dissenting:
I respectfully dissent. I recognize that the Argersinger court directed itself only to cases wherein an uncounseled defendant had been convicted of a criminal offense and was then sentenced to imprisonment for that offense and that conviction. I further recognize that in the instant case the 1975 theft conviction itself was valid under Argersinger because, while the defendant was not represented by counsel at trial, he also was not imprisoned following his conviction. However, I do not agree with the majority when they say the Argersinger court “carefully limited its holding to a conviction and the sentence imposed for that conviction.”
I would analyze the broad “Argersinger problem” by breaking Argersinger-type cases down into four classifications:
(1) Uncounseled misdemeanor convictions; under Argersinger no jail sentence can be imposed unless defendant has counsel, or knowingly waives counsel.
(2) Cases like the instant case, where a defendant is subject to much more severe penalties in a subsequent case because of an earlier, uncounseled misdemeanor conviction. Imprisonment in such cases would bé increased as a direct consequence of the earlier, uncounseled conviction.
(3) Cases similar to People v. Heal (1974), 20 Ill. App. 3d 965, wherein the court considers prior, uncounseled convictions that are contained in a presentence report. Although Heal did not really involve the Argersinger problem (since no jail sentence was imposed), the court’s citation of Aldrighetti v. State (Tex. Crim. App. 1974), 507 S.W.2d 770, in the context of the use of the pre-sentence report, implies that prior, uncounseled misdemeanor convictions can be considered by the court in imposing sentence. Certainly this is the view of Heal which both the State and the majority take.
(4) Cases like Aldrighetti v. State wherein the court approved the introduction of an earlier, uncounseled conviction for impeachment purposes. As noted, Aldrighetti was cited with ápproval in Heal.
Each one of the last three classes of cases present wholly different policy considerations, and a holding on a point (in one type of case) is thus distinguishable from a holding on a point involving one of the other types of cases. Thus, for example, in the instant case, proof of the prior, uncounseled conviction is an element of the State’s case in chief and can only be proven through competent evidence, whereas for policy reasons, hearsay can be introduced in presentence reports or at a sentencing hearing, such as was at issue in Heal. Therefore, assuming the court approved the use of uncounseled convictions for impeachment and sentencing in Heal, in view of the different policy considerations that arise when the prior conviction is an element of the case in chief, Heal is no authority for the introduction of the earlier conviction in this case.
Further, in the instant case, two years of (potential) extra imprisonment are the direct result of the earlier conviction. In the Aldrighetti case, where the misdemeanor was introduced for impeachment purposes, the link between the prior conviction and the defendant’s imprisonment was quite remote, or even speculative; it was impossible to state that, “but for” the earlier conviction, the defendant would not have gone to jail, or would have received a lesser sentence. The same can be said in the Heal context, though to a lesser extent, since sentencing involves the court’s discretion, and prior convictions are but one factor in the exercise of that discretion. Clearly, in the instant case, imprisonment is a far more direct consequence of the use of the earlier conviction than would be the case in cases involving either impeachment or presentence reports.
In my opinion, it follows from these distinctions that a holding in this case, precluding the introduction of an uncounseled conviction as an element of the State’s case in chief, leading directly to enhanced punishment, would not preclude the introduction of such convictions for impeachment, or in presentence reports. Thus, the holding here would only arise in convictions where the statute provides for an enhanced penalty upon a second conviction.
Turning to the primary question of whether uncounseled convictions can be used in this specific class of cases, it is my thought that the question should be answered in the negative. This court, and others, has held that Argersinger should be applied to invalidate prior convictions where “the direct or collateral consequences from uncounseled misdemeanor convictions relate to loss of liberty or imprisonment.” (Emphasis added.) (People v. Placek (1976), 43 Ill. App. 3d 818, 821.) Here, the direct consequence of the uncounseled misdemeanor conviction was an extra two years added to the defendant’s maximum sentence. On this basis, it seems to me that the instant case falls within Argersinger and should be reversed and remanded for resentencing as a misdemeanor.