed on probation. Since he was not actually incarcerated, this conviction was valid under Scott.

In 1976, Mr. Baldasar was again convicted of theft. After a jury trial, at which he was represented by counsel, he was convicted and sentenced as a second offender to one-to-three-years imprisonment. He challenged the conviction and sentence on the ground that its felony status and the one to three year prison sentence imposed were due to his earlier uncounselled conviction, thereby violating Gideon, Burgett and Scott. The Illinois appellate court rejected this contention. He petitioned the United States Supreme Court, which granted certiorari.

The court reversed in a per curiam order. There was no majority decision, but rather three concurring opinions, authored by Justices Stewart, Marshall and Blackmun, and a dissent. Justice Stewart, who was a member of the Scott majority, stated that since Mr. Baldasar was imprisoned in the second case only because of his previous uncounselled conviction, the Scott "actual incarceration" rule required that the sentence imposed in the second case be overturned.

Justice Marshall who, along with Justices Brennan, Stevens and Blackmun had dissented in Scott, reiterated his dissatisfaction with that ruling but stated that even if one accepted the line drawn in Scott, a prior uncounselled misdemeanor conviction could not be used to impose an increased term of incarceration upon a subsequent conviction. Even though the earlier conviction was valid under Scott because incarceration was not actually imposed, it was invalid for the limited purpose of enhancing the prison sentence imposed by virtue of the defendant's status as a repeat offender, 446 U.S. at 225-26, 100 S.Ct. at 1587-88.

Justices Brennan and Stevens joined both of the above opinions. Justice Blackmun, the fifth vote, did not join either of the above concurring opinions, nor was his opinion joined by any of the other Justices. Justice Blackmun's separate concurrence reiterated the "bright line" test which he proposed in his Scott dissent.

The dissenting opinion, authored by Justice Powell, joined by Chief Justice Berger and Justices Rehnquist and White, stated that since defendant's first uncounselled conviction was valid under Scott, it was valid for all purposes, including increasing the term of incarceration imposed because of defendant's status as a repeat offender.

Because Baldasar is clearly pertinent to the case at hand, we must determine the rule of law of that case from its several opinions. See Note: The Precedential Value of Supreme Court Plurality Decisions, 80 Colum.L.Rev. 756 (1980) (hereinafter cited as Plurality Decisions ); Note: Plurality Decisions and Judicial Decisionmaking,[107 Wis.2d 38] , 94 Harv.L.Rev. 1127 (1981). In Marks v. United States, 430 U.S.2d 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977), the United States Supreme Court held that the holding of a United States Supreme Court decision where no opinion commands the support of a majority of the Justices is the position taken by the Justices who base their acquiescence in the decision on the narrowest grounds. The rationale underlying this "narrowest grounds" interpretation of plurality decisions is that it constitutes a least common denominator upon which all of the Justices in the majority agree, even though some would support the decision on broader grounds. ⁴ However, there does not seem to be any such least common denominator among the Baldasar opinions that applies to the case before us.

The concurring opinions by Justices Stewart and Marshall which, between them, commanded the support of four Justices, declared that even if the first...