NO. 94-584
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Appellant,
v.
FRANK RICHARD HANSEN,
Defendant and Respondent.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Mark P. Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Joseph P. Mazuzrek, Attorney General, Cregg W.
Coughlin, Assistant Attorney General, Helena,
Montana; Carlo Canty, Deputy Silver Bow County
Attorney, Butte, Montana
For Respondent:
Deirdre Caughlan, Dunlap & Caughlan, Butte, Montana
Submitted on Briefs: June 15, 1995
Decided: September 26, 1995
Filed:
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
Respondent Frank Hansen was arrested and charged with third
offense domestic abuse. Section 455-206(3), MCA, provides that a
third offense for domestic abuse may be charged as a felony.
Consequently, the State filed an information charging respondent
with felony domestic abuse. Respondent moved to dismiss the felony
charge, claiming that he had not knowingly waived counsel during
his first misdemeanor domestic abuse conviction. He argued that a
prior uncounseled misdemeanor conviction cannot be used to convert
a misdemeanor charge into a felony. The District Court granted his
motion to dismiss the felony charge, and the State appeals. We
reverse.
The following issue was raised on appeal:
Did the District Court err in ruling that a valid prior
uncounseled misdemeanor conviction may not be used to convert a
later charge from a misdemeanor to a felony?
FACTS
On April 20, 1992, respondent was charged with first offense
domestic abuse, which is a misdemeanor under § 45-S-206(3), MCA.
Unrepresented by counsel, he pled guilty and was ordered to
complete a domestic violence treatment program, with a fine and
jail term being suspended.
On September 30, 1992, respondent pled guilty to second
offense domestic abuse, a misdemeanor, and received a suspended
sentence. Respondent was represented by counsel when he pled
guilty to this second offense.
2
On May 10, 1994, respondent was again arrested for domestic
abuse. Because this was his third offense, the State filed an
information charging him with felony domestic abuse. Respondent
moved to dismiss the information, arguing that his April, 1992,
uncounseled misdemeanor conviction could not be used to convert a
subsequent charge from a misdemeanor to a felony.
The District Court found that the record did not show
respondent had made a knowing waiver of counsel before pleading
guilty to the April, 1992 charge. The court further found, absent
proof of an informed waiver of a right to counsel, the first
misdemeanor conviction could not be used as a basis for making the
third charge a felony. For these reasons, the District Court
dismissed the felony domestic abuse charge. We reverse and hold
that a valid prior uncounseled misdemeanor conviction may be used
to convert a subsequent charge from a misdemeanor to a felony.
STANDARD OF REVIEW
Whether a prior conviction may be used for sentence
enhancement is a question of law, as is the appropriateness of
granting (or failing to grant) a purely procedural motion to
dismiss in a criminal case. The standard of review of a district
court's conclusions of law is plenary, and we will review to
determine whether those conclusions of law are correct. State V.
Rushton (1994), 264 Mont. 248, 255, 870 P.2d 1355, 1359. See also
- -
State V. Sage (1992), 255 Mont. 227, 229, 841 P.2d 1142, 1143.
ISSUE
May a valid prior uncounseled misdemeanor be used to convert
a later charge from a misdemeanor to a felony?
Respondent was charged with third offense domestic abuse
pursuant to § 45-S-206(3), MCA, which provides as follows:
A person convicted of domestic abuse for the first or
second time shall be fined not to exceed $1,000 or be
imprisoned in the county jail not to exceed 1 year, or
both. On a third or subsequent conviction for domestic
abuse, the person convicted shall be fined not less that
$500 and not more than $50,000 and be imprisoned in the
county jail or in the state prison for a term not less
than 10 days and not more that 5 years, or both.
Respondent moved to quash his felony domestic abuse charge
because he had not been represented by counsel at his first
misdemeanor conviction. Then and now, he contends that a prior
uncounseled misdemeanor cannot be used to enhance a later sentence.
In framing this argument, respondent relies almost entirely on the
United States Supreme Court case Baldasar v. Illinois (1980), 446
U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169. In Baldasar, the Court
held that an uncounseled misdemeanor conviction may not be used
under an enhanced penalty statute to convert a subsequent
misdemeanor into a felony with a prison term. Baldasar, 446 U.S.
at 222. If Baldasar remained good law, it would dispose of this
case entirely.
Appellant, however, argues that Baldasar has been overturned
by Nichols v. United States (1994), __ U.S. -I 114 s.ct. 1921,
128 L.Ed.2d 745. In Nichols, the Supreme Court held that an
uncounseled misdemeanor conviction is also valid when used to
4
enhance punishment at a subsequent conviction. Nichols, 114 s.ct.
at 1928.
Respondent insists Nichols is distinguishable and serves only
to modify Baldasar. Nichols dealt with a defendant whose sentence
was increased under the Federal Sentencing Guidelines because of a
prior misdemeanor. Respondent contends that Nichols therefore is
applicable to federal sentencing cases only. Moreover, respondent
points out that the defendant in Nichols was already charged with
a felony when the question of a potential sentence increase arose.
In the case at bar, the prior misdemeanor would serve to convert
the latest charge from a misdemeanor to a felony. Respondent
advocates a narrow reading of Nichols, while appellant insists it
should be read more broadly. In short, the disposition of this
case rests on a determination of how Nichols should be construed.
Such a determination is easily made. A cursory reading
reveals that Nichols does not modify Baldasar; it expressly
overrules it. Nichols, 114 S.Ct. at 1928. While it is true that
Nichols did not deal with the conversion of a misdemeanor to a
felony, that was precisely the issue in Baldasar. Furthermore,
Baldasar is a case appealed from a state court and does not concern
federal sentencing procedures. Instead, it addresses the issue of
whether a conviction under state law may be converted from a
misdemeanor to a felony, which is the same issue facing this Court
in the instant case. If the Supreme Court had not intended the
Nichols decision to apply to the facts given in Baldasar, it surely
would have carefully said so, and not overruled Baldasar in its
entirety.
5
Moreover, the language in Nichols indicates that the supreme
Court intended the decision to apply to state court cases as well
as federal sentencing cases.
Enhancement statutes, whether in the nature of criminal
history provisions such as those contained in the
[Federal] Sentencing Guidelines, or recidivist statutes
which are common place in state criminal laws
-r do not
change the penalty imposed for the earlier conviction.
Nichols, 114 S.Ct. at 1927 (emphasis added). Section 45-5-206,
MCA, is precisely such a recidivist statute, providing a higher
penalty on a third offense for a defendant who continues to violate
the law.
We hold that, under the plain language of Nichols, a prior
uncounseled misdemeanor may properly be used to convert a
subsequent misdemeanor to a felony.
Respondent next argues that, even if a prior uncounseled
misdemeanor may generally be used for enhancement purposes, it
nevertheless cannot be so used in this case because the State
cannot show that respondent knowingly waived his right to counsel.
The Sixth Amendment right to counsel in misdemeanor cases is
limited to those cases in which imprisonment was actually imposed.
United States v. Quemado (9th Cir. 1994), 26 F.3d 920, 923. Where
no sentence of imprisonment was imposed, a defendant charged with
a misdemeanor has no constitutional right to counsel. Scott v.
Illinois (1979), 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383.
Moreover, the imprisonment must be actual; a threat of imprisonment
(such as a suspended sentence) is not enough to create a
constitutional right to counsel. Scott
, 440 U.S. at 373.
6
It was error for the trial court to demand that the State
prove respondent knowingly waived a right to counsel in the earlier
misdemeanor case. Respondent had no right to counsel in the
earlier case because no sentence of imprisonment was imposed;
whether he knowingly waived counsel is therefore irrelevant.
Moreover, the fact that the first misdemeanor may ultimately
contribute to imprisonment (should respondent be sentenced to a
jail or prison term for the later converted felony) does not
retroactively give respondent a right to counsel at the earlier
misdemeanor. "[AIn uncounseled misdemeanor, 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.
Because we hold that a valid prior misdemeanor conviction may
properly be used to convert a later charge from a misdemeanor to a
felony, the decision of the District Court is reversed and this
case is remanded for further proceedings consistent with this
opinion.
Justice
We Concur:
September 26, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid,
to the following named:
Hon. Joseph P. Mazurek, Attorney General
Craig Coughlin, Assistant
215 N. Sanders
Helena MT 59620
Carlo Canty
Deputy County Attorney
155 West Granite Street
Butte MT 59701
Deirdre Caughlan
DUNLAP & CAUGHLAN, P.C.
27 West Broadway
Butte MT 59701
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY: QWP-
Y
Deputy