State v. Orr

Citation375 N.W.2d 171
Decision Date01 October 1985
Docket NumberNo. 1073,1073
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Kenneth L. ORR, Defendant and Appellant. Crim.
CourtUnited States State Supreme Court of North Dakota

John E. Greenwood, Asst. State's Atty., Jamestown, for plaintiff and appellee.

Hjellum, Weiss, Nerison, Jukkala, Wright & Paulson, Jamestown, for defendant and appellant; argued by Thomas E. Merrick, Jamestown.

LEVINE, Justice.

Kenneth L. Orr appeals his sentence for driving under the influence in violation of North Dakota Century Code Sec. 39-08-01. We reverse and remand.

On July 6, 1984 Orr was charged with driving under the influence of intoxicating liquor (DUI). The State subsequently moved to amend the complaint to allege that this was Orr's second DUI offense within five years and that if convicted he should be sentenced as a second DUI offender pursuant to NDCC Sec. 39-08-01(5)(b). Attached to the motion was a certified copy of a Jamestown Municipal Court report sheet which declared that Orr had pleaded guilty to a DUI charge on December 8, 1982, received a fine and a five-day suspended jail sentence.

Orr unsuccessfully resisted the State's motion, claiming the municipal court judgment could not be used as proof of his previous DUI conviction because he had not been represented by a lawyer in that proceeding and there was no evidence on the record that he had been advised of, and waived, his right to counsel.

Following a bench trial Orr was found guilty of DUI and sentenced to four days in jail (26 days suspended) to be served consecutively, given a $500.00 fine and ordered to submit to alcohol evaluation. Section 39-08-01(5)(b), NDCC, provides that the sentence for a second DUI conviction within five years must include at least four days' imprisonment, of which 48 hours must be served consecutively, or ten days' community service, at least a $500.00 fine and referral for addiction evaluation.

Orr contends that his municipal court DUI conviction, which was based upon a guilty plea, could not be used to enhance his punishment for the subsequent DUI conviction pursuant to NDCC Sec. 39-08-01(5)(b) when there was no proof that he was advised of, and waived, his right to counsel before pleading guilty to the earlier DUI charge. Consequently, Orr argues that he was sentenced as a second offender in violation of his rights secured by the sixth and fourteenth amendments to the United States Constitution and article I, Sec. 12 of the North Dakota Constitution.

1. First or Second Offense?

At the outset, we note that the trial court failed to articulate its reasons for imposing the particular sentence, in spite of the mandate of NDCC Sec. 12.1-32-02(5), which provides:

"All sentences imposed shall be accompanied by a written statement by the court setting forth the reasons for imposing the particular sentence. The statement shall become part of the record of the case."

Such a statement would have obviated our need to question whether Orr was sentenced as a first offender or as a second. If Orr were sentenced as a first offender, the issue he raises is a non-issue since there would be no enhancement by virtue of a prior conviction. If, on the other hand, his first conviction were the impetus for the trial court's sentence of incarceration then the issue raised by Orr is properly before us. The mere fact that four days' imprisonment was imposed does not by itself provide the answer, because that sentence could have been imposed for either a first or second offense under Secs. 39-08-01(3) and 12.1-32-01(6).

In spite of the absence of a concise explanation for the sentence by the trial court, 1 we are able to glean from the record a basis to conclude that the trial court did sentence Orr to jail only because he was a second offender. The complaint was amended, with leave of court, and over Orr's objection, to allege a second offense and to request sentencing as a second offender. It is not disputed that first offenders in Stutsman County are not sentenced to jail. That the sentence imposed is four days' incarceration and a $500.00 fine, which is the minimum penalty for a second conviction, is, we believe, more than mere coincidence. Finally, the trial court indicated in response to Orr's renewed objection to use of the prior conviction to enhance punishment for his second offense, that he had already decided against Orr's position:

"Well, I made the ruling [i.e., prior conviction was valid for purpose of enhancing sentence for subsequent conviction] and I'm going to stand by it and Mr. Orr I sentence you to pay the fine of $500.00, thirty days in jail, twenty-six suspended...." [Emphasis added.]

Taken as a whole, the record satisfies us that Orr was sentenced to incarceration solely because he was a second offender.

2. Waiver

One accused in a criminal proceeding has the right to the assistance of counsel and the court must inform an accused of that right. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Heasley, 180 N.W.2d 242 (N.D.1970); U.S. Const. Amend. VI and XIV; N.D. Const. art. I, Sec. 12; NDRCrimP 5, 11, and 44.

There was nothing in the municipal court record to indicate that Orr had been advised of, and waived, his right to counsel prior to pleading guilty. Orr does not recall if he was advised of his right to counsel but states that he was not represented by an attorney.

The county court, relying on the presumptions of NDCC Sec. 31-11-03(14-17), presumed that the municipal judge duly informed Orr of his right to counsel and that Orr validly waived that right. It concluded, therefore, that the prior conviction could be used for enhancement purposes.

The trial court erred in presuming that Orr had validly waived that right when the record did not affirmatively indicate such a waiver. 2 State v. Gustafson, 278 N.W.2d 358 (N.D.1979); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). Such a presumption is impermissible because waiver has particularly far-reaching effects in the context of guilty pleas. Insofar as a guilty plea is itself a conviction it constitutes a relinquishment of three important constitutional rights: the privilege against self-incrimination, the right to trial by jury, and the right of confrontation. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). We cannot presume a waiver of these three important constitutional rights from a silent record. State v. Hagemann, 326 N.W.2d 861 (N.D.1982); see also State v. Nordstrom, 331 N.W.2d 901 (Minn.1983). Consequently, the county court erred in ruling Orr waived his right to counsel.

3. Enhancement

Having determined that it has not been shown that Orr waived his right to counsel, our next inquiry goes to the effect of Orr's uncounseled DUI conviction on the present case. The issue is whether or not Orr may be sentenced to mandatory imprisonment as a second DUI offender pursuant to NDCC Sec. 39-08-01(5)(b) when his first DUI conviction resulted from an uncounseled guilty plea without evidence of waiver of counsel.

Orr argues that Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), a plurality per curiam opinion, prohibits use of his first ordinance conviction to enhance his present sentence to include imprisonment. The State counters that Baldasar is not binding precedent because it forbids using a prior uncounseled conviction only when that conviction was punishable by over six months' imprisonment. We agree that because Orr's first DUI conviction was not punishable by over six months' incarceration, Baldasar does not preclude its use to enhance Orr's present sentence. The State also contends that Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), controls and validates Orr's enhanced punishment. We disagree. Resolution of the parties' arguments requires careful analysis of Baldasar and Lewis.

In Baldasar, the petitioner was convicted of a felony and sentenced to a one-to-three-year prison term. At trial, his counsel objected unsuccessfully to evidence establishing an earlier misdemeanor conviction, without counsel or valid waiver of counsel and for which Baldasar received no imprisonment. Under Illinois law, the first conviction enhanced the subsequent offense from a misdemeanor punishable by fine and imprisonment for up to one year to a felony punishable by fine and imprisonment for up to three years. The Supreme Court reversed the conviction in a concurrence by Justice Blackmun and two concurrences written by Justices Stewart and Marshall, joined by Justices Brennan and Stevens. 3 There was no majority rationale for the result.

We follow the Supreme Court's direction in interpreting the holding of a plurality decision.

"When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds ....' ..." Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977).

We thus review the respective positions of the assenting five Justices in Baldasar contained within the three concurrences in order to discern the narrowest grounds of their divergent positions.

In Justice Blackmun's concurrence he maintained his dissenting position in Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), 4 repeating his bright-line test. That test requires counsel to be appointed when an indigent defendant is charged with a non-petty offense or is actually sentenced to a prison term. Because Baldasar's first conviction was for an offense punishable by more than six months' imprisonment, and because counsel was not appointed or waived, Baldasar's first conviction was invalid and could not be used to support enhancement.

Justice Marshall wrote that even if,...

To continue reading

Request your trial
63 cases
  • State v. Woodruff
    • United States
    • New Mexico Supreme Court
    • 21 Noviembre 1997
    ...229, 231 (1979) (holding state constitution required counsel for all persons charged with a criminal misdemeanor); State v. Orr, 375 N.W.2d 171, 177-79 (N.D.1985) (stating that uncounseled convictions are "too unreliable to support the sanction of imprisonment" even for purposes of enhancem......
  • State v. Gregory Alan Me.
    • United States
    • Montana Supreme Court
    • 2 Mayo 2011
    ...a fair trial” and that “the denial of the right to counsel impeaches ‘the very integrity of the fact-finding process.’ ” State v. Orr, 375 N.W.2d 171, 177–78 (N.D.1985) (quoting Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601 (1965), overruled in part, Griffith ......
  • State v. Laurick
    • United States
    • New Jersey Supreme Court
    • 25 Junio 1990
    ...constitution to expand the prohibition of enhanced prison terms based on any uncounseled prior convictions absent waiver. State v. Orr, 375 N.W.2d 171 (N.D.1985). Other courts have read Baldasar broadly. Maine interprets its teaching, as well as the Maine constitution, to preclude use of an......
  • State v. Jacobson
    • United States
    • North Dakota Supreme Court
    • 15 Marzo 1996
    ...areas. See Grand Forks-Traill Water Users v. Hjelle, 413 N.W.2d 344 (N.D.1987) [protection from takings for public use]; State v. Orr, 375 N.W.2d 171 (N.D.1985) [right to counsel]; City of Bismarck v. Altevogt, 353 N.W.2d 760 (N.D.1984) [jury trial rights]; State v. Nordquist, 309 N.W.2d 10......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT