Baldasar v. People of Illinois Petition and Briefs

    The Supreme Court 
of the United States

Thomas Baldasar
versus

State of Illinois

Petition and Briefs

Law Reprints
Criminal Law Series
Volum e 11, no. 16 
197911980 Term



IN THE

Supreme Court of tlje 3Umtrb i§>tate£
OCTOBER TERM, 1978

No. 77-6219

THOMAS BALDASAR,
Petitioner,

v.

PEOPLE OF THE STATE OF ILLINOIS,
Responden t.

ON WRIT OF CERTIORARI TO THE APPELLATE COURT 
OF ILLINOIS, SECOND JUDICIAL DISTRICT

BRIEF FOR THE PETITIONER

Of Counsel:
Ralph Ruebner 
Peter Nolte

MARY ROBINSON
Deputy Defender
Office of the State Appellate Defender 
Second Judicial District 
63 Douglas Avenue 
Elgin, Illinois 60120

MICHAEL MULDER 
Assistant Defender
Office of the State Appellate Defender
First Judicial District
130 North Wells Street, Suite 2200
Chicago, Illinois 60606
(312) 793-5472

Counsel for Petitioner



(i)

TABLE OF CONTENTS
Page

OPINIONS BELOW .......... .........................................................
JURISDICTION ..........................................................
QUESTION PRESENTED .....................................................

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED .............................................

STATEMENT OF THE CASE ..........................................................
SUMMARY OF ARGUMENT ..................................................
ARGUMENT .............................................................................. j

THE SIXTH AMENDMENT RIGHT TO COUN­
SEL FORBIDS THE USE OF A FINE-ONLY 
MISDEMEANOR CONVICTION, TO IN­
CREASE PETITIONER’S IMPRISONMENT ON 
A SUBSEQUENT OFFENSE UNDER AN EN­
HANCED PENALTY STATUTE .............................................!
A. Actual Imprisonment Without Representa­

tion In Violation Of Argersinger And Scott 
Resulted When Petitioner’s Prior Uncoun­
seled Misdemeanor Conviction Was Used To 
Enhance Petitioner s Subsequent Imprison­
ment By Two Years .......................................................  j j

B. Convictions Obtained In The Absence Of
Counsel Or Waiver Thereof Lack The Degree 
Of Reliability Necessary To Support An 
Enhanced Punishment Which Results In A 
Deprivation Of Liberty ....................................................  jq

C. The Majority Of Jurisdictions Confronting
The Issue Has Prohibited The Use Of Such 
Uncounseled Misdemeanor Convictions With­
out Affecting The “Run Of Misdemeanors” ...............18

CONCLUSION ..............................



(ii)

TABLE OF AUTHORITIES

Cases:
Aldrighetti v. State, 507 S.W.2d 770 (Tex. Crim.

App., 1974) ..................................................................................22
Alexander v. State, 527 S.W.2d 927 (Ark. 1975) ......................... 20
Argersinger v. Hamlin, 407 U.S. 25 (1972) ............................passim
Burgett v. Texas, 398 U.S. 109 (1967) ................................... passim
Carey v. Zayer of Beverly Inc., 324 N.E.2d 619

(Mass. 1975) ................................................................................  21
City of Monore v. Fincher, 305 So.2d 108 (La.,

1974)   18
Commonwealth v. Barrett, 322 N.E.2d 89 (Mass.

App., 1975)  21
Escobedo v. Illinois, 378 U.S. 478 (1964) ...................................  19
Faretta v. California, 422 U.S. 806 (1975) ...................................  15
Gideon v. Wainwright, 372 U.S. 335 (1961) ................................. 19
Gilday v. Scafati, 428 F.2d 1027 (1st Cir., 1970) ....................... 15

Loper v. Beto, 405 U.S. 473 (1972)  15,20
Marston v. Oliver, 485 F.2d 705 (4th Cir., 1973),

cert, denied, 417 U.S. 936 (1974)  22
Morgan v. State, 235 Ga. 632, 221 So.2d 47 (1975) ................. 20

Morrissey v. Brewer, 408 U.S. 471 (1972)  14
Mure v. State, 478 P.2d 926 (Okla. Crim. App.,

1970)  19,23

People v. Dixon, 46 111.2d 41, 268 N.E.2d 369
(1971) ............................................................................................. 7

Powell v. Alabama, 287 U.S. 45 (1932) ......................................... 16
Scott v. Illinois, ____ U.S. ------ , 59 L.Ed.2d 383

(1979) ...................................................................  10,11,12,14,23

State v. Harris, 312 So.2d 643 (La., 1975) ....................................20
State v. Kirby, 33 Ohio Misc. 48, 289 N.E.2d 406

(1972) ...........................................................................................19
State v. McGrew, 127 N.J. Super 327, 317 A.2d

390 (1974) ...................................................................................22



State v. Reagan, 103 Ariz. 287, 440 P 2d 907
(1968) .....................................................' ....................................i<)

State v. Strange, 308 So.2d 795 (La., 1975) .................................18
United States v. Tucker, 404 U.S. 443 (1972) ..............................20
United States v. White, 529 F.2d 1390 (8th Cir.,

1976) ..................................................................................... i 2,22
Constitutional and Statutory Provisions:
United States Constitution, Amendment VI ......................2,9,10,24
United States Constitution, Amendment XIV,

Section 1 .............................................................................. 2 9 24
Title 28 U.S.C. §1257(3) .................................................................... 2
111. Rev. Stat., (1974), Ch. 38, §16-l(a)(l) ...................................  5

111. Rev. Stat., (1974), Ch. 38, §16-l(eX0 ...................................  3
111. Rev. Stat., (1975), Ch. 38, § 113-3(a) ....................................4,13
111. Rev. Stat., (1975), Ch. 38, §113-3(b) ...................................... 4
111. Rev. Stat., (1975), Ch. 38, § 1005-8-1(b)(5) ...............................3

111. Rev. Stat., (1975), Ch. 38, § 1005-8-1 (b)(c) ...............................3
111. Rev. Stat., (1975), Ch. 38, § 1005-8-3(a)(l) ...............................3
111. Rev. Stat., (1975), Ch. 38, § 1005-8-3(e)(3) .........................3,13
111. Rev. Stat., (1975), Ch. 38, §1005-8-6(a) ................................ 4
111. Rev. Stat., (1975), Ch. 38, §1005-8-6(b) ........................... 4,13
Articles:

Argersinger v. Hamlin and The Collateral Use Of 
Prior Misdemeanor Convictions O f Indigents 
Unrepresented By Counsel A t Trial, 35 Ohio 
St.L.J. 168 (1974) 21



IN THE

^ u p rrm t Court of tlje © niteb S ta te s
OCTOBER TERM, 1978

No. 77-6219

THOMAS BALDASAR,
v Petitioner,

PEOPLE OF THE STATE OF ILLINOIS,
Responden t.

ON WRIT OF CERTIORARI TO THE APPELLATE COURT 
OF ILLINOIS, SECOND JUDICIAL DISTRICT

BRIEF FOR THE PETITIONER

OPINIONS BELOW

The opinion of the Appellate Court of Illinois, 
Second Judicial District, is reported at 52 Ill.App.3d 
305, 367 N.E.2d 462 (1977) and is reproduced in the 
Appendix (hereinafter “A”) at pages A. 19-30. The 
unreported order of the Illinois Supreme Court denying 
the petition for leave to appeal appears at A. 31.

1



2

JURISDICTION

The order of the Illinois Supreme Court denying the 
petition for leave to appeal was entered on November 
23, 1977. The petition for a writ of certiorari was 
timely filed on February 18, 1978. Certiorari was 
granted on March 19, 1979. The jurisdiction ot this 
Court is invoked under the provisions of 28 U.S.C. 
§1257(3).

QUESTION PRESENTED

Whether the Sixth and Fourteenth Amendments to 
the United States Constitution prohibit the use of a 
prior uncounseled misdemeanor conviction, which did 
not result in imprisonment, to increase a sentence of 
imprisonment on a subsequent conviction under an 
enhanced penalty statute?

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitu­
tion provides:

In all criminal prosecutions, the accused shall 
enjoy the right to a speedy and public trial, by an 
impartial jury of the State and district wherein the 
crime shall have been committed, which district 
shall have been previously ascertained by law, and to 
be informed of the nature and cause ot the accusa­
tion; to be confronted with the witnesses against 
him; to have compulsory process for obtaining wit­
nesses in his favor, and to have the Assistance of 
Counsel for his defence.
The Fourteenth Amendment to the United States 

Constitution provides in pertinent part:



3

Section 1. All persons born or naturalized in the 
United States, and subject to the jurisdiction 
thereof, are citizens of the United States and of 
the State wherein they reside. No State shall make 
or enforce any law which shall abridge the 
privileges or immunities of citizens of the United 
States; nor shall any State deprive any person of 
life, liberty, or property, without due process of 
law; nor deny to any person within its jurisdiction 
the equal protection of the laws.
The enhanced penalty provision found in III. Rev. 

Star., 1974, Ch, 38, par. 16-1 (e)( 1), provides:
(e) Sentence.

(1) Theft of property not from the person and 
not exceeding $150 in value is a Class A 
misdemeanor. A second or subsequent offense 
after a conviction of any type of theft is a Class 4 
felony.
The sentencing provision for misdemeanors found in 

III. Rev. Stat., 1975, Ch. 38, § 1005-8-3(a)(l), provides 
in pertinent part:

(a) A sentence of imprisonment for a mis­
demeanor shall be for a determinate term 
according to the followingTimitatibns:

(1) for a Class A misdemeanor, for any term 
less than one year.

The sentencing provisions for felonies found in III. 
Rev. Stat., 1975, Ch. 38, § 1005-8-1 (b)(5), and (c)(5), 
provide in pertinent part:

(b) (5) for a Class 4 felony, the maximum term 
shall be any term in excess of one year not 
exceeding 3 years.
(c) (5) for a Class 4 felony, the minimum term 
shall be one year in all cases.

The parole provision found in III. Rev. Stat., 1975, 
Ch. 38 § 1005-8-3(e)(3), provides in pertinent part:



4

(e) Every indeterminate sentence shall include 
as though written therein a parole term in addition 
to the term of imprisonment. Subject to earlier 
termination under Section 3-3-8, the parole term 
shall be as follows:

(3) for a Class 4 felony, 2 years.
The place of confinement for a misdemeanor found 

in III. Rev. Stat., 1975, Ch. 38, § 1005-8-6(b), provides 
in pertinent part:

(b) Offenders sentenced to a term of imprison­
ment for less than one year may be committed to 
the custody of the sheriff.
The place of confinement for a felony found in III. 

Rev. Stat., 1975, Ch. 38, § 1005-8-6(a), provides in 
pertinent part:

(a) Offenders sentenced to a term of imprison­
ment for a felony shall be committed to the 
penitentiary system of the Department of Correc­
tions.
The provisions on counsel found in III. Rev. Stat. , 

1975, Ch. 38, §113-3(a) and (b) provide in pertinent 
part:

(a) Every person charged with an offense shall 
be allowed counsel before pleading to the charge.
If the defendant desires counsel and has been 
unable to obtain same before arraignment the 
court shall recess court or continue the cause for a 
reasonable time to permit defendant to obtain 
counsel and consult with him before pleading to 
the charge.

(b) In all cases, except where the penalty is a 
fine only, if the court determines that the 
defendant is indigent and desires counsel, the 
Public Defender shall be appointed as counsel. . . .

4



5

STATEMENT OF THE CASE

Thomas O. Baldasar was charged by information with 
the theft of one “Dial Massage” having a value of less 
than $150.00 from Montgomery Ward and Company on 
November 13, 1975, in DuPage County, Illinois. (A.2)1 
The information alleged that Mr. Baldasar was pre­
viously convicted of theft on May 1, 1975, thereby 
raising the misdemeanor charge to a felony charge 
under Illinois Revised Statutes, 1974, Chapter 38, 
Section 16-1 (a)(1). (A.2)

The jury trial commenced on July 27, 1976. The 
State presented two witnesses to support the charge. 
The first was Dan Timmerman, who was employed on 
November 13 as a security manager at the Montgomery 
Ward Store in the Yorktown Shopping Center in 
Lombard. (R.32) Sometime during the day he received 
a call from Mary Wilkerson, who was on the security 
staff, and in response to the call he went to the camera 
department and observed a man there. (R.33)

When Timmerman initially saw this person he was 
approximately thirty feet across the aisle from him. 
Timmerman followed him as he walked over to the 
cosmetics department. Timmerman then went upstairs 
to an observation post or blind, and observed this man 
approach the shelf where the shower massage heads 
were located. (R.33-34) According to Timmerman, this

‘The prefix “R” denotes a page from the transcript of the 
record of the trial that has not been reproduced in the 
Appendix. Also used herein is the prefix “RC” which refers to 
the portions of the common law record (i.e., pleadings, motions, 
etc.) which have not been reproduced in the Appendix. 
References to the Appendix are made with the prefix “A” .

5



6

person then took one of the shower heads off the shelf, 
put it underneath his arm, and walked directly out of 
the store into the mall. (R.34) Timmerman identified 
this person as the petitioner, Thomas Baldasar. 
(R.34-35)

People’s Exhibit No. 1 was identified by Timmerman 
as the shower massage head in question, which he took 
from Baldasar after following him out of the store and 
into the mall. According to Timmerman, when Baldasar 
left the store he walked past two cash registers without 
paying. (R.35-36) Timmerman testified that when he 
stopped the petitioner, Baldasar said that he did not 
have a receipt for the shower head but that he had paid 
for it. (R.37) Baldasar then went peacefully with 
Timmerman to the security office and was placed under 
arrest. (R.37, 43)

After identifying People’s Exhibit No. 2 as the 
Montgomery Ward’s Charter issued by the Secretary of 
State, and testifying that the value of the shower head 
in question was $29.88, the witness was excused. 
(R.40-43)

The State then called Mr. Sol Valiery who testified 
that he was a store manager for the Jewel Food Stores. 
(A.4) Valiery then testified that on May 1, 1975, he 
was in the Oak Park Village Hall courtroom testifying 
against Mr. Baldasar, whom he identified in court, on a 
charge of shoplifting. (A.5) Valiery testified that after a 
bench trial the judge found Baldasar guilty and fined 
him $159.00. (A.6) Valiery testified that he signed a 
complaint against Baldasar and then identified his 
signature on a document, People’s Exhibit No. 3. (A.6)

The State offered into evidence People’s Exhibit No. 
3, which was a certified copy of a “Half-Sheet” (docket

6



7

entry) from the court records of the Circuit Court of 
Cook County.2 Defense counsel objected on two 
grounds.3 First, there was a discrepancy between the 
name on the complaint and the petitioner’s name. 
Second, defense counsel alleged that there was no 
affirmative showing that Baldasar had been represented 
by counsel at the prior trial as was required by People 
v. Dixon, 46 111.2d 41, 268 N.E.2d 369, 371 (1971), 
and by Bnrgett v. Texas, 398 U.S. 109, 88 S.Ct. 258, 
19 L.Ed.2d 319 (1967). (A.7-8) Defense counsel stated 
that she knew the evidence would show that Baldasar 
had not been represented by counsel. However, she said 
the case law required an affirmative showing by the 
State that the petitioner was represented by or waived 
counsel before the certified copy of the conviction 
could be admitted. (A.8) The court denied the 
petitioner’s motion on the basis that the prior offense 
was “not a felony.” (A.9) Thereafter, People’s Exhibit 
No. 3 was admitted into evidence. (A.9)

On cross-examination Mr. Valiery testified that when 
he was present in the Oak Park Village courthouse Mr. 
Baldasar was not represented by counsel. (A. 10) The 
State rested its case. (R.56)

2 People's Exhibit No. 3 is reproduced in the Appendix at 
pages 11 through 15. The exhibit consists of the clerk’s 
certificate that the “Half-Sheet and Order” was a true copy of 
the original (A.ll-12), the complaint (A. 13-14), and the 
“Half-Sheet” listing the docket entries in the cause. (A. 15) The 
half-sheet indicates that Mr. Baldasar’s sentence was a fine of 
$159.00 and one year of probation. (A.15)

3 The written motion setting forth the grounds for not 
admitting the certified copy of conviction into evidence was filed 
on the day of trial and appears at A.3.

7



8

Thomas Baldasar then testified that on November 13, 
1975, he was in the Yorktown Shopping Center in 
Lombard, when he entered the Montgomery Ward Store 
on a lower level, carrying one Dial Massage. (R.57-58) 
He was intending to return the Dial Massage to the 
department from which he had purchased it. (R.58)

Baldasar testified that he did not have a sales slip 
with him at that time and that he went to the 
cosmetics department but saw no one at the cash 
register. He testified that he waited around for someone 
to arrive at the cash register, and that while he was 
waiting he looked at other items in nearby departments, 
where he was apprehended by a security person. 
(R.59-60) He explained to the officer that he was 
returning merchandise and that he did not have a 
receipt. He was then taken downstairs to the security 
office. (R.60-61)

Baldasar testified that he had purchased the Dial 
Massage approximately one week earlier and had paid 
approximately $29.00. (R.61) He restated his testimony 
that he never left the store with the shower head after 
he had entered, and that he was apprehended inside the 
store. (R.63-64)

After this testimony, the State introduced People’s 
Exhibit No. 4, which was a certified copy of a 1967 
conviction pursuant to a plea of guilty to a charge of 
armed robbery. (R.65-69)4 Thereafter arguments were 
heard. The jury was instructed and returned a verdict ot 
guilty. The petitioner was subsequently sentenced to

4This prior conviction was not the basis for the enhanced 
penalty, but was offered on the question of petitioner s 
credibility. (R.9, 92)

8



9

not less than one nor more than three years in the 
Department of Corrections. (R.106-107, A.16) A notice 
of appeal was timely filed. (RC.85)

A divided panel of the Appellate Court of Illinois, 
Second District, rejected petitioner’s argument that the 
Sixth and Fourteenth Amendments prohibited use of a 
prior uncounseled misdemeanor conviction, absent a 
showing of waiver, to enhance his theft conviction to a 
telony and subject him to much more severe penalties. 
(A. 19-30) The Illinois Supreme Court denied his 
petition for leave to appeal without comment. (A.31)

SUMMARY OF ARGUMENT

In Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 
2006, 32 L.Ed.2d 530 (1972), this Court held that 
absent a knowing and intelligent waiver of counsel, no 
person may be imprisoned for an offense regardless of 
whether it is classified as a felony or a misdemeanor. As 
in felony cases, “the problems associated with mis­
demeanor and petty offenses often require the presence 
of counsel to insure the accused a fair trial.” 407 U.S. 
at 36-37. Argersinger commanded that no imprisonment 
result from an uncounseled conviction. This was 
violated where petitioner’s prior fine-only uncounseled 
theft conviction was used over objection to raise the 
present misdemeanor theft offense to a felony and 
enhance the punishment. The direct consequence of the 
use of this prior uncounseled misdemeanor conviction 
was an extra two years of incarceration; without the 
enhanced punishment, petitioner could have received 
only a sentence of less than one year, rather than the 
one- to three-year sentence imposed.

9



10

Scott v. Illinois,------ U.S. ------- , 99 S.Ct. 168, 59
L.Ed.2d 383 (1979), is consistent with Argersinger in 
adopting actual imprisonment as the line defining the 
constitutional right to appointment of counsel. Scott’s 
misdemeanor theft conviction without counsel was 
upheld because he was sentenced only to pay a fine. 
Petitioner Baldasar’s similar uncounseled misdemeanor 
conviction would also support imposition of a fine. 
However, before the severe sanction of deprivation of 
liberty could result from such a conviction, due process 
and the Sixth Amendment would require the presence 
or intelligent waiver of counsel to assure a fair trial and 
a reliable result.

Had Scott been incarcerated for even a brief period 
of time, his uncounseled conviction would have been 
unconstitutional under Argersinger. Absent a waiver, 
liberty could not be deprived without the necessary 
safeguard of counsel to assure the fairness and 
reliability of the trial. The Constitution requires a 
finding that such a conviction also lacks the degree of 
reliability necessary to support an enhanced sentence 
and deprivation of liberty at a subsequent date.

Uncounseled felony convictions will not be allowed 
to enhance punishment for another offense. Burgett v. 
Texas, 383 U.S. 109, 88 S.Ct. 258, 18 L.Ed.2d 319 
(1967). There is nothing in Burgett to suggest that its 
rationale is limited to felonies, for counselless mis­
demeanor convictions are no more reliable than 
counselless felony convictions. Petitioner contends that 
while his prior uncounseled misdemeanor conviction 
may support a fine, the rule of law should prohibit it 
from supporting enhanced imprisonment lor another 
offense, absent a showing that he was represented by or 
intelligently waived counsel.



11

The majority of jurisdictions considering the issue has 
adopted the above-stated rule as constitutionally 
required. Such a rule would not affect the “run of 
misdemeanors,” while at the same time it would assure 
that the constitutional command of no imprisonment 
without representation by counsel was met. States 
would not have to afford counsel in all misdemeanor 
prosecutions. Uncounseled convictions resulting in no 
imprisonment would still be valid. However, defendants 
should be represented by counsel, or intelligently waive 
counsel, if their first convictions are to be used as the 
basis for enhancing a second sentence which actually 
results in imprisonment.

ARGUMENT

THE SIXTH AMENDMENT RIGHT TO 
COUNSEL FORBIDS THE USE OF A 
FIN E-O N LY  UNCOUNSELED MIS­
DEMEANOR CONVICTION TO INCREASE 
PETITIONERS IMPRISONMENT ON A 
SUBSEQUENT OFFENSE UNDER AN EN­
HANCED PENALTY STATUTE.

A.Actual Imprisonment Without Representation 
In Violation of Argersinger and Scott Re­
sulted When Petitioner’s Prior Uncounseled 
Misdemeanor Conviction Was Used To En­
hance Petitioner’s Subsequent Imprisonment 
By Two Years.

In Scott v. Illinois, 59 L.Ed.2d 383, 389 (1979), this 
Court clarified its prior decision in Argersinger v. 
Hamlin, 407 U.S. 25 (1972), and held that actual

11



12

imprisonment was the line defining the constitutional 
right to the appointment of counsel. Under this 
approach, petitioner Baldasar’s prior uncounseled mis­
demeanor theft conviction for which he was fined $159 
was a valid conviction like that of petitioner Scott.5 
However, when the trial court in this case overruled 
petitioner’s objection to the introduction ot the prior 
theft conviction for purposes of raising the present 
misdemeanor theft charge to a felony, the petitioner’s 
constitutional right not to be imprisoned on the basis 
of an uncounseled conviction was violated. As the 
dissenting appellate court justice noted, “ [hjere, the 
direct consequence of the uncounseled misdemeanor 
conviction was an extra two years added to the 
defendant’s maximum sentence.” (A.30).

Argersinger held that the denial of the assistance of 
counsel would preclude the imposition of a jail 
sentence. Scott v. Illinois is consistent with this 
principle, since this Court acknowledged the difference 
between a fine or the mere threat of imprisonment and 
actual incarceration. There was no constitutional right 
to counsel in Scott, since the fine imposed was a much 
less severe sanction than deprivation of liberty.

5 Petitioner was also sentenced to a one-year term of 
probation. (R.15) Petitioner did not challenge this sentence on 
direct appeal. Had petitioner appealed the issue the court may 
have been unwilling to affirm the sentence of probation because 
it might ripen into unconstitutional imprisonment. (See United 
States v. White, 529 F.2d 1390 (8th Cir., 1976), explained in 
subsection C of the brief)- However, under Scott v. Illinois, the 
prior uncounseled theft conviction and fine would have been 
affirmed. Thus, the sentence of probation does not affect the 
question presented in this case.

12



13

Petitioner Baldasar s prior uncounseled conviction, 
like Scott’s conviction, is constitutionally valid. How­
ever, if incarceration had been imposed at the time of 
sentence it would be presumed invalid, since counsel 
was not present, and there was no showing that 
Baldasar was notified that he was entitled to retain 
counsel6 or, if indigent, to have counsel provided. 
Petitioner Baldasar’s conviction, like Scott’s conviction, 
would not support a sentence of imprisonment as a 
direct result of his uncounseled misdemeanor trial. If 
the State is precluded from imposing imprisonment on 
the initial sentencing date, it must also be precluded 
from using this counselless misdemeanor conviction in a 
separate proceeding to enhance punishment. Neither 
Argersinger nor Scott can be distinguished merely 
because the imprisonment results on a later day.

The immediate result of petitioner Baldasar’s prior 
uncounseled conviction for theft was not imprisonment 
in the penitentiary. Rather, he was fined and placed on 
probation. However, but for the existence of Baldasar’s 
prior uncounseled misdemeanor theft conviction, the 
State would not have been allowed to prosecute the 
instant thirty-dollar misdemeanor theft as a felony 
which resulted in a sentence of one to three years’ 
imprisonment in the penitentiary, as opposed to 
another institution.7 The additional two years’ im-

6Illinois Revised Statutes, 1975, Chapter 38, §113-3(a), 
provides that every person charged with an offense shall be 
allowed counsel before pleading to the charge.

1 Illinois Revised Statutes, 1975, Chapter 38, § 1005-8-6(b), 
allows misdemeanants to be committed to the custody of the 
sheriff. Petitioner also suffered a two-year parole term which 
automatically accompanied a conviction for a Class 4 felony in 
Illinois. III. Rev. Stat., 1975, Ch. 38, § 1005-8-1(e)(3). No parole 
term is imposed upon those convicted of misdemeanors. 13



14

prisonment is directly attributable to the prior 
uncounseled misdemeanor conviction. Such a result 
violates the command of Argersinger that in those 
misdemeanors . . that end up in the actual depriva­
tion of liberty, the accused will receive the benefit of 
‘the guiding hand of counsel’ so necessary when one’s 
liberty is in jeopardy”. 407 U.S. at 40. Not only does 
the use of the prior uncounseled conviction violate the 
no imprisonment holdings in Argersinger and Scott, but 
as demonstrated below it also conflicts with the 
rationale of these decisions.

B. Convictions Obtained In The Absence Of 
Counsel Or Waiver Thereof Lack The Degree 
Of Reliability Necessary To Support An 
Enhanced Punishment Which Results In A 
Deprivation Of Liberty.

It has often been said by this Court that due process 
is flexible and calls for such procedural protections as 
the particular situation demands. Morrissey v. Brewer, 
408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 
(1972). Argersinger and Scott consistently follow this 
approach. Since a deprivation of liberty is a more severe 
sanction than a fine, the Constitution requires the 
additional safeguard of counsel or waiver of counsel in 
cases resulting in actual imprisonment. Convictions 
obtained without the guiding hand of counsel do not 
have the degree of reliability necessary to justify 
punishment either as a direct or a collateral result.

Because uncounseled convictions do not have the 
requisite degree of reliability, they cannot support 
imprisonment regardless of whether it occurs at the

14



15

time of conviction or in a subsequent proceeding to 
enhance punishment. This Court has precluded the use 
of an uncounseled felony conviction to “support guilt 
or enhance punishment” in Burgett v. Texas, 389 U.S.
109, 115 (1967). The Burgett rule was founded on the 
recognition that the absence of counsel . . so 
jeopardizes the fairness of the trial that any ensuing 
conviction is likely to be unreliable.” Gilday v. Scafati,
428 F.2d 1027, 1029 (1st Cir., 1970). See also, Loper 
v. Beto, 405 U.S. 473, 483, 92 S.Ct. 1014, 31 L.Ed.2d 
374 (1972), which approved the holding of Gilday v. 
Scafati, and agreed that the absence of counsel impairs 
the reliability of the conviction. Under the rationale of 
Burgett this Court should not allow uncounseled 
misdemeanor convictions to support guilt or enhance 
punishment.

This Court in Argersinger recognized that regardless 
of whether the offense was classified as a felony or 
misdemeanor, without counsel’s assistance, even one not 
guilty faced the danger of conviction because he did 
not know how to establish his innocence.8 Argersinger,

8In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 
L.Ed.2d 562 (1975), the Court ruled that a defendant could 
represent himself if he voluntarily and intelligently chose to do 
so. In so ruling the majority recognized that “ [i] t is undeniable 
that in most criminal prosecutions defendants could better 
defend with counsel’s guidance than by their own unskilled 
efforts” . 422 U.S. at 834. Three Justices of the Court believed 
counsel to be so indispensible that a defendant had no 
constitutional right to be tried without counsel. The Chief 
Justice emphasized the absolute necessity of counsel for a fair 
trial observing “that in all but an extraordinarily small number of 
cases an accused will lose whatever defense he may have if he 
undertakes to conduct the trial himself.” 422 U.S. at 838 
(dissenting). Justice Blackmun made reference to the old proverb 
in stating that the Court had bestowed a constitutional right to 15 
make a fool of oneself by self-representation. 422 U.S. 852 
(dissenting).



16

407 U.S. at 31. Questions presented in a case which 
lead to imprisonment even for a brief period of time 
are often complex and beyond the usual competence of 
the accused:

The right to be heard would be, in many cases, of 
little avail if it did not comprehend the right to be 
heard by counsel. Even the intelligent and 
educated layman has small and sometimes no skill 
in the science of law. If charged with crime, he is 
incapable, generally, of determining for himself 
whether the indictment is good or bad. He is 
unfamiliar with the rules of evidence. Left without 
the aid of counsel he may be put on trial without 
a proper charge, and convicted upon incompetent 
evidence, or evidence irrelevant to the issue or 
otherwise inadmissible. He lacks both the skill and 
knowledge adequately to prepare his defense, even 
though he have a perfect one. He requires the 
guiding hand of counsel at every step in the 
proceeding against him. Without it, though he be 
not guilty, he faces the danger of conviction 
because he does not know how to establish his 
innocence. If that be true of men of intelligence, 
how much more true is it of the ignorant and 
illiterate, or those of feeble intellect.

Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 77 
L.Ed. 158 (1932), quoted in Argersinger v. Hamlin, 407 
U.S. at 29.9_______  »

9The Chief Justice in his opinion concurring in the result 
echoed these remarks in stating:

. . .  [A]ny deprivation of liberty is a serious matter. The 
issues that must be dealt with in a trial for a petty offense 
or a misdemeanor may often be simpler than those 
involved in a felony trial and yet be beyond the capability 
of a layman when he is opposed by a law trained 
prosecutor.

Argersinger, 407 U.S. at 41.
16



17

In Burgett v. Texas, 389 U.S. 109 (1967), proof of 
the prior conviction was an element of the State’s case 
in chief and, like the instant case, the prior conviction 
was alleged in the charging instrument. The prosecution 
in Burgett introduced a prior Tennessee conviction over 
the objection that it did not facially indicate whether 
counsel was present or had been waived. This Court 
reversed the case because the records of the prior 
conviction on their face raised a presumption that 
Burgett was denied his right to counsel in the Tennessee 
proceeding, and therefore his conviction was void. 324 
U.S. at 114-115.

Petitioner Burgett was imprisoned for his prior 
uncounseled conviction, while the present petitioner 
was not. This fact, however, should not serve to 
distinguish the two cases, for the absence of imprison­
ment on petitioner’s first theft conviction adds nothing 
to its reliability. Both Burgett’s and petitioner’s 
convictions are unreliable to the same degree because of 
counsel’s absence, and it is that fact that should 
control. In Burgett it was recognized that the accused 
was suffering anew10 from the initial deprivation of 
counsel. 389 U.S. at 115. Petitioner Baldasar, on the 
other hand, did not suffer imprisonment as a result of 
his uncounseled conviction until the subsequent con­
viction when his sentence was enhanced. However, the 
resulting imprisonment was just as unconstitutional as if 
he had been imprisoned on his first conviction.

wBurgett’s recognition that the right was being denied anew is 
contrary to the state court’s view that Baldasar’s prior 
uncounseled conviction did not result directly or collaterally in 
imprisonment for that offense. (A.24)

17



18

C.The Majority Of Jurisdictions Confronting 
The Issue Has Prohibited The Use Of Such 
Uncounseled Misdemeanor Convictions With­
out Affecting The “Run Of Misdemeanors.”

Petitioner’s approach set forth above has been 
followed by the great majority of courts that has 
reviewed the issue. In City o f Monroe v. Fincher, 305 
So.2d 108 (La., 1974), the Louisiana Supreme Court 
prohibited an uncounseled first offense for driving while 
under the influence of intoxicants from being used to 
enhance a second conviction for the same offense. Like 
Baldasar, Fincher had not been imprisoned for the first 
offense, but the court reasoned that Argersinger was 
violated:

. . .  It may readily be seen that under the statutory 
scheme for DWI, the first conviction causes 
imprisonment after a second conviction of the 
accused for DWI-that first conviction ends up in 
defendant’s imprisonment, although such imprison­
ment does not immediately succeed the first 
conviction. Before a conviction for any offense 
may result in imprisonment, an accused must have 
been represented by counsel or have knowingly 
and intelligently waived the assistance of counsel, 
as we appreciate the import of the Argersinger 
decision, (emphasis original)

City o f Monroe v. Fincher, 305 So.2d 108, 110 (La., 
1974). Because the record of Fincher’s first conviction 
did not establish that he had counsel or had made a 
waiver of counsel, the conviction could not be used 
under the second-offender provision. The Fincher 
holding was later applied by the same court in a case 
where it also relied on Burgett v. Texas, 389 U.S. 109 
(1967). See, State v. Strange, 308 So.2d 795 (La., 

18 1975).



19

In agreement is Mure v. State, 478 P.2d 926, 928 
(Okla. Crim. App., 1970), where the court refused to 
find Burgett v. Texas distinguishable on the basis that it 
applied only to felonies. In addition, State v. Kirby, 33 
Ohio Misc. 48, 51-52, 289 N.E.2d 406, 408 (1972), 
relies on Argersinger and Burgett for the proposition 
that when an uncounseled conviction, upon which the 
defendant was only fined, is used to support guilt or 
enhance punishment, “it effectively becomes a ‘serious 
offense’ (here a felony), which requires that the records 
of prior convictions show that defendant was repre­
sented by counsel . . or waived counsel, before it can 
be used in the subsequent prosecution. Prior to 
Argersinger, this same approach was employed in State 
v. Reagan, 103 Ariz. 287, 289, 440 P.2d 907, 909 
(1968). In light of Gideon v. Wainwright, 372 U.S. 335 
(1961), Escobedo v. Illinois, 378 U.S. 478 (1964), and 
Burgett v. Texas, supra, the Supreme Court of Arizona 
found that a prior fine-only counselless conviction of 
petty theft could not be used to enhance punishment.

Similar approaches have been taken in other 
jurisdictions in somewhat analogous situations.11 In

11 The majority panel of the state appellate court held that if 
the Argersinger principle were applied to petitioner’s case, there 
would be little rational reason why it would not preclude the 
introduction of such convictions for impeachment or use at a 
sentencing hearing. (A.25). The dissent distinguished these 
situations from the enhancement context because imprisonment 
via enhancement was a far more direct consequence from the use 
of the prior conviction than other instances where the 
convictions was used. (A.28-29).

Initially, it should be noted that these questions concerning 
the collateral consequence with regard to impeachment and 
sentencing were not before the court. Petitioner agrees with the

(continued)



20

Morgan v. State, 235 Ga. 632, 221 S.E.2d 47 (1975), 
the Georgia Supreme Court refused to allow an 
uncounseled misdemeanor conviction for which only a 
fine was imposed to be considered at the sentencing 
phase of the case absent a valid waiver of counsel.

In State v. Harris, 312 So.2d 643 (La., 1973), the 
court prohibited a plea of guilty to possession of 
marijuana, where a fine-only had been imposed, to be 
used as a basis to revoke probation, where the State did 
not demonstrate that the defendant’s plea had been 
made with the benefit of counsel or that the defendant 
had waived his right to counsel.

In Alexander v. State, 527 S.W.2d 927, 929 (Ark., 
1975), the Arkansas Supreme Court refused to allow an 
uncounseled misdemeanor conviction and sentence 
which did not include imprisonment to be the sole basis

(footnote continued from preceding page)
dissenting state court judge that imprisonment in the enhance­
ment situation is a more direct result of the prior uncounseled 
conviction than in other situations. The discussion of the 
analogous cases is relevant to show that even where the effect of 
the conviction is more remote, courts are refusing to rely on 
such convictions that do not evince the necessary degree of 
reliability. In the event this Court reaches the questions of 
whether an uncounseled conviction can be used to impeach a 
defendant, to revoke a suspended sentence, to revoke parole or 
probation, or to be considered in determining the proper 
sentence, petitioner urges that unreliable convictions be pro­
hibited from contributing in any manner to a conviction or 
sentence that results in imprisonment. As this Court stated in 
Loper v. Beto, 405 U.S. 473, 483 (1972): “The absence of 
counsel impairs the reliability of the conviction just as much as 
when used to impeach as when used as direct proof of guilt.” 
Nor should it be used for sentencing. United States v. Tucker, 
404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).

20



21

to revoke a suspended sentence because only a fine was 
assessed, stating . . we interpret Argersinger v. Hamlin 
as holding that an uncounseled municipal court 
conviction involving only a fine, and valid for that 
purpose, cannot be collaterally used to deprive a person 
of his liberty” . The court noted that it was in 
agreement with the author of the law review article 
entitled Argersinger v. Hamlin and The Collateral Use o f 
Prior Misdemeanor Convictions o f Indigents Unrepre­
sented By Counsel A t Trial, 35 Ohio St.L.J. 168 
(1974). That writer had reasoned that the collateral use 
of a counselless misdemeanor conviction would soon 
vitiate the right of counsel as stated in Argersinger and 
be contrary to the conclusions expressed in the last 
paragraph of that decision.

Also agreeing with the commentator noted above was 
the court in Commonwealth v. Barrett, 322 N.E.2d 89, 
93 (Mass. App., 1975), quoting the passage that: “Since 
the Court prohibited imprisonment based upon an 
unreliable conviction obtained at an unfair trial, the 
Court would probably not permit unreliable trials to 
have a delayed impact resulting in imprisonment.” In 
view of this, defendant Barrett’s conviction was 
reversed. The court held that prior uncounseled 
misdemeanor convictions, themselves constitutionally 
proper under Argersinger because only fines were 
imposed, could not constitutionally be used for 
impeachment in a subsequent proceeding that led to 
imprisonment. Commonwealth v. Barrett was cited with 
approval by the Massachusetts Supreme Court in Carey 
v. Zayer o f Beverly Inc., 324 N.E.2d 619 (Mass., 1975) 
(the court found that Barrett would not forbid the use 
of such convictions in a civil suit, since Argersinger does

21



22

not prohibit the imposition of fines in uncounseled 
trials).

In Martson v. Oliver, 485 F.2d 705, 708 (4th Cir.,
1973), cert, denied, 417 U.S. 936, 94 S.Ct. 2652,, 41 
L.Ed.2d 240 (1974), the court interpreted the scope of 
Argersinger:

In sum, Argersinger purported to excise from the 
misdemeanor conviction only those consequences 
that related to loss of liberty and imprisonment.
So far as its direct or collateral consequences are 
the loss of liberty on the part of the defendant, 
Argersinger applies. . . .

The consequences of the enhanced imprisonment that 
petitioner Baldasar received are somewhat similar to the 
circumstances that arise when a petitioner is tried 
without counsel and receives a suspended sentence. In 
both situations the defendant does not directly go to 
jail, but may face incarceration as the result of a 
subsequent violation. In United States v. White, 529 
F.2d 1390 (8th Cir., 1976), the court was of the 
opinion that when a judge chooses to try an indigent 
defendant without counsel he loses not only the 
alternative of sentencing the defendant directly to jail, 
but also the alternative of giving a suspended sentence 
which might later ripen into an unconstitutional 
deprivation of liberty at a later day. Therefore, the 
court in United States v. White vacated the suspended 
sentence, while affirming the conviction and fine.

Thus, the majority of cases12 concerning the issue

l2Cases to the contrary exist and include State v. McGrew, 
127 N.J. Super 327, 317 A.2d 390 (1974); and Aldrighetti v. 
State, 507 S.W.2d 770 (Tex.Crim.App. 1974), but see Presiding 
Justice Onion’s dissent which points out the following possible 
inconsistencies in such a ruling:

(continued)



23

presented here, as well as cases in analogous areas, 
adopt the approach suggested by petitioner Baldasar. 
The cases cited above belie the argument made by the 
majority panel of the state appellate court (A.21) that 
were the court to accept the petitioner’s argument, the 
“run of misdemeanors” would be affected. 407 U.S. at 
40. The states above still employ enhancement statutes. 
Moreover, the fact remains that under Scott v. Illinois, 
there would be no question that counselless mis­
demeanor convictions resulting in fine only would still 
be constitutionally valid. Petitioner simply asks that the 
States be precluded from using counselless misdemeanor 
convictions for enhancing penalties which result in 
actual imprisonment in subsequent prosecutions. A 
similar holding can be found in Mure v. State, 478 P.2d 
926, 928 (Okla.Crim.App., 1970):

(footnote continued from preceding page)
Under today’s new rule, an accused who was convicted of a 
misdemeanor pre-Argersinger without counsel where the 
trial judge or jury had the full range of possible penalties, 
including imprisonment, before it for consideration and 
who decided under the circumstances of the case that a 
fine only was the appropriate punishment can have that 
conviction used against him again for enhancement of 
punishment in another case or for the purpose of 
impeachment. On the other hand, under the rule 
announced today, if a defendant was convicted of a 
misdemeanor, pr e-Argersinger, without counsel, and the 
assessor of punishment determined that the proper 
punishment was imprisonment, then such conviction cannot 
be used for enhancement of punishment or tor impeach­
ment.
Which type of such prior conviction really has the greatest 
bearing on the credibility of the accused in a future case 
when he is a witness on his own behalf? The question 
answers itself. 507 S.W.2d at 775.

23



24

We are not stating that a defendant must be 
represented in all misdemeanors. We are of the 
opinion that a defendant should be represented by 
counsel, or intelligently waive the same, in all cases 
wherein a first conviction may be the basis for a 
subsequent higher offense.

Petitioner Baldasar contends that the Sixth and 
Fourteenth Amendments require the adoption of a 
similar rule which would assure that enhanced punish­
ment would flow only from those prior convictions 
where a criminal defendant was represented by or 
intelligently waived counsel. It is only in that manner 
that this Court can assure that a conviction is 
sufficiently reliable to be a valid basis for depriving one 
of his liberty.

24



25

CONCLUSION

For the foregoing reasons the petitioner respectfully 
requests that the judgment of the Illinois Appellate 
Court be reversed.

Respectfully submitted,

MARY ROBINSON
Deputy Defender
Office of the State Appellate Defender 
Second Judicial District 
63 Douglas Avenue 
Elgin, Illinois 60120

MICHAEL MULDER 
Assistant Defender
Office of the State Appellate Defender
First Judicial District
130 North Wells Street, Suite 2200
Chicago, Illinois 60606
(312) 793-5472

Counsel for Petitioner

Of Counsel:
RALPH RUEBNER 

Deputy Defender
Office of the State Appellate Defender 
130 North Wells Street, Suite 2200 
Chicago, Illinois 60606

PETER B. NOLTE 
Suite 503
Rock River Savings Building
Rockford, Illinois 61101 2'



No. 77-6219

IN THE

Supreme Court of tfje Mmteti States!
October Term, 1978

THOMAS BALDASAR,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,

Respondents.

ON WRIT OF CERTIORARI TO THE APPELLATE 
COURT OF ILLINOIS, SECOND JUDICIAL DISTRICT

BRIEF FOR RESPONDENTS

WILLIAM J. SCOTT,
Attorney General of the State of Illinois,

DONALD B. MACKAY,
MELBOURNE A. NOEL, JR„
MICHAEL B. WEINSTEIN,

Assistant Attorneys General,
188 W. Randolph St., Suite 2200,
Chicago, Illinois 60601,
(312) 793-2570,

Attorneys for Respondents.

27



1

INDEX
Page

Opinions Below........................................................................ 1
Jurisdiction..............................................................................  1
Question Presented................................................................  2
Constitutional and Statutory Provisions Involved... 3
Statement of the Case............................................................  5
Summary of Argument...........................................................  10
Argument:

An Uncounseled M isdemeanor Con­
viction, Valid Under Scott v. Illinois, May 
Be Used To Increase A Sentence Of Impris­
onment For a Subsequent Conviction Un­
der An Enhanced Penalty Statute...............  11

Conclusion...............................................................................  17

29



ii

TABLE OF AUTHORITIES
Cases: Page

Aldrighetti v. State, 507 S.W.2d 770 (Tex. Crim.
App. 1974)...............................................................  14

Alexander v. State, 527 S.W.2d 927 (Ark. 1975).... 13, 14
Argersinger v. Hamlin, 407 U.S. 25 ( 1972).............  passim
Burgett v. Texas, 389 U.S. 109 (1 9 6 7 )....................  10, 15, 16
City o f Monroe v. Fincher, 305 So.2d 108 (La.

1974) ....................................................................... 14
Cottle v. Wainwright, 477 F.2d 269 (5th Cir.

1973) , vacated on other grounds, 414 U.S. 895
(1973)........................................................................  13

Gideon v. Wainwright, 372 U.S. 335 ( 1963)............ 16
Griffin v. Blackburn, 594 F.2d 1044 (5th Cir.

1979).......................................................... ................ 13
Loperv. Beto, 405 U.S. 473 (1972)............................  10, 15, 16
McDonald v. Massachusetts, 180 U.S. 311 (1901).. 15
Morgan v. State, 235 Ga. 632, 221 S.E.2d 47

( 1975)........................................................................ 14
Nelson v. Tullos, 323 So.2d 539 ( Miss. 1975).......... 14
People v. Baldasar, 52 111. App.3d 305, 367 N.E.2d

459 (2d Dist. 1977).................. ............................... passim
People v. Carter, 72 111. App.3d 871. 391 N.E.2d

427 (1st Dist. 1979)................................................  16
People v. Kirkrand, 397 111. 588, 74 N.E.2d 813

(1947)........................................................................ 15
People v. Ramey, 22 111. App.3d 916. 317 N.E.2d

143 (2d Dist. 1974).................................................  12
Potts v. Estelle, 529 F.2d 450 (5th Cir. 1976)......... 13
Scott v. Illinois, ____ U .S .____ 99 S. Ct. 1158

( March 5, 1979)....................................................... passim
Spencerv. Texas, 385 U.S. 554 ( 1967).....................  15
State v. Love, 312 So.2d 675 (La. App. 2d Cir.

1975) ......................................................................  13
State v. McGrew, 127 N.J. Super. 327, 317 A.2d

390(1974)................................................................  14
State v. Sanchez, 110 Ariz. 214, 516 P.2d 1226

( 1973)........................................................................ 14
Thomas v. Savage, 513 F.2d 536 ( 5th Cir. 1975)__ 13
United States v. Tucker, 404 U.S. 443 (1972)............ 16
Whorley v. Brillhart, 373 F. Supp. 83 (E.D. Va.

1974) ......................................................................  14, 15

30



Ill

Constitutional and Statutory Provisions: Page

United States Constitution, Amendment V I ............ 3
United States Constitution, Amendment XIV.......... 3
28 U.S.C. § 1257(3)....................................................  2
III. Rev. Slat., 1973, ch. 38, § 16-1 (e )....................... 3, 5, 12
III. Rev. Star., 1975, ch. 38, § 1005-5-3(d)..............  12, 15
111. Rev. Slat., 1975, ch. 38, § 1005-8-1 ..................... 3, 4, 12
III. Rev. Slat., 1975, ch. 38, § 1005-8-3(a)( 1 ) ........ 4, 12
III. Rev. Stat., 1975, ch. 38, § 1005-8-6 ..................... 4

Miscellaneous:

Note, Argersinger v. Hamlin And The Collateral 
Use Of Prior Misdemeanor Convictions Of In­
digents Unrepresented By Counsel At Trial, 35 
Ohio State Law Journal 168 ( 1974).....................  13, 14



No. 77-6219

IN THE

Suprem e Court of tfje Untteb £§>tate£
October Term, 1978

THOMAS BALDASAR,

Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondents.

ON WRIT OF CERTIORARI TO THE APPELLATE 
COURT OF ILLINOIS, SECOND JUDICIAL DISTRICT

BRIEF FOR RESPONDENTS

OPINIONS BELOW

The opinion of the Illinois Appellate Court, Second Judi­
cial District, is reported at 52 111. App. 3d 305, 367 N.E. 2d 459 
(2d Dist. 1977), and is reproduced in the Appendix (here­
inafter referred to as “A.” ) at pages A. 19-30. The unreported 
order of the Illinois Supreme Court denying a petition for leave 
to appeal is reproduced at A. 31.

JURISDICTION

The Illinois Supreme Court denied a petition for leave to 
appeal on November 23, 1977. The petition for writ of

33



7

certiorari was timely filed in this Court on February 18, 1978, 
and was granted on March 19, 1979. The jurisdiction of this 
Court is invoked by petitioner under the provisions of 28 U.S.C. 
§ 1257 (3).

QUESTION PRESENTED

Whether a prior uncounseled misdemeanor conviction, 
valid under Scott v. Illinois, may be used to increase a sentence 
of imprisonment for a subsequent conviction under an en­
hanced penalty statute.

34



3

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution 
provides that:

In all criminal prosecutions, the accused shall enjoy 
the right to a speedy and public trial, by an impartial jury 
of the State and district wherein the crime shall have been 
committed, which district shall have been previously ascer­
tained by law, and to be informed of the nature and cause 
of the accusation; to be confronted with the witnesses 
against him; to have compulsory process for obtaining 
witnesses in his favor, and to have the Assistance of 
Counsel for his defence.

The Fourteenth Amendment to the United States Con­
stitution provides, in pertinent part, that:

Section 1. All persons born or naturalized in the 
United States, and subject to the jurisdiction thereof, are 
citizens of the United States and of the State wherein they 
reside. No State shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the 
United States; nor shall any State deprive any person of 
life, liberty, or property, without due process of law; nor 
deny to any person within its jurisdiction the equal protec­
tion of the laws.

III. Rev. Stat., 1973, ch. 38, § 16-1 provides, in pertinent 
part, that:

(e) Sentence.
(1) Theft of property not from the person and 

not exceeding $150 in value is a Class A mis­
demeanor. A second or subsequent offense after a 
conviction of any type of theft is a Class 4 felony.

(2) Theft of property from the person or ex­
ceeding $150 is a Class 3 felony.

III. Rev. Slat., 1975, ch. 38, § 1005-8-1 provides, in per­
tinent part, that:

35



4

(b ) The maximum term shall be set according to the 
following limitations: . . .

(5 ) for a Class 4 felony, the maximum term shall 
be any term in excess of one year not exceeding 3 
years. . . .
(c) The minimum term shall be set according to the 

following limitations:. . .
(5 ) for a Class 4 felony, the minimum term shall 

be one year in all cases. . . .
(e) Every indeterminate sentence shall include as 

though written therein a parole term in addition to the 
term of imprisonment. Subject to earlier termination 
under Section 3-3-8, [footnote omitted] the parole term 
shall be as follows:. . .

(3 ) for a Class 4 felony, 2 years.

III. Rev. Slat., 1975, ch. 38, § 1005-8-3 provides, in per­
tinent part, that:

(a ) A sentence of imprisonment for a misdemeanor 
shall be for a determinate term according to the following 
limitations:

(1) for a Class A misdemeanor, for any term less 
than one year.

III. Rev. Slat., 1975, ch. 38, § 1005-8-6 provides, in per­
tinent part, that:

(a ) Offenders sentenced to a term of imprisonment for 
a felony shall be committed to the penitentiary system of 
the Department of Corrections. . . .  A person sentenced for 
a felony may be assigned by the Department of Correc­
tions to any of its institutions, facilities or programs.

(b ) Offenders sentenced to a term of imprisonment 
for less than one year may be committed to the custody of 
the sheriff. All offenders above the age of 17 years who are 
sentenced to 60 days or more to jail may be committed to 
the Department of Corrections. . . .  A person committed 
to the Department of Corrections for less than one year 
may be assigned by the Department to any of its in­
stitutions, facilities or programs.

36



5

STATEM ENT OF THE CASE

On April 8, 1975, Mr. Sol Valiery, a store manager for the 
Jewel Food Stores, swore out a criminal complaint charging 
Thomas Baldasar (hereinafter referred to as “petitioner” ) with 
the misdemeanor offense of Theft (under $150.00). (A. 13-14) 
Subsequently, on May 1, 1975, petitioner appeared in the 
Circuit Court of Cook County, Illinois, at which time he entered 
a plea of not guilty and waived a jury trial. (A. 15) However, 
he was subsequently found guilty of the offense by the Honor­
able Thomas Cawley.(A. 15) Judge Cawley sentenced petition­
er to one (1) year of probation and fined him $159.00. (A. 15) 
This conviction and sentence has never been appealed.

Approximately seven and one-half (I' /i) months later, 
petitioner was charged, by way of Information, with the felony 
offense of Theft.1 (A. 2) This latter charge was brought in the 
Circuit Court of DuPage County, Illinois. (A. 2) The Informa­
tion alleged that petitioner had:

[Ejxerted unauthorized control over property of Mont­
gomery Ward and Co., Inc., being one Dial Massage, 
having a total value of less than $150.00, intending to 
deprive Montgomery Ward and Co., Inc., permanently of 
the use and benefit of said property. (A. 2)

The Information also alleged that petitioner had previously 
been convicted of Theft on May 1, 1975. (A. 2)

Petitioner was brought to trial, before a jury, on July 2, 
1976. (RC. 95; R. 1 )2 The State presented testimony from two

1 See III. Rev. Stat., 1 9 7 3 , c h . 3 8 , § 16-1 ( e ) , w h ic h  is  s e t  o u t  
v e r b a t im  u n d e r  “ C o n s t i t u t i o n a l  a n d  S t a tu to r y  P r o v is io n s  I n v o l v e d ” . 
T h is  s t a tu t e  p r o v id e s  t h a t  t h e f t  o f  p r o p e r t y  n o t  f r o m  th e  p e r s o n  a n d  
n o t e x c e e d in g  $ 1 5 0 .0 0  in  v a lu e  is d e n o m i n a t e d  a  C la s s  A  m is ­
d e m e a n o r .  T h e f t  o f  p r o p e r t y  f ro m  th e  p e r s o n  o r  p r o p e r t y  e x c e e d in g  
$ 1 5 0 .0 0  in  v a lu e  is  d e n o m i n a t e d  a  C la s s  3 f e lo n y . F in a l ly ,  a  s e c o n d  o r  
s u b s e q u e n t  o f fe n s e  a f t e r  a  p r io r  m i s d e m e a n o r  t h e f t  c o n v ic t io n  is  a  
C la s s  4  f e lo n y .

2 “ R C .”  r e f e r s  to  th e  c o m m o n  la w  r e c o r d  (i.e., p le a d in g s ,  
m o tio n s , e t c . ) ,  w h i le  “ R . ”  r e f e r s  to  th e  t r ia l  t r a n s c r ip t .

37



6

witnesses in support of the charge. The first witness was a Dan 
Timmerman, who was the security manager for the Montgom­
ery Ward Department Store located in the Yorktown Shopping 
Center in Lombard, Illinois. (R. 32) Mr. Timmerman stated 
that on November 13, 1975, while working at the Yorktown 
store, he received a call from a Mary Wilkerson, who was also 
on the security staff at that time. ( R. 33) In response to that 
call, he proceeded to the store’s camera department where he 
observed a man “ looking suspicious”. (R. 33) Mr. Tim­
merman followed this person as he walked over to the cosmet­
ics department. (R. 33) At that time, Mr. Timmerman went 
upstairs to a hidden observation booth or “ blind”. (R. 33-34) 
From that vantage point he observed the customer approach 
the shelf where shower massage heads were located. (R. 34) 
He watched as the customer took one of the units off the shelf; 
put it underneath his arm; and walk directly out of the store 
into the shopping mall. (R. 34) Mr. Timmerman then 
proceeded to make an in-court identification of the petitioner as 
being the man whom he had observed. (R. 34-35)

People’s Exhibit No. 1 was identified by Mr. Timmerman 
as being the shower massage head in question. (R. 35) The 
witness then testified as to the path which the petitioner took 
out of the store and the fact that he passed two cash registers on 
his way out without paying for the shower massage head. (R. 
35-36) Mr. Timmerman related that he stopped the petitioner 
when he was approximately 100 feet outside the store and that 
when he asked the petitioner for a receipt, the petitioner replied 
he didn’t have one but that he had paid for the item. (R. 37) 
The petitioner was then escorted back to the store’s security 
office where he was placed under arrest. ( R. 37)

The security manager also identified People’s Exhibit No. 
2, which was a copy of the charter to do business in Illinois 
issued to Montgomery Ward and Co., Inc. by the Illinois 
Secretary of State’s Office. ( R. 39) People’s Exhibits Nos. 1

38



7

and 2 were thereafter admitted into evidence. (R. 40-42) 
Finally, Mr. Timmerman testified that the retail value of the 
shower massage head was $29.88. (R. 43) After a short cross- 
examination ( R. 43-44), and re-direct examination ( R. 45), the 
witness was excused. (R. 45)

The only other witness called by the State was Mr. Sol 
Valiery. (R. 45) Mr. Valiery stated that on May 1, 1975, he 
testified against the petitioner, whom he identified in-court, in a 
criminal case heard at the Oak Park, Illinois, Village Hall Court 
Room. (A. 5) The charge against the petitioner at that time 
was “ shoplifting”. (A. 5) Mr. Valiery related that after a bench 
trial the judge found the petitioner guilty and sentenced him to 
a fine of $159.00. (A. 6) Mr. Valiery stated that he had signed 
the complaint against the petitioner and he identified his 
signature on People’s Exhibit No. 3.

The State then offered into evidence said exhibit which 
consisted of the complaint and the circuit court “half-sheet” 
( i.e. the court docket) from the prior criminal conviction. (A. 
7) Defense counsel immediately interposed an oral objection 
(A. 7), and the court proceedings were adjourned to the judge’s 
chambers, outside the presence and hearing of the jury. (A. 7)

Once in chambers defense counsel offered a written objec­
tion (A. 3), and orally expounded upon it. (A. 7-9) Counsel’s 
argument was two-fold. First, counsel alleged that there was a 
discrepancy between the middle initial of the person listed on 
the Cook County complaint and the middle initial of the 
petitioner. (A. 3, 7)3 Secondly, counsel alleged that there had 
been no affirmative showing that the petitioner had been 
represented by counsel at the Cook County trial and that 
Illinois case law required an affirmative showing of legal 
representation. (A. 3, 7) The trial court denied defense 
counsel’s motion stating that the cases cited by counsel involved

3 T h is  a l l e g a t io n  w a s ,  o f  c o u r s e ,  m o o t  s in c e  th e  S t a t e  h a d  M r. 
V a l ie r y  id e n t i f y  th e  p e t i t i o n e r  in  o p e n  c o u r t  a s  b e in g  th e  s a m e  p e r s o n  
in v o lv e d  in  th e  C o o k  C o u n ty  p r o c e e d in g .  ( A .  7 )

39



felonies and “On the basis o f . . . [this case] not being a felony, 
I will deny your motion.” (A. 9) Thereafter, People’s Exhibit 
No. 3 was admitted into evidence. (A. 9)

On cross-examination, Mr. Valiery testified that the de­
fendant was not represented by counsel at the Cook County 
trial. (A. 10) The witness was then excused and the State 
rested its case-in-chief. (R. 55-56)

The only witness for the defense was the petitioner. (R. 
57) He testified that on November 13, 1975, he entered the 
Montgomery Ward Store on the lower level and was carrying 
the Dial Massage with him at that time. (R. 58) He was 
intending to return the item for which he did not have a sales 
slip. (R. 58-59) The petitioner testified that he went to the 
cosmetics department, where he had previously purchased the 
item, but that he saw no one at the cash register. (R. 59) After 
waiting for a sales person to come to the register, he went 
browsing in the nearby paperback book department at which 
point he was apprehended by security personnel. (R. 60) The 
petitioner stated that he told a security man that he was 
returning the merchandise in question but that he did not have 
a receipt. ( R. 61) He was then taken to the security office. ( R. 
61)

On cross-examination, the petitioner stated that he had 
bought the item approximately one week prior to November 
13th and that it had cost $29.00 plus tax. (R. 61) He reiterated 
most of his previous testimony and insisted that he had never 
left the store before being apprehended. ( R. 63-64) According 
to his testimony, he was apprehended only ten (10) or fifteen 
(15) feet from the cosmetics department. (R. 64) He also 
stated that he never took a shower head off any shelf while he 
was in the store. (R. 64) The witness was then excused and 
defense rested its case. (R. 65)

After the defense rested, the State introduced, for rebuttal 
purposes, a certified copy of a prior Armed Robbery conviction



9

to impeach the petitioner’s credibility. (R. 65-67) This prior 
conviction (People’s Exhibit No. 4) was admitted into evidence 
without objection. (R. 67-68) The State then rested. (R. 69)

Final arguments were made to the jury (R. 75-89), after 
which the jury was instructed (R. 89-95), and allowed to retire 
for deliberations. (R. 95) After a short period of time (RC. 
95), the jury returned a verdict of guilty. (R. 97) The 
petitioner was subsequently sentenced to the Illinois Depart­
ment of Corrections for a period of imprisonment of not less 
than one ( 1) nor more than three (3) years. (A. 16-18; R. 
106) A Notice of Appeal was timely filed on September 8, 
1976. (RC. 85)

Subsequently, on August 30. 1977, the Illinois Appellate 
Court, Second Judicial District, affirmed the petitioner’s con­
viction and sentence in a two (2) to one ( 1) decision. People v. 
Baldasar, 52 111. App.3d 305, 367 N.E.2d 459 (2d Dist. 1977). 
(A. 19-30) The appellate court held that:

[ t ]he Argersinger [Argersinger v. Hamlin, 407 U.S. 25 
( 1972)] prohibition of imprisonment for any offense after 
an uncounseled conviction was limited in application to a 
single case in which a defendant was convicted and was 
not intended to limit the use of a properly obtained, 
although uncounseled, conviction in future proceedings 
based upon subsequent conduct of a defendant. We 
believe this to be true whether such use of the conviction is 
sought to be made for purposes of impeachment, sentence 
determination or, as in the instant case, to establish an 
element of a second or subsequent offense prosecution for 
which an enhanced penalty might be imposed.

We do not accept defendant’s contention that use of 
his prior, uncounseled theft conviction results either di­
rectly or collaterally in imprisonment for that offense.

367 N.E.2d at 463. (A.24)

On November 23, 1977, the Illinois Supreme Court denied 
a petition for leave to appeal. (A. 31) This Court granted a 
petition for writ of certiorari on March 19. 1979.

41



10

SUM M ARY OF ARGUMENT

Petitioner’s 1975 uncounseled misdemeanor conviction is
valid under Scott v. Illinois, ____ U.S. ____ , 99 S.Ct. 1158
(March 5, 1979). Valid criminal convictions can be used for 
certain collateral purposes, one of which is to enhance punish­
ment for a subsequent criminal violation of certain state laws. 
Since the petitioner’s 1975 misdemeanor conviction is valid and 
since the State of Illinois properly alleged and proved this 
conviction at petitioner’s second theft trial, petitioner’s present 
conviction and sentence are valid and constitutional.

Any other conclusion would substantially undercut this 
Court’s previous rulings in Argersinger v. Hamlin, 407 U.S. 25 
( 1972), and Scott v. Illinois, supra. A decision in favor of the 
petitioner would place a much heavier burden upon trial judges 
when they are called upon to make a pre-trial “predictive 
evaluation” as to the need for appointment of counsel. Indeed, 
the net effect may very well be that counsel would be appointed 
in most, if not all, misdemeanor cases where imprisonment was 
an authorized penalty, a result which this Court has previously 
declined to require.

Petitioner’s argument that he was imprisoned as a direct 
result of his original, uncounseled misdemeanor conviction 
overlooks the fact that his sentence of imprisonment was for the 
second conviction only and was not an additional or delayed 
punishment for the original misdemeanor theft offense. 
Furthermore, it was petitioner’s unilateral decision to commit 
the second theft which has led to his imprisonment and not the 
fact that he was previously convicted of misdemeanor theft.

Petitioner’s argument as to the lack of reliability of the 
uncounseled misdemeanor conviction must similarly fail. Peti­
tioner has never questioned the accuracy, either factually or 
legally, of the uncounseled misdemeanor conviction. Moreover, 
since the uncounseled conviction is valid under Scott v. Illinois, 
supra, reliance on cases such as Burgett v. Texas, 389 U.S. 109 
( 1967), and Loperv. Beto, 405 U.S. 473 ( 1972), is misplaced.

42



11

ARGUMENT

AN UNCOUNSELED MISDEMEANOR CON­
VICTION, VALID UNDER S C O T T  V. I L L I N O I S ,  M AY BE 
USED TO INCREASE A SENTENCE OF IM PRISON­
MENT FOR A SUBSEQUENT CONVICTION UNDER AN 
ENHANCED PENALTY STATUTE.

In the recently decided case of Scott v. Illinois, ____U.S.
___ , 99 S. Ct. 1158 (March 5, 1979), this Court upheld the
validity of an uncounseled misdemeanor conviction. In so 
doing, this Court reaffirmed its previous ruling in Argersinger v. 
Hamlin, 407 U.S. 25 ( 1972), wherein it was stated:

We hold, therefore, that absent a knowing and in­
telligent waiver, no person may be imprisoned for any 
offense, whether classified as petty, misdemeanor, or fel­
ony, unless he was represented by counsel at his trial, 
[footnote omitted]
407 U.S. at 37.

The Scott decision explains the above-quoted language 
from Argersinger in the following terms:

Although the intentions of the Argersinger Court are 
not unmistakenly clear from its opinion, we conclude today 
that Argersinger did indeed delimit the constitutional right 
to appointed counsel in state criminal proceedings, [foot­
note omitted] Even were the matter res nova, we believe 
that the central premise of Argersinger—that actual impris­
onment 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.
99 S. Ct. at 1162.

43



12

Thus, there can be no disputing the fact that petitioner’s 
1975 misdemeanor theft conviction is valid. Indeed, petitioner 
has conceded its validity both in this Court ( Brief for petitioner 
at 13), as well as in the Illinois Appellate Court. People v. 
Baldasar, 52 111. App.3d 305, 367 N.E.2d 459, 461 (2d Dist.
1977). (A.20)

A valid criminal conviction can be used for certain collate­
ral purposes, one of which is to enhance punishment for a 
subsequent criminal violation of certain state laws.4 In the 
instant case, as well as in Scott v. Illinois, the petitioner was 
convicted of misdemeanor theft; that is. theft of property not 
exceeding $150 and not from the person. Scott v. Illinois, supra 
at 1159; People v. Baldasar, supra at 461. (A.20) The relevant 
statute [III. Rev. Stat., 1973, ch. 38, § 16-1 (e)]  provides that 
the first such conviction is a Class A misdemeanor, punishable 
by a fine and/or incarceration for up to one (1) year. 111. Rev. 
Stat., 1975, ch. 38, §§ 1005-5-3( d ) and 1005-8-3(a)( 1). How­
ever, a second or subsequent conviction for the same type of 
offense is denominated a Class 4 felony, punishable by in­
carceration for a minimum of one (1) year and a maximum of 
three (3) years. III. Rev. Stat., 1975, ch. 38, § 1005-8-1. In 
order to convict a person for a felony, the state is required to 
allege, and prove, the prior misdemeanor conviction. People v. 
Ramey, 22 III. App.3d 916, 317 N.E.2d 143, 147 (2d Dist. 
1974). This requirement was, of course, met in the instant case.

Since the underlying misdemeanor theft conviction is valid 
and since the state properly alleged and proved said conviction 
at the trial of petitioner on the instant charge, it is submitted 
that petitioner’s present conviction and sentence are valid and 
constitutional. Simply stated then, the syllogism that supports

4 A n  e x te n s iv e ,  t h o u g h  n o t  n e c e s s a r i ly  e x h a u s t iv e ,  l is t  o f  th e  
c r im e s  in  I l l in o is  w h ic h  p r o v id e  f o r  e n h a n c e m e n t  o f  s e n te n c e  u p o n  a  
s u b s e q u e n t  c o n v ic t io n  c a n  b e  f o u n d  in  f o o tn o te  1 o f  t h e  Baldasar 
a p p e l l a t e  c o u r t  o p in io n .  People v. Baldasar, supra a t  4 6 2 . ( A .2 2 )

44



13

the State’s position is as follows. Petitioner’s underlying 
misdemeanor conviction is valid. Valid convictions can be used 
for certain collateral purposes, among which is enhancement of 
sentence. Therefore, the collateral use of an uncounseled 
misdemeanor conviction for enhancement purposes is proper. 
See generally, Note, Argersinger v. Hamlin And The Collateral 
Use Of Prior Misdemeanor Convictions Of Indigents Unrepre­
sented By Counsel At Trial, 35 Ohio State Law Journal 168, 183
(1974); Griffin v. Blackburn, 594 F.2d 1044 (5th Cir. 1979); 
Alexander v. State, 527 S.W.2d 927, 930-32 (Ark. 1975) 
(Fogleman, J . ,  dissenting).5

5 P e t i t i o n e r  c o n te n d s  t h a t  a  m a jo r i t y  o f  th o s e  c o u r t s  w h ic h  h a v e  
c o n s id e re d  th is  is s u e  h a v e  p r o h ib i t e d  th e  u s e  o f  u n c o u n s e le d  m is ­
d e m e a n o r  c o n v ic t io n s  f o r  l a t e r  e n h a n c e m e n t  p u r p o s e s .  B r i e f  fo r  
p e t i t io n e r  a t  1 8 -2 4 . H o w e v e r ,  p e t i t i o n e r  o v e r lo o k s  th e  f a c t  t h a t  a l l  th e  
o p in io n s  u p o n  w h ic h  h e  r e l ie s  w e r e  d e c id e d  p r io r  to  Scott v. Illinois. 
T h e  o n e  c a s e  d e c id e d  s in c e  Scott h a s  s t r o n g ly  s u p p o r t e d  th e  c o l la te r a l  
u se  o f  u n c o u n s e le d  m i s d e m e a n o r  c o n v ic t io n s .  Griffin v. Blackburn, 
59 4  F .2 d  1 0 4 4  ( 5 t h  C ir . 1 9 7 9 ) .  In  Griffin, th e  F i f t h  C ir c u i t  w a s  f a c e d  
w ith  th e  q u e s t io n  o f  th e  u s e  o f  u n c o u n s e le d  m i s d e m e a n o r  c o n v ic t io n s  
fo r  im p e a c h m e n t  p u r p o s e s  a t  a  s u b s e q u e n t  t r ia l .  A f te r  n o t in g  th e  
in te r n a l  c o n f l ic t  in  d e c is io n s  w h ic h  h a d  a r i s e n  w i th in  th e  C o u r t  o f  
A p p e a ls  s in c e  th e  d e c is io n  in  Argersinger [ Compare Cottle v. 
Wainwright, 4 7 7  F .2 d  2 6 9  ( 5 t h  C ir . 1 9 7 3 ) ,  vacated on other grounds, 
41 4  U.S. 8 9 5  ( 1 9 7 3 ) ,  with Thomas v. Savage, 5 1 3  F .2 d  5 3 6  ( 5 t h  C ir .
1 9 7 5 ) , and Potts v . Estelle, 5 2 9  F .2 d  4 5 0  ( 5 t h  C ir . 1 9 7 6 ) ] ,  th e  C o u r t  
r e f e r r e d  to  th is  C o u r t ’s o p in io n  in  Scott a n d  n o te d  th a t  th e  o p in io n ,  
“ [ I ] s  s h o r t ,  b r o a d  a n d  g r o u n d e d  in  b a s ic  p r in c ip le s .  I t  d i s p la y s  n o  
d is p o s i t io n  to  d is t in g u is h  b e tw e e n  p o s s ib le  e f fe c ts , u s e s  o r  c o n ­
s e q u e n c e s  o f  s u c h  c o n v ic t io n s .  T h e  a u th o r i t i e s  i t  c i te s  a s  b e in g  in  
c o n f lic t a r e  q u i te  d i s p a r a t e ,  f a c tu a l ly .  L o g ic a l ly ,  i f  a  c o n v ic t io n  is 
v a lid  fo r  p u r p o s e s  o f  im p o s in g  its  o w n  p a in s  a n d  p e n a l t ie s - — th e  
‘w o r s t ’ c a s e — it is v a l id  f o r  a l l  p u r p o s e s .”  5 9 4  F .2 d  a t  1 0 4 6 .

M o r e o v e r ,  e v e n  s o m e  o f  th e  j u r i s d i c t i o n s  w h ic h ,  p r i o r  to  Scott, 
a p p e a r e d  to  s u p p o r t  p e t i t i o n e r  d id ,  in  fa c t ,  a l lo w  u n c o u n s e le d  m is ­
d e m e a n o r  c o n v ic t io n s  to  b e  u s e d  fo r  c e r ta in  c o l la te r a l  p u r p o s e s  f o r  
w h ic h  i m p r i s o n m e n t  m ig h t  b e  im p o s e d .  State v. Love, 3 1 2  S o .2 d  6 7 5

( footnote continued on following page)

45



14

Any other conclusion would substantially undercut this 
Court’s decisions in Argersinger and Scott and, perhaps more 
importantly, create untold confusion among state and federal 
courts as to the collateral uses of valid prior convictions. The 
essence of this Court’s holdings in Argersinger and Scott is that 
a trial judge is able to make a “predictive evaluation” as to the 
likelihood of imposing imprisonment in the case before him 
prior to the commencement of trial. Argersinger v. Hamlin, 407 
U.S. at 42 (Burger, C.J., concurring). However, if petitioner’s 
views are adopted by this Court a trial judge would have to 
have a gift of prophecy as to a defendant’s future behavior 
when evaluating the need for appointed counsel prior to trial on 
a misdemeanor charge. Indeed, local prosecutors might very 
well insist upon counsel in most, if not all, cases so as to 
preserve the later use of the conviction for enhancement or 
other collateral purposes. Essentially, defendants would receive 
appointed counsel in most, if not all, misdemeanor cases in 
which imprisonment was an authorized penalty, a result which 
this Court, with full awareness of the various options, declined 
to require in Argersinger and Scott. Scott v. Illinois, supra at 
1162, fn. 4; Note, Argersinger v. Hamlin And The Collateral 
Use Of Prior Misdemeanor Convictions Of Indigents Unrepre­
sented By Counsel At Trial, supra at 184.

Petitioner’s main argument in support of his position is that 
he was, in fact, imprisoned as a direct result of his original,

(footnote continued from preceding page)

( L a .  A p p .  2 d  C ir .  1 9 7 5 ) ;  State v . Sanchez, 1 1 0  A r iz .  2 1 4 ,  5 1 6  P .2 d  
1 2 2 6  ( 1 9 7 3 ) ;  See, Whorley v. Brillhart, 3 7 3  F . S u p p .  83  ( E .D .  V a . 
1 9 7 4 ) .

In  a n y  e v e n t ,  r e s p o n d e n t s  b e l i e v e  t h a t  th e  b e t t e r  v ie w  a m o n g  

p r e-Scott c a s e s  c a n  b e  f o u n d  in  d e c is io n s  s u c h  a s  Aldrighetti v. State, 
5 0 7  S .W .2 d  7 7 0  ( T e x .  C r im . A p p .  1 9 7 4 ) ;  Nelson v. Tullos, 3 2 3  S o .2 d  
5 3 9  ( M is s .  1 9 7 5 ) ;  a n d  State v . McGrew, 127  N .J .  S u p e r .  3 2 7 , 3 1 7  
A .2 d  3 9 0  ( 1 9 7 4 ) ,  a s  w e l l  a s  t h e  d i s s e n t in g  o p in io n s  in  Alexander v. 
State, 5 2 7  S .W .2 d  9 2 7 , 9 3 0  ( A r k .  1 9 7 5 ) ;  City of Monroe v. Fincher, 
3 0 5  S o .2 d  108 , 110 ( L a .  1 9 7 4 ) ;  a n d  Morgan v. State, 2 3 5  G a .  6 3 2 , 
22 1  S .E .2 d  4 7 , 4 8  ( 1 9 7 5 ) .

4 6



15

uncounseled misdemeanor conviction. Brief for petitioner at 
11-14. The fallacy of this argument is that his sentence of 
imprisonment was for the second conviction; it was not an 
additional or delayed punishment for the original offense. Cf. 
Spencer v. Texas, 385 U.S. 554, 559-60 (1967); McDonald v. 
Massachusetts, 180 U.S. 311, 312 (1901); People v. Kirkrand, 
397 111. 588, 74 N.E.2d 813 (1947) (each case involving an 
habitual criminal statute). Furthermore, it was petitioner’s 
unilateral decision to commit a second theft which has led to his 
imprisonment and not the fact that he had previously been 
convicted of misdemeanor theft. Cf. Whorley v. Brillhart, supra 
at 86-87 (construing an habitual traffic offender statute). Had 
he not committed the second theft there would not have been 
any deprivation of his liberty.6 Certainly, under these circum­
stances petitioner’s ultimate imprisonment cannot fairly be 
characterized as a “direct result” of his first conviction.

Finally, relying upon this Court’s decisions in Burgett v. 
Texas, 389 U.S. 109 ( 1967), and Loper v. Beto, 405 U.S. 473 
( 1972), petitioner argues that uncounseled convictions lack the 
degree of reliability necessary to support an enhanced punish­
ment resulting in imprisonment. Brief for petitioner at 14-17. 
Yet petitioner has never argued that the uncounseled conviction 
in his case was factually or legally incorrect. Indeed, he 
conceded its validity before the Illinois Appellate Court. People 
v. Baldasar, supra at 461. (A.20) And it is the validity of that 
conviction which distinguishes this case from Burgett or Loper. 
For in those two cases, this Court was dealing with an 
uncounseled felony conviction which was void under Gideon v.

6 In  f a c t ,  th e  t r ia l  c o u r t  c o u ld  h a v e  p la c e d  p e t i t i o n e r  o n  p r o b a t io n  
fo r  th e  s e c o n d  o f fe n s e . III. Rev. Slat., 1 9 7 5 , c h . 3 8 , § 1 0 0 5 - 5 - 3 ( d ) (  1 ) . 
A d d i t io n a l ly ,  h a d  p e t i t i o n e r  b e e n  t r ie d  w i th o u t  r e f e r e n c e  to  th e  firs t 
c o n v ic t io n  h e  s till c o u ld  h a v e  b e e n  im p r i s o n e d  f o r  u p  to  o n e  y e a r .  
T h u s , th e  d i f f e r e n c e  b e tw e e n  a n  e n h a n c e d  c o n v ic t io n  w i th  c o u n s e l  a n d  
a s im p le  c o n v ic t io n  fo r  m i s d e m e a n o r  th e f t  w ith  c o u n s e l  is th e  l e n g th  
o f  im p r i s o n m e n t  a n d  n o t  th e  f a c t  o f  i m p r i s o n m e n t  i ts e lf .

47



16

Wainwright, 372 U.S. 335 ( 1963). However, since this peti­
tioner’s original conviction is valid, there is no reason to 
question its accuracy or to deny its collateral use as was true in 
Burgett and Loper.7

Respondents submit that since petitioner’s first conviction 
was valid, it may be used for the collateral purpose of 
enhancement of sentence upon a second, unrelated conviction. 
Any other conclusion would completely abrogate this Court’s 
decisions in Argersinger and Scott.

7 I t  s h o u ld  b e  n o t e d  th a t  th e  I l l in o is  A p p e l l a t e  C o u r t ,  r e ly in g  o n  
Burgett v. Texas, supra; Loper v . Beto, supra; a n d  United Slates v. 
Tucker, 4 0 4  U .S . 4 4 3  ( 1 9 7 2 ) ,  h a s  r e c e n t ly  r e v e r s e d  a n d  r e m a n d e d  a 
c r im in a l  c o n v ic t io n  w h e r e  th e  t r ia l  j u d g e  c o n s id e r e d ,  b o th  f o r  i m ­
p e a c h m e n t  p u r p o s e s  a n d  f o r  im p o s in g  s e n te n c e ,  a  p r i o r  u n c o u n s e le d  
th e f t  c o n v ic t io n  where the defendant had been sentenced to imprison­
ment in  v io la t io n  o f  Argersinger v . Hamlin, supra. People v. Carter, 72 
I l l .A p p .3 d  8 7 1 , 391  N .E .2 d  4 2 7  ( 1st D is t .  1 9 7 9 ) .

48



17

CONCLUSION

For the foregoing reasons, respondents pray that the 
judgment of the Illinois Appellate Court, Second Judicial 
District, affirming the conviction and sentence of the petitioner, 
be affirmed.

Respectfully submitted,

WILLIAM J. SCOTT,
A t to r n e y  G e n e r a l  o f  th e  S ta te  o f  I l l in o is ,

DONALD B. MACKAY,
MELBOURNE A. NOEL, JR.,
MICHAEL B. WEINSTEIN,

A s s is ta n t  A t to r n e y s  G e n e r a l ,
188 W . R a n d o lp h  S t.,  S u i te  2 2 0 0 ,
C h ic a g o ,  I l l in o is  6 0 6 0 1 ,
( 3 1 2 )  7 9 3 -2 5 7 0 ,

Attorneys fo r  Respondents.

August 27, 1979.

4 9



IN  T H F

S u p re m e  C o u r t  of tl)t M m te b  States:
OCTOBER TERM, 1979

No. 77-6219

THOMAS BALDASAR,
Petitioner, 

v .

PEOPLE OF THE STATE OF ILLINOIS,
Respondent.

ON WRIT OF CERTIORARI TO THE APPELLATE COURT 
OF ILLINOIS, SECOND JUDICIAL DISTRICT

REPLY BRIEF FOR PETITIONER

Of Counsel:
R A L P H  R U E B N E R  
P E T E R  N O L T E

M A R Y  R O B IN S O N  
D e p u ty  D e fe n d e r  
O ffice  o f  th e  S ta te  

A p p e lla te  D e fe n d e r  
S e c o n d  Ju d ic ia l  D is tr ic t  
6 3  D o u g las  A v en u e  
E lg in , I llin o is  6 0 1 2 0

M IC H A E L  M U L D E R
A s s is ta n t D e fe n d e r  
O ffic e  o f  th e  S ta te  

A p p e lla te  D e fe n d e r  
F irs t  J u d ic ia l  D is tr ic t  
13 0  N o r th  W ells S tre e t  
S u ite  2 2 0 0
C h icag o , I llin o is  6 0 6 0 6  
(3 1 2 )  7 9 3 -5 4 7 2

Counsel for Petitioner



( i)

TABLE OF CONTENTS

Page
A R G U M E N T  ................................................................................................................1

T H E  S IX T H  A M E N D M E N T  R IG H T  T O  C O U N ­
S E L  F O R B ID S  T H E  U S E  O F  A  F IN E -O N L Y  
U N C O U N S E L E D  M IS D E M E A N O R  C O N V IC ­
T IO N  T O  IN C R E A S E  P E T IT IO N E R ’S IM ­
P R IS O N M E N T  O N  A  S U B S E Q U E N T  O F F E N S E  
U N D E R  A N  E N H A N C E D  P E N A L T Y  S T A T U T E  ...................... 1

A . A n  U n c o u n s e le d  M is d e m e a n o r  C o n ­
v ic tio n  W hile  V a lid  F o r  T h e  P u rp o s e  O f  
A  F in e  Is N o t  V a lid  F o r  E n h a n c in g  
P u n is h m e n t  B y T w o  Y ears  In  P riso n  A n d
T w o  Y ea rs  O f  P a r o l e ..........................................................................1

B. P ro h ib i t in g  E n h a n c e m e n t  O f  Im p r is o n ­
m e n t  O n  T h e  Basis O f  U n c o u n s e le d  
M is d e m e a n o r  C o n v ic tio n s  W ill N o t C ause 
C o n fu s io n  In  A d m in is te r in g  T h e  C rim in a l 
J u s t ic e  S y s te m  N o r  R e s u lt  In  S u b s ta n tia l
C o s ts  T o  T h e  S ta te s  .......................................................... 10

C . C o n tr a r y  T o  T h e  A m ic u s  S u g g es tio n  T h is
Is N o t  A  C ase C o n c e rn in g  A  S ta tu s  T y p e  

O ffe n s e , N o r  H as A  D o u b le  J e o p a rd y  
A rg u m e n t O r S u b s ta n tiv e  D u e  P ro c ess  
A rg u m e n t B een  M ade  B y  T h e  P e t i t i o n e r ....................... 15

C O N C L U S IO N  ......................................................................................................... 20

T A B L E  O F  A U T H O R IT IE S

Cases:
A rg ers in g e r v. H a m lin , 4 0 7  U .S . 25  ( 1 9 7 2 )  ..............................passim
B u rg e tt v. T e x a s , 3 8 9  U .S . 10 9  ( 1 9 6 7 )  .................................  3 ,4 ,1 6 ,1 7

C ity  o f  M o n ro e  v. F in c h e r , 3 0 5  S o .2 d  10 8  (L a .,
1 9 7 4 )    17

G id e o n  v. W a in w rig h t, 3 7 2  U .S . 3 3 5  ( 1 9 6 1 )  .................................. 4 ,5

5 3



(ii)

G riff in  v. B la c k b u rn , 5 9 4  F .2 d  1 1 4 4  ( 5 th  C ir.,
1 9 7 9 )    3

H e ry fo rd  v. P a rk e r ,  3 9 6  F .2 d  3 9 3  ( 1 0 th  C ir., 1 9 6 8 ) ....................  17

J a c k s o n  v. V irg in ia , _____ U .S . ______ , 61 L .E d .2 d
5 6 0  ( 1 9 7 9 )  ............................................................................................................ 8

J o h n s o n  v. Z e rb s t ,  3 0 4  U .S . 4 5 8  ( 1 9 3 8 )  .................................................. 6

L o p e r  v. B e to , 4 0 5  U .S . 4 7 3  ( 1 9 7 2 )  .........................................................4

M ays v. H a rris , 3 6 9  F .S u p p . 1 3 4 8  (W .D .V a ., 1 9 7 3 ) ........................ 16

M ays v. H arris , 5 2 3  F .2 d  1 2 5 8  ( 4 th  C ir ., 1 9 7 5 ) ........................ 1 6 ,1 7

P e o p le  v . R a m e y , 2 2  I l l .A p p .3 d  9 1 6 ,  3 1 7  N .E .2 d

1 43  ( 1 9 7 4 )  ........................................................................................................ 14

P e o p le  v . W arr, 5 4  I11.2d 4 8 7 ,  2 9 8  N .E .2 d  164
( 1 9 6 3 )  .................................................................................................................. 7

S c o t t  v. I l l i n o i s ,_____ U . S . ______ , 59  L .E d .2 d  3 8 3
( 1 9 7 9 )   passim

T h o m p s o n  v. C ity  o f  L o u isv ille , 3 6 2  U .S . 199

( 1 9 7 2 )  ..............................................................................................................  7 ,8

U n ite d  S ta te s  v. T u c k e r ,  4 0 4  U .S . 4 4 3  ( 1 9 7 2 )  .............................. 5 ,1 8

W illiam s v. U n ite d  S ta te s ,  4 0 1  U .S . 4 4 3  ( 1 9 7 2 )  ..............................  15

W in te rs  v. B e ck , 3 8 5  U .S . 9 0 7  ( 1 9 6 6 )  ..................................................  8

Constitutional And Statutory Provisions:
T itle  8 U .S .C . § 1 3 2 5    11

T itle  18 U .S .C . A p p . 1 2 0 2  ............................................................................. 17

T itle  2 8  U .S .C . § 2 2 5 4  ............................................................................................ 7

A r k .S ta t .A n n .,  ( 1 9 6 4  R e p l. V o l.)  § § 4 4 - 1 1 5  .......................................... 8

m .R e v .S ta t . ,  ( 1 9 7 5 ) ,  C h . 3 8 , § 1 0 0 5 - 5 - 3 ( d ) ( l )  .....................................18

M .R e v .S ta t . ,  ( 1 9 7 5 ) ,  C h . 3 8 , § 1 0 0 5 - 8 - l ( b ) ( 5 )  .....................................18

I l l .R e v .S ta t . ,  ( 1 9 7 5 ) ,  C h . 3 8 , § 1 0 0 5 - 8 - l ( c ) ( 5 )  .................................... 18

m .R e v .S ta t . ,  ( 1 9 7 5 ) ,  C h . 3 8 , § 1 0 0 5 - 8 - 3 ( a X l )  ....................................18

m .R e v .S ta t . ,  ( 1 9 7 5 ) ,  C h . 1 1 0 A , § 6 0 6 ( b )    7

54



(Hi)

Articles:
B rief fo r  th e  L egal A id  S o c ie ty  as A m icu s  C u riae , 

p p . 1 7 -1 8 , Argersinger v. Hamlin, 4 0 7  U .S . 25  
( 1 9 7 2 )  .............................................................................................................. 6 ,8

W. H e lle r s te in , T h e  Im p o r ta n c e  O f  T h e  M isde­
m e a n o r  C ase O n  T ria l A n d  A p p e a l, 2 8  L egal A id  

B rie f  C ase 151 ( 1 9 7 0 )    7

L . H e rm a n , T h e  R ig h t T o  C o u n se l In  M is d e m e a n o r

C o u r t  ( 1 9 7 3 ) ....................................................................................................  6

L. H e rm a n  a n d  T h o m p s o n , S c o t t  y. I llin o is  A n d  T h e  
R ig h t T o  C o u n se l: A  D ec is io n  In  S ea rch  O f  A  
D o c tr in e ?  17 A m .C rim .L .R e v . 71 ( 1 9 7 9 )  ..................................... 12

K ran z  e t .  a l., R ig h t T o  C o u n se l In  C rim in a l C ases:
T h e  M a n d a te  O f  A rg ers in g e r  v. H am lin  ( 1 9 7 6 )  .......................  12

O aks M ass P ro d u c t io n  J u s t ic e  A n d  T h e  C o n s t i tu ­
t io n a l Id ea l ( 1 9 7 0 )  ............................................................................................7

P o llo c k , E q u a l J u s t ic e  in  P ra c tic e , 4 5  M in n .L .R ev .
7 3 7  ( 1 9 6 1 )  ............................................................................................................ 9

S ch ae fe r , F e d e ra lism  a n d  S ta te  C rim in a l T ria ls , 70
H arv .L .R ev . 1 ( 1 9 5 6 )  ................................................................................ 17

U n ite d  S ta te s  D is tr ic t  C o u r t  S e n te n c e s  Im p o se d  
C h a rt  fo r  th e  12 m o n th  P e r io d  E n d in g  J u n e  3 0 ,
1 9 7 8  a n d  p u b l is h e d  b y  th e  A d m in is tra tiv e  O f­
f ic e  o f  th e  U n ite d  S ta te s  C o u r ts  ............................................................11

P. W ald , P o v e r ty  A n d  C rim in a l J u s t ic e ,  A p p e n d ix  C 
to  th e  P re s id e n t’s C o m m iss io n  O n  L aw  E n fo rc e ­
m e n t  A n d  A d m in is tr a t io n  o f  J u s t ic e ,  T ask  F o rc e  
R e p o r t :  T h e  C o u r t ’s 141 n .1 6  ............................................................... 10

5 5



IN  T H E

S u p re m e  C o u r t  of tfje fHm teb ^ ta trs f
OCTOBER TERM, 1979

No. 77-6219

THOMAS BALDASAR,
Petitioner,

PEOPLE OF THE STATE OF ILLINOIS,
Respondent.

ON WRIT OF CERTIORARI TO THE APPELLATE COURT 
OF ILLINOIS, SECOND JUDICIAL DISTRICT

REPLY BRIEF FOR PETITIONER

ARGUMENT

THE SIXTH AMENDMENT RIGHT TO COUN­
SEL FORBIDS THE USE OF A FINE-ONLY 
UNCOUNSELED MISDEMEANOR CONVICTION 
TO INCREASE PETITIONER’S IMPRISONMENT 
ON A SUBSEQUENT OFFENSE UNDER AN 
ENHANCED PENALTY STATUTE.

A. An Uncounseled Misdemeanor Conviction 
While Valid For The Purpose Of A Fine Is 
Not Valid For Enhancing Punishment By Two 
Years In Prison And Two Years Of Parole

57



2

The Respondent has completed a full turnabout from
the position it announced in Scott v. Illinois, ------ U.S.
____ , 59 L.Ed.2d 383 (1979), concerning the issue of
whether an uncounseled conviction may be used to 
enhance a prison sentence on a subsequent offense. In 
Scott v. Illinois, the Respondent declared that a 
prosecutor would be precluded from using an uncoun­
seled conviction to enhance a subsequent offense:

With respect to the use of an uncounseled convic­
tion as the basis of a probation revocation pro­
ceeding or to enhance a subsequent offense, the 
use of such convictions to incarcerate an individual 
depends on how direct the first conviction is to 
imprisonment. Generally such use has been pro­
hibited. Krantz, et al., Right to Counsel in 
Criminal Cases: The Mandate o f  Argersinger v. 
Hamlin, 35-37, 44 (1976) hereinafter cited as 
Krantz. This result, however, is not inconsistent 
with state purposes but is legitimately within the 
realm of prosecutorial discretion. When prosecuting 
an offense the prosecution knows that by not 
requesting that counsel be appointed for defend­
ant, he will be precluded from enhancing subse­
quent offenses. To the degree that the charging of 
offenses involves a great deal of prosecutorial 
discretion and selection, the decision to pursue 
conviction with only limited use comes within 
proper scope of that discretion.

Brief of Respondent, at pp. 19-20, Scott v. Illinois, 59 
L.Ed.2d 383 (1979). Having convinced this Court that 
counsel is not required where conviction results in a 
fine only, the Respondent abandons its previous con­
cession to urge the use of uncounseled convictions for 
enhancement purposes.

The Respondent now argues that since petitioner’s 
1975 misdemeanor theft conviction was a valid convic-

58



3

tion, it was also valid for the purpose of enhancing his 
subsequent sentence. (Respondent’s Brief, pp. 12-13) 
The Respondent relies on Griffin v. Blackburn, 594 
F.2d 1144 (5th Cir., 1979), which determined whether 
petitioner Griffin could be impeached by a prior 
uncounseled misdemeanor conviction which did not 
result in imprisonment. Finding that Scott v. Illinois 
had resolved this question, the court concluded that the 
impeachment was proper because, “ [1]ogically, if a 
conviction is valid for purposes of imposing its own 
pains and penalties-the ‘worst’ case-it is valid for all 
purposes” . 594 F.2d at 1046.1 Such a conclusion 
overlooks the fact that Scott’s counselless conviction 
was not valid for all purposes, since it authorized only a 
fine and not a prison sentence. The approach that a 
conviction valid for one purpose is thus valid for all 
purposes is also inconsistent with the rule that a 
defendant may be impeached only by prior convictions 
which bear directly on testimonial credibility of the 
witness. (See Fed.R.Evid. 609)

A further analogy can be made concerning the 
validity of the prior convictions present in Burgett v.

‘ T h e  p e t i t io n e r  in  Griffin v. Blackburn, 5 9 4  F .2 d  1 0 4 4  ( 5 th  
Cir., 1 9 7 9 ) , w as p ro c e e d in g  pro se. T h e  case w as d e c id e d  o n  th e  
c o u r t’s su m m a ry  c a le n d a r  w i th o u t  o ra l a rg u m e n t o n  M ay 9 , 
1979. A p p a re n t ly ,  th e  c o u r t  w as n o t  in fo rm e d  th a t  th is  C o u r t  
had p re v io u s ly  g ra n te d  c e r t io ra r i  in  th is  cau se  o n  M a rch  19 , 
1979. T h e  q u e s t io n  p re s e n te d  h e re in  m a y  be  an a la g o u s , b u t  is 
d iffe ren t s in c e  Griffin v. Blackburn c o n c e rn e d  im p e a c h m e n t w ith  
an u n c o u n s e le d  c o n v ic t io n , as o p p o s e d  to  e n h a n c e m e n t.  Im p r i­
so n m en t in  th e  e n h a n c e m e n t  s i tu a t io n  is a  m o re  d ire c t  re su lt  o f  
the  p r io r  u n c o u n s e le d  c o n v ic tio n  th a n  in  th e  im p e a c h m e n t  
c o n te x t, fo r  th e  ro le  th e  im p e a c h m e n t  p la y e d  in  th e  c o n v ic tio n  
m ay  b e  sp e c u la tiv e . (P e t. B r .1 9 , n . l l )

59



4

Texas, 389 U.S. 109, 88 S.Ct. 258, 18 L.Ed.2d 319 
(1967), and Loper v. Beto, 405 U.S. 473, 92 S.Ct. 
1014, 31 L.Ed.2d 374 (1972). In Burgett, the prior 
uncounseled conviction was held inadmissible for pur­
poses of enhancement, even though the defendant had 
never sought by collateral remedies to have his prior 
conviction reversed. In this sense his prior conviction 
was not void, but voidable or capable of being 
invalidated upon the defendant’s objection to its use. 
Similarly, in Loper v. Beto, 405 U.S. 473 (1972), where 
the Supreme Court prohibited the use of a prior 
uncounseled conviction for purposes of impeaching the 
defendant, there had been no affirmative steps taken to 
overturn the prior conviction. In both of these cases, 
then, facially valid convictions existed, but were not 
valid for subsequent use because they were in violation 
of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 
L.Ed.2d 799 (1961).

Admittedly this is where the analogy falls short in 
petitioner’s case, since his prior misdemeanor conviction 
is valid for purposes of a fine under Scott v. Illinois. 
However, when the prosecutor seeks to use it for 
enhancement it suffers from the same defect, lack of 
counsel, that existed in Burgett, Loper, and Gideon. 
The type of penalty imposed adds nothing to the 
degree of reliability of petitioner’s prior conviction. 
What may be acceptable for purposes of imposing a fine 
is not sufficient to allow the more severe sanction of 
actual imprisonment. Unless a conviction evinces the 
necessary degree of reliability, it cannot be used to 
deprive liberty and be consistent with Scott v. Illinois 
and Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 
32 L.Ed.2d 530 (1972). To demonstrate sufficient

60



5

trustworthiness in the fact-finding process to impose 
enhanced imprisonment, the prosecutor must first show 
that at the prior trial the person was either represented 
by counsel or made a knowing and intelligent waiver of 
counsel. As Justice Stewart wrote for the Court in 
United States v. Tucker, 404 U.S. 443, 447 n.5, 92 
S.Ct. 589, 30 L.Ed.2d 592 (1972):

It is worth pointing out, however, that to make 
the contrary assumption, i.e., that the prosecution 
would have turned out exactly the same even if the 
respondent had had the assistance of counsel, would 
be to reject the reasoning upon which the Gideon 
decision was based . . .

In sum, then, petitioner’s uncounseled misdemeanor 
conviction while valid for the purpose of a fine, is 
invalid for the purpose of imposing enhanced imprison­
ment.

The Respondent’s analysis never addresses the ques­
tion of whether a prior uncounseled conviction evinces 
the degree of reliability necessary to support the severe 
deprivation of liberty resulting in an additional two 
years of incarceration in the penitentiary and two years 
of parole. Instead, the Respondent first assumes that 
the validity of the prior misdemeanor is synonymous 
with its reliability for all purposes. (Resp. Br., 15-16) 
Second, the Respondent contends that petitioner has 
never argued that his prior uncounseled conviction was 
factually or legally incorrect.

Addressing the second argument first, it is simply not 
correct to say that petitioner has never challenged his 
prior misdemeanor conviction. Like petitioner Arger- 
singer, we have consistently argued that because 
Baldasar was not afforded the right to counsel, he was 
unable to properly raise any defense he may have had

61



6

to the prior misdemeanor charge. Argersinger v. Hamlin, 
407 U.S. 25 (1972). The presumption that petitioner’s 
initial misdemeanor conviction is not sufficiently reli­
able to support enhancement of a subsequent sentence 
flows from the Sixth Amendment, which “embodies a 
realistic recognition of the obvious truth that the 
average defendant does not have the professional legal 
skill to protect himself when brought before a tribunal 
with power to take his life or liberty . . .” . Argersinger 
v. Hamlin, 407 U.S. 25, 32 n.3 (1972), relying upon 
Johnson v. Zerbst, 304 U.S. 458, 462-463, 58 S.Ct. 
1019, 82 L.Ed. 1461 (1938). Chief Justice Burger 
agreed with the Court that those misdemeanor defen­
dants unaided by counsel were no more able to defend 
themselves than those charged with serious crimes. 
Because of this, he felt that further attacks on such 
convictions would be fruitless:

Appeal from a conviction after an uncounseled 
trial is not likely to be of much help to a 
defendant since the die is usually cast when 
judgment is entered on an uncounseled trial 
record.

Argersinger v. Hamlin, 407 U.S. 25, 44 (1972) (Burger, 
C.J., concurring).2 These holdings place the burden on 
the Respondent to show that petitioner was represented 
by counsel or that he intelligently waived counsel 
before his prior misdemeanor conviction may be used as

2 O n e  c o m m e n ta to r  a g ree s , c o n c lu d in g  th a t  i f  th e  d e fe n d a n t  is 
f o rc e d  to  re p re s e n t  h im se lf , th e  l ik e l ih o o d  o f  rev iew  is sm a ll, if  
n o n e x is te n t .  F u r th e rm o r e ,  th e  a u th o r  s ta te s  th a t  su ccess  on 
a p p e a l o f te n  co m es  o n ly  as a re su lt  o f  th e  la w y e r ’s p re se n c e  at 
tr ia l ;  o th e rw ise  n o  a d e q u a te  r e c o rd  e s se n tia l to  a p p e a l c o u ld  be 
m a d e . L . H e rm a n , The Right To Counsel In Misdemeanor Court, 
2 5 -2 6  ( 1 9 7 3 )  ( h e re in a f te r  L . H e rm a n .)

62



7

a basis for enhancing a second sentence which actually 
results in imprisonment.3

A valid conviction is not synonymous with its 
reliability for all purposes. Because uncounseled defen­
dants often do not have the legal skill to defend 
themselves, there is an unacceptable risk that arises 
when such convictions are used to enhance the sen­
tences of subsequent convictions. The risk is that a 
prior conviction of an innocent person may result in a 
substantial deprivation of liberty.4 In Thompson v. City 
of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 
654 (1960), this Court reversed misdemeanor convic­
tions for loitering and disorderly conduct on the due 
process ground that the convictions were unsupported 
by any evidence. Presumably a similar situation could 
arise and go undetected in a case involving a misde­
meanor defendant without counsel who is punished by

3 N o  r e m e d y  w as av a ilab le  fo r  p e t i t io n e r  t o  a t ta c k  h is  M ay , 
1975 u n c o u n s e le d  m is d e m e a n o r  c o n v ic tio n  w h e n  h e  w as tr ie d  in  
A u g u s t, 1 9 7 6 . (A p p . 2 0 )  H is t im e  f o r  filin g  a  d ire c t  ap p e a l h a d  
ex p ire d . Ill Rev. Stat., C h . 1 1 0 A , § 6 0 6 ( b ) .  H is t im e  fo r  filin g  a 
p o s t-c o n v ic tio n  c h a llen g e  to  th e  c o n v ic tio n  h a d  a lso  e x p ir e d  a f te r  
six m o n th s .  People v. Warr, 5 4  HI. 2 d  4 8 7 , 2 9 8  N .E .2 d  164  
(1 9 6 3 ). S in ce  p e t i t io n e r  w as n o t  in  c u s to d y  a p e t i t io n  fo r  a w rit 
o f  h a b e a s  c o rp u s  in  fe d e ra l  c o u r t  c o u ld  n o t  b e  file d . 2 8  U .S .C . 
§ 2 2 5 4 .

4 L . H e rm a n , supra, a t  2 7  c la im s th a t  ev e ry  s tu d e n t  o f  th e  
m isd e m e a n o r  p ro c e ss  h a s  o b se rv e d  th a t  th e  r isk  o f  c o n v ic tin g  an  
in n o c e n t  p e rs o n  in  m is d e m e a n o r  c o u r t  is m u c h  h ig h e r  th a n  in  
fe lo n y  c o u r t ,  c i t in g  as e x a m p le s  s ta te m e n t  o f  P ro f . D . H . O ak s , 
in Mass Production Justice And The Constitutional Ideal, 9 7 -9 8  
(W h iteb rea d  e d . 1 9 7 0 ) ;  W . H e lle rs te in , The Importance of the 
Misdemeanor Case on Trial and Appeal, 2 8  L egal A id  B r ie f  Case 
151 , 1 52  (1 9 7 0 ) .

63



8

only a fine.5 Under the Respondent’s theory such a 
conviction could be used to enhance a subsequent 
sentence, as could a conviction upon which a fine was 
imposed, even though the circumstances described by 
Justice Stewart in his dissent from the denial of 
certiorari in Winters v. Beck, 385 U.S. 907, 907-908, 87 
S.Ct. 207, 17 L.Ed.2d 137 (1966), were present:

. . . The judge did not advise him of the nature of 
the charges against him, of the possible penalty, or 
of his right to make objections, cross-examine 
witnesses, present witnesses in his own behalf, or 
to have a trial de novo in the county circuit court 
under Ark.Stat.Ann. §§44-115, 44-509 (1964 
Repl.Vol.) Not surprisingly, the petitioner did not 
object to the evidence offered by the prosecution, 
did not cross-examine the prosecution witnesses, 
did not exercise his right to a trial de novo in the 
county circuit court. Also not surprisingly, the 
petitioner did not question the vagueness of the 
charge against him [immorality] nor the validity

5 I t  w o u ld  p r o b a b ly  o c c u r  m o re  f r e q u e n t ly  t h a t  a  d e fe n d a n t 
w o u ld  b e  c o n v ic te d  w h e re  th e  ev id e n c e  w o u ld  b e  in s u f f ic ie n t  to  
m e e t th e  c o n s t i tu t io n a l  s ta n d a rd  o f  p r o o f  b e y o n d  a  re a so n a b le  
d o u b t  as o p p o s e d  to  s i tu a t io n s  w h e re  th e  c o n v ic t io n  d id  n o t 
m e e t th e  n o  ev id e n c e  s ta n d a rd  o f  Thompson v. Louisville. Cf.
Jackson v. Virginia, -------- U .S . ______ , 61 L . E d . 2 d  5 6 0  ( 1 9 7 9 ) .
T h e  a p p e l la te  b r a n c h  o f  th e  L egal A id  S o c ie ty  o f  N ew  Y o rk  w ins 
a p p r o x im a te ly  4 0  p e r c e n t  o f  i ts  a p p e a ls  f ro m  m isd e m e a n o r  
c o n v ic tio n s . In  16 p e rc e n t  o f  its  ap p e a ls  c o n v ic tio n s  w ere  
rev e rsed  o n  th e  g ro u n d  o f  in s u f f ic ie n t  ev id e n c e . B r ie f  fo r  th e  
L egal A id  S o c ie ty  o f  N ew  Y o rk  as A m ic u s  C u riae , p p . 17 -18 , 
Argersinger v. Hamlin, 4 0 7  U .S . 25  ( 1 9 7 2 ) .

6 4



9

of converting a sentence of 30 days into one of 
9Vi months solely because of his poverty.6

What this Court must decide is whether misdemeanors 
that are indistinguishable from those described above 
(except for the fact that liberty was not deprived) may 
be used as a basis to enhance a subsequent sentence 
that results in incarceration. When a defendant is tried 
without counsel he is placed in a position of prejudice. 
This Court in Argersinger v. Hamlin, 407 U.S. 25, 36 
(1972), referred to one study that concluded that 
misdemeanants represented by counsel are five times as

6 A  p u b lic  d e fe n d e r  f ro m  P h ila d e lp h ia  h a s  o b se rv ed  w h a t  m a y  
h a p p e n  w h e n  a c o u r t  ad v ises a pro se d e fe n d a n t  h is  r ig h t to  
c ro s s -e x a m in a tio n :

I h av e  w itn e s se d  th e  ag o n iz in g  scen e  in  w h ic h  a n  u n r e p re ­
s e n te d  d e fe n d a n t  is a sk e d  b y  th e  c o u r t  o r  th e  d is t r ic t  
a t to r n e y  i f  h e  w ish es to  c ro ss -ex a m in e  a w itn e s s  fo r  th e  
p r o s e c u t io n . I n s te a d  o f  ask in g  a  q u e s t io n  o f  th e  w itn e s s  in  
th e  p r o p e r  fo rm , th e  a c c u s e d , s ta r t le d  a n d  c o n fu s e d , m ak es  
a s ta te m e n t  c o n tr a d ic t in g  th e  te s tim o n y  o f  th e  p ro s e c u tin g  
w itn e s s . N o t  in f r e q u e n t ly ,  th is  v io la tio n  o f  th e  ru le s  o f  tr ia l 
p ro c e d u re  b rin g s  f o r th  a s h a rp  o ffic ia l re b u k e  w h ic h  
q u ic k ly  en d s  th e  d e f e n d a n t ’s a b o r tiv e  a t t e m p t  a t  cross- 
e x a m in a t io n .

P o llo ck , Equal Justice in Practice, 4 5  M in n . L . R ev . 7 3 7 , 
7 4 1 -7 4 2  ( 1 9 6 1 ) .

65



10

likely to emerge from court with all charges dismissed 
as those who face similar charges without counsel.7

B. Prohibiting Enhancement Of Imprisonment 
On The Basis Of Uncounseled Misdemeanor 
Convictions Will Not Cause Confusion In 
Administering The Criminal Justice System 
Nor Result In Substantial Costs To The States

The respondent ignores the risks inherent in uncoun­
seled convictions and instead argues that the preclusion 
of using an uncounseled conviction for enhancement 
will result in substantial costs and confusion and 
undercut the holdings of Scott and Argersinger. (Resp.

7 O th e r  s tu d ie s  h av e  re a c h e d  s im ila r  re su lts :

In  M a rch , 1 9 6 5 , 1 ,5 9 0  p e r s o n s  w e re  a r ra ig n e d  in  N ew  Y o rk  
C i ty ’s m is d e m e a n o r  c o u r t  o n  d is o rd e r ly  c o n d u c t  ch a rg es . 
1 ,2 5 9  p le a d e d  g u il ty , 3 2 5  w ere  a c q u i t te d ,  a n d  s ix  w ere  
c o n v ic te d  a f te r  t r ia l.  In  M a rch , 1 9 6 6 , a f te r  L egal A id  
r e p re s e n ta t io n  w as in t ro d u c e d  in to  th e  c o u r t ,  1 ,3 2 6  w ere  
a r ra ig n e d , 4 5  p le a d e d  g u il ty , o n e  w as c o n v ic te d  a f te r  tr ia l ,  
a n d  1 ,2 8 0  w e re  a c q u i t te d .

B o te in , N .Y . G o v e rn o r ’s C o n fe re n c e  o n  C rim e  149  ( 1 9 6 6 ) ,  
q u o te d  in  P . W ald , Poverty and Criminal Justice, A p p e n d ix  C to  
T h e  P re s id e n t ’s C o m m is s io n  O n  L aw  E n fo rc e m e n t  a n d  A d m in is ­
t r a t io n  O f  J u s t ic e ,  T a sk  F o rc e  R e p o r t :  T h e  C o u r ts  1 4 1 , n . 16 
a n d  L . H e rm a n  supra p . 2 7 . See, too, H e rm a n ’s o w n  s tu d y  o f  th e  
C o lu m b u s , O h io  M u n ic ip a l C o u r t ,  w h e re  in  a m o n th  d ism issals 
o c c u r re d  in  6 3  p e r c e n t  o f  th e  cases w h e re  th e  d e fe n d a n ts  h ad  
c o u n s e l as o p p o s e d  to  17  p e r c e n t  w h e re  th e y  w e re  n o t 
r e p re s e n te d .

66



11

Br., 10, 14)8 The Respondent’s concession referred to 
at pages one and two of this brief, which was made in 
Scott v. Illinois, is a recognition that petitioner Baldasar 
is not asking this Court to in effect overrule Scott. 
Petitioner is not asking this Court to hold that a 
defendant be represented in all misdemeanor prose­
cutions. Nor is it suggested that this Court require the 
appointment of counsel in any misdemeanor trial where 
imprisonment is not imposed as a punishment. Instead 
the petitioner seeks a rule that would preclude the 
prosecution from elevating misdemeanors to felonies 
and from enhancing sentences upon fine-only uncoun­
seled misdemeanor convictions. Therefore, any state still 
has the option of not providing counsel when faced 
with a theft prosecution such as petitioner’s first 
misdemeanor charge, which involved the theft of three 
packages of bacon.

8 T h e  A m icu s  m ak es  a n  id e n t ic a l  a rg u m e n t c la im in g  th a t  th e  
d ec is io n  in  th is  case  w ill d ire c tly  a f fe c t  f e lo n y  p ro s e c u tio n s  fo r  
re p e a t o f fe n d e rs  u n d e r  8 U .S .C . § 1 3 2 5 .  (A m ic u s  B r., 2 , 5 -8 ) T h e  
A m icu s  s ta te s  t h a t  th e re  a re  m o re  th a n  1 3 ,0 0 0  p e t ty  o ffe n s e  
cases d isp o s e d  o f  u n d e r  th is  s e c tio n  a  y e a r . T h a t  f ig u re  is 
m is lead in g  b e c a u s e  i t  d o e s  n o t  in d ic a te  h o w  m a n y  o f  th e se  
p ro s e c u tio n s  in v o lv e d  r e p e a t  o f fe n d e rs . N o r  d o es  th e  fig u re  
in d ic a te  h o w  m a n y  o f  th e  1 3 ,0 0 0  d e fe n d a n ts  h a d  c o u n s e l, w aived  
c o u n se l, o r  w ere  in d ig e n t.  M o reo v e r  th e  c la im  th a t  5 0 0  p ro s e c u ­
tio n s  c o n c e rn in g  s u b s e q u e n t  illegal e n tr ie s  b y  a lien s  in v o lv e  m a n y  
cases w h e re  th e  d e fe n d a n ts  w ere  n o t  r e p re s e n te d  b y  co u n s e l a t  
th e  t im e  o f  th e i r  f irs t  c o n v ic tio n  is a lso  m is le a d in g  sin ce  th e  
A m icu s c a n n o t  say  h o w  m a n y  cases th is  in v o lv es. T h e  m a t te r s  a re  
o u ts id e  th e  r e c o rd  a n d  a re  p ro v id e d  b y  an  u n n a m e d , u n p u b lis h e d  
IN S  s o u rc e . T h e  e s t im a te  o f  5 0 0  f e lo n y  p r o s e c u t io n s  e a c h  y e a r  
u n d e r  § 1 3 2 5  is  in c o r re c t .  T h e  U n ite d  S ta te s  D is tr ic t  C o u r t  
S e n te n c e s  Im p o se d  C h a rt  fo r  th e  12 m o n th  p e r io d  e n d in g  Ju n e  
3 0 , 1 9 7 8 , a n d  p u b lis h e d  b y  th e  A d m in is tra tiv e  O ffice  o f  th e  
U n ite d  S ta te s  C o u r ts  p ag e  seven  in d ic a te s  th a t  198  d e fe n d a n ts  
w ere  s e n te n c e d  fo r  a f e lo n y  o ffe n s e  § 1 3 2 5  in  d is tr ic t  c o u r t .

67



12

The cost to the Respondent, if any, arises in the 
event that the prosecution requests that counsel be 
appointed in order to preserve its option to enhance 
petitioner’s sentence at a later date. However, the 
majority of misdemeanor offenses are not tied to any 
enhancement provision. Thus, the problem in the 
instant case is minute in scope compared with that 
posed by Scott v. Illinois, where, had petitioner 
prevailed, counsel would be provided in every misde­
meanor where imprisonment was an authorized punish­
ment. In many enhancement situations the Respondent 
may already provide counsel, since serious offenses may 
be at issue and the prosecution is seeking imprisonment 
upon the first violation of the particular misdemeanor 
offense. The Respondent’s and the Amicus’ assertion 
that the implementation of the requested rule would 
result in substantial cost is not supported by any data, 
nor is the cost estimated. Petitioner asks this Court to 
reject the arguments in part because they are factually 
incorrect, but “in much larger part because of the 
Court’s conclusion that incarceration [is] so severe a 
sanction that it should not be imposed as a result of a 
criminal trial unless an indigent defendant had been 
offered appointed counsel to assist in his defense, 
regardless of the cost to the States implicit in such a 
rule.” Scott v. Illinois, 59 L.Ed.2d 383, 388-389 
(1979).9

9 T h e  “ s u b s ta n t ia l  c o s t”  a rg u m e n t  w as a c c e p te d  b y  th e  
m a jo r i ty  p a n e l in  Scott v. Illinois, 59  L .E d .2 d  a t  3 8 9 . H o w ev er, 
th e  m in o r i ty  o f  th e  C o u r t  r e je c te d  th is  a rg u m e n t  as ir re le v a n t 
a n d  sp e c u la tiv e . 59  L .E d .2 d  a t  3 9 6  (B re n n a n , J . ,  c o n c u r r in g ) .  See 
too L . H e rm a n  a n d  T h o m p s o n , Scott v. Illinois, a n d  th e  R ig h t to  
C o u n se l: A  D ec is io n  in  S e a rc h  o f  a  D o c tr in e ?  17 A m . C rim . L. 
R ev . 71 ( 1 9 7 9 ) .  In  v iew  o f  th e  f a c t  t h a t  im p r is o n m e n t  is a t  issue 
h e re  th e  a rg u m e n t c o n c e rn in g  c o s t m a y  b e  f o u n d  to  be 

ir re le v a n t.

68



13

That confusion and expense will not arise from the 
rule petitioner urges is demonstrated partially from the 
majority of jurisdictions that have adopted the rule. 
(Pet. Br., 18-24) In those states prosecutors and trial 
courts know that, absent a knowing and intelligent 
waiver, no enhancement will be allowed from an un­
counseled misdemeanor. If neither the history of the 
defendant, nor the seriousness of the charge indicates 
that jail is a likely sentence, it is also unlikely that the 
need for enhancement will arise. Conversely, if a pat­
tern of criminal conduct appears to be developing, 
certainly the prosecutor could ask that counsel be 
appointed, and keep the option of enhancement at a 
later date open. This solution was so obvious that the 
Respondent previously admitted in Scott v. Illinois that 
it would be precluded from enhancement of subsequent 
offenses if it did not initially provide counsel for the 
defendant. It found this acceptable as falling within the 
proper scope of prosecutorial discretion. (Brief of Resp. 
19-20, Scott v. Illinois, 59 L.Ed.2d 282 (1979).10

The Respondent and the Amicus find it significant 
that petitioner’s sentence was for his second conviction 
and not an additional or delayed punishment for the 
original offense. (Resp. Br., 15) (Amicus Br. 9) How­
ever, it cannot be denied that the judgment and con­
viction obtained in the first trial was a necessary 
element of proof to justify subsequent imprisonment.

10O n e  re a so n  th is  d ec is io n  re s ts  m o re  w ith  th e  p ro s e c u to r  th a n  
w ith  th e  tr ia l  c o u r t  is th a t  “ [i] n  a  n o n ju r y  case th e  p r io r  re c o rd  
o f  th e  a c c u s e d  s h o u ld  n o t  b e  m a d e  k n o w n  to  th e  t r ie r  o f  fa c t 
e x c e p t b y  th e  w a y  o f  t r a d i t io n a l  im p e a c h m e n t .”  Argersinger v. 
Hamlin, 4 0 7  U .S . 2 5 , 4 2  ( 1 9 7 2 )  (C . J .  B u rg e r , c o n c u r r in g ) .

69



14

People v. Ramey, 22 Ill.App.3d 916, 317 N.E.2d 143 
(2nd Dist., 1974). Without the conviction petitioner 
could not have had his maximum sentence increased by 
two years, nor an automatic two-year parole term 
added, nor a misdemeanor elevated to a felony so that 
the place of incarceration would be in a penitentiary. 
The Respondent and Amicus argue that the heavier 
punishment was for the second offense, but this begs 
the question of whether the first conviction is reliable 
enough to warrant an additional two years’ deprivation 
of liberty for a second offense. The consequence in 
petitioner’s situation, whether referred to as a direct 
result or a collateral consequence, should not be 
allowed unless the petitioner was represented by or 
waived counsel at his original trial.

The Amicus presumes that if petitioner prevailed this 
Court’s decision would be retroactive, thus having a 
confusing and costly effect which would include an 
extensive upsetting of final judgments through collateral 
attack. (Amicus Br. 8) In presuming retroactivity, the 
Amicus implicity admits that this case falls within the 
category succinctly explained by Mr. Justice White, 
speaking for a plurality of the Court:

Where the major purpose of new constitutional 
doctrine is to overcome an aspect of the truth­
finding function and so raises serious questions 
about the accuracy of guilty verdicts in past trials, 
the new rule has been given retroactive e ffec t. . . 
Neither good faith reliance by state or federal 
authorities on prior constitutional law or accepted 
practice, nor severe impact on the administration 
of justice has sufficed to require prospective appli­
cation in these circumstances.

70



15

Williams v. United States, 401 U.S. 646, 653, 91 S.Ct, 
1148, 28 L.Ed.2d 388 (1971). Since the absence of 
counsel at petitioner’s first trial was directly connected 
with the truth-determining process, the cost and con­
fusion argument made by the government should be 
given little weight. Of course, the question of retro­
activity posed by the Amicus is simply not before the 
Court in this case.11

C. Contrary To The Amicus’ Suggestion, This Is 
Not A Case Concerning A Status-Type Of­
fense, Nor Has A Double Jeopardy Argument 
Or Substantive Due Process Argument Been 
Made By The Petitioner

There is no dispute that petitioner’s enhanced sen­
tence was for his second conviction. Contrary to the 
Amicus’ assertion, petitioner has never argued that this 
is a Double Jeopardy case. (Amicus Br. 9) What the 
Amicus ignores is that it is impossible to deny that 
“but for” the earlier conviction, the petitioner would 
not have had his liberty deprived for an additional two

11 In  th is  se c tio n  th e  A m icu s  m is s ta te s  th e  p e t i t io n e r ’s p o s i t io n  
in f o o tn o te  9  o f  i ts  b r ie f  a t  p age  8 . P e t i t io n e r  d o es  n o t  re je c t  th e  
d issen t b e lo w  w h ic h  w as o f  th e  o p in io n  th a t  im p r is o n m e n t  
d ire c tly  re su lts  f ro m  th e  e n h a n c e d  p u n is h m e n t  s i tu a t io n  a n d  th a t  
th e  c o n n e c t io n  is m o re  r e m o te  f o r  im p e a c h m e n t .  (A p p . A -2 9 ) 
(P e t. B r. 1 9 -2 0 , n . 1 1 )  W h a t p e t i t io n e r  a rg u ed  w as th a t  i f  th is  
C o u r t re a c h e s  th e  q u e s t io n  o f  im p e a c h m e n t  th e  b e t te r  re su lt  
w o u ld  b e  t o  p re c lu d e  im p e a c h m e n t  b y  a p r io r  u n c o u n s e le d  
co n v ic tio n  even  i f  th e  a c tu a l  d e p r iv a tio n  o f  l ib e r ty  is n o t  as 
d ire c t a  c o n s e q u e n c e  as th e  in s ta n t  s i tu a t io n .

71



16

years. Such a use of an uncounseled misdemeanor 
conviction makes the accused suffer “anew” from the 
fact that counsel was not present. Burgett v. Texas, 389 
U.S. 109, 115 (1967).

The Amicus relies on Mays v. Harris, 523 F.2d 1258 
(4th Cir., 1975), in arguing that enhanced punishment 
statutes are properly analyzed as defining status of­
fenses. (Amicus Br. 10) Mays v. Harris is not persuasive 
authority for this proposition and may have been 
decided improperly. Mays had been convicted of opera­
ting a motor vehicle while classified as a habitual 
offender. The district court granted Mays’ habeas 
corpus petition because it found that two of the four 
convictions underlying Mays’ habitual offender status 
were invalid under Argersinger v. Hamlin, 407 U.S. 25 
(1972), since Mays had been imprisoned without coun­
sel. Mays v. Harris, 369 F.Supp. 1348 (W.D.Va. 1973). 
The Fourth Circuit reversed, finding that the sentence 
Mays complained about did not depend upon the 
validity of his underlying convictions:

Mays was convicted and sentenced, therefore, not 
because he was an adjudged habitual offender, but 
because he wilfully and flagrantly violated an 
extant court order [not to operate a motor 
vehicle].

Mays v. Harris, 523 F.2d 1258, 1259 (4th Cir., 1975). 
In an analogy to contempt proceedings the court found 
that Mays’ present conviction did not flow directly 
from the earlier adjudication, since an essential new 
element was that Mays drove a motor vehicle in the 
face of an order forbidding it. No similar order appears 
in the instant case, nor does the Illinois theft statute 
that petitioner Baldasar was initially convicted of confer 
a status upon him. (I l l .R e v . S t a t 1975, Ch. 38,

72



17

§ 1005-8-3(a)( 1) Pet. Br. 3). Thus, the contempt 
analogy must fail and the conclusion remains that the 
enhanced penalty flows directly from the prior mis­
demeanor conviction.

Besides being distinguishable, the holding of Mays v. 
Harris may be incorrect since the option gives no 
indication that it ever considered the implications of 
Burgett v. Texas, 389 U.S. 109 (1967). It would seem 
inescapable that in part, the prior uncounseled offenses 
of Mays supported the determination of guilt for his 
later offense in violation of Burgett. For this approach 
see City o f  Monroe v. Fincher, 305 So.2d 108, 110 
(La., 1974) explained at page 18 of petitioner’s brief.

Next, the Amicus refers to the fact that 18 U.S.C. 
App. 1202(a)(3) prohibits the possession of a firearm 
by any person who has been adjudged a mental incom­
petent. It argues that it is proper to base the conviction 
on the prior civil commitment proceedings even though 
the standard of proof is lower than that in a criminal 
trial. While that statement is correct, the Amicus fails 
to note that the subject of an involuntary commitment 
would be constitutionally entitled to counsel. Heryford 
v- Parker, 396 F.2d 393 (10th Cir., 1968). Therefore 
the truth-finding process would not be affected to the 
degree it would where counsel is absent. “Of all the 
rights that an accused person has, the right to be 
represented by counsel is by far the most pervasive, for 
it affects his ability to assert any other rights he may 
have.” Schaefer, Federalism and State Criminal Trials, 
70 Harv.L.Rev. 1, 8 (1956).

The Amicus’ argument that the original misdemeanor 
conviction is at least as reliable in showing petitioner’s 
need for enhanced punishment as is information 
routinely considered in pre-sentence reports is highly

73



18

questionable in view of United States v. Tucker, 404 
U.S. 443 (1972). The Amicus fails to state why an 
uncounseled misdemeanor conviction is any different 
from an uncounseled felony conviction other than to 
cite the misdemeanor’s validity for purpose of a fine 
only. The sentencing analogy also fails because the prior 
misdemeanor is an essential element of the subsequent 
offense, and upon proof beyond a reasonable doubt of 
that element an entirely different and more severe range 
of sentencing options come into existence. For 
example, without the prior misdemeanor conviction 
petitioner could have at the worst been sentenced to 
less than one year, but upon proof of the prior 
conviction under the enhancement provision, the maxi­
mum sentence could be three years, which petitioner 
received. (Compare Ill.Rev.Stat., 1975, Ch. 38,
§ 1005-8-3(a)(l) with § 1005-8-1 (b)(5) and (c)(5).) The 
trial court could have placed petitioner on probation 
for the second, enhanced offense; however, if it chose 
to imprison petitioner, it could not do so for less than 
a one-year period. Ill.Rev.Stat., 1975, Ch. 38,
§ 1005-5-3(d)( 1). No similar consequence could flow 
from a court’s reliance upon such material at a sub­
sequent sentencing hearing where enhancement was 
unavailable. While the Amicus suggests that severe con­
sequences do not alone require the appointment of 
counsel, the Sixth Amendment prohibits such a severe 
loss of liberty as this without the right to counsel.

The Amicus incorrectly frames the question in this 
case as being whether the legislative decision to treat 
those previously convicted of a misdemeanor more 
stringently than first offenders is arbitrary when the 
defendant was not represented by counsel at the first

74



19

trial. (Amicus Br. 10) The petitioner has never made 
such a substantive due process argument that the legisla­
ture’s enhancement scheme was arbitrary. Petitioner 
does not question the essence of the enhancement 
statute as being contrary to substantive due process. 
Rather, if this case is viewed in terms of a due process 
question, it should be viewed as a question of pro­
cedural due process rather than substantive due process 
as the Amicus would have it. This is, the petitioner’s 
procedural due process rights under the Sixth and 
Fourteenth Amendments were violated by the manner 
in which his case fell within the enhancement statute. 
Even if the statute is sound in its end, the procedures 
leading to its application must conform to due process 
protections. Here they did not. Petitioner’s procedural 
due process rights were violated when a previous un­
counseled misdemeanor conviction was used to place 
him within the purview of the statute. His due process 
rights were violated in that additional imprisonment was 
imposed under the statute as a direct result of an 
uncounseled misdemeanor conviction. Petitioner’s claims 
may succeed where petitioner Scott’s failed since the 
consequence in Scott v. Illinois was a fine, whereas here 
the consequence is actual imprisonment in violation of 
Argersinger v. Hamlin.

75



20

CONCLUSION

For the reasons stated above, the petitioner respect 
fully requests that the judgment of the Illinois Appel 
late Court be reversed.

O f Counsel:

RALPH REUBNER

Respectfully submitted,

MARY ROBINSON 
Deputy Defender 
Office of the State 

Appellate Defender 
Second Judicial District 
63 Douglas Avenue 
Elgin, Illinois 60120

MICHAEL MULDER 
Assistant Defender 
Office of the State 

Appellate Defender 
First Judicial District 
130 North Wells Street 
Suite 2200
Chicago, Illinois 60606 
(312) 793-5472

Counsel for Petitioner

Deputy Defender
Office of the State Appellate Defender 
130 North Wells Street 
Suite 2200
Chicago, Illinois 60606

PETER B. NOLTE 
Suite 503
Rock River Savings Building 
Rockford, Illinois 61101

76



No. 77-6219

3u %  (Emtrt of tip l u t t ^  BUUb
October Term, 1978

Thomas Baldasar, petitioner

v.

State of Illinois

ON WRIT OF CERTIORARI TO THE APPELLATE COURT 
OF ILLINOIS, SECOND CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

Wade H. McCkee, J r.
Solicitor General

P hilip B. Heymann 
Assistant Attorney General

Harriet S. Shapiro
Assistant to the Solicitor General

Wade Livingston
Attorney
Department of Justice 
Washington, D.C. 20530

77



I N D E X
Page

Question p resen ted ...............................................  1
Interest of the United States ............................  1
Statement ..............................................................  3
Argument ..............................................................  4
Conclusion ..............................................................  13

CITATIONS
Cases:

Addington v. Texas, No. 77-5992 (April
30, 1979) .................................................. 12

Argersinger v. Hamlin, 407 U.S. 2 5 ..........passim
Baxter v. Palmigiano, 425 U.S. 308 ........ 12
Bell v. Burson, 402 U.S. 535 ......................  12
Berry v. Cincinnati, 414 U.S. 29 .............. 8
Burgett v. Texas, 389 U.S. 109 ................  11
Carlesi v. New York, 233 U.S. 51 ............ 9
Gagnon v. Scarpelli, 411 U.S. 778 ............ 11
Graham v. West Virginia, 224 U.S. 616.. 9
Griffin v. Blackburn, 594 F. 2d 1044 .....  5
Lewis v. United States, cert, granted, No.

78-1595 (June 18, 1979) ..................   11
Loper v. Beto, 405 U.S. 473 ......................  11
Marston v. Oliver, 485 F. 2d 705, cert, de­

nied, 417 U.S. 936 ...................................  8
Mathews v. Eldridge, 424 U.S. 319 .......... 10
Mays v. Harris, 523 F. 2d 1258 ................ 10,12
McDonald v. Massachusetts, 180 U.S.

311 .....   9
Moore v. Missouri, 159 U.S. 673 .............. 9
Murgia-Melendrez v. INS, 407 F. 2d 207.. 12

79



II
Cases—Continued Page

Parham v. J.L., No. 75-1690 (June 20,
1979) ..........................................................  10

Pennsylvania v. Ashe, 302 U.S. 51 .......... 9
Scott v. Illinois, No. 77-1117 (March 5,

1979) .......................................................... passim
Spencer v. Texas, 385 U.S. 554 ................  11
State v. Harris, 312 So. 2d 643 ................  8
United States v. Tucker, 404 U.S. 443 .... 11

Constitution, statutes and ru le :
United States Constitution, Fifth Amend­

ment, Double Jeopardy C lause..............  9
8 U.S.C. 1252(b) (2) ...................................  12
8 U.S.C. 1325 ................................................ 2
8 U.S.C. 1326 ...............................................  12
15 U.S.C. 1263 ....................................    2
18 U.S.C. 1(3) .............................................  1
18 U.S.C. 13 .....      3
18 U.S.C. 3006A(a) ............................  2
18 U.S.C. App. 1202(a) (3) ......................  12
25 U.S.C. 202 ........       8
Ala. Code tit. 32, § 5-311 (1977) .............. 5
Ariz. Rev. Stat. § 28-692.01 (Cum. Supp.

1978) ........................     6
Ark. Stat. Ann. §§ 75-601.8, 75-1026.2

(Cum. Supp. 1977) ...........................  6
Ark. Stat. Ann. § 75-1004 (1957) ..... . 5
Cal. Veh. Code § 42001 (West Cum. Supp.

1979) ............         6
D.C. Code §§ 40-605, 40-609 (1973) .......  6
Del. Code Ann. tit. 21, § 4205 (1975)...... 5
Idaho Code § 49-1102 (Cum. Supp. 1978).. 6
111. Rev. Stat. ch. 38, 16-1 (e) (1) .......... 3
111. Rev. Stat. ch. 38, § 1005-8-1 (b) (5) .... 3

80



in
Constitution, statutes and rule—Continued Page

Kan. Stat. Ann. § 8-5,125 (1964) ............  6
Ky. Rev. Stat. § 189.990(9), (19) (Supp.

1978) ..........................................................  6
La. Rev. Stat. Ann. § 14:98 (West Cum.

Supp. 1978) .............................................. 6
La. Rev. Stat. § 32:57 (West Cum. Supp.

1979) .................      6
Md. Transp. Code Ann. § 27-101 (i)

(Cum. Supp. 1978) .................................  6
Mich. Stat. Ann. § 9.2325 (Cum. Supp.

1979) ................................     6
Miss. Code Ann. § 63-9-11 (1973) ..........  6
Mo. Ann. Stat. § 564.440 (Vernon Supp.

1979) ..........................................................  6
Mont. Rev. Codes Ann. §§ 32-2142, 32-

2143 (1961) ........... ..................................
Neb. Rev. Stat. § 39-669.07 (1974) ........
Nev. Rev. Stat. § 484.379 (1977) ...... .
N.J. Stat. Ann. § 39.4-50 (West Cum.

Supp. 1979) ....................... .....................
N.M. Stat. Ann. §§ 66-8-102, 66-8-113

(1978) ........................................................
N.Y. Veh. & Traf. Law § 1180(f) (Mc­

Kinney Cum. Supp. 1979) ....................
N.Y. Veh. & Traf. Law §§ 1800, 1801

(McKinney 1970) ...................................
N.C. Gen. Stat. § 20-179 (1978) .........
N.D. Cent. Code § 39-08-01 (Supp. 1977).. 
Ohio Rev. Code Ann. § 4511.99 (Page

Supp. 1978) ..... .................................... . 6
75 Pa. Cons. Stat. Ann. § 6503 (Purdon

1977) _________________ _____ ______  7
S.C. Code § 56-5-2940 (1976) .................. . 7
Va. Code § 46.1-15.2 (Cum. Supp. 1978).. 7

81

-q
 

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C
l 

-1
 

-q
 

-q
 

-
q

o
c

f
t



IV

Constitution, statutes and rule—Continued Page
W.Va. Code § 17C-5-2 (Cum. Supp.

1978) ..........................................................  7
W.Va. Code § 17C-18-1 (1974) ................  6
Wyo. Stat. Ann. § 31-5-1201 (1977) ........ 6
Fed. R. Evid. 609(a) (2) ........................... 8

Miscellaneous:
1977 Annual Report of the Director of 

the Administrative Office of the United
States Courts ...........................................  2

Note, Argersinger v. Hamlin and the Col­
lateral Use of Prior Misdemeanor Con­
victions of Indigents Unrepresented by 
Counsel at Trial, 35 Ohio St. L.J. 168 
(1974) ........................................................  11

82



3tt %  & upratt? QInurt n f tlu> In tte fr S ta te s
October Term, 1978

No. 77-6219

Thomas Baldasar, petitioner 

v.
State of Illinois

ON WRIT OF CERTIORARI TO THE APPELLATE COURT 
OF ILLINOIS, SECOND CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

QUESTION PRESENTED

Whether a misdemeanor conviction, valid under 
Scott v. Illinois, No. 77-1177 (March 5, 1979), may 
serve as the basis for an enhanced punishment for a 
subsequent offense.

INTEREST OF THE UNITED STATES

In federal district courts, an indigent defendant 
need not be offered appointed counsel when he is tried 
for a petty offense,1 so long as he is not sentenced to

1 A petty offense is a misdemeanor punishable by imprison­
ment for not more than six months or by a fine not exceeding 
$500, or both. 18 U.S.C. 1 (3).

( 1 )

83



2

imprisonment on conviction (18 U.S.C. 3006A (a)); 
Scott v. Illinois, No. 77-1177 (March 5, 1979). Many 
federal statutes provide that a first offense is punish­
able as a petty offense, but that subsequent convic­
tions are punishable by increased terms of imprison­
ment.2 The most significant of these statutes is 8 
U.S.C. 1325, which prohibits illegal entry into the 
United States by an alien. A second violation of Sec­
tion 1325 is considered a felony and is punishable by 
imprisonment for not more than two years or a fine 
of not more than $5,000, or both. More than 13,000 
petty offense cases are disposed of annually under this 
Section. 1977 Annual Report of the Director of the 
Administrative Office of the United States Courts 
175. These cases typically involve indigent aliens, 
unrepresented by counsel. The Immigration and 
Naturalization Service estimates that each year more 
than 500 prosecutions under Section 1325 involve 
subsequent illegal entries and are therefore treated 
as felony prosecutions. Although indigent defendants 
in such cases are provided with counsel, in many 
cases the defendants were unrepresented at the time 
of their first conviction. The felony prosecutions for 
repeat offenders under Section 1325 thus will be 
directly affected by the decision here.3 In addition,

2E.g., 15 U.S.C. 1263 (shipment of misbranded or banned 
hazardous substances) ; 25 U.S.C. 202 (inducing an Indian to 
purport to convey title held by the United States in tru st for 
h im ).

8 INS also informs us that the possibility of an enhanced 
sentence is a significant factor in plea bargaining.

84



3

the criminal justice system of the District of Colum­
bia will be affected in much the same way as any 
other local system (see, e.g., Pet. App. A-3 n .l) .4

STATEMENT

Under Illinois law, petty theft is a misdemeanor, 
punishable by a term of less than one year’s im­
prisonment. 111. Rev. Stat. ch. 38, j[ 16-1 (e )(1 ) 
(1974). A second or subsequent conviction, however, 
is treated as a felony and is punishable by a term of 
between one and three years. 111. Rev. Stat. ch. 38, 
§ 1005-8-1 (b )(5 ).

On November 13, 1975, petitioner was convicted of 
stealing a shower massage from a Montgomery Ward 
store. Because he had previously been convicted of 
petty theft,5 petitioner was sentenced under the felony 
provision applicable to second and subsequent petty 
theft offenses. He was sentenced to a term of one to 
three years’ imprisonment (A. 17). Petitioner was 
represented by counsel a t the trial for his second 
offense, but not at the trial for his 1975 petty theft 
offense (A. 20).

On appeal, petitioner argued that because he had 
not been represented by counsel at his first trial, he 
should not have been subject to the enhanced penalty 
for his second offense. The Illinois Appellate Court

4 Moreover, the enforcement in federal courts of state law 
under the Assimilative Crimes Statute, 18 U.S.C. 13, will be 
affected.

6 Petitioner was sentenced to one year’s probation after his 
first conviction.

85



4
rejected this contention and affirmed his conviction 
and sentence. As the court noted, petitioner con­
ceded that his 1975 conviction was valid, since he 
had not been imprisoned for that offense (A. 20). 
The court rejected petitioner’s contention that the 
use of a prior uncounseled theft conviction to enhance 
the punishment for his second conviction in effect 
resulted in his imprisonment for the first offense. 
The court held that petitioner “was sentenced to im­
prisonment for his second theft conviction only and 
not, as he suggests, sentenced again, and this time to 
imprisonment, for the first theft conviction” (A. 24). 
Petitioner then sought leave to appeal to the Illi­
nois Supreme Court, which was denied (A. 31). 
This Court granted certiorari on March 19, 1979 (A. 
32).

ARGUMENT
1. In Argersinger v. Hamlin, 407 U.S. 25 (1972), 

this Court held that a state may not constitutionally 
imprison an indigent defendant for a petty offense 
unless he has been offered appointed counsel a t his 
trial. Scott v. Illinois, No. 77-1177 (March 5, 1979), 
refused to extend the holding in Argersinger to re­
quire an offer of counsel in all cases in which im­
prisonment is statutorily authorized. The Court ex­
plained (slip op. 6 (footnote om itted)) :

Even were the m atter res nova, we believe 
that the central premise of Argersinger—that 
actual imprisonment is a penalty different in 
kind from fines or the mere threat of imprison­
ment—is eminently sound and w arrants adop­
tion of actual imprisonment as the line defining 
the constitutional right to appointment of coun-86



5

sel. Argersinger has proved reasonably work­
able, whereas any extension would create con­
fusion and impose unpredictable, but necessarily 
substantial, costs on 50 quite diverse States.

The same reasoning requires rejection of petitioner’s 
claim that Argersinger should be extended to bar the 
consideration of counsel-less misdemeanor convictions 
in determining whether a defendant is a repeat of­
fender.6 Here, as in Scott, the extension would create 
confusion and impose substantial costs on state and 
federal criminal justice systems.7

6 Petitioner contends (Br. 18-24) that most courts that 
have considered the issue have adopted the approach he 
urges. But all of the opinions on which he relies were decided 
before Scott. As the F ifth  Circuit recognized in Griffin V. 
Blackburn, 594 F.2d 1044 (1979), this Court’s decision in 
Scott resolved the previous conflict of authority concerning 
the collateral effects of uncounseled misdemeanor convictions. 
“The Court’s opinion [in Scott] is short, broad, and grounded 
in basic principles. I t displays no disposition to distinguish 
between possible effects, uses or consequences of such convic­
tions. The authorities it cites as being in conflict are quite 
disparate, factually. Logically, if a  conviction is valid for 
purposes of imposing its own pains and penalties—the ‘worst’ 
case—it is valid for all purposes” (594 F.2d a t 1046).

7 The extent of the potential burden on the various states is 
suggested by the number of states with statutes providing, 
either generally or for specific offenses, that repeated serious 
traffic violations are punishable by an increased term of im­
prisonment.
General:

Alabama—Ala. Code tit. 32, § 5-311 (1977) ;
Arkansas— Ark. Stat. Ann. § 75-1004 (1957) ;
Delaware—Del. Code Ann. tit. 21, § 4205 (1975) ;

87



6

A s th e  C h ief Ju s tic e  em phasized  in  h is  concurrence 
in  A rg e rs in g e r  (407  U .S. a t  4 2 ) , th a t  decision placed 
“a  new  load on co u rts  a lre a d y  o v erb u rd en ed ,” since it

Kansas—Kan. Stat. Ann. § 8-5,125 (1964) ;
Louisiana-—La. Rev. Stat. § 32:57 (West Cum. Supp. 

1979) ;
Mississippi—Miss. Code Ann. § 63-9-11 (1973) ;
New York—  N.Y. Veh. & Traf. Law §§ 1800, 1801 (Mc­

Kinney 1970) ;
Ohio—Ohio Rev. Code Ann. § 4511.99 (Page Supp. 1978) ; 
West Virginia—W. Ya. Code § 17C-18-1 (1974) ; 
Wyoming—Wyo. Stat. Ann. § 31-5-1201 (1977).

Specific offenses:
Arizona—Ariz. Rev. Stat. § 28-692.01 (Cum. Supp. 1978) 

(driving while intoxicated-—“DWI” ) ;
Arkansas—Ark. Stat. Ann. §§ 75-601.8, 75-1026.2 (Cum.

Supp. 1977) (speeding near a school and DWI) ; 
California—Cal. Veh. Code § 42001 (West Cum. Supp. 

1979) (failure to submit to safety inspection or flight 
from a peace officer) ;

District of Columbia—D.C. Code §§ 40-605, 40-609 (1973) 
(reckless driving, leaving the scene of an accident, 
and DWI) ;

Idaho—Idaho Code § 49-1102 (Cum. Supp. 1978) (DWI) ; 
Kentucky—Ky. Rev. Stat. § 189.990(9), (19) (Supp.

1978) (DWI and fleeing from an officer) ;
Louisiana—La. Rev. Stat. Ann. §14:98 (West Cum. 

Supp. 1978) (DWI) ;
Maryland—Md. Transp. Code Ann. § 27-101 (i) (Cum. 

Supp. 1978) (driving with a revoked, suspended or 
cancelled license, DWI, and fleeing from an officer) ; 

Michigan—Mich. Stat. Ann. § 9.2325 (Cum. Supp. 1979) 
(DWI) ;

Missouri—Mo. Ann. Stat. § 564.440 (Vernon Supp. 1979) 
(DWI) ;

Montana—Mont. Rev. Codes Ann. §§ 32-2142, 32-2143 
(1961) (DWI and reckless driving) ;

Nebraska— Neb. Rev. Stat. § 39-669.07 (1974) (D W I);

88



7

required a prediction before trial of whether im­
prisonment would be an appropriate sentence on con­
viction. But that prediction, the Chief Justice con­
cluded, “is not beyond the capacity of an experienced 
judge, aided as he should be by the prosecuting of­
ficer” (ibid.). In contrast, it is likely to be impossi­
ble to predict with any hope of accuracy what the 
collateral consequences of a conviction will be to any 
particular defendant a t any time in the future. 
Therefore, acceptance of petitioner’s contention would 
mean that, to avoid foreclosing the use of the con­
viction in the future, a cautious judge would have to 
offer counsel whenever imprisonment was a possible 
collateral consequence of the conviction. That is, in 
effect, precisely the result rejected in Scott.

Nevada— Nev. Rev. Stat. § 484.379 (1977) (DWI) ;
New Jersey—N.J. Stat. Ann. § 39.4-50 (West Cum. Supp. 

(1979) (DWI) ;
New Mexico—N.M. Stat. Ann. §§ 66-8-102, 66-8-113 

(1978) (DWI and reckless driving) ;
New York—-N.Y. Veh. & Traf. Law § 1180(f) (McKin­

ney Cum. Supp. 1979) (speeding) ;
North Carolina—N.C. Gen. Stat. § 20-179 (1978) (DWI) ;
North Dakota—N.D. Cent. Code § 39-08-01 (Supp. 1977) 

(DWI) ;
Pennsylvania—75 Pa. Cons. Stat. Ann. § 6503 (Purdon

1977) (driving without a license or while license is 
suspended or revoked, racing on a highway, fleeing an 
officer, driving without lights, making a false accident 
report) ;

South Carolina^— S.C. Code § 56-5-2940 (1977) (DWI) ;
Virginia—Va. Code § 46.1-15.2 (Cum. Supp. 1978) (tam­

pering with an odometer) ;
West Virginia—W. Va. Code § 17C-5-2 (Cum. Supp.

1978) (DWI).

89



8

Moreover, the confusing and costly effect here pre­
sumably would include extensive upsetting of final 
judgments through collateral attack, since Arger- 
singer applies retroactively. Berry v. Cincinnati, 414 
U.S. 29 (1973). See Marston v. Oliver, 485 F.2d 705 
(4th Cir. 1973), cert, denied, 417 U.S. 936 (1974). 
Not only persons like petitioner who have been sen­
tenced to enhanced penalties for subsequent offenses, 
but also persons whose parole or probation has been 
revoked because of counsel-less misdemeanor convic­
tions,8 and perhaps even those who have been con­
victed after trials in which their credibility was im­
peached by such convictions (see Fed. R. Evid. 609 
(a) (2 )) , could claim that they have been imprisoned 
as a collateral consequence of their original counsel­
less convictions.9

2. Petitioner’s claim that Argersinger bars his 
sentence under the enhanced penalty provision is

s Even if the counsel-less conviction could not itself be used 
in revocation proceedings, surely the conduct on which the 
conviction was based could be considered (State V. Harris, 3 1 2  
So. 2d 643 (La. 1975)). But when Argersinger is applied 
retroactively, the facts may be so stale that this is no longer 
a practical alternative.

9 The dissent below suggests (Pet. App. A-6) that although 
imprisonment is “a direct result” of the uncounseled convic­
tion in the enhanced punishment situation—and presumably 
in parole or probation revocation—the connection is more 
remote when the conviction is used for impeachment or in 
sentencing. Petitioner rejects this distinction (Br. 19-20 
n. 11), although he correctly notes that those questions are not 
before this Court. We mention them only to emphasize the 
further confusion that would flow from acceptance of peti­
tioner’s contention.

9 0



9

premised on the contention that his sentence of im­
prisonment is based on his original uncounseled con­
viction (Br. 13). But the sentence of imprison­
ment is for his second conviction; it is not a delayed 
punishment for the original offense. If it were, it 
would be prohibited not simply by Argersinger, but 
by the Double Jeopardy Clause of the Constitution.

This Court has repeatedly rejected the claim that 
an enhanced penalty for a subsequent offense consti­
tutes an additional punishment for the original of­
fense. Here, as in McDonald v. Massachusetts, 180 
U.S. 311, 312 (1901), “ [t]he fundamental mistake 
of the [petitioner] is his assumption that the judg­
ment below imposes an additional punishment on 
crimes for which he had already been convicted and 
punished * * *. But it does no such thing. * * * The 
punishment is for the new crime only, but is the 
heavier if he is an habitual criminal.” The heavier 
punishment for a second similar offense is justified 
because the repetition of the offense demonstrates that 
“the former punishment has been inefficacious in do­
ing the work of reform for which it was designed.” 
Moore v. Missouri, 159 U.S. 673, 677 (1895); accord, 
Graham v. West Virginia, 224 U.S. 616, 623 (1912); 
Carlesi v. New York, 233 U.S. 51, 57 (1914). Cf. 
Pennsylvania v. Ashe, 302 U.S. 51, 54-55 (1937).

The enhanced punishment statutes are properly 
analyzed as defining status offenses. The repeat of­
fender is treated more severely because of his status 
—the collateral effect of the first offense is to place 
him in the category of those who, if they again vio-

91



10

late the statute, are subjected to a more severe sanc­
tion. Mays v. Harris, 523 F.2d 1258 (4th Cir. 1975). 
That collateral effect is similar to those noted by Mr. 
Justice Powell, concurring in Argersinger (407 U.S. 
at 48),10 which the Court found insufficient to require 
the appointment of counsel.

Under this analysis, the question posed by this case 
is whether the legislative decision to treat those previ­
ously convicted of a misdemeanor more stringently 
than first offenders is arbitrary  when the defendant 
was not represented by counsel a t the first trial. The 
legislative classification is arbitrary  only if the 
original conviction is insufficiently reliable to justify 
the classification.11 But a conviction that is reliable

10 See also Brennan, J., dissenting in Scott, supra, slip op. 
7-8.

11 Petitioner claims that the decisions in Argersinger and 
Scott turned on the conclusion that counsel-less convictions 
lack the reliability necessary to justify a deprivation of lib­
erty, and that “the absence of imprisonment on petitioner’s 
first theft conviction adds nothing to its reliability/((Br. 
17). But as Scott makes clear (slip op. 6), “the central 
premise” of Argersinger was not the unreliability of counsel­
less decisions, but the difference to the defendant between a 
fine or a threat of imprisonment on the one hand, and actual 
imprisonment on the other. Thus, in terms of the due process 
analysis outlined in Mathews v. Eldridge, 424 U.S. 319, 335 
(1976), it was the weight of the first factor—“the private 
interest tha t will be affected by the official action”—rather 
than the second—“the risk of erroneous deprivation of such 
interest through the procedures used, and the probable value 
* * * of additional * * * safeguards”—that led to the result 
in Argersinger. See also Parham v. J.L., No. 75-1690 (June 20,
1979), slip op. 13-27. Indeed, a different weighting of these 
two factors underlies Mr. Justice Powell’s disagreement with 
the analysis of the majority in Argersinger. I t was precisely

92



11

enough to support the imposition of punishment short 
of imprisonment is surely also reliable enough to 
establish the status of a first offender.12 Indeed, the 
original misdemeanor conviction is at least as reliable 
in showing petitioner’s need for enhanced punishment 
as is much of the information routinely considered 
in presenteneing reports, or the indicators of status 
used in similar federal statutes.

because he found the error-reducing factor of prim ary im­
portance that Mr. Justice Powell concluded that due process 
requires a case-by-case evaluation of the complexity of the 
issues involved to determine whether appointed counsel must 
be provided (407 U.S. a t 49-52). Cf. Gagnon V. ScarpelK, 
411 U.S. 778, 786-791 (1973). In contrast, the m ajority 
focused not on the effect of counsel on the reliability of the 
result in a given case, but on the impact of imprisonment 
on the defendant, and consequently relied on that factor in 
defining the cases in which counsel is constitutionally re­
quired. Scott, supra, slip op. 6 . See Note, Argersinger V. 
Hamlin and the Collateral Use of Prior Misdemeanor Convic­
tions of Indigents Unrepresented by Counsel at Trial, 35 Ohio 
St. L.J. 168, 173-176 (1974) (Argersinger cannot satisfac­
torily be explained as based on unreliability of uncounseled 
convictions).

12 It might be argued that a conviction invalid under 
Argersinger, because it resulted in confinement, could not be 
used to establish first offender status consistently with Burgett 
V. Texas, 389 U.S. 109 (1967) ; United States v. Tucker, 404
U. S. 443 (1972) ; and Loper v. Beto, 405 U.S. 473 (1972). 
We do not believe that those cases preclude the mere recogni­
tion of an uncounseled conviction as an historical fact, or the 
imposition of collateral consequences on the basis of that 
conviction—at least in the absence of a successful challenge 
to it. Cf. Lewis V. United States, cert, granted, No. 78-1595 
(June 18, 1979). In any event, since petitioner’s original con­
viction was valid, there is no prophylactic reason to deny it 
effect, as there was in the Burgett line of cases. Cf. Spencer
V. Texas, 385 U.S. 554 (1967).

93



12

For example, 18 U.S.C. App. 1202(a) (3) prohibits 
the possession of a firearm by any person who has 
been adjudged a mental incompetent. But the con­
stitutionally acceptable risk of error in the civil com­
mitment proceeding upon which that judgment is 
based is substantially higher than the acceptable risk 
in a criminal proceeding of any kind. Addington v. 
Texas, No. 77-5992 (April 30, 1979), slip op. 4-13.18

In short, the fact that there may be severe col­
lateral consequences of a proceeding does not alone 
require that appointed counsel be provided. Baxter v. 
Palmigiano, 425 U.S. 308, 314-315 (1976). Nor is it 
unreasonable for the legislature to conclude that those 
previously convicted of a misdemeanor should be more 
severely punished on a subsequent conviction, even if 
the original conviction resulted from a proceeding in 
which the defendant was not represented by counsel. 
Indeed, any other result would undermine the prac­
tical effectiveness of this Court’s decision in Scott.

13 Similarly, an alien who has been deported after a deporta­
tion hearing, a t which he is not entitled to appointed counsel 
(8 U.S.C. 1252(b) (2) ; Murgia-Melendrez V. INS, 407 F. 2d 
207, 208-209 (9th Cir. 1969)), is guilty of a felony if he 
illegally reenters the United States. 8 U.S.C. 1326.

A driver’s license may be suspended after an administra­
tive hearing (Bell V. Burson, 402 U.S. 535, 542-543 (1971)), 
and driving afte r one’s license has been suspended may be 
punishable as a felony. Mays V. Harris, 523 F . 2d 1258 
(4th Cir. 1975).

94



13

CONCLUSION

The judgm ent of the Illinois A ppellate  C ourt 
should be affirmed.

Respectfully submitted.

A ug ust  1979

W ade H. M cCree, J r .
Solicitor General

P h il ip  B. H e y m a n n
Assistant Attorney General

H arriet S. S hapiro
Assistant to the Solicitor General

W ade L ivingston  
Attorney

95



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