Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and 

Keenan, JJ., and Whiting, Senior Justice 

NORMAN EDWARD GRISWOLD 

 OPINION BY 

v. Record No. 951794 SENIOR JUSTICE HENRY H. WHITING 

 JUNE 7, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 This is an appeal of a conviction for operating a vehicle 

under the influence of intoxicants (DUI), as a second conviction 

within 5 to 10 years of a first DUI conviction. The primary 

issue involves the introduction into evidence of two prior DUI 

convictions in which the defendant was unrepresented by counsel. 

 In June 1983, Norman Edward Griswold was convicted of a DUI 

offense and sentenced to 30 days in jail, the entirety of the 

sentence being suspended. Griswold was again convicted of a DUI 

offense in January 1985. Because his 1985 DUI conviction was 

within 5 years of his first DUI conviction, Griswold was required 

to serve 48 hours of the 180-day jail sentence imposed for the 

1985 conviction. Code § 18.2-270. 

 In August 1992, Griswold was indicted for the present DUI 

offense. His trial in the Circuit Court of the City of Richmond 

was in two phases as provided in Code § 46.2-943. In the first 

phase, the jury found Griswold guilty of DUI, "as charged."1

 In 

the second phase, after considering Griswold's traffic record, 

 

 1The indictment upon which Griswold was tried charged him 

with DUI after "having been previously convicted of a like 

offense on June 15, 1983." 
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the jury imposed the maximum sentence of 12 months in jail and a 

$2,500 fine, upon which the trial court entered judgment. Code 

§ 18.2-270. 

 In both the guilt and sentencing phases of the trial, 

Griswold objected to the admission into evidence of his prior DUI 

convictions. Griswold contended that he had not been represented 

by counsel in the two prior DUI proceedings and that he had not 

waived his right to counsel. And Griswold concluded that because 

these convictions either resulted in his imprisonment or an 

impermissible threat to his liberty, both were violations of his 

constitutionally guaranteed right to counsel. 

 Although concluding that the 1983 conviction was uncounseled 

and, thus, inadmissable during the guilt phase, the trial court 

agreed with the Commonwealth that Griswold was represented by 

counsel in the 1985 proceeding and admitted evidence of that 

conviction in both stages of his trial. Following the jury's 

verdict of guilty, the trial court also admitted evidence of 

Griswold's uncounseled 1983 conviction during the sentencing 

phase since it was a part of Griswold's traffic record. Code 

§ 46.2-943. 

 On appeal, the Court of Appeals en banc concluded that 

Griswold was not represented by counsel in the 1985 proceeding, 

but held that both the 1985 and 1983 convictions were properly 

admitted into evidence. Accordingly, the judgment of the trial 

court was affirmed. Griswold v. Commonwealth, 21 Va. App. 22, 
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461 S.E.2d 411 (1995). We awarded Griswold an appeal. 

 An uncounseled misdemeanor conviction resulting in a jail or 

prison sentence is a violation of a defendant's rights under the 

Sixth and Fourteenth Amendments of the United States 

Constitution. Argersinger v. Hamlin, 407 U.S. 25, 37 (1972); 

Nichols v. United States, ___ U.S. ___, 114 S.Ct. 1921, 1927 

(1994); Scott v. Illinois, 440 U.S. 367, 373-74 (1979). We 

conclude that the record establishes that Griswold was 

unrepresented in both the 1983 and 1985 proceedings. 

 Consequently, and contrary to the ruling of the Court of 

Appeals, we hold that the 1985 conviction is constitutionally 

infirm because of the two days in which Griswold was actually 

imprisoned. Therefore, this conviction cannot be used either to 

support guilt or to enhance punishment for a subsequent criminal 

violation. See Burgett v. Texas, 389 U.S. 109, 114-15 

(1967)(uncounseled felony conviction cannot be used to support 

guilt or enhance punishment in subsequent criminal trial). 

Further, to convict a defendant of a second DUI offense within 5 

to 10 years of a prior DUI conviction, "the prior offense must be 

charged and proven." Calfee v. Commonwealth, 215 Va. 253, 255, 

208 S.E.2d 740, 741 (1974) (quoting Commonwealth v. Ellett, 174 

Va. 403, 409, 413, 4 S.E.2d 762, 764, 766 (1939)). Accordingly, 

we conclude that the trial court erred in instructing the jury 

that it could convict Griswold of a second DUI offense within 5 
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to 10 years of a first DUI conviction.2

 We will remand the case 

to the Court of Appeals with instructions directing that court to 

remand the case to the trial court for a new trial. 

 We will address the use of the two prior DUI convictions in 

the sentencing hearing as a part of Griswold's "record of prior 

convictions of traffic offenses," Code § 46.2-943, since the 

issue will probably arise if Griswold is convicted in a new 

trial. Consistent with our ruling that the 1985 conviction was 

unconstitutional and cannot be used either to establish guilt or 

enhance punishment for the subsequent DUI conviction, we reject 

the Commonwealth's contention that it could be considered as a 

part of Griswold's record of prior convictions of traffic 

offenses. 

 2The Commonwealth claims that even if the 1985 conviction 

was inadmissible to establish Griswold's first DUI conviction, 

the 1983 conviction was admissible for that purpose. However, 

after the trial court had ruled that Griswold was unrepresented 

in the 1983 proceedings, the Commonwealth struck its reference to 

the 1983 conviction from the indictment as one of the prior DUI 

convictions. Thus, the 1983 conviction was neither charged in 

the indictment nor proven in the guilt phase of the case. 

Accordingly, we conclude that the 1983 conviction cannot be used 

to establish the necessary prior DUI conviction. Calfee, 215 Va. 

at 255, 208 S.E.2d at 741. 
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 Regarding the 1983 conviction, Griswold argues that his 30-

day suspended sentence suffers from the same constitutional 

infirmity as his two-day jail sentence because "[w]hen someone 

receives a sentence, whether it is suspended or immediately 

served, his liberty is severely curtailed" in violation of the 

principles articulated in Scott. According to Griswold, 

suspended sentences are "imposed" jail or prison sentences within 

the Scott rationale. We do not agree. 

 Neither party cites, and we are unable to find, any case in 

which the United States Supreme Court has decided this issue. 

However, in Nichols, the Supreme Court decided that an 

uncounseled misdemeanor conviction resulting only in a fine could 

be used to enhance the punishment for a subsequent conviction. 

There, we think the Supreme Court made it plain, if it had not 

done so already, that there is no constitutional right to counsel 

in a misdemeanor case unless the conviction results in an "actual 

imprisonment." Nichols, ___ U.S. at ___, 114 S.Ct. at 1925-26 

(citing Scott, 440 U.S. at 373, and Argersinger, supra). 

 And many federal courts that have considered the issue of an 

uncounseled misdemeanor conviction with a suspended sentence have 

not invalidated the misdemeanor conviction itself. See United 

States v. Reilley, 948 F.2d 648, 654 (10th Cir. 1991); United 

States v. Foster, 904 F.2d 20, 21-22 (9th Cir. 1990); United 

States v. Sultani, 704 F.2d 132, 133-34 (4th Cir. 1983); United 

States v. White, 529 F.2d 1390, 1394 (8th Cir. 1976); Cottle v. 
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Wainwright, 477 F.2d 269, 275 (5th Cir.), vacated on other 

grounds, 414 U.S. 895 (1973); United States v. Nash, 703 F. Supp. 

507, 510 (W.D.La.), aff'd, 886 F.2d 1312 (5th Cir. 1989). 

 Since Griswold was never actually imprisoned as a result of 

his 1983 conviction, that conviction was not constitutionally 

invalid. Hence, we conclude that if he is convicted in a new 

trial, the 1983 conviction may be considered as a part of 

Griswold's traffic record in the sentencing hearing. 

 In summary, we will reverse Griswold's conviction and 

sentence and remand the case to the Court of Appeals with 

directions to remand the case to the trial court for a new trial 

in conformity with the views expressed herein. 

Reversed and remanded.