dissenting. I respectfully dissent. Even if we should eventually reach the result the majority does, in a proper case, I submit that this is not such a case, that Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972), does not mandate the result reached, and that the authorities cited do not support it. I would affirm the judgment.
It should be noted that appellant was represented by counsel when his sentence was suspended and when the suspension was revoked. He was prosecuted by city officials on the charge of assault and battery. There is nothing to show that the municipal judge or any of the city officials were aware of Alexander’s suspended sentence or that there was any reason to expect them to have been. There is nothing to indicate that the prosecuting attorney or any county law enforcement officer was aware of the charge of assault and battery until after the conviction. It was quite natural that the state did not move to revoke the suspension of sentence until after the assault and battery conviction had become final. Even though it is not required that the state await the final disposition of a charge that would violate the terms of suspension of a previous sentence before moving to revoke the suspension, it is considered the better practice to do so. Alexander knew, or should have known, when he was tried in the municipal court that a finding that he was guilty of assault and battery would jeopardize his continued liberty under the suspension of sentence. So far as we know, he is the only one in the courtroom who did. Yet there is nothing to show that he called this matter to that court’s attention when he proceeded to trial without the assistance of counsel. The idea that he did not have any reason to know that an assault and battery was not good behavior seems preposterous to me.
Argersinger does not operate to invalidate Alexander’s conviction of assault and battery. This is clearly recognized by the writer of Argersinger v. Hamlin and the Collateral Use of Prior Misdemeanor Convictions of Indigents Unrepresented by Counsel at Trial, 35 Ohio St. L. J. 168 (1974), even though its author bitterly bewails that fact, sharply criticizes the U.S. Supreme Court for not so holding, and says that the court’s reasoning and its holding do not coalesce. That author says that the holding is narrow and does nothing more than bar a jail sentence. She says:
****It fails to speak to the constitutionality of the underlying conviction. **** (p. 169)
**** Yet it is the sentence that determines whether counsel is constitutionally required. **** (p. 174)
**** Therefore, the Court’s focus on sentencing cannot be explained by asserting the Court concluded that only uncounseled misdemeanor trials resulting in loss of liberty are inherently unconstitutional, (p. 175)
**** Because Argersinger was limited to sentences of imprisonment, a distinction must be made between convictions which result in imprisonment and those which do not. **** (p. 176)
These collateral uses of previous convictions to enhance punishment should be disallowed if the previous conviction is constitutionally invalid under Argersinger. **** (p. 178)
**** Burgett [Burgett v. Texas, 389 U.S. 109 at 114-16, 88 S. Ct. 258, 19 L. Ed. 2d 319] and Tucker [United States v. Tucker, 404 U.S. 443 at 447-48, 92 S. Ct. 589, 30 L. Ed. 2d 592] indicate that constitutionally invalid convictions constitute an erroneous record which may not be used collaterally. Since Argersinger held that an uncounseled misdemeanor conviction which results in imprisonment is an unreliable determination of guilt, and therefore constitutionally invalid, it follows that such convictions may not be used collaterally as the basis for the revocation of probation, parole, or a suspended sentence. The revocation should be vacated and reconsideration given without reference to any invalid convictions, (p. 179).
**** Although no court has directly dealt with the revocation of a suspended sentence based on invalid misdemeanor convictions, a similar result should follow since the circumstances are sufficiently analogous to probation and parole revocations. Thus a misdemeanor conviction obtained in violation of the Argersinger rule should be restricted from indirectly resulting in loss of liberty, (p. 180)
Under Argersinger uncounseled misdemeanor convictions of indigents are still constitutionally valid if imprisonment is not imposed. **** (p. 182)
**** Qne approach would place no restriction on the use of convictions not invalidated by Argersinger. The argument may be framed in syllogistic fashion: Uncounseled misdemeanor convictions which do not result in imprisonment are constitutional. Constitutionally obtained convictions may be used collaterally. Therefore, collateral use of uncounseled misdemeanor convictions not resulting in imprisonment is proper. This argument is based on a rigid interpretation of the Court’s holding in Argersinger. Although the major premise of this syllogism is presently accurate, no Supreme Court decision has specifically held that uncounseled misdemeanor convictions which do not result in imprisonment are constitutional. Instead, their constitutionality is upheld only by default — the Argersinger court having refused to consider the issue. Even so, this argument is not without merit, for it accurately, though narrowly, portrays the current status of the law. (p. 183)
There is, however, the Argersinger Court’s concern about the effect of its decision on the administration of justice. Requiring that any misdemeanor conviction must be counseled in order for it to result, directly or indirectly, in loss of liberty effectively extends the right to counsel in all misdemeanor cases. This is exactly what the Court refused to do in Argersinger. The pre-trial problems would be magnified; in each misdemeanor trial the decision whether to appoint counsel would have to be made not only on the basis of whether imprisonment would be an available sentencing alternative, but also on the basis of whether, if convicted and only fined, the conviction would have a potential collateral effect on liberty. Such a predetermination would be an administrative nightmare and would in effect stimulate a general appointment of counsel except for the most minor charges. Thus the apparent desire of the Court to avoid the burden of a broad extension of the right to court-appointed counsel would be severely compromised. (p. 184)
In Cottle v. Wainwright, 477 F. 2d 269 (5 Cir., 1973), the court made a distinction between a conviction without assistance of counsel where a jail sentence was imposed and one where there was no jail sentence. A parole revocation was under consideration there. That court held that a parole could not be revoked on the basis of prior invalid convictions and that, since Cottle’s first misdemeanor conviction without assistance of counsel did not result in his imprisonment, the rule m Argersinger did not apply and this conviction was not tainted and could be considered. On the other hand, the court held that a second such conviction, which did result in a sentence of imprisonment, was constitutionally invalid and could not be considered.
Marston v. Oliver, 485 F. 2d 705 (4 Cir., 1973) involved the possible use of a conviction which resulted in a prison sentence for the revocation of a driver’s license. It was conceded that, had this conviction occurred after Argersinger, it would have been open to constitutional attack. The court was there dealing only with the question of retroactive application of Argersinger to relieve the convicted person of collateral consequences of the conviction on a civil right. The statement that Argersinger would apply to loss of liberty which is either a direct or collateral consequence of the uncounselled conviction is purely dictum and inconsistent with that court’s apparent approval of the decision in Cottle v. Wainwright, supra.
State v. Reagan, 103 Ariz. 187, 440 P. 2d 907 (1968) was decided long before Argersinger. It did not involve the same questions. In Arizona the rule of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1962) had been extended to “serious offenses,” i.e., misdemeanors which the superior court determines to be serious “under the particular circumstances”. The Argersinger court did not extend the Gideon rule so far.
In State v. Kirby, 33 Ohio Misc. 48, 289 N.E. 2d 406 (1972) the court did consider Argersinger. It, however, applied Gideon and Argersinger on the premise that the Ohio statutes involved made earlier misdemeanor convictions “serious offenses”. Even though the Ohio court made no distinction, it should be noted that one of the two previous convictions resulted only in a fine and the other resulted in a six-month workhouse sentence. The Ohio Statute involved made a second conviction a felony. Sec. 3719.50, 3719.99 (N).
I would affirm the judgment in this case.
I am authorized to state that the Chief Justice joins in this dissent.