Griswold v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Baker, Benton, Coleman,
Koontz, * Willis, Elder, Bray and Fitzpatrick
Argued at Richmond, Virginia

NORMAN EDWARD GRISWOLD

v. Record No. 2269-92-2 OPINION BY
JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA SEPTEMBER 5, 1995

UPON REHEARING EN BANC

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge

William H. Shewmake (Thomas F. Coates, III;
Shewmake, Baronian & Parkinson; Coates &
Davenport, on brief), for appellant.

Thomas C. Daniel, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

By opinion issued January 10, 1995, Griswold v.

Commonwealth, 19 Va. App. 477, 453 S.E.2d 287 (1995), a panel of

this court reversed Norman Edward Griswold's conviction of

driving while under the influence of alcohol after having been

convicted previously of a like offense and remanded the case for

further proceedings. We granted the Commonwealth's motion for

rehearing en banc and stayed the mandate of the panel decision.
Upon rehearing en banc, we vacate the mandate of the panel

decision and affirm the judgment of the trial court.

*
Justice Koontz participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
 I.

Griswold was tried on a charge of operating a motor vehicle

while under the influence of alcohol, in violation of Code

§ 18.2-266, after having been convicted previously of a like

offense. The Commonwealth tendered in evidence certified copies

of two previous orders of conviction.

The first previous order, dated 1983, recited Griswold's

conviction of driving while under the influence of alcohol. He

was sentenced to pay a fine of $200 (of which $100 was

suspended), to serve thirty days in jail (all of which was

suspended), and his operator's license was suspended. Because

Griswold was not represented by counsel at his 1983 conviction,

the trial court rejected that conviction as evidence in the guilt

phase of his trial but considered it in fixing sentence.
The second previous order, dated 1985, recited Griswold's

conviction of driving while under the influence of alcohol. He

was sentenced to pay a fine of $800 (of which $600 was

suspended), to serve 180 days in jail (of which 178 days were

suspended), and his operator's license was suspended. The trial

court concluded that Griswold was represented by counsel at his

1985 conviction. It admitted evidence of that conviction at both

the guilt and sentencing phases of Griswold's trial.

II.

For the reasons set forth in Section II of the panel

opinion, 19 Va. App. at 480, 453 S.E.2d at 288-89, we conclude

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that the 1983 and 1985 conviction orders were properly introduced

at trial and made a part of the record on appeal. For the

reasons set forth in Section IV of the panel opinion, 19 Va. App.

at 483, 453 S.E.2d at 290-91, we conclude that the trial court

erred in finding that Griswold was represented by counsel at his

1985 trial.

III.

In Argersinger v. Hamlin, 407 U.S. 25 (1972), the Supreme

Court stated:
We hold . . . that absent a knowing and
intelligent waiver, no person may be imprisoned
for any offense, whether classified as petty,
misdemeanor, or felony, unless he was represented
by counsel at his trial.

Id. at 37. The Court went on to say:
Under the rule we announce today, every judge will
know when the trial of a misdemeanor starts that
no imprisonment may be imposed, even though local
law permits it, unless the accused is represented
by counsel.

Id. at 40. Reaffirming Argersinger, the Supreme Court, in Scott
v. Illinois, 440 U.S. 367 (1979), said:
Argersinger did indeed delimit the constitutional
right to appointed counsel in state criminal
proceedings. . . . [W]e believe that the central
premise of Argersinger -- that actual imprisonment
is a penalty different in kind from fines or the
mere threat of imprisonment -- is eminently sound
and warrants adoption of actual imprisonment as
the line defining the constitutional right to
appointment of counsel. . . . We therefore hold
that the Sixth and Fourteenth Amendments to the
United States Constitution require only that no
indigent criminal defendant be sentenced to a term
of imprisonment unless the State has afforded him
the right to assistance of appointed counsel in
his defense.

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Id. at 373-74 (emphasis supplied).

In Baldasar v. Illinois, 446 U.S. 222 (1980), a divided

Supreme Court, in which there was no majority rationale, held use

of a prior uncounseled misdemeanor conviction, constitutional

under Scott, could not be used to elevate a subsequent

misdemeanor conviction to a felony. Justice Stewart, joined by

Justices Brennan and Stevens, held that because elevation of the

offense was based upon the prior conviction, assistance of

counsel in the prior proceeding was required. Justice Marshall,

joined by Justices Brennan and Stevens, held that an uncounseled

misdemeanor conviction is not sufficiently reliable to be

received as proof of the crime. Justice Blackmun held that

charges of non-petty offenses were of sufficient dignity to

require provision of counsel.
Dissenting in Baldasar, Justice Powell, joined by the

remaining three members of the Court, held that the majority

result ignored the nature of enhancement statutes and the

validity of the prior convictions and created a hybrid class of

conviction, good for some purposes but not for others.

In Nichols v. United States, ___ U.S. ___, 114 S. Ct. 1921
(1994), the Supreme Court overruled Baldasar, embracing the views

of the Baldasar dissent. The Court reaffirmed its "holding that

so long as no imprisonment was actually imposed, the Sixth

Amendment right to counsel did not obtain." Id. at ___, 114 S.

Ct. at 1927. The Court said:

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 We adhere to that holding today, but agree with
the dissent in Baldasar that a logical consequence
of the holding is that an uncounseled conviction
valid under Scott may be relied upon to enhance
the sentence for a subsequent offense, even though
that sentence entails imprisonment. Enhancement
statutes, whether in the nature of criminal
history provisions such as those contained in the
Sentencing Guidelines, or recidivist statutes
which are common place in state criminal laws, do
not change the penalty imposed for the earlier
conviction. As pointed out in the dissenting
opinion in Baldasar, "[t]his Court consistently
has sustained repeat-offender laws as penalizing
only the last offense committed by the defendant."

Id. (citations omitted). Finally, the Court said:
Accordingly we hold, consistent with the Sixth and
Fourteenth Amendments of the Constitution, that an
uncounseled misdemeanor conviction, valid under
Scott because no prison term was imposed, is also
valid when used to enhance punishment at a
subsequent conviction.

Id. at ___, 114 S. Ct. at 1928.

Nichols reaffirms the holding in Scott that actual

imprisonment, not the mere threat of imprisonment, is the bright-

line standard for determining the Sixth and Fourteenth Amendment

right to assistance of counsel in a misdemeanor prosecution.

Because Griswold's 1983 conviction involved the imposition of no

imprisonment, evidence of that conviction could be used in both

the guilt and sentencing stages of Griswold's trial.

Griswold argues that, because his 1985 sentence imposed two

days imprisonment, that conviction was invalid under Scott and

Nichols. This argument defies reason and is contrary to the

rationale of Nichols. Argersinger and Scott proscribe only the

imposition of confinement upon an uncounseled conviction.

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Neither case addresses the validity of the conviction itself.

Indeed, Scott specifically states "the Sixth and Fourteenth

Amendments . . . require only that no indigent criminal defendant

be sentenced to a term of imprisonment" without the right to

counsel. Scott, 440 U.S. at 373-74.

It would defy reason to hold that Griswold's 1985 conviction

would be valid for any purpose had the entire 180 day jail

sentence been suspended, but that the entire proceeding was void

simply because he was sentenced to serve two days confinement.

The Supreme Court rejected such a notion in Nichols, saying:
[An] important factor, as recognized by state
recidivism statutes and the criminal history
component of the Sentencing Guidelines, is a
defendant's prior convictions. Sentencing courts
have not only taken into consideration a
defendant's prior convictions, but have also
considered a defendant's past criminal behavior,
even if no conviction resulted from that behavior.
We have upheld the constitutionality of
considering such previous conduct . . . .

Thus, consistently with due process, petitioner
in the present case could have been sentenced more
severely based simply on evidence of the
underlying conduct which gave rise to the previous
DUI offense. And the state need prove such
conduct only by a preponderance of the evidence.
. . . Surely, then, it must be constitutionally
permissible to consider a prior uncounseled
misdemeanor conviction based on the same conduct
where that conduct must be proven beyond a
reasonable doubt.

Id. at ___, 114 S. Ct. at 1928 (citation omitted).

The judgment of the trial court is affirmed.

Affirmed.

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Koontz, J., with whom Fitzpatrick, J., joins, concurring in part
and dissenting in part.

I concur with the majority's holdings that the 1983 and 1985

convictions orders were properly introduced at trial and made a

part of the record on appeal, and that the trial court erred in

finding that Griswold's 1985 conviction was counseled. For the

reasons stated in Griswold v. Commonwealth, 19 Va. App. 477,

484-86, 453 S.E.2d 287, 291-92 (1994) (Koontz, J., concurring in

part and dissenting in part), I concur in the majority's

determination that the uncounseled 1983 conviction resulting in a

conditionally suspended jail sentence can be used in the penalty

phase of a subsequent prosecution to enhance punishment under a

statutory recidivist provision.
Because Griswold's 1985 conviction was uncounseled and

resulted in the imposition of actual imprisonment, I dissent from

the majority's holding that this conviction can be used in the

guilt determination phase of his 1992 trial. Unlike Scott v.
Illinois, 440 U.S. 367 (1979), and Nichols v. United States, ___

U.S. ___, 114 S. Ct. 1921 (1994), relied upon by the majority,

where the uncounseled convictions were used merely to enhance

punishment, Griswold's 1985 conviction was used to prove an

element of the subsequent indicted offense. In my view, this was

error.

The dichotomy which troubles the majority--that an

uncounseled conviction which results in no actual imprisonment

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may be used to establish the level of offense for a subsequent

repetition of the crime, while a conviction for the same crime

which results in a brief jail term is invalid for that purpose--

is easily resolved without resorting to the alternative of

barring use of all uncounseled convictions for that purpose. An

uncounseled conviction resulting in no imprisonment is valid

because the Sixth Amendment right to counsel did not attach; an

uncounseled conviction resulting in incarceration is invalid

because the imposition of a jail sentence requires that the right

to counsel be respected at the outset of the trial. In other

words, where the trial court imposes actual imprisonment, its

intent to do so is presumed to have existed at the commencement

of the trial and the right to counsel attaches at that point and

not retrospectively, only after a sentence of actual imprisonment

has been imposed. See Kirby v. Illinois, 406 U.S. 682, 689

(1972) (plurality opinion). Where a trial court permits the

trial to begin without provision of counsel or a waiver thereof,

the trial court is precluded from imposing a sentence of actual

imprisonment and, upon convicting the accused, must use lesser

forms of punishment, thus forestalling the attachment of the

right of counsel. See Argersinger v. Hamlin, 407 U.S. 25, 40

(1972). The mere fact that the determination of when the

constitutional right to counsel attaches is made retrospectively

based upon the sentence imposed does not mean that all events

that preceded that determination are free from taint.

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 Thus, where an uncounseled conviction results in the

imposition of a sentence of actual imprisonment, the taint of the

Sixth Amendment violation is not merely on the sentence, but on

the whole trial which resulted in that sentence. That taint

prohibits the government from using the conviction to prove an

element of a subsequent offense. By contrast, a conviction

occurring where the right to counsel has never attached is not

hampered by any taint.
Because Griswold's 1985 conviction was uncounseled, it was

improperly introduced during the guilt determination phase of his

trial. Because the Commonwealth did not introduce the 1983

conviction, which was untainted, until the penalty phase of the

trial, the evidence presented by the Commonwealth prior to the

verdict was insufficient to sustain a conviction on the indicted

offense, as amended. Therefore, I would reverse on the basis of

that error.

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Elder, J., with whom Benton, J., joins, concurring in part and
dissenting in part.

I concur in those parts of the majority opinion holding (1)

the 1983 and 1985 conviction orders were properly introduced at

trial and made part of the record on appeal, and (2) the trial

court erred in finding that Griswold was represented by counsel

at his 1985 trial. I respectfully dissent from the remainder of

the majority opinion and would hold that Griswold's 1983 and 1985

convictions violated Scott and were improperly introduced at his

1992 trial.

The majority correctly recognizes that the United States

Supreme Court's opinions in Scott and Nichols guide the analysis

of this case. However, for reasons undisclosed in its opinion,

the majority fails to discuss James v. Commonwealth, 18 Va. App.

746, 446 S.E.2d 900 (1994), a recent case decided by a panel of

this Court. In James, the panel recognized that a prior

conviction, which was constitutional under Scott, could be used

in a subsequent trial for sentencing enhancement purposes. The
James panel held that the Commonwealth may introduce evidence of

prior convictions, "provided that in all felony cases and those

misdemeanor proceedings where imprisonment resulted, there is

evidence establishing that the defendant was represented by or

properly waived counsel in the earlier criminal proceeding."

James, 18 Va. App. at 752, 446 S.E.2d at 904. In this case, the

majority jettisons James without mention of its reasoning or

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holding. While an en banc panel of this Court may overrule a

three-judge panel, I believe that the James rationale, which

directly follows from Scott and Nichols, is correct.

The majority dismisses Griswold's argument that his 1985

conviction was invalid under Scott and Nichols, stating that it

"defies reason and is contrary to the rationale of Nichols." I

respectfully disagree. The Supreme Court in Nichols said, and

the majority repeats, that "an uncounseled misdemeanor conviction
valid under Scott because no prison term was imposed, is also

valid when used to enhance punishment at a subsequent

conviction." Nichols, 114 S. Ct. at 1928 (emphasis added).

Stated simply, Griswold's uncounseled 1985 conviction violated

Scott because it resulted in the imposition of imprisonment after

Griswold was unrepresented at trial; it was, therefore, used

unconstitutionally to enhance the subsequent conviction.

The majority attempts to avoid this constitutional

limitation by stating that "[i]t would defy reason to hold that

Griswold's 1985 conviction would be valid for any purpose had the

entire 180 day jail sentence been suspended, but that the entire

proceeding was unconstitutional simply because he was sentenced

to serve two days confinement." As discussed above, a plain

reading of Nichols reveals the fallacy of the majority's
comment. 1 Although the majority quotes a lengthy section from
1
Furthermore, as I discuss below in reference to
Griswold's 1983 conviction, I believe that a conviction cannot be
used in the guilt or sentencing phases of a subsequent trial if
the court imposes a jail sentence but then suspends that

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Nichols in support of its comment, it fails to recognize that the

quoted section discusses the introduction of the prior conviction

in a subsequent trial in the context of the specific facts of the

Nichols case. In Nichols, in stark contrast to this case, the

defendant's prior conviction did not result in the imposition of

jail time, suspended or otherwise. I would, therefore, follow

James and hold that the trial court erroneously allowed the

introduction of Griswold's 1985 conviction in the guilt and

sentencing phases of his subsequent trial.
Furthermore, I would hold that because appellant's 1983

conviction was not only uncounseled but also violated Scott, the

trial court erred by allowing its introduction in the sentencing

phase of appellant's 1991 trial. "[T]he Sixth and Fourteenth

Amendments to the United States Constitution require . . . that

no indigent criminal defendant be sentenced to a term of

imprisonment unless the State has afforded him the right to

assistance of appointed counsel in his defense." Scott, 440 U.S.

at 373-74 (emphasis added). As stated in the panel opinion, I

interpret "sentenced to a term of imprisonment" to include a jail

sentence imposed and conditionally suspended, as was done in this

case. Appellant did not waive counsel nor was he represented on

the 1983 charge. Consequently, his sentence on that charge

violated Scott and the conviction cannot now be used to enhance

punishment on a subsequent offense.
sentence.

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 In reaching this conclusion, I am guided by decisions

reached by other courts that have considered the same issue. For

example, the United States Court of Appeals for the Tenth Circuit

recently held that a conditionally suspended sentence satisfies

Scott's "sentenced to a term of imprisonment" requirement, such

that the defendant is entitled to counsel under the Sixth

Amendment. United States v. Reilley, 948 F.2d 648, 653-54 (10th

Cir. 1991). Accord United States v. Foster, 904 F.2d 20 (9th

Cir. 1990); United States v. Leavitt, 608 F.2d 1290 (9th Cir.
1979); United States v. White, 529 F.2d 1390 (8th Cir. 1976);

State v. DeRosa, 633 A.2d 277 (Vt. 1993); contra United States v.

Nash, 703 F. Supp. 507 (W.D. La.), aff'd, 886 F.2d 1312 (5th Cir.

1989).

The Commonwealth affords trial courts broad discretion in

revoking suspended sentences. See Code § 19.2-306 (stating the

court can revoke a suspended sentence "for any cause deemed by it

sufficient" within the applicable statutory time limits);
Hamilton v. Commonwealth, 217 Va. 325, 228 S.E.2d 555 (1976);

Marshall v. Commonwealth, 202 Va. 217, 116 S.E.2d 270 (1960);

Singleton v. Commonwealth, 11 Va. App. 575, 400 S.E.2d 205 (1991)

(holding that Code sections dealing with suspended sentences are

to be liberally construed and that revocation of a suspended

sentence lies within the trial court's sound discretion).

The trial court's discretionary authority to revoke a

suspended sentence subjects a defendant to a substantial risk of

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imprisonment at any time within the applicable statutory time

limits. Thus, I believe that even in cases where a jail sentence

is suspended after imposition, defendants must be afforded the

"guiding hand of counsel so necessary where one's liberty is in

jeopardy." Scott, 440 U.S. at 370 (quoting Argersinger v.

Hamlin, 407 U.S. 25, 40 (1972)). Because appellant was sentenced

to a suspended jail term without the benefit or the valid waiver

of counsel, appellant's 1983 conviction violated Scott and was

improperly introduced in the sentencing phase of his 1992 trial.

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