Griswold v. Commonwealth

Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and
Keenan, JJ., and Whiting, Senior Justice

NORMAN EDWARD GRISWOLD
OPINION BY
v. Record No. 951794 SENIOR JUSTICE HENRY H. WHITING
JUNE 7, 1996
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

This is an appeal of a conviction for operating a vehicle

under the influence of intoxicants (DUI), as a second conviction

within 5 to 10 years of a first DUI conviction. The primary

issue involves the introduction into evidence of two prior DUI

convictions in which the defendant was unrepresented by counsel.
In June 1983, Norman Edward Griswold was convicted of a DUI

offense and sentenced to 30 days in jail, the entirety of the

sentence being suspended. Griswold was again convicted of a DUI

offense in January 1985. Because his 1985 DUI conviction was

within 5 years of his first DUI conviction, Griswold was required

to serve 48 hours of the 180-day jail sentence imposed for the

1985 conviction. Code § 18.2-270.

In August 1992, Griswold was indicted for the present DUI

offense. His trial in the Circuit Court of the City of Richmond

was in two phases as provided in Code § 46.2-943. In the first
1
phase, the jury found Griswold guilty of DUI, "as charged." In

the second phase, after considering Griswold's traffic record,

1
The indictment upon which Griswold was tried charged him

with DUI after "having been previously convicted of a like

offense on June 15, 1983."
the jury imposed the maximum sentence of 12 months in jail and a

$2,500 fine, upon which the trial court entered judgment. Code

§ 18.2-270.

In both the guilt and sentencing phases of the trial,

Griswold objected to the admission into evidence of his prior DUI

convictions. Griswold contended that he had not been represented

by counsel in the two prior DUI proceedings and that he had not

waived his right to counsel. And Griswold concluded that because

these convictions either resulted in his imprisonment or an

impermissible threat to his liberty, both were violations of his

constitutionally guaranteed right to counsel.
Although concluding that the 1983 conviction was uncounseled

and, thus, inadmissable during the guilt phase, the trial court

agreed with the Commonwealth that Griswold was represented by

counsel in the 1985 proceeding and admitted evidence of that

conviction in both stages of his trial. Following the jury's

verdict of guilty, the trial court also admitted evidence of

Griswold's uncounseled 1983 conviction during the sentencing

phase since it was a part of Griswold's traffic record. Code

§ 46.2-943.

On appeal, the Court of Appeals en banc concluded that

Griswold was not represented by counsel in the 1985 proceeding,

but held that both the 1985 and 1983 convictions were properly

admitted into evidence. Accordingly, the judgment of the trial

court was affirmed. Griswold v. Commonwealth, 21 Va. App. 22,

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461 S.E.2d 411 (1995). We awarded Griswold an appeal.

An uncounseled misdemeanor conviction resulting in a jail or

prison sentence is a violation of a defendant's rights under the

Sixth and Fourteenth Amendments of the United States

Constitution. Argersinger v. Hamlin, 407 U.S. 25, 37 (1972);

Nichols v. United States, ___ U.S. ___, 114 S.Ct. 1921, 1927

(1994); Scott v. Illinois, 440 U.S. 367, 373-74 (1979). We

conclude that the record establishes that Griswold was

unrepresented in both the 1983 and 1985 proceedings.
Consequently, and contrary to the ruling of the Court of

Appeals, we hold that the 1985 conviction is constitutionally

infirm because of the two days in which Griswold was actually

imprisoned. Therefore, this conviction cannot be used either to

support guilt or to enhance punishment for a subsequent criminal

violation. See Burgett v. Texas, 389 U.S. 109, 114-15

(1967)(uncounseled felony conviction cannot be used to support

guilt or enhance punishment in subsequent criminal trial).

Further, to convict a defendant of a second DUI offense within 5

to 10 years of a prior DUI conviction, "the prior offense must be

charged and proven." Calfee v. Commonwealth, 215 Va. 253, 255,

208 S.E.2d 740, 741 (1974) (quoting Commonwealth v. Ellett, 174

Va. 403, 409, 413, 4 S.E.2d 762, 764, 766 (1939)). Accordingly,

we conclude that the trial court erred in instructing the jury

that it could convict Griswold of a second DUI offense within 5

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to 10 years of a first DUI conviction. 2 We will remand the case

to the Court of Appeals with instructions directing that court to

remand the case to the trial court for a new trial.

We will address the use of the two prior DUI convictions in

the sentencing hearing as a part of Griswold's "record of prior

convictions of traffic offenses," Code § 46.2-943, since the

issue will probably arise if Griswold is convicted in a new

trial. Consistent with our ruling that the 1985 conviction was

unconstitutional and cannot be used either to establish guilt or

enhance punishment for the subsequent DUI conviction, we reject

the Commonwealth's contention that it could be considered as a

part of Griswold's record of prior convictions of traffic

offenses.

2
The Commonwealth claims that even if the 1985 conviction

was inadmissible to establish Griswold's first DUI conviction,

the 1983 conviction was admissible for that purpose. However,

after the trial court had ruled that Griswold was unrepresented

in the 1983 proceedings, the Commonwealth struck its reference to

the 1983 conviction from the indictment as one of the prior DUI

convictions. Thus, the 1983 conviction was neither charged in

the indictment nor proven in the guilt phase of the case.

Accordingly, we conclude that the 1983 conviction cannot be used

to establish the necessary prior DUI conviction. Calfee, 215 Va.

at 255, 208 S.E.2d at 741.

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 Regarding the 1983 conviction, Griswold argues that his 30-

day suspended sentence suffers from the same constitutional

infirmity as his two-day jail sentence because "[w]hen someone

receives a sentence, whether it is suspended or immediately

served, his liberty is severely curtailed" in violation of the

principles articulated in Scott. According to Griswold,

suspended sentences are "imposed" jail or prison sentences within

the Scott rationale. We do not agree.
Neither party cites, and we are unable to find, any case in

which the United States Supreme Court has decided this issue.

However, in Nichols, the Supreme Court decided that an

uncounseled misdemeanor conviction resulting only in a fine could

be used to enhance the punishment for a subsequent conviction.

There, we think the Supreme Court made it plain, if it had not

done so already, that there is no constitutional right to counsel

in a misdemeanor case unless the conviction results in an "actual

imprisonment." Nichols, ___ U.S. at ___, 114 S.Ct. at 1925-26

(citing Scott, 440 U.S. at 373, and Argersinger, supra).
And many federal courts that have considered the issue of an

uncounseled misdemeanor conviction with a suspended sentence have

not invalidated the misdemeanor conviction itself. See United

States v. Reilley, 948 F.2d 648, 654 (10th Cir. 1991); United

States v. Foster, 904 F.2d 20, 21-22 (9th Cir. 1990); United

States v. Sultani, 704 F.2d 132, 133-34 (4th Cir. 1983); United
States v. White, 529 F.2d 1390, 1394 (8th Cir. 1976); Cottle v.

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Wainwright, 477 F.2d 269, 275 (5th Cir.), vacated on other

grounds, 414 U.S. 895 (1973); United States v. Nash, 703 F. Supp.

507, 510 (W.D.La.), aff'd, 886 F.2d 1312 (5th Cir. 1989).

Since Griswold was never actually imprisoned as a result of

his 1983 conviction, that conviction was not constitutionally

invalid. Hence, we conclude that if he is convicted in a new

trial, the 1983 conviction may be considered as a part of

Griswold's traffic record in the sentencing hearing.
In summary, we will reverse Griswold's conviction and

sentence and remand the case to the Court of Appeals with

directions to remand the case to the trial court for a new trial

in conformity with the views expressed herein.

Reversed and remanded.

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