Amicus Curiae Brief — Nichols v. United States

No. 92-8556

IN THE

Suprene Court of the United States

OCTOBER TERM, 1993

>

KENNETH O. NICHOLS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL

LIBERTIES UNION IN SUPPORT OF PETITIONER

Susan N. Herman

(Counsel of Record)

250 Joralemon Street

Brooklyn, New York 11201

(718) 780-7945

Steven R. Shapiro

American Civil Liberties

Union Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

BEST AVAILABLE COPY

we

QUESTION PRESENTED

Whether the district court properly considered peti-

tioner’s prior uncounseled misdemeanor conviction in

computing his criminal history score under the Federal

Sentencing Guidelines.

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................

ENTE s OF AMICUS .... cc ccc cee eceeee

STATEMENT OF THE CASE ...............

SUMMARY OF ARGUMENT ...............

DUE ERRUEG ba webeeeeccccccccces

RELIANCE ON PETITIONER’S PRIOR

UNCOUNSELED MISDEMEANOR

CONVICTION IN COMPUTING HIS

CRIMINAL HISTORY UNDER THE

FEDERAL SENTENCING GUIDELINES

VIOLATED PETITIONER’S SIXTH AND

FOURTEENTH AMENDMENT RIGHT

DUPER MebaSoececeecccecscccce.

A. The Sixth Amendment, As Interpreted

In Baldasar v. Illinois, Prohibits The

Automatic Imposition Of Any Period Of

Incarceration On The Basis Of A Prior

Conviction Obtained In The Absence Of

Counsel Or A Valid Waiver Of Counsel... .

1. Baldasar Prohibits Imposition Of A

Period Of Incarceration Directly At-

tributable To A Prior Uncounseled

Misdemeanor Conviction ..........

a. Baldasar Rejects The Argument

That A Sentence Enhancement

Is Attributable Only To The In-

stant Offense, And Not To The

Predicate Offense .............

b. Baldasar Holds That An Un-

counseled Misdemeanor Convic-

tion Is Insufficiently Reliable To

Provide A Predicate For The

Automatic Imposition Of A Pe-

riod Of Imprisonment .......... 9

2. Under The Narrowest Interpretation

Of Baldasar, Petitioner Has Been

Denied His Right To Counsel Be-

cause The Uncounseled Conviction

That Precipitated An Additional Pe-

riod Of Incarceration Was For A

Misdemeanor With A Possible Sen-

tence Of More Than Six Months

Imprisonment ........-- 0000 eee e 14

3. Holding That A Prior Uncounseled

Misdemeanor Conviction Is Invalid

For Purposes Of A Subsequent Im-

position Of Imprisonment Is Com-

pelled By The Rationales Of Scott

And Anpersinger ....-.-00 +0020 eee 15

B. The Federal Sentencing Guidelines

Automatically Authorize An Additional

Period Of Incarceration As A Direct

Result Of Prior Uncounseled Misde-

greemor COMVIGHIOES 2. cc ccccccccccces 18

Il. PETITIONER WAS DEPRIVED OF LIB-

ERTY WITHOUT DUE PROCESS OF

LAW BY THE AUTOMATIC IMPOSI-

TION OF AN ADDITIONAL PERIOD OF

IMPRISONMENT UNDER THE FEDER-

AL SENTENCING GUIDELINES ........ 23

ec ob) + | i Prrrrrrrrrerrrererr rrr. 28

TABLE OF AUTHORITIES

Cases

Argersinger v. Hamlin,

407 U.S. 25 (1972)

Baldasar v. Illinois,

446 U.S. 222 (1980)

Bilbrey v. State,

531 So.2d 27 (Ala.Crim.App. 1987)

Burgett v. Texas,

389 U.S. 109 (1967)

Burns v. United States,

501 U.S. __, 111 S.Ct. 2182 (1991)

Charles v. Foltz,

741 F.2d 834 (6th Cir. 1984),

cert. denied, 469 U.S. 1193 (1985)

City of Lakewood v. Plain Dealer

Publishing Co.,

486 U.S. 750 (1988)

Commonwealth v. Thomas,

S07 A.2d 57 (Pa. 1986)

Furman v. Georgia,

408 U.S. 238 (1972)

Gideon v. Wainwright,

372 U.S. 335 (1963)

Greenholtz v. Inmates of the Neb.

Penal & Correctional Complex,

442 US. 1 (1979)

Gregg v. Georgia,

428 U.S. 153 (1976)

es Fh es ee a

.

in i i he eT eT YS se lull

.

"Veewetee eee 8 Se 6 he @ 2 6:8

Griffin v. Blackburn,

594 F.2d 1044 (Sth Cir. 1979) .......2- 2c eee eee 12

In re Kean, »

§20 A.2d 1271 (R.1. 1987) .. 1... cece eee wees

Johnson v. Zerbst, :

SOG UES, GR CHRD cc cc ccc cccscccvccceseces

Krewson v. State,

S$$2 A.2d 840 (Del. 1980) .... 2... cece eccccees 17

Lovell v. State, ;

678 S.W.28 318 (Ark. 1984)... ccc ccc c cc vcness l

Marks v. United States,

GRD ULE, TR GTRFED cc ccc ccc cccscces 3, 7, 11, 13

Mathews v. Eldridge, _

Se BE SUP CUUTE cccccccvccvc ces sucess es

Meachum v. Fano, i

ey ee CUED 6 :6.0. seb nb #64566 eee eb ode 2

Moore v. Jarvis,

885 F.2d 1565 (11th Cir. 1989) ............ 8, 22, 26

Moore v. State,

352 S.E.2d 821 (Ga.),

cert. denied, 484 U.S. 904 (1987) ........65 55 es 17

Panenen v. State,

711 P.2d 528 (Alaska 1985) ........... 9, 15, 16, 18

Pendleton v. Standerfer, ,

by Ty Te A .) ae 15, 1

People v. Dass,

589 N.E.2d 1065 (Ill.App.Ct.),

cert. denied, 602 N.E.2d 462 (Ill. 1992) ........... 18

People v. Finley, —

568 N.E.2d 412 (Ill. App.Ct. 1991) ........... 15, 1

iV

Page

People v. Olah,

298 N.W.2d 422 (Mich.),

cert. denied, 450 U.S. 957 (1981) ............... 17

People v. Roybal,

618 P.2d 1121 (Colo. 1980) ................ 15, 16

Powell v. Alabama, ia

ST ian nn ca ceccuwuuntsinnn 4

Ratliff v. Commonwealth,

719 S.W.2d 445 (Ct.App.Ky. 1986) .............., 17

Rodnguez v. Rosenblatt,

a ee eens 18

Santillanes v. United States

Parole Commission,

Pee Ce ee SN, TOD ovo. v ovrvcc.ceccednen 14

Sargent v. Commonwealth,

360 S.E.2d 895 (Va.Ct.App. 1987) ........... 15, 17

Schindler v. Clerk of Circuit Court,

715 F.2d 341 (7th Cir. 1983),

cen. denied, 465 U.S. 1068 (1984) ............. 7, 13

Scott v. Illinois,

PP PMO, Sci cebenceevecececsxa passim

Sheffield v. City of Pass Christian,

556 So.2d 1052 (Miss. 1990) .................. 17

State v. Armstrong,

332 S.E.2d 837 (W.Va. 1985) ................ 9,17

State v. Baker,

485 N.W.2d 237 (Wis. 1992) ...............04.. 20

State v. Baldauf,

586 N.E.2d 237 (Ohio Ct.App. 1990) ............ 17

State v. Beach, -

§92 So.2d 237 (Fla. 1992) .....-. 2 eee rere eee

State v. Chance,

405 S.E.2d 375 (S.C. 1991),

cert. denied,

__ US. _, 112 S.Ct. 1241 (1992) 2. eee eee ees 17

State v. Cooper,

343 N.W.2d 485 (lowa 1984) ........055 50s) 15, 17

State v. Dowd,

478 A.2d 671 (Me. 1984)... 6.6.50 ee ees 17, 18, 23

State v. Hoglund,

785 P.2d 1311 (Haw. 1990) .......-5 05 eee es 15, 17

State v. Laurick, -

575 A.2d 1340 (N.J. 1990) 2.0... ee eee ee ees

State v. Nordstrom, —

331 N.W.2d 901 (Minn. 1983) .......556 eee ,

State v. Novak, ”

318 N.W.2d 364 (Wis. 1982) ......-- ee eee eee

State v. O’Brien,

666 S.W.2d 484 (Tenn.Crim.App. 1984) .....-. 17, 20

State v. Oehm,

680 P.2d 309 (Kan.Ct.App. 1984) .......---55: 9, 17

State v. Or,

375 N.W.2d 171 (N.D. 1985) ......---55- 14, 15, 18

State v. Ulibam, “—

632 P.2d 746 (N.M. 1981) ....--- 5 ee eee ees :

State v. Wiggins, ‘i

399 So.2d 206 (La. 1981) 2... 6 ee ee ee

vi

Page

Student Public Interest Research Group

of N.J. v. AT & T Bell Laboratories,

842 F.2d 1436 (3d Cir. 1988) .................. 13

Thompson v. Estelle,

642 F.2d 996 (Sth Cir. 1981) .................. 12

Townsend v. Burke,

II ee 3, 28

Tyler v. Bethlehem Steel Corp.

958 F.2d 1176 (2d Cir.),

cert. denied,

— U.S. _, 113 S.Ct. 82 (1992) ................ 13

United States v. Brady,

928 F.2d 844 (9th Cir. 1991) 22.00. 9

United States v. Castro-Vega,

945 F.2d 496 (2d Cir. 1991),

cert. denied,

— U.S. _, 113 S.Ct. 1250 (1993) .............. 12

United States v. Eckford, ~ -

910 F.2d 216 (Sth Cir. 1990) ............, 11, 12, 21

United States v. Falesbork,

—* oe

1993 WL 331481 (4th Cir. 1993) ............... 14

United States v. Hookano,

Woe Tame FOO Cote Ce. BOTRD gg ccc vc ce cccncn 22

United States v. Martino,

664 F.2d 860 (2d Cir. 1981),

cen. denied sub nom.

Miller v. United States,

458 U.S. 1110 ee oe aig a ae ae bunt Sed wick 13

United States v. Norquay,

987 F.2d 475 (8th Cir. 1993)

Vii

United States v. Peagler, i

847 F.2d 756 (11th Cir. 1988) ....... 6-0 e ee eee

United States v. Robles-Sandoval,

637 F.2d 692 (9th Cir.),

cert. denied, 451 U.S. 941 (1981) .......-455- 11, 13

United States v. Smith, “

844 F.2d 203 (Sth Cir. 1988) ........ 0 eee ee eee

United States v. Tucker, o

OE eS) err ee ee ee

United States v. Williams,

891 F.2d 212 (9th Cir. 1989), ,

cert. denied, 494 U.S. 1037 (1990) ... 2... 6. eee ees

Wilson v. Estelle,

625 F.2d 1158 (Sth Cir. 1980), ”

cert. denied, 451 U.S. 912 (1981)... 6... . 2 eee ees

Statutes and Regulations

LL So ee ee coe ae 22

OT Al a ee ee a ee 2 ee ee oe a l

Ga. Code Ann. §40-6-391 (1983) ..........55. 1, 20

Ga. Code Ann. §40-6-391(c)(1983) ........---- 6, 14

Ga. Code Ann. §40-6-391 (1992) ........-224 06 20

Ill.Rev.Stat., Ch. 38, -

para. 16-1(e)(1)1974) . 2... ee ee eee

Ill.Rev.Stat., Ch. 38, -

|) eee eee erere ree ee

Ill. Rev.Stat., Ch. 38, -

§ 1005-8-1(b)S)M197S) .. 0... cree eee eee eeee

vill

Page

United States Sentencing

gee ah rain a ar ee ed Re Re ge passim

NE ware eure che sak eee 20

EEE SE Ys ir oe BEA, |

kas Mira be orl he 2

RU ee i aed gat dk ae oe oe 22

Wis. Stat. §343.44 (1989-90) .................. 20

Other Authorities

Kimura, Ken, Note, "A Legitimacy

Model for the Interpretation of

Plurality Decisions,"

77 Cornell L. Rev. 1593 (1992) ................ 11

King, D. Brian, "Sentence Enhance-

ment Based on Unconstitutional

Prior Convictions,"

64 N.Y.U.L.Rev. 1373 (1989)

Linda Novak, Note, "The Pre-

cedential Value of Supreme

Court Plurality Decisions,”

80 Colum.L.Rev. 756 (1980)

Podraza, Joseph R., Jr., Note,

"Using Prior Uncounseled Con-

victions to Enhance the

Grading and Sentencing of

Subsequent Offenses Resulting

in Imprisonment: The Penn-

sylvania Supreme Court's

Questionable Reading of

Baldasar v. Illinois,"

ms 17

Rudstein, David S., "The Collateral

Use of Uncounseled Misdemeanor

Convictions After Scott and Baldasar,

36 UU Pin LD Bewv. SIT CIGRE) occ cc ccc ccccvess 14

Thurmon, Mark Alan, Note, "When

the Court Divides: Reconsidering

the Precedential Value of Supreme

Court Plurality Decisions,"

gf ER fi | PPP eeeeeeereErare ie 1]

INTEREST OF AMICUS '

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with

nearly 300,000 members, dedicated to the principles of

liberty and equality embodied in the Constitution. In

support of these principles, the ACLU has appeared be-

fore this Court on numerous occasions, both as direct

counsel and as amicus curiae. In particular, the ACLU

has participated in many cases addressing the right to

counsel and the due process of law in criminal proceed-

ings.

STATEMENT OF THE CASE

On April 25, 1983, petitioner Kenneth O. Nichols

was convicted in Georgia of the misdemeanor of driving

while intoxicated. Ga. Code Ann. §40-6-391 (1983). He

pleaded nolo contendere and, on May 2, 1983, was sen-

tenced to a pay fine of $250 and to attend DUI school.’

On April 1, 1991, in the Eastern District of Tennes-

see, petitioner was sentenced on his plea of guilty to the

federal offense of possession with intent to distribute co-

caine hydrochloride, in violation of 21 U.S.C. §846. In

calculating his sentence under the United States Sen-

tencing Guidelines (U.S.S.G.), the district court added

one point to defendant’s criminal history for the Georgia

misdemeanor conviction, as required by the Guidelines,

U.S.S.G. §4A1.2, comment (1990). See PSR at 7. The

base offense level for petitioner’s conviction was calcu-

lated to be Offense Level 34. Adding the one point for

this misdemeanor conviction to three other criminal his-

‘ Letters of consewt to the filing of this brief have been lodged with

the Clerk of the Court pursuant to Rule 37.3.

* Presentence Report (PSR) at 7. The Joint Appendix was not availa-

ble at the time this brief was written. Citations are to documents in

the record below.

tory points (for a previous 30 month sentence for posses-

sion with intent to distribute marijuana) moved petition-

er from Criminal History Category II, where the sentenc-

ing range available would have been 168-210 months, to

Criminal History Category III, where the available range

was 188-235 months. See U.S.S.G. §5A (1990). Petition-

er was sentenced to 235 months, the top of the desig-

nated range.

The district court considered and rejected petition-

er’s argument that use of this prior misdemeanor convic-

tion was unconstitutional because petitioner had been

unrepresented by counsel and did not waive the right to

counsel. See Memorandum Decision at 4-5 (Apr. 29,

1991)! Petitioner appealed this decision to the Sixth

Circuit Court of Appeals, which affirmed the district

court, United States v. Nichols, 979 F.2d 402 (1993), and

this Court granted certioran.

SUMMARY OF ARGUMENT

Because the right to counsel is often necessary to

guarantee the reliability of criminal convictions, this

Court has prohibited the imposition of the severe sanc-

tion of imprisonment on defendants who were uncoun-

seled and did not waive their right to counsel, even in

misdemeanor cases. Gideon v. Wainwright, 372 U.S. 335

(1963); Argersinger v. Hamlin, 407 U.S. 25 (1972); Scott v.

Illinois, 440 U.S. 367 (1979). This principle has already

> According to the presentence report, the Georgia court records did

not reflect whether the defendant was represented by an attorney.

PSR at 7. The probation officer quoted petitioner as stating that he

had consulted an attorney and had been told that he did not need

counsel to plead nolo contendere to this offense. Jd. The district

court found it to be conceded that petitioner had not been represent-

ed by counsel at that proceeding, and further found “on the basis of

the facts before {the court] that petitioner had not waived his right to

counsel. Memorandum Decision at 1-5.

2

been held to render unconstitutional use of an uncoun-

seled misdemeanor conviction to automatically enhance

a sentence of imprisonment imposed upon a subse

conviction. Baldasar v. Illinois, 446 US. 222 (1980).

_ Despite the fact that Baldasar provided no majority

rationale, the plurality opinions in that case may be fair-

ly read together, under the principles of Marks v. United

States, 430 U.S. 188, 193 (1977), as holding either: (1)

that automatically increasing a prison term under an en-

hancement Statute based on a prior uncounseled misde-

meanor conviction is impermissible if that conviction was

for an offense punishable by at least six months’ impris-

onment, or (2) that any automatic imposition of incar-

ceration on the basis of an uncounseled and therefore

presumptively unreliable conviction is impermissible

regardless of the maximum authorized sentence for the

first offense. The latter rule, in our view, is more con-

sistent with both the concern for reliability expressed in

Argersinger and the concern for federalism expressed in

Scott. However, under either interpretation of Baldasar

the decision below is wrong and should be reversed.

Sentencing under the Federal Sentencing Guideli

( U.S.S.G. 1992) amounts to an automatic foodies at

an increased range of imprisonment, within the meaning

of Baldasar, because the decision of how to evaluate a

defendant’s criminal history is not discretionary. See

Burns v. United States, 501 U.S. _, __, 111 S.Ct. 2182

2191-92 (1991) (Souter, J., dissenting). Therefore, in ad-

dition to violating petitioner’s Sixth and Fourteenth

Amendment right to counsel, reliance by the United

States on petitioner’s uncounseled misdemeanor convic-

tion constitutes a denial of due process under the Fifth

olny on because hs Subjected petitioner to a sen-

ce based on unreliable informati

Burke, 334 U.S. 736 (1948). —_— —”

t

ARGUMENT

I. RELIANCE ON PETITIONER’S PRIOR UNCOUN-

ELED MISDEMEANOR CONVICTION IN COM-

PUTING HIS CRIMINAL HISTORY UNDER THE

FEDERAL SENTENCING GUIDELINES VIO-

LATED PETITIONER’S SIXTH AND FOUR-

TEENTH AMENDMENT RIGHT TO COUNSEL

A. The Sixth Amendment, As Interpreted In

Baldasar v. Illinois, Prohibits The Automatic

Imposition Of Any Period Of Incarceration

On The Basis Of A Prior Conviction Ob-

tained In The Absence Of Counsel Or A

Valid Waiver Of Counsel

The right to counsel, as this Court has long recog-

nized, is often essential to guarantee the fairness of

criminal proceedings, regardless of whether those pro-

ceedings concern capital offenses, felonies, or misde-

meanors. For example, in Johnson v. Zerbst, 304 U.S.

458, 462-63 (1938), the Court said:

[The Sixth Amendment] embodies a realistic

recognition of the obvious truth that the av-

erage defendant does not have the profes-

sional skill to protect himself when brought

before a tribunal with power to take his life

or liberty, wherein the prosecution is pre-

sented by experienced and learned counsel.

That which is simple, orderly and necessary

to the lawyer, to the untrained layman may

appear intricate, complex and mysterious.

In the landmark case of Powell v. Alabama, 287 U.S.

45, 68-69 (1932), the Court declared that:

(t]he right to be heard would be, in many

cases, of little avail if it did not comprehend

the right to be heard by counsel... . [A

layman] requires the guiding hand of coun-

sel at every step in the proceedings against

4

him. Without it, though he be not guilty, he

faces the danger of conviction because he

does not know how to establish his inno-

cence.

It is for these reasons that the Court has interpreted

the Sixth Amendment and the Due Process Clause to

provide for a right to counsel where a defendant is tried

for a felony, Gideon v. Wainwright, 372 U.S. 335, or even

for a petty misdemeanor, Argersinger v. Hamlin, 407 U.S.

25. As the Court clarified in Scott v. Illinois, 440 U.S.

367, the chief evil these cases seek to prevent is the in-

carceration of defendants who have not had the benefit

of the guiding hand of counsel. Interpreting the Court’s

assertion in Argersinger that “no imprisonment may be

imposed . . . unless the accused is represented by coun-

sel," 407 U.S. at 40, the Court in Scott explained the

underlying rationale of Argersinger by noting that incar-

ceration is "so severe a sanction that it should not be im-

posed as a result of a criminal trial unless an indigent

defendant has been offered counsel to assist in his de-

fense, regardless of the cost to the States implicit in such

a rule.” 440 U.S. at 372-73.

Under Scott, petitioner Nichols’ uncounseled misde-

meanor conviction for driving while intoxicated could not

constitutionally have been used as the basis for a sen-

tence of imprisonment of even one day. Yet eight years

later, the United States used that uncounseled conviction

as the basis for a twenty-five month enhancement of pe-

titioner’s sentence for a different offense. Scott and

Arersinger have already been interpreted by this Court,

in Baldasar v. Illinois, 446 U.S. 222, to prohibit such a re-

Sult.

Baldasar presented this Court with a set of facts re-

markably similar to petitioner's. In 1975, Thomas Bal-

* This account is derived from the opinion of the Court in Baldasar,

id., and from petitioner Baldasar’s brief in that case.

5

dasar was charged under Illinois law with petty theft, an

offense punishable by up to one year imprisonment. He

pleaded guilty and was sentenced to pay a fine of $159

and to serve one year on probation. He did not have

the benefit of counsel at that proceeding, and the record

showed no affirmative waiver of counsel. Later that

year, Baldasar was again charged with petty theft, con-

victed, and sentenced to one to three years rather than a

maximum of one year, because his prior uncounseled

misdemeanor conviction was considered under a state

enhancement statute.

Like Baldasar, petitioner Nichols was convicted upon

his own plea (nolo contendere) of a misdemeanor (driv-

ing while intoxicated) punishable by up to one year im-

prisonment, see Ga. Code Ann. §40-6-391(c)( 1983), and

was sentenced to pay a fine. He was unrepresented by

counsel in that proceeding and the record reflects no af-

firmative waiver of counsel. When petitioner was con-

victed of the instant federal offense, his uncounseled

misdemeanor conviction was used as the basis for a sen-

tence enhancement under the Federal Sentencing Guide-

lines, of 25 months an even longer period than Baldasar

would have served as a consequence of his prior convic-

tion had the Court not found this use of his prior convic-

tion unconstitutional.

In Baldasar, the Court unequivocally held that later

imposition of incarceration on the basis of Baldasar’s un-

counseled misdemeanor conviction was as impermissible

as a sentence of incarceration immediately following

upon that conviction would have been. However, there

was no opinion of the Court in Baldasar setting forth a

majority rationale; the decision comprises a brief per

curiam opinion with concurring opinions by Justices

Stewart, Marshall and Blackmun. Because these concur-

rences provide more than one explanation for the Balda-

sar holding, a number of state and federal courts have

differed on how broadly to interpret the rationale of that

decision. Petitioner submits, and amicus agrees, that this

case falls squarely within even the narrowest plausible

reading of the holding of Baldasar.’ But because of the

confusion in the lower courts, amicus urges the Court to

go beyond the narrow ruling that would decide petition-

er’s case in order to clarify the scope of the holding of

Baldasar.

1. Baldasar Prohibits Imposition Of A Period

Of Incarceration Directly Attributable To A

Prior Uncounseled Misdemeanor Conviction

_ Under Marks v. United States, 430 U.S. 188, when no

single rationale explaining the result of a decision com-

mands the votes of five Justices, "the holding of the

Court may be viewed as that position taken by those

members a concurred in the judgments on the nar-

rowest grounds.” /d. at 193, citing G v. Georgia, 4

U.S. 153, 169 n.15 (1976); see » 4 City of iota m_

Plain Dealer Publishing Co., 486 U.S. 750, 764 n.9 (1988).

The rule of Marks is sometimes described as requiring

later courts to find the “least common denominator" of a

decision. Schindler v. Clerk of Circuit Court, 715 F.2d

341, 345 n.S (7th Cir. 1983), cert. denied, 465 U.S. 1068

(1984). There are several significant principles on which

the five Justices of the majority in Baldasar agreed.

a. Baldasar Rejects The Argument That A

Sentence Enhancement Is Attributable

Only To The Instant Offense, And Not

To The Predicate Offense

One common denominator for the decision in Balda-

sar is easily located by looking at arguments made by II-

linois as respondent and the United States as amicus

curiae in that case, which were decisively rejected by five

members of the Court. Baldasar argued that without re-

* See Point LA2 infra.

liance on the prior misdemeanor conviction, he could

not have been sentenced to more than one year of incar-

ceration; with the misdemeanor viewed as a predicate

conviction, he was sentenced to one to three years.

Therefore, he argued that the additional two year sen-

tence was attributable to the uncounseled conviction.

Petitioner's Brief at 11-14, 17. Illinois and the United

States both argued that the additional two years were at-

tributable solely to the conviction upon which they were

imposed. Respondent’s brief at 14-15; United States

brief at 8-9. According to this argument, the validity of

the first conviction was not an issue because the entire

period of incarceration was imposed as punishment for

the subsequent offense, not as punishment for the earlier

offense.

The Baldasar dissenters accepted this argument, see

446 U.S. at 233-34, but the five Justices in the majority

all implicitly or explicitly rejected it. Justice Stewart

thought it plain that, but for the first conviction, petition-

er would not have been subjected to the additional in-

carceration after his second conviction. /d. at 224. Jus-

tice Marshall, joined by Justices Brennan and Stevens,

also viewed the enhancement as “solely because" of the

previous conviction, see id. at 227. “That [Baldasar] has

been deprived of his liberty ‘as a result of [the first)

criminal trial’ could not be clearer.” Jd. at 226. Justice

Blackmun, whose opinion was preceded by both of these

concurrences, did not explicitly discuss his view on this

issue, but had he agreed with the dissenters on this

point, there would have been no cause for him to consid-

er under what circumstances Baldasar’s first conviction

should have been deemed valid. See id. at 229-30.

Some of the lower courts to have addressed the

question have correctly found that the Baldasar opinion

has the force of stare decisis at least as to this ruling.

See, e.g., Moore v. Jarvis, 885 F.2d 1565, 1572 (11th Cir.

1989)("The common rationale of the three concurring

opinions constituting the holding was that the period by

which the sentence for the subsequent conviction was in-

creased actually was attributable to the prior, uncoun-

seled conviction"). It is also clear that this conclusion

was required by previous case law. If the reliability or

validity of predicate convictions is not relevant at sen-

tencing, then the status of a predicate conviction should

not matter even if the predicate is an uncounseled felony

conviction. In Burgett v. Texas, 389 U.S. 109 (1967),

however, the Court had held that a prior uncounseled

felony conviction may not be used to enhance a defend-

ant’s punishment under a recidivist statute. Because

Burgett had been denied his right to counsel in the prior

proceeding, the Court found that he "in effect suffers

anew from the deprivation of that Sixth Amendment

right.” /d. at 115.

b. Baldasar Holds That An Uncounseled

Misdemeanor Conviction Is Insufficient-

ly Reliable To Provide A Predicate For

The Automatic Imposition Of A Period

Of Imprisonment

All five Justices in the Baldasar majority also agreed

that an uncounseled conviction that is insufficiently relia-

ble to provide a basis for a sentence of incarceration is

also insufficiently reliable to form a basis for a subse-

quent automatic enhancement of a sentence of imprison-

ment.” Justice Marshall's opinion speaks to this issue

* As some lower courts have said, “[t}he consensus of these [Ba/dasar]

concurrences is that an uncounseled conviction which is invalid for the

purposes of imposing a sentence of imprisonment, though valid in it-

self for imposing a nonprison sentence, is also invalid for enhancing a

sentence of imprisonment.” United States v. Williams, 891 F.2d 212,

214 (%h Cir. 1989), cert. denied, 494 US. 1037 (1990); see also United

States v. Brady, 928 F.2d 844, 854 (%h Cir. 1991); Panenen v. State

711 P.2d $28, 532 (Alaska 1985); State v. Oehm, 680 P.2d 309 (Kan.Ct

App. 1984); State v. Armstrong, 332 S.E.2d 837, 841 (W.Va. 1985).

9

most articulately:

We should not lose sight of the underlying

rationale of Argersinger, that unless an ac-

cused has ‘the guiding hand of counsel at

every step in the proceedings against him,

Powell v. Alabama . . . his conviction is not

sufficiently reliable to support the severe

sanction of imprisonment. Argersinger v.

Hamlin . . . . An uncounseled conviction

does not become more reliable merely be-

cause the accused has been validly convicted

of a subsequent offense.

446 U.S. at 227-28 (citations omitted).

Justice Stewart’s and Justice Blackmun’s concurring

opinions are just as firmly, albeit not as vocally, caged on

Argersinger’s concern that the absence of counsel un er-

mines the reliability of a conviction. Justice Stewart,

who had concurred in both Argersinger and Scott, thought

it so obvious that the use of the uncounseled conviction

in Baldasar violated the rules of those cases that he felt

no need to reiterate the basis for the decision in Arger-

singer: that the assistance of counsel is often a ee

to the very existence of a fair trial." Argersinger, 407 U.S.

at 31; see also id. at 33-37. To show how ineluctable this

conclusion was, he simply noted that the State of Illinois

had itself acknowledged in its brief in Scott that if an un-

counseled conviction could not be used as a basis for a

sentence of imprisonment, it also would be unavailable

for use as a predicate in subsequent proceedings. Balda-

sar, 446 US. at 224 n.*. Justice Blackmun’s concern

about the unreliability of the uncounseled conviction,

tracing back to his dissent in Scott and his “geen ge

in Argersinger, was so great that he would not even have

permitted the misdemeanor convictions at Issue in Scott

or in Baldasar to be used as the basis for imposition of a

fine. Justice Blackmun adhered to his conclusion in

Scott that the Sixth and Fourteenth Amendments require

10

the states to provide counsel to any defendant prose-

cuted for a crime with a possible penalty of six months

or more, regardless of whether the defendant was actual-

ly imprisoned.

It is ironic that some lower courts have interpreted

Justice Blackmun’s opinion, which in some respects is far

broader than the other concurrences, as the "narrowest"

under the Marks analysis.’ It is even more ironic that a

few courts have suggested that Justice Blackmun’s differ-

ent idea about the extent of the states’ obligation to pro-

vide counsel in misdemeanor cases deprived Baldasar of

any common rationale.” The court below, for example,

concluded that because Justice Blackmun had a different

explanation for why petitioner’s misdemeanor conviction

was too unreliable to form a basis for any sentence of

’ Baldasar has posed a real challenge to those courts that try to follow

Marks by secking the “narrowest” and “broadest” opinions because, un-

like the situation in Marks itself or in Gregg v. Georgia, 428 U.S. 153,

it is awkward to characterize the Baldasar opinions by their breadth,

or by the number of cases likely to be affected. It is impossible to

predict how many misdemeanor prosecutions Justice Blackmun’s Scott

rule would affect and whether this number is larger or smaller than

the number of enhancement decisions other opinions would affect.

For such reasons, most commentators have criticized the exclusive

focus on how “narrow” an opinion is and advocated that Marks be in-

terpreted more broadly in order to serve the goals of stare decisis in a

wider range of cases. See, e.g., Ken Kimura, Note, "A Legitimacy

Model for the Interpretation of Plurality Decisions,” 77 Cornell L.

Rev. 1593 (1992); Mark Alan Thurmon, Note, "When the Court Di-

vides: Reconsidering the Precedential Value of Supreme Court Plu-

rality Decisions,” 42 Duke LJ. 419 ( 1992); Linda Novak, Note, "The

Precedential Value of Supreme Court Plurality Decisions,” 80 Colum.

L.Rev. 756, 760-61 (1980). ——

* See United States v. Eckford, 910 F.2d 216, 219 (Sth Cir. 1990). The

Ninth Circuit, which Eckford quoted as having said, in dicta, that "[t}he

court in Baldasar divided in such a way that no rule can be said to

have resulted,” United States v. Robles-Sandoval, 637 F.2d 692, 693 n.1

(%h Cir.), cert. denied, 451 U.S. 941 (1981), discovered much common

ground in Baldasar in later decisions. See supra note 6 .

1]

imprisonment, and because this explanation was ground-

ed in a dissenting view of a Supreme Court precedent,

Justice Blackmun’s conclusion as well as his reasoning

could be ignored. 979 F.2d at 415. This procrustean

reading disregards the result Justice Blackmun reached

in Baldasar -- the automatic sentencing enhancement was

unconstitutional -- as well as his starting point -- concern

about the fairness of uncounseled proceedings -- merely

because he presented a different intermediate step in his

reasoning about how best to accomplish the goals of

Argersinger.

Under well-recognized principles of stare decisis,

Justice Blackmun’s difference of perspective should pro-

vide no justification for the blatant disregard of Baldasar

shown by some lower courts (particularly the Fifth Cir-

cuit)’ or for the decision of the court below to follow the

Baldasar dissent instead of the majority.” In Gregg v.

* The Fifth Circuit continued to follow its own pre-Baldasar case law,

see Griffin v. Blackburn, 594 F.2d 1044 (Sth Cir. 1979), even after Bal-

dasar was decided, sometimes neglecting even to cite Baldasar in rele-

vant cases, see Thompson v. Estelle, 642 F.2d 996 (Sth Cir. 1981);

United States v. Smith, 844 F.2d 203 (Sth Cir. 1988), and sometimes

barely acknowledging the existence of the Court’s decision while dis-

tinguishing it away, see Wilson v. Estelle, 625 F.2d 1158, 1159 n.1 (Sth

Cir. 1980), cert. denied, 451 US. 912 (1981). This attitude became

Fifth Circuit precedent, see Eckford, 910 F.2d at 220, which then influ-

enced some other circuits which had not yet interpreted Baldasar.

Compare United States v. Castro-Vega, 945 F.2d 496, 499-500 (2d Cir.

1991), cert. denied, _ US. __, 113 S.Ct. 1250 (1993)(adopting limiting

Fifth Circuit reading of Baldasar) with United States v. Norquay, 987

F.2d 475, 482 (8th Cir. 1993)(adopting a broader reading of Bal/dasar).

° The court below followed the Fifth Circuit in reasoning that a prior

misdemeanor “valid” for the purposes for which it was used at the

time is “valid” for all other purposes, 979 F.2d at 416; see Eckford, 910

F.2d at 220. This is not a narrow reading of Baldasar, but acceptance

of the dissenting position. See Baldasar, 446 U.S. at 232-34.

Most of the cases in which the lower courts have questioned the

(continued...)

12

Georgia, 428 U.S. at 169 n.iS, where the Court first ap-

plied the plurality opinion theory articulated in Marks,

the Court found a binding holding based on the "narrow-

er" theories of a three-Justice plurality in Furman y.

Georgia, 408 U.S. 238 (1972), despite the fact that the

"broader" and "narrower" opinions in that case were

based on wholly different constitutional theories.

To serve the goals of stare decisis theory -- clarity,

predictability and consistency of decisions -- lower courts,

and even the Supreme Court itself, should look beyond

the surface of plurality opinions to try to locate common

ground. Respect for stare decisis sometimes requires a

court to analyze the conclusions implicit in plurality

opinions by considering which principles or arguments

each Justice accepted or rejected. See, e.g., Tyler v. Beth-

lehem Steel Corp., 958 F.2d 1176, 1182-83 (2d Cir.), cert.

denied, ___ U.S. __, 113 S.Ct. 82 (1992); Student Public

Interest Research Group of NJ. v. AT & T Bell Laborato-

nes, 842 F.2d 1436, 1451-52 (3d Cir. 1988); United States

v. Martino, 664 F.2d 860, 872-73 (2d Cir. 1981), cert.

denied sub nom. Miller v. United States, 458 U.S. 1110

(1982). Had the court below not taken such a cramped

view of stare decisis, it would have been clear that there

is enough common ground in Baldasar to cover petition-

er’s case. The question now confronting the Court is

which approach to select in explaining why petitioner’s

case is within that common ground.

° (...continued)

scope of Baldasar have, in fact, been cases where Baldasar was distin-

guishable and the courts were trying to elicit a rationale in order to

decide questions Baldasar does not answer. One set of cases consid-

ers whether to apply the Baldasar rule to prior adjudications which

were not criminal convictions. See, e.g., Schindler, 715 F.2d 341 (un-

counseled result in civil forfeiture proceeding); Robles-Sandoval, 637

F.2d 692 (deportation order). Another set of cases considers whether

any other collateral use of uncounseled convictions Should be permit-

ted. See, e.g., Charles v. Foltz, 741 F.2d 834 (6th Cir. 1984), cert.

denied, 469 U.S. 1193 ( 1985)(impeachment).

13

2. Under The Narrowest Interpretation Of Bal-

dasar, Petitioner Has Been Denied His Right

To Counsel Because The Uncounseled Con-

viction That Precipitated An Additional Pe-

riod Of Incarceration Was For A Misde-

meanor With A Possible Sentence Of More

Than Six Months Imprisonment

A number of lower courts, taking a result-oriented

approach to stare decisis, have concluded that the least

common denominator of the Baldasar opinions derives

from combining Justice Blackmun’s concurring opinion

with the opinions of the other four Justices in the major-

ity. See, e.g., United States v. Falesbork, __ F.3d __, 1993

WL 331481 at 3 (4th Cir. 1993); Santillanes v. United

States Parole Commission, 745 F.2d 887, 889 (10th Cir.

1985); Bilbrey v. State, 531 So.2d 27, 32 (Ala.Crim.App.

1987); State v. Beach, 592 So.2d 237, 239 (Fila. 1992);

State v. Orr, 375 N.W.2d 171, 176 (N.D. 1985); cf. State v.

Novak, 318 N.W.2d 364, 368 (Wis. 1982). Under this ap-

proach, Baldasar is read to "prohibit an increased prison

term under an enhanced penalty provision when it is

based upon a prior uncounseled misdemeanor conviction

that either resulted in the defendant’s imprisonment or

was obtained for an offense punishable by more than six

months’ imprisonment." David S. Rudstein, "The Collat-

eral Use of Uncounseled Misdemeanor Convictions

After Scott and Baldasar, 34 U.Fla.L.Rev. 517, 535

(1982).

While amicus disagrees that this interpretation is

either the /Jeast common denominator of Baldasar, or the

rule most consistent with the holdings of Scott and Arger-

singer, it is true that the Court need not go beyond this

narrow interpretation of Baldasar’s holding to decide pe-

titioner’s case. Petitioner Nichols’ misdemeanor con-

viction was for an offense punishable under Georgia law

by a period of imprisonment of ten days to one year.

See Ga. Code Ann. §40-6-391(c). All five of the Justices

14

in the majority in Baldasar would have ruled that peti-

tioner’s prior conviction could not be used for a later

sentence enhancement, at least under automatic en-

hancement statutes.

However, this hybrid rule, while simple, does not ad-

dress the broader problem posed here and in Baldasar :

it is unfair, under the rationale of Argersinger, to use an

uncounseled conviction as a basis for incarceration, re-

gardless of how long a defendant might have served

under the misdemeanor statute itself. Petitioner might

have served a year under the Georgia statute prohibiting

driving while intoxicated, but he did not; he is serving

more than twice that amount of time because a convic-

tion that neither he nor the State of Georgia had reason

to believe required the guiding hand of counsel turned

out to be a trap for the unwary.

3. Holding That A Prior Uncounseled Misde-

meanor Conviction Is Invalid For Purposes

Of A Subsequent Imposition Of Imprison-

ment Is Compelled By The Rationales Of

Scott And Argersinger

As most states have found," the explanation for Bal-

dasar provided by Justices Marshall, Brennan and

Stevens is the most compatible with the holdings of

Argersinger and Scott: wuncounseled convictions are too

unreliable to justify the severe sanction of imprison-

ment.” In Baldasar, the State and the United States had

' See, e.g., Panenen v. State, 711 P.2d at 532 Alaska); People v

bal, 618 P.2d 1121, 1126 (Colo. 1980)(en om a Muted, Tes

P.2d 1311, 1312 (Haw. 1990); People v. Finley, 568 NE2d 412. 414

(Ill App.Ct. 1991); State v. Cooper, 343 N.W.2d 485, 486 (lowa 1984);

State v. Orr, 375 N.W.2d at 178 (N.D.); Pendleton v. Standerfer, 688

P.2d 68, 70 n.5 (Or. 1985)(en banc); Sargent v. Commonwealth, 360

S.E.2d 895, 902 (Va.CtApp. 1987).

? As Justice Marshall pointed out, the argument made by the Bai-

(continued...)

15

argued that Baldasar’s prior misdemeanor conviction was

"valid" under Scott because, while Baldasar had been un-

counseled, he was not actually imprisoned upon that con-

viction. See Respondent’s brief at 12-14; United States

brief at 8-9, 11 n.12. Justice Marshall, however, ex-

plained that petitioner’s prior conviction could not accu-

rately be characterized as "valid" because it was only

valid for some, but not other purposes. 446 U.S. at 226.

Under the rule of Scott and Argersinger, he noted, the

conviction was “invalid for the purpose of depriving pe-

titioner of his liberty." /d. It is simply untrue that an

uncounseled misdemeanor conviction is "valid" and

therefore may be used for any purpose. Scott itself de-

clares that at the time of conviction, it is impossible to

know whether the conviction is "valid" without knowing

what sentence will be imposed. Such a conviction may

not be used as the basis for a sentence of incarceration

because, without the presence of counsel, the conviction

is simply too unreliable to justify imposition of even one

day in prison. To state that the prior conviction was

"valid" and therefore could be used as a predicate for a

later sentence enhancement is to beg the very question

posed in Baldasar: is subsequent incarceration one of

the purposes for which the earlier conviction is valid, or

invalid?

The vast majority of states to have considered the

question have accepted the broader reading of Baldasar,

without complaint or reservation.” But, under either

'? (continued)

dasar dissenters that uncounseled misdemeanor convictions are more

reliable than felony convictions had been rejected in Argersinger, see

446 US. at 227 n.2. As described in Baldasar, id., and in Arpersinger,

407 US. at 33-36, 41, 47, there are reasons to believe that uncoun-

scled misdemeanor convictions, often products of assembly-line jus-

tice, may be /ess reliable than uncounseled felony convictions.

'* See, e.g., Panenen v. State, 711 P.2d 528 (Alaska); Lovell v. State, 678

(continued...)

16

reading of Baldasar, the fears that led Justice Powell to

dissent in that case, id. at 230-31, 234-35, have proved to

be unfounded. Once the state courts have performed

the more difficult task of interpreting what the Court

actually said in Baldasar, those courts have shown no

need or desire for any clearer rule.“ The states are not

prevented from making individual decisions about when

to afford counsel and whether to exceed their obligations

'* (...continued)

S.W.2d 318 (Ark. 1984); People v. Roybal, 618 P.2d 1121 (Colo.);

Krewson v. State, 552 A.2d 840, 841 (Del. 1980); State v. Hoglund 785

P.2d 1311 (Haw.); People v. Finley, 568 N.E.2d 412 (IIL); State v.

Cooper, 343 N.W.2d 485 (lowa); State v. Oehm, 680 P.2d 309 (Kan.);

Ratliff v. Commonwealth, 719 S.W.2d 445 (Ky.CLApp. 1986): State ».

Dowd, 478 A.2d 671 (Me. 1984); People v. Olah, 298 N.W2d 422

(Mich.), cert. denied, 450 U.S. 957 (1981); State v. Nordstrom. 331

N.W.2d 901 (Minn. 1983); State v. Wilson, 684 S.W.2d 544. 547 (Mo

CLApp. 1984); State v. Laurick, 575 A.2d 1340, 1347 (NJ. 1990); State

v. Ulibarri, 632 P.2d 746 (N.M. 1981); State v. Baldauf, 586 N.E 2d 237

(Ohio Ct.App. 1990); Pendleton vy. Standerfer, 688 P.2d 68 (Or.); Sar-

gent v. Commonwealth, 360 S.E.2d 895 (Va.); State v. Amnstrong 332

SE 2d 837 (Wa); of. State v. Wiggins, 399 So.2d 206 (La. 1981): In

re Kean, 2d 1271 (R.1. 1987); State v. O’Bri 2d «

(Tenn.Crim.App. 1984). ne ee

Only a few states share the Fifth Circuit’s disdain for Bal

Moore v. State, 352 S.E.2d 821 (Ga.), cert. denied, 484 US. $00 (isan

Sheffield v. City of Pass Christian, 556 So.2d 1052 (Miss. 1990); State v.

Chance, 405 S.E.2d 375, 376 (S.C. 1991), cen. denied, US. 112

S.Ct. 1241 (1992); see also Commonwealth vy. Thomas, 507 A2d 57

(Pa. 1986), criticized in Joseph R. Podraza, Jr., Note, "Using Prior

Uncounseled Convictions to Enhance the Grading and Sentencing of

ee oad ge Resulting in Imprisonment: The Pennsylvania

upreme Court’s Questionable Readin inois,”

Tenet See ema g of Baldasar vy. Illinois,” 60

‘ Under Justice Blackmun’s six-month rule, there is a simple refer-

ent -- what penalty did the misdemeanor statute in question provide?

Focusing on the reliability of the prior conviction also yields a simple

referent -- does the record of conviction reflect that there was counsel

or an explicit waiver of counsel?

17

nder Scott,” or from pursuing their policies to deter

ne Br The decision in Baldasar has already shown

itself to be both sound, workable and consistent with the

goals of our federalist system. By reaffirming the ruling

in Baldasar that uncounseled convictions are too

unreliable to provide a basis for later incarceration, the

Court would not require the states to provide counsel

beyond what their economic or administrative

circumstances allow, but would protect defendants from

unwarranted consequences in those cases where a state

had decided not to make the effort necessary to ensure

the reliability of a conviction for the most severe

sanction.

B. The Federal Sentencing Guidelines Automat-

ically Authorize An Additional Period Of In-

carceration As A Direct Result Of Prior Un-

counseled Misdemeanor Convictions

Although what happened to petitioner herein was

identical to what happened to Baldasar -- he was de-

prived of two years of liberty as a direct consequence of

an earlier uncounseled misdemeanor conviction -- the

court below followed the Fifth Circuit's determination to

confine Baldasar to its facts." The majority in the Sixth

Circuit found a convenient distinction in the Second Cir-

cuit’s observation that, while Baldasar involved an en-

‘* Many states in fact, provide counsel in more cases than Baldasar or

Scott coal require, on the basis of their own statutes, case 9

state Constitutions. For a few examples, see Panenen v. State,

P.2d at 532 (Alaska); People v. Dass. 589 N.E.2d 1065 ao

cent. denied, 602 N.E.2d 462 (Ill. 1992); State v. Dowd, 478 A.2d 6

(Me.); State v. Nordstrom, 331 N.W.2d at 904 (Minn.); py

Rosenblatt, 277 A.2d 216 (NJ. 1971); State v. Orr, 37S N.W.2d at 1

79 (N.D.).

° 979 F.2d at 416-18. This grudging approach derives from the theory

that Baldasar had no common rationale. See supra note 9.

18

hancement statute that converted a subsequent offense

that otherwise would have been a misdemeanor into a

felony, the Federal Sentencing Guidelines only provide

for sentencing enhancements for what was already a fel-

ony. As Judge Jones observed in his opinion below, 979

F.2d at 408, this is truly a distinction without a constitu-

tional difference.

The very purpose of the decision in Argersinger v.

Hamlin was to reject the notion that the right to counsel

can be made to depend on whether a conviction is classi-

fied by a state as a misdemeanor or a felony. 407 U.S.

27-39. According to both Argersinger and Scott, the criti-

cal inquiry is simply whether liberty is forfeited. As the

Court pointed out in Argersinger, except for the unusual

Situation of the right to a jury trial, no Sixth Amendment

guarantee has ever been interpreted to hinge on whether

the offense at issue is defined as a felony or as a misde-

meanor. 407 U.S. at 27-30. Concern for fairness and re-

liability of criminal proceedings cannot be made to de-

pend on such irrelevant formalities as whether a state’s

recidivist laws are found in more than one Statute, or

whether those laws provide for the prior offense to be

introduced at trial rather than at sentencing. Fairness to

the individual does not vary according to these circum-

Stances, and fairness to the states requires that the

states’ different decisions about how to structure their

recidivist laws be respected and not used as an excuse

for the imposition of varying constitutional obligations.

Once again, comparing the reaction to Baldasar in

the state and federal courts is instructive. The State

courts have shown no little or inclination to distinguish

Baldasar based on such formalities as the Structure of

the recidivist or sentencing scheme at issue. The Illinois

legislature provided for the sentence enhancement at is-

sue in Baldasar in one statute, see Ill.Rev.Stat., Ch. 38,

para. 16-1(e)(1)1974)(enhancement from a felony to a

misdemeanor), which then refers to two other Statutes

19

specifying the penalties for a misdemeanor and for a fel-

ony, Ill.Rev.Stat., Ch. 38, §§ 1005-8-3(a)(1) and 1005-8-

1(b)(5)(1975); other state statutes provide automatically

escalating penalties for recidivists within a single statute,

often within the state’s sentencing range for misdemean-

ors." Such topographical distinctions have not seemed

significant to the many state courts to have considered

the constitutionality of using uncounseled convictions in

applying their state’s recidivist statutes."

The United States Sentencing Commission itself con-

cluded that the states’ formal categorizations of their of-

fenses are simply too varied and idiosyncratic to provide

a basis even for later sentencing decisions. Therefore, in

prescribing how prior criminal history is to be evaluated

for the purposes of sentencing, the Commission, like the

Court, decided that the amount of incarceration actually

imposed is the only realistic measure of the seriousness

of an offense, see U.S.S.G. §4A1.1, comment.

The Georgia statute that provided the basis for petitioner’s 1983

conviction is a good example of escalating penalties within what the

state defines as a misdemeanor range. See Ga. Code Ann. § 40-6-391

(1983). Under the current statute, first and second offenses are de-

fined as misdemeanors, and a third offense as a “high and aggravated

misdemeanor,” again with escalating penalties. Ga. Code Ann. § 40-6-

391 (1992).

See also Wis. Stat. §343.44 (1989-90), discussed in State v. Baker,

485 N.W.2d 237, 239 (Wis. 1992), where within one statute the state

provides for progressive minimum and maximum terms of imprison-

ment, all within the same offense level, for repeated instances of driv-

ing while intoxicated.

* See, e.g., State v. Ulibarri, 632 P.2d at 747 ("We read Baldasar to

mean that even if the enhanced offense is a misdemeanor with a light

penalty, an accused may not be sentenced to serve a term of imprison-

ment unless he was afforded the benefit of assistance of counsel in the

prior as well as the predicate offense”); accord State v. O’Brien, 666

S.W.2d at 485.

20

Petitioner’s prior conviction, like Baldasar’s, auto-

matically moved him from one sentencing range to

another. There is no significance to the fact that the

Federal Sentencing Guidelines set up ranges within a

single Statute. The significant feature of the Federal

Sentencing Guidelines is that, like the enhancement Stat-

ute at issue in Baldasar, the sentencing 2"thority’s deci-

sion about how to treat the prior conviction is not discre-

tionary. Consequences flow from the existence of the

conviction, and not from a sentencing court’s discretion-

ary decision about the seriousness of the previous of-

fense, or the conduct underlying that offense. In effect,

the Guidelines act as a recidivist Statute applicable to

all federal crimes."* Whether or not Baldasar would

prohibit use of a prior uncounseled misdemeanor convic-

tion as a factor at the sentencing phase in a context

where sentencing is discretionary, cf. United States y.

Tucker, 404 U.S. 443 (1972), is a question the Court

need not address in this case. In its haste to distinguish

Baldasar, however, the Fifth Circuit never considered the

nature of the calculation of criminal history under the

Federal Sentencing Guidelines, which is far closer to the

automatic decision made under the enhancement Statute

in Baldasar than to a discretionary sentencing decision.”

In the Sentencing Reform Act of 1984, Congress

provided that a court "shall impose a sentence of the

kind, and within the range [set forth in the Guidelines],

unless the court finds that there exists an aggravating or

mitigating circumstance of a kind, or to a degree, not

" D. Brian King, “Sentence Enhancement Based on Unconstitutional

Prior Convictions,” 64 N.Y.U.L.Rev. 1373, 1375 (1989).

* In Eckford the Fifth Circuit summarily rejected the argum

: mt t

us prior case law distinguishi Baldasar, waich had onteen

the Federal Sentencing Guidelines became effective, should be reeval-

uated in this new context. See 910 F.2d at 220 n.9.

21

adequately taken into consideration by the Sentencing

Commission." 18 U.S.C. §3553(b)(emphasis added). As

several members of this Court have already concluded,

this strong prescription that sentencing will presumptively

fall within the applicable range is such a clear limitation

on discretionary decisionmaking as to create a liberty in-

terest within the meaning of the Due Process Clause.

See Burns v. United States, 111 S.Ct. at 2191-92 (Souter,

J., dissenting, joined by White and O’Connor, JJ.).”

Under the Guidelines, a defendant has a protectible ex-

pectation that he will receive a sentence no higher than

the applicable range on the Sentencing Table, an expec-

tation that can be defeated only if the sentencing judge

can justify a departure under U.S.S.G. §5K2.0.

The distinction between discretionary and non-dis-

cretionary decisions, familiar from due process cases like

Greenholtz v. Inmates of the Neb. Penal & Correctional

Complex, 442 U.S. 1, 11-12 (1979), and Meachum v.

Fano, 427 U.S. 215 (1976), provides one clear and logi-

cal description of the scope of Baldasar. In enhance-

ment decisions where an imposition of incarceration is

not due to a discretionary decision, but to an automatic

scheme under which the imposition of a higher sentenc-

ing range is a direct consequence of the prior conviction,

use of an uncounseled conviction is impermissible be-

cause of that conviction’s presumptive unreliability.”

* Justice Rehnquist, who dissented in Burns, did not join this part of

Justice Souter’s opinion. The Justices in the majority did not express

any opinion on this issue, having decided the case on statutory

grounds which precluded the need for any constitutional analysis. See

id.

* Justice Marshall’s opinion in Baldasar stressed that the sentencing

enhancement was a “direct consequence” and “solely because” of the

prior conviction, 446 U.S. at 228. Many courts have identified the

Baldasar rationale as resting upon whether or not the sentence en-

hancement is “automatic” or “direct.” See, eg., United States v.

(continued...)

22

Under these circumstances, there is no meaningful way

to distinguish what Scott disallowed -- the severe sanc-

tion of a substantial period of imprisonment flowing

from the conviction of an individual who might have

been innocent, or who might have regarded the payment

of a modest fine as insufficient reason to contest guilt.

ll. PETITIONER WAS DEPRIVED OF LIBERTY

WITHOUT DUE PROCESS OF LAW BY THE

AUTOMATIC IMPOSITION OF AN ADDITIONAL

PERIOD OF IMPRISONMENT UNDER THE FED-

ERAL SENTENCING GUIDELINES

_ In Baldasar, both the prior and the enhanced convic-

tions had taken place in the same jurisdiction, so the

Court did not need to explain whether the violation of

Baldasar’s rights lay in the Subsequent use of the convic-

tion, or in the failure to afford counsel on the first con-

viction. Because there are two different jurisdictions in-

volved iM petitioner’s case, the Court has an Opportunity

to explain which jurisdiction has actually violated which

of petitioner’s constitutional rights.

_Under the theory of four Justices in the Baldasar

majority, it is arguable whether or not the State of Geor-

gia violated petitioner's constitutional rights in this case.

Georgia made only the limited use of the uncounseled

misdemeanor conviction that Scott and Baldasar allow,

and therefore had no obligation to provide petitioner

Nichols with counsel or to ensure that he knowingly and

intelligently waived his right to counsel.” The United

* (...continued)

Hookano, 957 F.2d 714, 716 (%h Cir. 1992); Moore vy. Jarvis, 885 F.2d

at 1571-73; United States vy. Peagler, 847 F.2d 756, 758 (11th Cir. 1988):

State v. Dowd, 478 A.2d at 678 (“direct” result). . ,

* It could be argued that Georgia violated petitioner's Sixth and Four-

(continued...)

23

ey

States certainly violated petitioner’s rights by impermissi-

bly using this flimsy conviction as the basis for more

than two years’ incarceration.

On the other hand, under Justice Blackmun’s inter-

pretation of the right to counsel, as expressed in Balda-

sar and Scott, it would be clear that Georgia denied peti-

tioner his Sixth and Fourteenth Amendment rights by

failing to afford him counsel or seek a formal waiver of

counsel in a prosecution for a misdemeanor punishable

by more than six months. Under either approach, peti-

tioner was denied his constitutional right not to be incar-

cerated on the basis of an uncounseled conviction. But

if the Court does not wish to reexamine the ruling in

Scott, the Court can take this opportunity to clarify that

it was the United States that violated petitioner’s rights

by using a conviction of only conditional validity for pre-

cisely the same deprivation of liberty that Scott prohibi-

ted. This can be described as either a Sixth Amendment

or a due process violation.”

Scott accommodated federalism concerns and the

states’ economic and administrative interests by offering

the states the option of avoiding the expense of assigning

counsel for every petty offense, so long as the states are

* (continued)

tcenth Amendment right to counsel by supplying a deceptive, unrelia-

ble conviction that was available for use by other jurisdictions.

“The action could be described as a violation of petitioner's Sith

Amendment right on the theory that any improper use of an unrelia-

ble, uncounseled conviction is a new violation of the right to counsel.

Cf. Burgett v., Texas, 389 US. at 115. If the Court agrees that, under

Baldasar and Scott, the later use of an uncounseled conviction is a

denial of the South Amendment right to counsel, the Court need go no

further. If the Court believes that the Soth Amendment is not vio-

lated in this case, or does not wish to reach that issue, the Due Proc-

ess Clause provides an alternate method of analyzing petitioner's

claim.

24

willing to forego imprisoning those defendants who re-

main uncounseled. Baldasar provides that the states may

not then renege on the bargain they have made by using

the same unreliable conviction as a predicate for impris-

onment at a later date. See Moore v. Jarvis, 885 F.2d at

1572. Under Baldasar, if a state wishes to preserve the

opportunity to use a misdemeanor conviction as a predi-

cate, that state must treat the misdemeanor seriously

enough to ensure its reliability -- by affording counsel. It

is the state’s choice whether to guarantee a reliable con-

viction; if the state has chosen to treat the offense as a

petty matter, not requiring even the “guiding hand of

counsel,” it is unfair for another jurisdiction to treat that

conviction as sufficiently weighty to provide a basis for a

two-year loss of liberty.

The price of the accommodation in Scott is the con-

ceptual difficulty that arises from creating a constitution-

al rule under which it is impossible to evaluate the con-

Stitutionality of a state action at the time that action is

taken. Scott suggests that a violation of the right to

counsel under the Sixth and Fourteenth Amendments

springs into being when the state attempts to sentence

an uncounseled defendant to prison. Baldasar confirms

that a renewed violation of the right to counsel occurs if

a jurisdiction later uses that conviction impermissibly. If

the Court wishes to avoid paradox and clarify Baldasar,

one simple method of doing so is to explain the violation

in a case like Baldasar’s or petitioner’s as occurring upon

the use of the conviction, and perhaps as based on a due

process rationale.”

” The Baldasar dissenters complained that the rule in Baldasar is im-

practical because a court trying a misdemeanor cannot predict

whether a conviction will be wanted for use as a predicate at a later

date. 446 U.S. 231. Once it is clear that the state is not being ac-

cused of any unconstitutionality for being unable to make such predic-

tions, the result no longer seems anomalous. The state is not asked

(continued...)

25

As described above, some members of this Court

have already correctly concluded that the Federal Sen-

tencing Guidelines create a liberty interest and therefore

entitle a federal defendant being sentenced to due proc-

ess of law. See Burns, 111 S.Ct. 2182. The Court must

then balance the factors listed in Mathews v. Eldridge,

424 U.S. 319, 335 (1976), in order to decide what

process is due. The factors Mathews lists -- the nature of

the interest petitioner has at stake, the increment to

reliability of the decision if the procedure advocated is

adopted, and the governmental interests, including the

fiscal and administrative burdens the advocated

procedure would entail -- overlap the considerations the

Court has already discussed in its Sixth and Fourteenth

Amendment analysis in Argersinger and Baldasar. The

petitioner has at stake two years of freedom, a potential

deprivation the Constitution treats so seriously that the

entire panoply of rights, including counsel and the right

to a jury trial, are guaranteed any individual who faces

so extensive a period of imprisonment. Reliability is as

critical here as under Sixth Amendment analysis. The

deprivation of petitioner’s freedom is being predicated

on a decision that the state did not take seriously

enough to afford counsel or seek a formal waiver of

counsel. It is not unimaginable that an innocent person

would pay a fine for a charged traffic offense rather than

undergoing the expense and ordeal of a trial. Finally,

the burden on the states, as described above, will not be

increased if the Court adheres to or even expands the

Baldasar rule.” The United States may still sentence

* (continued) ties

to predict, but to decide whether to invest in the future reliability of

its decisions.

* The Baldasar dissenters rejected the majority position because they

focused myopically only on this factor. As the Mathews balancing test

declares, the exigencies of state misdemeanor prosecutions are one

(continued...)

26

petitioner to 210 months, based on his instant conviction

and other criminal history. The United States does not

have any legitimate interest in enhancing a sentence (in

this case, by 25 months) based on prior criminal history

if that history is unreliable.

Under Justice Blackmun’s rule, an added burden

would be imposed on some states which would be re-

quired to extend the right to counsel to certain misde-

meanants, but the United States would then be able to

use those prior misdemeanor convictions to enhance sen-

tences.” If some states decline to shoulder that burden

voluntarily, the United States must respect their deci-

sions and not expect to be exempted from the require-

ment that unreliable convictions not form the basis for

incarceration.

In Townsend v. Burke, 334 U.S. 736, this Court held

that defendants have a right under the Due Process

Clause to be sentenced on the basis of accurate and reli-

able information. Petitioner’s uncounseled nolo con-

tendere plea to the 1983 misdemeanor charge provides

no such assurance in this case.

* (..continued)

factor to be considered, but not to the exclusion of the defendant’s in-

terest in his own liberty, and the propriety of the federal government

action, which actually deprived petitioner of his liberty.

¥ As noted above, see supra note 15, a number of states already pro-

vide counsel in circumstances beyond what Scott requires; convictions

from those jurisdictions are sufficiently reliable to be used by the

United States or other jurisdictions as predicate offenses.

27

CONCLUSION

For the reasons stated above, the judgment below

should be reversed.

Respectfully submitted,

Susan N. Herman

(Counsel of Record)

250 Joralemon Street

Brooklyn, New York 11201

(718) 780-7945

Steven R. Shapiro

American Civil Liberties

Union Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Dated: November 5, 1993

28