Petition — Williams v. North Carolina

—+~ae

RECEIVED |

LPR 1 1973

IN THE OFFICE OF THE CLERK

SUPREME COURT, Us

i

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No. 60-6595

DONALD LEE WILLIAMS,

Petitioner,

Vv.

STATE OF NORTH CAROLINA,

Respondent.

PETITION FOR WRITS OF CERTIORARI TO THE SUPREME

COURT OF NORTH CAROLINA AND THE COURT OF APPEALS

OF NORTH CAROLINA

THOMAS F. LOFLIN, Il

JAMES R. ACKER

Loflin, Loflin, Galloway, Leary

& Acker

Post Office Box 1315

Durham, North Carolina 27702

Counsel for Petitioner

INDEX

Opinions Below

Jurisdiction

Questions Presented

Constitutional and Statutory Provisions Involved

Statement of the Case

Reasons for Granting the Writs

Conclusion

Appendix:

North Carolina Supreme Court

Judgment Dismissing Appeal on

Motion of Attorney Geacral

(January 31, 1978)

North Carolina Court of Appeals’

Judgment and Opinion

(Nov. 16, 1977)

20

Al

A2

TABLE OF AUTHORITIES

Argersinger v. Hamlin,

407 2.8. 25 epi iee es e66eeeba 8060000608

Berry v. Cincinnati,

414 U.8. DP tt tatictentee eee eee cease

Blackledge v. Perry,

437 U.S. 21 COVE) 056606 d05600-4edeesesece

Burgett v. Texas,

389 U.S. BOD GEOOTS Swerecssccecse *eeeee eee

Chaffin v. Stynchcombe,

412 U.8. 17 SND «400006 606660600 000-0608

Colten v. Kentucky,

407 U.S. 104 C2OTR) v0 see ee eeeeeeeeeeeeve

Gideon v. Wainwright,

372 U.8. 335 Dee sbeéan 4060000 *eeeeeeee

Loper v. Beto,

405 U.S. i ine cata Se Sake 4 60 6008

Ludwig v. Massachusetts,

427 U.S. DE. i cunekewecébhaeeeveces

North Carolina v. Pearce,

395 U.S. 711 | Ee a eae er

Potts v. Estelle,

529 F. 2d 450 (Sth Cir. 1976) cert den.

U.S. , No. 77-503 (Dec. i 1977)..

State v. Sparrow,

276 N.C, 499, 173 S.E. 2d 897 (1970).......

ii

14, 15, 16, 18,

15,

9, 10, 11,

17, 19,

11,

20

18

12

16

12

12

17

20

11

12

20

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

DONALD LEE WILLIAMS,

Petitioner,

v

ve

STATE OF NORTH CAROLINA,

Respondent.

PETITION FOR WRITS OF CERTIORARI TO .

THE SUPREME COURT OF NORTH CAROLINA

AND THE COURT OF APPEALS OF NORTH

CAROLINA

The Petitioner, Donald Lee Williams, respectfully prays that

writs of certiorari issue from this Court to review the judgments of

the North Carolina Court of Appeals and the North Carolina Supreme

Court which were entered in this cause. The North Carolina Court of

Appeals affirmed the Petitioner's criminal conviction and sentence in

a judgment which was entered on November 16, 1977. The North Caro-

lina Supreme Court dismissed the Petitioner's appeal from the decision

of the North Carolina Court of Appeals in a judgment entered on January

24, 1978.

OPINIONS BELOW

The opinion of the North Carolina Court of Appeals is reported,

without published opinion, at 34 N.C. App. 502, 239 S, E. 2d 69 (1977).

That opinion is reproduced in the Appendix, infra, at pp- A2- AS.

The opinion of the North Carolina Supreme Court, dismissing the

Petitioner's appeal from the judgment entered by the North Carolina

Court of Appeals, is reported at 294 N.C, 187 _, 241 S. E. 2d 73 (1978).

The opinion is reproduced in the Appendix, infra, at p. Al.

JURISDICTION

The judgment of the North Carolina Supreme Court, which is the

Court of highest jurisdiction in the State of North Carolina, was entered

on January 24, 1978. The instant petition for writs of certiorari was

filed within 90 days of that date. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1257 (3).

QUESTIONS PRESENTED

The Petitioner was convicted of the crime of operating a motor

vehicle while under the influence of intoxicating liquor, third offense, in

the Durham County, North Carolina, Superior Court. He was sentenced,

as a third time offender of the ‘driving under the influence” statute, toa

one-year term of imprisonment. The Petitioner was convicted upon trial

by jury in the Superior Court after he had exercised his right to appeal for

a trial de novo from judgments and commitments issued by the Durham

County District Court, the Court of original jurisdiction. In the District

Court the Petitioner was convicted of two offenses, operating a motor

vehicle while under the influence of intoxicating liquor (third offense) and

operating a motor vehicle without a license. He was sentenced to serve a

six-month term of imprisonment by the District Court, in contrast to the

one-year prison sentence ordered by the Superior Court after the Petitioner

had appealed and was convicted solely on the charge of operating a motor

vehicle while under the influence of intoxicating liquor, third offense. The

Petitioner was acquitted of the other charge in the Superior Court. Prior

to the time that the Superior Court judge sentenced the Petitioner to the one-

year term of imprisonment that judge had before him all of the records of

the Petitioner's case which had been forwarded from the District Court, in-

cluding the notation that the Petitioner had received a sentence of six-months

imprisonment from the District Court in punishment for his convictions on

the two offenses.

The Petitioner was convicted for a third offense of operating a motor

vehicle while under the influence of intoxicating liquor, based upon the

existence of two prior driving under the influence convictions on his

criminal record. The Petitioner had been indigent, unrepresented by

counsel, and had not knowingly waived his right to representation by

counsel at the time that each of those prior convictions was obtained. The

Petitioner did not receive jail sentences subsequent to either of the two

'

to

'

prior driving under the influence convictions, but he was fined on each

occasion, and he could not have been sentenced to the one-year term of |

imprisonment which he is currently serving but for the existence of the \

two prior, uncounselled convictions which were used to support the Pe-

titioner's conviction and sentencing as a third time offender of the statute.

Further, the Petitioner did not take the witness stand to testify on his own

behalf at his trial because the Superior Court judge ruled that, upon the

Petitioner's taking the witness stand, the District Attorney would have

been permitted to inquire of the Petitioner's prior uncounselled driving

under the influence convictions, for the purpose of impeaching the Pe-

titioner and his testimony.

Based on these facts the questions presented for review are as

follows:

1. Whether the North Carolina procedure concerning appeals

for trial de novo, which, as a matter of course, puts the trial de novo

court, the Superior Court, on notice of the convictions and the terms of

the sentence from which appeal was taken from the Court of original

jurisdiction, the District Court, and which frequently or routinely results

in harsher criminal sentences being imposed upon the trial de novo -- as

exemplified by the instant case where the Petitioner was convicted of two

offenses in the District Court and there received a six-month prison sen-

tence, where the Superior Court was on noticeof the same following the

Petitioner's appeal for trials de novo, and where the Superior Court pro-

ceeded to sentence the Petitioner to a harsher, one-year term of imprison-

ment after he was convicted of only one of the two offenses in Superior

Court and was acquitted of the other -- is inconsistent with the Due Process

Clause of the Fourteenth Amendment to the United States Constitution ?

2. Whether a criminal defendant, consistently with the Sixth :

and Fourteenth Amendments to the United States Constitution, may be

convicted as a third time offender of a criminal statute, and receive the

increased punishment allowed only for third time offenders, when the prior

two convictions, without which the increased punishment could not have been

imposed, were obtained when that defendant was indigent, was unrepresented

by counsel and had not waived his right to be represented by counsel ?

3. Whether, consistently with the Sixth and Fourteenth Amend-

ments to the United States Constitution, prior convictions on a defendant's

o$§-

criminal record may be used to impeach the Defendant's testimony

at a subsequent criminal trial, culminating with the Defendant's con-

viction and his being sentenced to prison, when the prior, impeaching

convictions were obtained when the Defendant was indigent, uncounselled,

and had not waived his right to counsel, although the prior convictions

did not, when imposed, result in prison sentences ?

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

United States Constitution, Amendment VI:

" . . -

In all criminal prosecutions, the accused shall enjoy the

right... to have the Assistance of Counsel for his defence. "'

United States Constitution, Amendment XIV, Sec. 1:

- » » 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.

N.C.G.S. § 7A-271 (b) (1977 Supp. ):

"Appeals by the . . . defendant from the district court are to

the superior court. The jurisdiction of the superior court over mis-

demeanors appealed from the district court to the superior court for

trial de novo is the same as the district court had in the first instance. "'

N.C.G.S. § 20-138 (a) (1975):

"It is unlawful and punishable as provided in G,S, 20-179 for any

person who is under the influence of intoxicating liquor to drive or operate

any vehicle upon any highway or any public vehicular area within the State."

N.C.G.S. § 20-179 (a) (1975):

"Every person who is convicted of violating G.S, 20-138...

shall be punished as follows:

(1) For the first offense, a fine of not less than one hundred

dollars ($100.00) nor more than five hundred dollars ($500. 00), by

imprisonment for not less than 30 days nor more than six months, or

by both such fine and imprisonment, in the discretion of the court.

(2) For a second conviction of any offense under G.5S, 20-138,

. . » by a fine of not less than two hundred dollars ($200.00) nor more

than five hundred dollars ($500.00), by imprisonment for not less than

two months nor more than six months, or by both such fine an imprison-

ment, in the discretion of the court.

(3) For a third or subsequent offense under G.5S. 20-138, ...

by a fine of not less than five hundred dollars ($500.00), by imprisonment

~~ we

for not more than two years, or by both such fine and imprisonment, in

the discretion of the court. *~..,

STATEMENT OF THE CASE

The Petitioner was originally brought for trial in the Durham

County, North Carolina District Court under a warrant which charged

him with operating a motor vehicle while under the influence of intoxi-

cating liquor (third offense), and with operating a motor vehicle without

being licensed. The Petitioner entered pleas of guilty to both offenses,

judgments were entered accordingly, and the Petitioner was sentenced

to serve aterm of six months in prison. The Petitioner thereafter

exercised his right to appeal to the Durham County Superior Court for

trials de novo on the charges. All of the files maintained on the District

Court proceedings, including the fact of the convictions and the terms of

the Petitioner's sentence, were forwarded to the Superior Court prior to

the Petitioner's trial in that Court.

Following the appeal from District Court, and after trial by jury,

the Petitioner was convicted in Superior Court of the crime of operating

a motor vehicle while under the influence of intoxicating liquor, in violation

of N.C.G.S. § 20-138. He was acquitted on the charge of operating a motor

vehicle without being licensed. The Petitioner was punished as one who had

suffered his third conviction under the driving under the influence statute,

as allowed by N.C.G.S. § 20-179 (a)(3). The Superior Court judge sen-

tenced the Petitioner to serve a one-year term of imprisonment, although

the District Court had imposed only a six month sentence where the Petitioner

had been convicted on two offenses, in contrast to the sole conviction which

was returned in the Superior Court.

The Petitioner was convicted in Superior Court, and sentenced as

a third time offender of the driving under the influence statute, on February 15,

1977. The punishment statute authorizes the imposition of a maximum six

month term of imprisonment for those convicted under the driving under the

influence statute on fewer than three occasions, N.C.G.S. §§ 20-179 (a)(1),

(2), and allows for a sentence of up to two years upon third and subsequent

convictions. N.C.G.S. § 20-179 (a3). The two prior convictions for

driving under the influence were obtained against the Petitioner on June 17,

1966 and on December 10, 1974. As to each of those convictions the Superior

o§«

Court judge specifically found, as of record, that: There is no indication

in the record that the [ Petitioner] had counsel, or that he, by any affirmative

act, waived counsel, . . . and the Court assumes for the purpose of this

ruling that he was indigent at that time." (Record on appeal to North Carolina

Court of Appeals at p. 19). Following each of the prior convictions the Pe-

titioner was fined $100. 00 and ordered to pay the costs of Court. He did not

receive a jail sentence, either active or suspended, following either of his

prior unc ounselled convictions. The Superior Court judge ruled that the 1966

and the 1974 driving under the influence convictions could lawfully be considered

to support the Petitioner's conviction and sentencing as a third time offender

of the statute. Although the Petitioner received no jail sentence following

either of his two previous convictions, the one-year jail sentence which the

Petitioner was ordered to serve following his 1977 conviction as a third time

offender could not have been imposed but for the existence of the two prior

uncounselled driving under the influence convictions on his criminal record.

The Superior Court judge further ruled that, in the event the Petitioner

took the witness stand to testify on his own behalf at his trial, the District

Attorney would be allowed to inquire of the 1966 and 1974 uncounselled driving

under the influence convictions, for impeachment purposes. Following that

ruling the Petitioner did not take the witness stand to offer his own testimony

at the trial.

The Petitioner began service of his one-year prison sentence pursuant

to his convictions as a third time offender of the statute proscribing the oper-

ation of a motor vehicle while under the influence of intoxic ating liquor on

February 20, 1978.

The three issues which the Petitioner respectfully requ sts this

Court to review upon its writ of certiorari -- (1) the Superior Court's

imposition of a more lengthy term of imprisonment than was imposed in the

District Court after the Petitioner appealed for a trial de novo, when the

Superior Court was on notice of the District Court's sentence; (2) the

imposition of a one-year jail sentence on the Petitioner, as a third time

offender of the driving under the influence statute, which could not have

been imposed but for the existence of two prior convictions which were

obtained when the Petitioner was indigent, unrepresented by counsel, and

had not waived his right to counsel; and (3) the ruling by the Superior Court

that the Petitioner's prior uncounselled convictions could have been used

to impeach the Defendant in the event that the Defendant took the witness

stand to testify on his own behalf -- were timely and properly raised in

the Durham County Superior Court (the trial court ), in the North Carolina

Court of Appeals and in the North Carolina Supreme Court.

The first issue, concerning the imposition of alengthier term of

imprisonment on the Petitioner after he had appealed for trials de novo

to the Superior Court, was noted as Exception No. 11, at p. 29 of the

record on appeal submitted to the North Carolina Court of Appeals. That

same issue was presented as the Petitioner's Sixth Assignment of Error,

at pp. 32-33 of the record on appeal, and was included as his Fourth

Question for Review in the Brief which was submitted to the North Carolina

Court of Appeals, beginning at p. 24 of the Brief. The North Carolina

Court of Appeals denied the Petitioner relief on that ground, and the Pe-

titioner appealed to the North Carolina Supreme Court. He raised the

issue before the North Carolina Supreme Court in the second grouping of

constitutional issues presented for review on appeal, and that Court dis-

missed the appeal, denying the Petitioner any relief.

The second issue presented upon the instant petition for writ of

certiorari, concerning punishing the Petitioner as a third time offender

of the driving under the influence statute when his prior cunvictions were

obtained when he was indigent, without counsel, and had not waived his

right to counsel, was also properly raised in the state courts. Counsel

for the Petitioner objected to the Superior Court's consideration of the

previous convictions prior to the time that the judgment was entered and

sentence was imposed. The Superior Court overruled the objection and

entered judgment and imposed sentence on the Petitioner as a third time

offender. This issue was preserved inthe Petitioner's Exceptions Nos.

7, 9 and 10, as appears at pp. 20, 28-29 of the record on appeal submitted

to the North Carolina Court of Appeals. The issue was presented as the

Petitioner's Fourth Assignment of Error, at p. 32 of the record on appeal,

and was briefed as the Third Question Presented for Review, beginning at

p- 19 of the Brief which the Petitioner submitted to the North Carolina Court

of Appeals. The North Carolina Court of Appeals denied the Petitioner re-

lief on that issue and the Supreme Court of North Carolina dismissed the

appeal from that order. The issue was included in the first grouping of

so

constitutional issues in the Notice of Appeal which the Petitioner filed

with the North Carolina Supreme Court.

The third issue presented in the instant petition for writ of

certiorari, concerning the Superior Court's ruling that the Petitioner's

prior uncounselled driving under the influence convictions could be in-

quired of for impeachment purposes in the event that the Petitioner

testified on his own behalf at trial, was duly raised and preserved in

the state courts. Counsel for the Petitioner raised the issue prior to

the time that the defense put on evidence at the trial in the Superior Court.

The trial judge ruled that the prior, uncounselled convictions could be

used for impeachment purposes, and overruled the Petitioner's objection

to the ruling, as appears at p. 20 of the record on appeal submitted to

the North Carolina Cairt of Appeals. The Petitioner excepted to the

ruling, and presented the issue as his Fifth Assignment of Error, as

noted at pp. 20 and 32 of the record on appeal. The issue was the Second

Question Presented for Review in the North Carolina Court of Appeals,

and was briefed beginning at p. 12 of the Petitioner's Brief in the North

Carolina Court of Appeals. The North Carolina Caurt of Appeals denied

the Petitioner relief on the issue, and the North Carolina Supreme Court

dismissed the Petitioner's appeal. The issue was included in the first

grouping of constitutional questions contained in the Petitioner's Notice

of Appeal in the North Carolina Supreme Court.

REASONS FOR GRANTING THE WRITS

I.

The writs should issue to correct the unlawful North Carolina

procedure which routinely allows Superior Court judges to be put on notice

of the nature and magnitude of the punishment received by criminal defendants

in District Courts prior to the defendants' exercising their rights to trials

de novo in the Superior Court, and then, being put on such notice, imposing

harsher sentences than were administered in the District Courts prior to

the trials de novo. In the instant case the Petitioner was convicted, after

his pleas of guilty, of two offenses in the Durham County District Court --

operating a motor vehicle while under the influence of intoxicating liquor

(third offense) and operating a motor vehicle without being licensed -- and

was sentenced to serve a six month term of imprisonment. The Petitioner

appealed for a trial de novo before a jury in the Superior Court, where

he was acquitted of the offense of operating a motor vehicle without being

licen«2d, but was convicted of his third offense for operating a motor

vehicle while under the influence of intoxicating liquor. The Superior

Court judge, who had the record of the Petitioner's prior convictions

and six month sentence which had been made in the District Court before

him when he passed sentence on the Petitionsr, ordered the Petitioner to

serve a lengthier, one-year term of imprisonment, notwithstanding the

fact that the Petitioner had been acquitted of one of the charges of which

he had been convicted in the District Court, and notwithstanding the less

onerous, six month sentence imposed by the District Court judge. The

North Carolina procedure concerning the sentencing of criminal defendants

after trials de novo by Superior Court judges, who are on notice of the

sentence imposed by the District Court upon the original trials, with ..s

regular effect of allowing for the administration of harsher punishments

to defendants who have exercised their rights to appeal for trials de novo,

is inconsistent with this Court 's decisions in North Carolina v. Pearce,

395 U.S. 711 (1969) and its progeny, including Colten v. Kentucky, 407

U.S. 104 (1972), Chaffin v. Styachcombe, 412 U.S. 17 (1973), Blackledge

v. Perry, 417 U.S. 21 (1974) and Ludwig v. Massachusetts, 427 U.S. 618

(1976).

Original jurisdiction of misdemeanors in North Carolina, such as

the offenses for which the Petitioner was originally convicted, operating

a motor vehicle while under the influence of intoxicating liquor (third

offense) and operating a motor vehicle without being licensed, lies in the

District Court. N.C.G.S. § 7A-272, Trial is before a judge. A defendant

who is convicted of a misdemeanor in District Court has a right to appeal

for a trial de novo to Superior Court, where he is tried before a jury and,

if convicted, sentenced by the Superior Court judge. N.C.G.S. §7A-290.

Upon appeal for a trial de novo the Clerk of the District Court is required

to transfer the case to Superior Court, and all records maintained in the

District Court, including those of the convictions and sentences, are for-

warded in the case file which is delivered to the Superior Court judge in

advance of the trial de novo. In the Petitioner's case the District Court

record denoting the Petitioner's convictions for the two offenses, of driving

under the influence, third offense, and of operating a motor vehicle without

oe @«

being licensed, and further noting that he had been sentenced to serve

six months in prison 4s punishment therefor , was forwarded to the

Superior Court when the Petitioner appealed for a trial de novo. The

record was before the Superior Court judge, and that judge was on

actual or constructive notice of the two convictions and of the sentence

which resulted from the District Court proceedings, when he sentenced

the Petitioner to the more onerous sentence following his conviction of

only the single offense of operating a motor vehicle while under the in-

fluence of intoxicating liquor (third offense).

North Carolina v. Pearce, 395 U.S. 711 (1969) sets forth the

general principle that, absent specific findings of fact and objective support

from the record justifying an increase in sentence, an accused who succes-~

sfully appeals from an initial conviction but who is convicted of the same

offense upon a subsequent trial, may not, following the appeal, receive

punishment in excess of that originally imposed. The Pearce rule is de-

signed not only to eliminate vindictiveness or punishment from being !m-

posed on one who successfully exercises his right of appeal, but also to

eliminate even the threat or appearance of vindictiveness or impropriety.

The instant case is different from that presented in Colten v. Ken-

tucky, 407 U.S. 104 (1972), where this Court noted that, upon a trial de

novo to a higher trial court in the State of Kentucky, “[a}s far as we know,

the record from the lower court is not before the superior court and 1s

irrelevant to its proceedings. In all likelihood the trial de novo court is

not even informed of the sentence imposed in the inferior court and can

hardly be said to have ‘enhanced' the sentence". Id. at 117-118. Here,

the record of the District Court proceedings was before the Superior Court

when it imposed its harsher sentence on the Petitioner ~~ @ fact which

appears of record at pp. 2-3 of the record on appeal submitted to the North

Carolina Court of Appeals. The Superior Court judge was either on actual

or constructive notice (which would cause an anp: .ension or present a

threat of vindictiveness) of the lesser sentence ordered by the Lastrict

Court. In Colten, moreover, only a harsher fine was imposed on the

defendant upon trial de novo; the more fundamental deprivation of hberty,

which is here at stake, was not there presented for consideration.

As in the instant case, Superior Court judges in North Car olina fre-

quently impose lengther prison sentences upon trials de novo. This case ts

« 16 -

thus not the same as that presented in Ludwig Vv: Massachusetts, 427 U.S.

618 (1976). In Ludwig the defendant actually received the same sentence,

following his appeal for a trial de novo, which had been imposed by the

Court of original jurisdiction. This Court observed that the Appellant

“was not subjected to vindictive sentencing. He received a nominal fine

of $20. 00 at both proceedings. Further, the suggestion that vindictive

sentencing is a serious problem in Massachusetts is belied by another

of appellant's claims: ‘In Massachusetts, however, the record of the

lower court proceedings, including the sentence imposed, is transmitted

to the superior court. .-+ > If the accused is convicted again, the resentencing

judge as a matter of practice usually inquires initially as to why the lower

court sentence should not be reimposed.' Brief for Appellant 43. It is

argued that this procedure ‘manifestly discourages ‘appeals.' ' Ibid. We

are unable to see why. If the chances are great that an accused who has

been convicted at the first tier will receive the same sentence at the second

tier if he is again convicted, there is little reason not to appeal and take the

'risk' of an acquittal." Id, at 628, n. 4. Here, of course, the Petitioner

actually did receive an increased sentence upon his trial de novo, and the

North Carolina Supreme Court has expressly held that the chances are not

at all "great" that the accused will not expose himself to the risk of increased

punishment following his appeal. '"To hold that upon appeal the Superior Court

judge may decrease the sentence imposed below but is precluded from in-

creasing it would necessarily destroy the district court system of this State.

. « » [| The Superior Court judge's] sentence may be lighter or heavier than

that imposed by the inferior court, provided, of course, it does not exceed

the maximum punishment which the inferior court could have imposed. Such

is the rule in North Carolina. " State v. Sparrow, 276 N.C. 499, 173 S. E. 2d

897, 903 (1970). Unlike the Massachusetts procedure involved in Ludwig, in

North Carolina no inquiry is made by the trial de novo judge as to why the

original sentence should not be reimposed, and the State policy is, expressly,

to retain the threat of harsher punishments upon trials de novo so that appeals

will not liberally be taken from the original proceedings, thereby ‘destroying

the State's District Court system.

The instant case is further distinguishable from another in the line of

cases emanating from the doctrine of North Carolina v. Pearce, supra. In

-ll-

Chaffin v. Stynchcombe, 412 U.S. 17 (1973), this Court upheld the imposition

of a harsher sentence following the retrial of a defendant who had successfully

appealed his original conviction. In Chaffin, however, the jury, which could

have had no knowledge of the accused's prior conviction, sentence or appeal,

and which was cognizant of none of the institutional concerns which might

have occasioned higher sentencing by a judge following an appeal, was the

body which determined the length of the second, harsher sentence. The jury

did not have the knowledge of the prior sentence of the appeal, nor did its

harsher sentence present even the specter of vindictiveness or impropriety

in the form of discouraging or punishing appeals. Id, at 26-28. Here, the

Superior Court judge, who was on notice of the Petitioner's prior sentence,

convictions and appeal, and who was attuned to the institutional concerns re-

lated to appeals, imposed the harsher sentence. Superior Court judges,

manifestly, must be charged with awareness of the North Carolina Supreme

Court's policy declaration, or institutional concern, concerning higher sen-

tences on appeal -- that "to hold that upon appeal the Superior Court judge

may decrease the sentence imposed below but is precluded from increasing

it would necessarily destroy the District Court system of this State. " State v.

Sparrow, supra.

Blackledge v. Perry, 417 U.S, 21 (1974), another of the progeny of

North Carolina v. Pearce, supra, noted that "[t])he lesson that emerges from

Pearce, Colten and Chaffin is that the Due Process Clause is not offended by

all possibilities of increased punishment upon retrial after appeal, but only

by those that pose a realistic likelihood of vindictiveness... . The rationale

of our judgment in the Pearce case, however, was not grounded upon the

proposition that actual retaliatory motivation must inevitably exist. Rather,

we emphasized that 'since the fear of such vindictiveness may unconstitutionally

deter a defendant's exercise of his right to appeal or collaterally attack his

first conviction, due process also requires that a defendant be freed of appre-

hension of such a retaliatory motivation on the part of the sentencing judge.’

395 U.S, at 725." Id. at 27-28. With the Superior Court judge having notice

of the accused's appeal and of his sentence from his earlier conviction, there

is clearly a realistic likelihood that vindictiveness or punishment may figure

into the sentence imposed following conviction on trial de novo. This is

especially so given the declaration of the North Carolina Supreme Court in

State v. Sparrow, supra, that the threat of harsher punishments after trials

o 19

de novo must be present so that Superior Courts are not inundated by

appeals and so that the District Court system may be maintained. In the

instant case the potential for vindictive sentencing upon trial de novo is

made all the more real. On his original convictions in the District Court

for two offenses (driving under the influence, third offense, and driving

without a license) the Petitioner received only a six month sentence.

Following his appeal he was acquitted on the charge of driving without a

license, but for the single conviction of driving under the influence, third

offense, with the Superior Court judge on notice of the six month sentence,

the Petitioner received a harsher sentence ( one year) than had originally

been imposed. Given all ofthese circumstances the Petitioner's conviction

and sentence should be reviewed upon this Court's writ of certiorari so that

the procedure for sentencing on trials de novo which exists on a statewide

basis in North Carolina may be submitted to the critical scrutiny of this

Court.

Il.

The Petitioner was convicted, in 1966 and in 1974, of operating a

motor vehicle while under the influence of intoxicating liquor. He was

indigent, was not represented by counsel, and he had not waived his right

to representation by counsel when each of those convictions was obtained.

Following the 1966 and 1974 convictions the Petitioner was fined, but was

not sentenced to prison. When the Petitioner was convicted of the instant,

1977 offense for operating a motor vehicle while under the influence of intoxi-

cating liquor, he was represented by counsel. He was sentenced to serve

one year in prison, as a third-time offender of the ‘driving under the in-

fluence" statute. He could not have received a prison sentence in excess of

six months were he not ajudicated as being a third-time offender of the statute.

N.C.G.S. § 20-179. The one year prison sentence could not have been imposed

on the Petitioner but for the existence of the two prior uncounselled driving

under the influence convictions which were on his criminal record. Thus,

while the Petitioner did not receive prison sentences immediately following

his uncounselled convictions in 1966 and i974, the one year sentence which

he is presently serving was imposed as a direct result of the prior uncounselled

convictions. This Court's writs of certiorari should issue to review the sub-

stantial and recurring constitutional question of whether a prison sentence or

an enhanced prison sentence may be imposed upon a criminal defendant

= 49 -

because he is a repeat offender of a statute when the prior convictions

which serve to define the defendant as a repeat offender were obtained

when the defendant was indigent and unrepresented by counsel, although

the prior convictions did not result in prison sentences at the time which

they were originally obtained. The decisions by the North Carolina Caurt

cf Appeals and the North Carolina Supreme Court, in allowing for the

imposition of a one-year prison sentence on the Petitioner, which could

not have been imposed but for the existence of two prior uncounselled

convictions on his criminal record, are in conflict with Argersinger v.

Hamlin, 407 U.S, 25 (1972), Burgett v. Texas, 389 U.S, 109 (1967) and

with the Sixth and Fourteenth Amendments to the United States Constitution.

It cannot be overemphasized that the one-year prison sentence which

the Petitioner received in the instant case could not have been imposed but

for the existence of two prior driving under the influence convictions on

his record which were obtained when he was indigent, unrepresented by

counsel, and had not knowingly waived his right to representation by counsel.

Prison sentences were not imposed immediately following the Petitioner's

uncounselled 1966 and 1974 convictions. The one year prison sentence im-

posed following the Petitioner's 1977 driving under the influence conviction

was every bit as much of a direct result of the two uncounselled convictions,

however, as if sentences had been imposed immediately upon the return of

the 1966 and 1974 convictions. Sentencing the Petitioner to the increased

punishment allowed for third offenders of the driving under the influence

statute in 1977 merely delayed punishment by imprisonment for the prior

uncounselled convictions. Because the Petitioner's one year prison sentence

was imposed as the direct and proximate result of the two uncounselled con-

victions on his record, the Petitioner has been deprived of rights guaranteed

him under the Sixth and Fourteenth Amendments to the United States Consti-

tution to effective assistance of counsel, to not be deprived of his liberty

without due process of law, and to the equal protection of the laws. Argersinger

v. Hamlin, 407 U.S, 25 (1972), read in its most Limited sense, established

that "absent a knowing and intelligent waiver, no person may be imprisoned

for any offense, whether classified as petty, misdemeanor or felony, unless

he was represented by counsel at his trial,'' Id, at 37, The Court was not

presented with, and therefore did not address, the question of whether an

uncounselled defendant who was not deprived of his Liberty following his

criminal conviction is entitled to representation by court appointed counsel

- 14-

when he cannot afford to retain an attorney. Id, Argersinger, was made

fully retroactive in Berry v. Cincinnati, 414 U.5, 29 (1973). In the instant

case the Petitioner is entitled to the benefit of the Argersinger rule even if

Argersinger is limited to those cases where the conviction of an uncounselled,

indigent defendant actually results in the defendant's loss of liberty. While

the Petitioner's uncounselled driving under the influence convictions did, not

immediately cause his imprisonment, following their returns in 1966 and

1974, they directly and unqualifiedly were used to cause the Petitioner to be

sentenced to serve one year in prison following his conviction in 1977 of

operating a motor vehicle while under the influence of intoxicating liquor.

The Petitioner's one year prison sentence was based upon and was caused

by the fact that the State of North Carolina had, on two previous occasions,

caused the Petitioner to be tried for and convicted of criminal misdemeanors

when he was indigent, unrepresented by counsel, and had not waived his right

to counsel. Because his one year prison sentence was the direct and proximate

result of the prior uncounselled convictions on his record, and, indeed, the

uncounselled convictions caused his incarceration, the Petitioner was denied

those rights guaranteed him by the Sixth and Fourteenth Amendments to the

United States Constitution, as set forth in Argersinger v. Hamlin, supra,

Burgett v. Texas, 389 U.S. 109 (1967) is of direct relevance to the

instant case. In Burgett this Court held that prior convictions obtained in

violation of Gideon v. Wainwright, 372 U.S, 335 (1963) (indigent defendants

charged with felonies entitled to representation by court appointed counsel)

could not be used to support the imposition of the enhanced punishment allowed

by a recidivist statute. A prior, Tennessee felony conviction which was

obtained against the defendant in Burgett, when there was no indication on

the record that the defendant was represented by counsel when the conviction

was returned, thus could not have been used to define the defendant as a

recidivist under Texas law and to consequently expose him to the risk of

enhanced punishment as a recidivist. There is no indication in Burgett

whether the defendant received a prison sentence following the Tennessee

felony conviction. As in the instant case, however, the prior, presumptively

unlawful conviction could not have been used as a basis to support enhanced

punishment following a subsequent conviction where the defendant did have

the benefit of counsel. Whether or not the defendant previously was incar-

cerated, immediately following the uncounselled conviction, makes the con-

viction no less valid to support subsequent punishment. "To permit a

= 15 -

conviction obtained in violation of Gideon v. Wainwright to be used against

a person to support guilt or enhance punishment for another offense (see

Greer v. Beto, 384 U.S, 269, 865, Ct. 1477) is to erode the principle of

that case. Worse yet, since the defect in the prior conviction was denial

of the right to counsel, the accused in effect suffers anew from the deprivation

of that Sixth Amendment right. " Bucgett v. Texas, 389 U.S, 109, 115 (196%).

/ tt is mere sophistry to maintain that an uncounselled conviction is

entitled to legal validity depending upon whether, following the conviction,

an active prison sentence was imposed upon the defendant. Regardless of

whether a prison sentence was imposed immediately following such a con-

viction, the conviction was obtained when all of the resources of the State

and the skill of a trained prosecutor were marshalled against an indigent,

lay defendant. The conviction lacks fundamental fairness under those cir-

cumstances, as well as legal validity when later used to sustain enhanced

punishment, independently of the terms of the sentence which was imposed

after the fact of the conviction. Permitting the one year prison sentence to

stand which the Petitioner received, in punishment for his third violation of

the driving under the influence statute, would be to allow the State to accom~

plish indirectly that which it could not punish directly under the Argersinger

principle. The Petitioner obviously could not have been sentenced for a third

conviction of operating a motor vehicle while under the influence of intoxi-

cating liquor were it not for the uncounselled convictions which were returned

against him in 1966 and 1974. The Petitioner's third conviction, and the

accompanying prison sentence which he received, were absolutely dependent

upon and were a direct function of the existence of the prior uncounselled

convictions. While the Petitioner was represented by counsel at his 1977

trial for driving under the influence, his prison sentence reflected the con-

victions returned against him in 1966 and 1974. Although the Petitioner was

not sentenced to prison terms immediately following his prior convictions,

but for the existence of those convictions he would not have been susceptible

to receive the one year prison sentence which he received for the instant

offense. Thus, ina very real sense, his prior uncounselled convictions

resulted in the Petitioner being sentenced to a term of imprisonment for

which he would not otherwise have been eligible, in fundamental violation of

Argersinger v. Hamlin, Burgett v. Texas, supra, and those rights guaranteed

the Petitioner under the Sixth and Fourteenth Amendments to the United States

Constitution.

- 16 =

(I.

The trial court ruled that, in the event the Petitioner took the

witness stand to testify on his own behalf at his trial, the two prior

convictions for driving under the influence of intoxicating iquor which

were on his criminal record could have been used by the State for the

purpose of impeaching the veracity of his testimony. As the trial court

noted, when those prior driving under the influence convictions were ob-

tained against the Petitioner, in 1966 and 1974, there was no indication

onthe record that the defendant was represented by counsel, that he had

affirmatively waived counsel or that he was not indigent. The Petitioner

could have been imprisoned following his prior convictions but, on each

occasion, was fined instead. After the trial court's ruling that the Peti-

tioner's prior convictions could have been used to impeach his testimony

in the event that he took the witness stand to testify at his trial, the Pe-

titioner declined to take the stand to give testimony. He was convicted of

operating a motor vehicle while under the influence of intoxicating liquor,

third offense, and he received a one year prison sentence. This Court's

writs of certiorari should issue to review the decisions of the North Caro-

lina Court of Appeals and the North Carolina Supreme Court, which affirmed

the trial court's ruling that prior criminal convictions may be used for im-

peachment purposes, even though the convictions were obtained when the

defendant was indigent, unrepresented by counsel, and had not waived his

right to counsel, because those prior convictions did not immediately re-

sult in actual imprisonment. Those decisions are inconsistent with this

Court's rulings in Argersinger v. Hamlin, 407 U.S, 25 (1972), Loper v.

Beto, 405 U.S. 473 (1972), and with a case on which this Court recently

denied certiorari, Potts v. Estelle, 529 F, 2d 450 (Sth Cir. 1976) cert den,

U.S. , No. 77-503 (Dec. 13, 1977), The frequency with which such

issue certainly arises in criminal cases throughout the state and federal

at his criminal trial deprived the defendant of due process of law.

Argersinger v. Hamlin, 407 U.S, 25 (1972) guaranteed misdemeanor

defendants the right to be represented by counsel in those cases where

their deprivation of liberty was at stake. Argersinger was made fully

retroactive in Berry v. Cincinnati, 414 U.S, 29 (1973),

This case is governed by the principles of Loper vy. Beto and

Argersinger v. Hamlin, supra, The Petitioner was threatened with

the prospect that the credibility of his testimony would be impeached by

the District Attorney's inquiring into his two prior driving under the

influence convictions if he took the witness stand to offer testimony at

his trial. The Petitioner thus did not take the witness stand, was con-

victed of operating a motor vehicle while under the influence of intoxi-

cating liquor, third offense, and was sentenced to serve a one year term

of imprisonment, Although the 1966 and 1974 driving under the influence

convictions did not result in prison sentences when they were originally

returned, the sentence which the Petitioner is currently serving, as a

third time offunder of the driving under the influence statute, is based

upon those prior misdemeanor convictions. Under Loper and Argersinger

the 1966 and 1974 convictions, which were obtained when the Petitioner

was indigent, unrepresented by counsel and had not waived his right to

counsel, could not have been used to impeach the Petitioner's testimony

at his 1977 trial, As those earlier convictions were for the same offense

(operating a motor vehicle while under the influence of intoxicating Liquor )

as the offense for which the Petitioner was again on trial, their use for

impeachment purposes would have been especially damaging. As the Loper

Court recognized, inquiry into the commission of prior criminal offenses

can have prejudicial impact on far more than the credibility of a defendant's

testimony. 405 U.S. at 482, n. 11, When those convictions were obtained

without the defendant's representation by or waiver of counsel, and when

the defendant was indigent, they must certainly not be permitted to be used

criminal courts, along with the important rights at stake to the Petitioner for impeachment purposes under Loper and Argersinger. It cannot be said

under the Sixth and Fourtee:..h Amendments to the United States Constitution, that, had the Petitioner in the instant case taken the witness stand and testi-

make this issue appropriate for consideration and resolution upon this Court's fied at his trial, unthreatened by the prospect that his prior uncounselled

writs of certiorari. driving under the influence convictions would have been made the subject of

In Loper v. Beto, 405 U.S, 473 (1973) this Court held that the use of

convictions constitutionally invalid under Gideon v. Wainwright, 372 U.S.

inquiry by the District Attorney, the outcome of the trial would not have been

uninfluenced. Loper v. Beto, 405 U.S, 473, 480 (1973).

335 (1963) (right to counsel in felony trials) to impeach a defendant's credibility

-18-

oe 29

This Court recently denied certiorari in a case decided by the

Fifth Circuit Court of Appeals which reached an opposite result from

that arrived at by the North Carolina Court of Appeals and the North

Carolina Supreme Court. The Fifth Circuit, in Potts v. Estelle, 529

F. 2d 450 (Sth Cir, 1976),cert den, U.S. , No, 77-503 (Dec. 13,

1977), ruled that prior uncounselled misdemeanor convictions could

not be used to impeach a defendant's testimony at a later criminal trial,

when the prior misdemeanor convictions exposed the defendant to the

possibility of incarceration, even though no loss of liberty actually re-

sulted, In Potts the defendant's testimony was impeached at his trial

by inquiry into ten prior uncounselled misdemeanor convictions, Of the

ten convictions, nine could have resulted in the defendant's incarceration,

though only six of the prior convictions actually led to immediate imprison-~

ment. The Court of Appeals for the Fifth Circuit vacated the defendant's

conviction and ordered that, on remand for a retrial, none of the nine prior

uncounselled misdemeanor convictions for which the defendant might have

suffered imprisonment could be used to impeach his testimony.

By dint of the serious problems associated with the

prosecution of misdemeanors, the great concern in

Argersinger was with the salutary contributions to

be made through the presence of a lawyer in the

courtroom representing the interests of the accused,

. » » The issues that arise in misdemeanor prosecutions

are often complex and beyond the usual competence of

the accused. Whether a sentence of imprisonment ‘s

actually imposed has little bearing on the complexity

of those issues or the ability of the accused to defend

_ himeelf in the circumstances... .

Application of the Cottle [v. Wainwright, 477

F. 2d 269 (Sth Cir. ), vacated on other grounds, 414 U.S.

895 (1973), on remand 493 F.2d 307 (Sth Cir, 1974))

rule, which looks to punishment in fact assessed, can

lead to curious practical results. For example, where

co-defendants are tried together, the judge or jury, as

the case may be, sometimes imposes different sentences

on the different co-defendants. Under the Cottle rule, a

situation can arise where a co-defendant who is convicted

but has his sentence suspended is not protected by Argersinger,

but his co-defendant -- convicted of the same crime =~ is not

subject to later impeachment with his conviction because he

is the recipient of a jailterm. ... The rule of Thomas [v.

Savage, 513 F. 2d 536 (Sth Cir, 1975)] avoids the type of situation

depicted above and is, we believe, consonant with the concerns

expressed by the Supreme Court in Argersinger. For those rea~

sons, we hold tint the necessity of counsel in appellant Pott's

prior misdemeanor prosecutions is to be judged by the maximum

possible sentence he could have .cceived in each of those prose

cutions,

~ 19 «

Potts v. Estelle, 529 F, 2d 450, 454 (5th Cir, 1976) cert den. U.S.

No. 77-503 (Dec, 13, 1977),

Although the Petitioner in the instant case was fined $100, 00

following his convictions in 1966 and 1974 for operating a motor vehicle

while under the influence of intoxicating liquor, and was not imprisoned

immediately after those uncounselled convictions were obtained, he was

subject to the risk of imprisonment for a maximum of 30 days in 1966

(N.C.G.S, § 20-179 (1965)) and six months in 1974 (N.C.G.S. § 20-179

(1973)) He was actually sentenced to a one-year term of imprisonment

following his 1977 conviction, after he did not testify at his trial, under

threat of impeachment by the prior, uncounselled driving under the in-

fluence convictions, The ruling that the Petitioner's credibility could

have been impeached through inquiry into the prior uncounselled con-

victions is in manifest conflict with Loper v. Beto, Argersinger y.

Hamlin, and Potts v. Estelle, supra. This Court's writs of certiorari

should issue to review the rulings of the North Carolina Court of Appeals

and the North Carolina Supreme Court, to correct the denial to the Pe-

titioner of the rights guaranteed him under the Sixth and Fourteenth Amend-

ments to the United States Constitution and to resolve the important and

recurring question of constitutional law which is here at issue.

CONCLUSION

For the reasons above set forth, the Petitioner respectfully prays

that this Court issue its writs of certiorari to review the judgments entered

by the North Carolina Court of Appeals and the North Carolina Supreme

Court.

Thies, the | | Many of April, 1978,

VA

> eee {

O a 4

THOMAS F, LOFLIN, hep

Counsel of Record for the Petitioner

On tae Petition

LOFLIN, LOFLIN, GALLOWAY, LEARY

& ACKER

Post Office Box 1315

Durham, North Carolina 27702

Tel; (919) 682-0383

= 20-

APPENDIX A

No. 30 , Al FOURTEENTH DISTRICT

FEB 1 1978

SUPREME COURT OF NORTH CAROLINA

Spring Term 1978

KIKKRIEKEKEREEREKKAA CK RAK KKK KKK

STATE OF NORTH CAROLINA

JUDGMENT DISMISSING APPEAL

ON MOTION OF ATTORNEY GENERAL

(7714S8C535)

Vv

DONALD LEE WILLIAMS

Nee Nee a ee ee ee Se ee ee

KAUKEKEKKERERERERERKRER AKIRA

This matter came on to be considered upon Defendant's

notice of appeal from the North Carolina Court of Appeals

pursuant to G, S. 7A-30, and the Attorney General's motion

to dismiss the appeal of the defendant for lack of substantial

constitutional question; upon consideration whereof, it is

adjudged by the Court in conference this 24th day of January 1978

that the motion to dismiss the appeal be allowed; and that it

be so certified to the North Carolina Court of Appeals.

It is considered and adjudged further that defendant do pay

the sum of NINE AND NO/100 DOLLARS ($9.00) and execution issue

therefor.

Issued under my hand and seal of the Supreme Court this

3] day of January 1978.

Dlétu.BMoqar

‘John R. Morgan|

Clerk of the Supreme Court

ef North Carolina

ec: rth Carolina Court of 1

At Thomas F. Lofiin, rf PRCA ney at Law

Mr. Nonnie F. Midgette, Associate Attorney

Mr. Anthony Brannon, District ATtorney

Mr. Alton Knight, Clerk of Superior Court

Az

WO, 7714SC535

|

NORTH CAROLINA COURT OF APPEALS

0

|

ae “oe 7

Filed: 16 November 1977 tee .

Xr y cc

Soa = : |

STATE OF NORTH CAROLINA MGS, ea 5

Ve Durham County ao"

No. 76CRS2933 o <

DONALD LEE WILLIAMS

ee hoe

Appeal by defendant from McKinnon, Judge. Judgment entered 15

February 1977 in Superior Court, Durham County. Heard in the Court

of Appeals 25 October 1977,

Defendant was charged with driving under the influence, third

offense, and driving without a license. He pleaded guilty to both

charges in district court and was given a six months’ prison sentence.

He appealed to superior court where he pleaded not guilty.

Prior to trial in superior court defendant moved to suppress

evidence of his two prior convictions for driving under the influence

on the ground that they were not constitutionally obtained because he

had not been represented by counsel. After reviewing the record of the

prior convictions, the court found that in 1974 defendant was con-

victed in district court of driving under the influence and fined $100;

that the record contains no indication that defendant was represented

by counsel in either case, or that he waived counsel, or that the

guilty plea was voluntarily made, or that defendant was indigent;

and that the court would assume for the purpose of ruling on the motion

to suppress that defendant was then indigent. The court concluded that

the two convictions could be considered in determining punishment on the

present charge and that the defendant, should he take the stand, could

be impeached with questions relating to the two prior convictions.

The motion to suppress was denied.

The State presented evidence tending to shows

At approximately 5:30 p.m. on 2 Pebruary 1976, two police officers

observed defendant's car sitting on the shoulder of a highway near the

Turnkey housing project with its motor running. Inside the car they

found defendant slumped behind the wheel, either asleep or passed out,

with a hot dog which he had been eating spilled down the front of his

clothing. Defendant smelled of alcohols he stumbled and almost fell

when he tried to gét out of the car, The officers assisted defendant

into the patrol car and prepared to take him to headquarters at which

time defendant expressed concern about a gun which was in his car. The

officers then found a .38 caliber pistol under the seat of defendant's

car and took it to the station for safekeeping.

At the police station defendant refused to take a breathalyzer

test. He answered a question on the AIR form, standardly filled out

for any driving under the influence arrest, to the effect that he

had been “having sex" for the last three hours, Defendant accused

the officers of arresting him just because he was out at Turnkey

trying to get a black woman, In the spinion of the officers, defen-

dant was under the influence of alcohol.

Defendant did not take the stand but his son testified that he

had been driving the car on the date of his father's arrest when the

engine cut off and he walked home to get help; that upon reaching his

home he called his uncle for help but before his uncle arrived police

came to his house and told him that his father had been arrested. He

did not tell police he had been driving the car because he did not

think they would listen to hin,

The jury found defendant guilty of driving under the influence,

third offense, and from judgment imposing prison sentence of one year,

he appealed.

Attorney General Edmisten, by Associate Attorney Nonnie F.

Midgette, for the State,

Lofiin and Loflin, by Thomas F, Loflin, III, for defendant

appellant,

BRITT, Judge. Defendant contends the court erred in admitting

evidence relating to the pistol found in his car, and his remarks to

officers about sex, because such evidence was not only irrelevant

but highly inflammatory. The contention has no merit.

: A4 | E AS

- 3- -~iA-

We think the evidence of the remarks made by defendant about sex Supreme Court in State v. Harrell, 281 N.C, 111, 187 S.E. 24 789

was relevant to show defendant's intoxication at the time they were (1972), and cases therein cited.

made, a short while after his arrest. Certainly such remarks are tn defendant's trial and the judgment appealed from, we find

not usual for a person in a normal state of mind, Defendant's No error.

argument that the evidence was inflammatory because two of the police Judges HEDRICK and MARTIN concur.

officers who testified, and two of the jurors, were black is not

supported by the record, neport per Rule 30(e).

With respect to the pistol, while the record reveals that defen-

dant objected to some of the questions and answers relating to the

pistol, he failed to object to others. Assuming, arguendo, that evi-

dence pertaining to the pistol should have been excluded, by failing

to object to later admission of the same or similar evidence, defen-

dant lost the benefit of his previous objections, 4 Strong's N.C.

Index 34, Criminal Law § 162.

Defendant contends the court erred in ruling that his prior

convictions for driving under the influence could be used to im

peach him should he take the witness stand, and in considering said

convictions in sentencing him, This contention has no merit,

Defendant argues that under Argersinger v. Hamlin, 407 U.8. 25,

92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972), he was entitled to

representation by an attorney at said previous trials; that because

of his indigency he vas not able to employ counsel and that the

court did not appoint counsel for him, therefore, the convictions were

invalid and the record relating to them should not be used against

him for any purpose. We reject this argument.

We interpret Argersinger to hold that a person may not be im

prisoned for an offense unless, absent 4 waiver, he was represented

by counsel at his trial, Defendant was not sent to prison in the

cases in question.

Defendant contends the court erred in imposing a greater sen~

tence than was imposed in district court. This contention has no

merit. Defendant's argument on this point was rejected by our