{¶ 16} In this case, the trial court determined that Appellant had established a prima facie case that his prior juvenile adjudication was uncounseled and that he had not validly waived his right to counsel. These determinations have not been challenged on appeal and, therefore, we must accept the trial court's ruling. This Court must determine what constitutes a term of imprisonment for purposes of using a prior juvenile adjudication to enhance the penalty of a later conviction. This is an issue of first impression for this Court.
{¶ 17} Appellant argues that he should not be required to show actual incarceration on his prior juvenile adjudication because juveniles can only be committed to a detention home and cannot be incarcerated. He asserts that the *Page 291 requirement violates the Due Process and Equal Protection Clauses of the United States and the Ohio Constitutions. He further argues that he is being treated differently from others charged with the same offense, in violation of his rights to due process and equal protection.
{¶ 18} The United States Supreme Court has previously noted the similarities between juvenile detention and incarceration. See In reGault (1967), 387 U.S. 1, 27. In finding that juveniles were entitled to due process in In re Gault, the Court noted,
"It is of no constitutional consequence — and of limited practical meaning — that the institution to which [a juvenile] is committed is called an Industrial School. The fact of the matter is that, however euphemistic the title, a `receiving home' or an `industrial school' for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time." Id. at 27.
{¶ 19} Thus, the United States Supreme Court has recognized the similarities between commitment to a detention home for a juvenile and incarceration for an adult. Therefore, I conclude that for purposes of using a prior juvenile adjudication to enhance a subsequent conviction, a sentence of detention for a juvenile is equivalent to a term of imprisonment for an adult. See, e.g., R.C. 2152.21(A)(5)(a) (providing that the court may commit a juvenile adjudicated a juvenile traffic offender for committing a violation of R.C. 4511.19(A) to a detention facility for a period of not longer than five days). Accordingly, the requirement that the prior juvenile adjudication resulted in incarceration is not an impossibility as Appellant contends. However, we must determine if Appellant was treated differently than others similarly situated, which would effectively violate Appellant's right to equal protection under the United States and Ohio Constitutions.
{¶ 20} As previously noted, in Appellant's juvenile case, he had been sentenced to commitment in a detention facility for a period of five days. That sentence was suspended, upon the condition that Appellant follow the rules of probation. Appellant testified in the hearing on his motion that he recalled the suspended sentence and that he did not serve any actual time in a detention facility.
{¶ 21} The right to counsel originates in the Sixth Amendment to the United States Constitution applicable to the states through theFourteenth Amendment. A long line of cases establishes that absent a valid waiver of that right, a defendant may not be imprisoned for any felony or misdemeanor offense. See Argersinger v. Hamlin (1972),407 U.S. 25, 37, 92 S.Ct. 2006, 32 L.Ed.2d 530 (extending the right to counsel to any offense for which imprisonment would be imposed); Scottv. Illinois (1979), 440 U.S. 367, 369-374, 99 S.Ct. 1158, 59 L.Ed.2d 383 (refusing to extend the right to counsel to a defendant charged with *Page 292 an offense for which imprisonment is authorized but not imposed and adopting "actual imprisonment as the line defining the constitutional right to appointment of counsel").
{¶ 22} Recently, in Alabama v. Shelton, (2002), 535 U.S. 654,122 S.Ct. 1764, 152 L.Ed.2d 888, the United States Supreme Court held that the right to counsel extends not only to a defendant who receives a term of actual imprisonment, but also to a defendant who receives a suspended or probated sentence to imprisonment, even if no actual imprisonment results. The Court held:
"A suspended sentence is a prison term imposed for the offense of conviction. Once the prison term is triggered, the defendant is incarcerated * * * for the underlying offense. The uncounseled conviction at that point `results in imprisonment'; it `ends up in the actual deprivation of a person's liberty.'" (Internal citations omitted.)Shelton, 535 U.S. 654, 662.
{¶ 23} While Shelton concerned a direct appeal from a conviction where the defendant alleged that he had been denied counsel, I believe that Shelton provides guidance as to whether a suspended sentence, imposed in a prior, uncounseled conviction, constitutes imprisonment such that the prior conviction may be used to enhance the penalty for a subsequent conviction.
{¶ 24} In State v. Williams, the Fifth District Court of Appeals held that the defendant's prior uncounseled conviction, which resulted in a suspended sentence, could not be used to enhance a subsequent conviction. State v. Williams, 5th Dist. No. 02CA00017, 2002-Ohio-4244, at ¶ 18-19. The court determined that the suspended sentence for the prior conviction imposed a prison term under Shelton. Id. at ¶ 19. See, also, State v. Black (C.A. 4, 2002), 37 Fed. Appx. 654.
{¶ 25} I find Williams to be persuasive. In the case sub judice, Appellant's prior juvenile conviction resulted in a suspended sentence of five days detention; thus, the suspended sentence was "a prison term imposed for the offense." See Shelton, 535 U.S. at 662. Accordingly, Appellant meets the requirement that his prior juvenile adjudication resulted in incarceration, and, as such, it cannot be used to enhance his subsequent DUI conviction that is the subject of this appeal because it was uncounseled and he did not validly waive counsel. Thus, I believe that the trial court erred when it enhanced the penalty for the DUI based upon the prior juvenile adjudication. I would sustain Appellant's assignment of error, vacate the judgment of the trial court, and remand for further proceedings. *Page 293