State v. Chance

405 S.E.2d 375, 304 S.C. 406, 1991 S.C. LEXIS 80

• Court: Supreme Court of South Carolina
• Decided: April 8, 1991
• Docket: 23376
• Status: Published

Opinions

Gregory, Chief Justice:

Appellant was convicted of second offense driving under the influence (DUI). He was sentenced to a one-year term of imprisonment and fined $2,000, suspended upon the service of two days, payment of $1,000, and probation for one year. We affirm.

Appellant pleaded guilty in 1980 to a prior DUI. This offense is within the ten-year period allowed for enhancement to second offense DUI under S.C. Code Ann. § 56-5-2940 (Supp. 1990). Appellant was not represented by counsel at the 1980 plea nor does the record before us indicate appellant waived his right to counsel. Appellant was not incarcerated for the 1980 offense.¹

Appellant relies on Baldasar v. Illinois, 446 U.S. 222, 100 S. Ct. 1585, 64 L. Ed. (2d) 169 (1980), to argue that his prior uncounselled guilty plea cannot be used to enhance his punishment as a repeat offender absent the State’s proof of a waiver of counsel. Thus, for the first time, this Court must face the difficult task of interpreting the Baldasar decision.²

Baldasar was decided after the decision in Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. (2d) 383 (1979). Scott held that an uncounselled misdemeanor conviction is constitutionally valid if the offender is not actually incarcerated. The Baldasar court grappled with the issue whether a conviction valid under Scott may be used to increase the term of imprisonment for a subsequent offense under an enhanced penalty statute; the issue, however, was never resolved. The Court split four-to-four on this question and the fifth and deciding vote was cast on a different ground.³

Not surprisingly, state court decisions seeking to apply Baldasar have taken widely divergent views with no majority consensus. See e.g., Commonwealth v. Thomas, 510 Pa. 106, 507 A. (2d) 57 (1986) (valid for enhancement if no actual imprisonment and not subject to imprisonment for more than six months); State v. Novak, 107 Wis. (2d) 31, 318 N.W. (2d) 364 (1982) (valid for enhancementif not subject to imprisonment); Sargent v. Commonwealth, 5 Va. App. 143, 360 S.E. (2d) 895 (1987) (not valid for enhancement even if no actual imprisonment); State v. Orr, 375 N.W. (2d) 171 (N.D. 1985) (valid for enhancement if not punishable by imprisonment for more than six months).

In seeking a logical application of the decisions of the United States Supreme Court, we conclude an uncounselled conviction constitutionally valid under Scott is valid for all purposes and therefore may be used to increase the term of imprisonment for a subsequent offense under an enhanced penalty statute. Accordingly, we hold when a defendant was not actually incarcerated for a prior uncounselled misdemeanor, that offense may be used for enhancement. The judgment of the circuit court is therefore

Affirmed.

Harwell, Chandler and Toal, JJ., concur. Finney, A.J., dissents in separate opinion.

1 The statute in effect at the time allowed for punishment by a fine of fifty to one hundred dollars or imprisonment for ten to thirty days for first offense DUI. S.C. Code Ann. § 56-5-2940 (1976).

2 In State v. Canady, — S.C. —, 391 S.E. (2d) 248 (1990), we addressed a Baldasar claim but found it inapplicable because there was no enhanced punishment as a result of the prior conviction.

3 Justice Blackmun concurred in reversal because he would find a right to counsel where the defendant is subject to imprisonment for six months or more. This test for right to counsel was rejected in Scott.