NO. 94-584

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Plaintiff and Appellant,

v.

FRANK RICHARD HANSEN,

Defendant and Respondent.

APPEAL FROM: District Court of the Second Judicial

In and for the County of Silver Bow,

The Honorable Mark P. Sullivan, Judge

COUNSEL OF RECORD:

For Appellant:

District,

presiding.

Hon. Joseph P. Mazuzrek, Attorney General, Cregg W.

Coughlin, Assistant Attorney General, Helena,

Montana; Carlo Canty, Deputy Silver Bow County

Attorney, Butte, Montana

For Respondent:

Deirdre Caughlan, Dunlap & Caughlan, Butte, Montana

Filed:

Submitted on Briefs: June 15, 1995

Decided: September 26, 1995
Justice William E. Hunt, Sr., delivered the Opinion of the Court.

Respondent Frank Hansen was arrested and charged with third

offense domestic abuse. Section 455-206(3), MCA, provides that a

third offense for domestic abuse may be charged as a felony.

Consequently, the State filed an information charging respondent

with felony domestic abuse. Respondent moved to dismiss the felony

charge, claiming that he had not knowingly waived counsel during

his first misdemeanor domestic abuse conviction. He argued that a

prior uncounseled misdemeanor conviction cannot be used to convert

a misdemeanor charge into a felony. The District Court granted his

motion to dismiss the felony charge, and the State appeals. We

reverse.

The following issue was raised on appeal:

Did the District Court err in ruling that a valid prior

uncounseled misdemeanor conviction may not be used to convert a

later charge from a misdemeanor to a felony?

FACTS

On April 20, 1992, respondent was charged with first offense

domestic abuse, which is a misdemeanor under § 45-S-206(3), MCA.

Unrepresented by counsel, he pled guilty and was ordered to

complete a domestic violence treatment program, with a fine and

jail term being suspended.

On September 30, 1992, respondent pled guilty to second

offense domestic abuse, a misdemeanor, and received a suspended

sentence. Respondent was represented by counsel when he pled

guilty to this second offense.

2
On May 10, 1994, respondent was again arrested for domestic

abuse. Because this was his third offense, the State filed an

information charging him with felony domestic abuse. Respondent

moved to dismiss the information, arguing that his April, 1992,

uncounseled misdemeanor conviction could not be used to convert a

subsequent charge from a misdemeanor to a felony.

The District Court found that the record did not show

respondent had made a knowing waiver of counsel before pleading

guilty to the April, 1992 charge. The court further found, absent

proof of an informed waiver of a right to counsel, the first

misdemeanor conviction could not be used as a basis for making the

third charge a felony. For these reasons, the District Court

dismissed the felony domestic abuse charge. We reverse and hold

that a valid prior uncounseled misdemeanor conviction may be used

to convert a subsequent charge from a misdemeanor to a felony.

STANDARD OF REVIEW

Whether a prior conviction may b e used for sentence

enhancement is a question of law, as is the appropriateness of

granting (or failing to grant) a purely procedural motion to

dismiss in a criminal case. The standard of review of a district

court's conclusions of law is plenary, and we will review to

determine whether those conclusions of law are correct. State V.

Rushton (1994), 264 Mont. 248, 255, 870 P.2d 1355, 1359. - - See also

State V. Sage (1992), 255 Mont. 227, 229, 841 P.2d 1142, 1143.
ISSUE

May a valid prior uncounseled misdemeanor be used to convert

a later charge from a misdemeanor to a felony?

Respondent was charged with third offense domestic abuse

pursuant to § 45-S-206(3), MCA, which provides as follows:

A person convicted of domestic abuse for the first or

second time shall be fined not to exceed $1,000 or be

imprisoned in the county jail not to exceed 1 year, or

both. On a third or subsequent conviction for domestic

abuse, the person convicted shall be fined not less that

$500 and not more than $50,000 and be imprisoned in the

county jail or in the state prison for a term not less

than 10 days and not more that 5 years, or both.

Respondent moved to quash his felony domestic abuse charge

because he had not been represented by counsel at his first

misdemeanor conviction. Then and now, he contends that a prior

uncounseled misdemeanor cannot be used to enhance a later sentence.

In framing this argument, respondent relies almost entirely on the

United States Supreme Court case Baldasar v. Illinois (1980), 446

U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169. In Baldasar, the Court

held that an uncounseled misdemeanor conviction may not be used

under an enhanced penalty statute to convert a subsequent

misdemeanor into a felony with a prison term. Baldasar, 446 U.S.

at 222. If Baldasar remained good law, it would dispose of this

case entirely.

Appellant, however, argues that Baldasar has been overturned

by Nichols v. United States (1994), __ U.S. -I 114 s.ct. 1921,

128 L.Ed.2d 745. In Nichols, the Supreme Court held that an

uncounseled misdemeanor conviction is also valid when used to

4
enhance punishment at a subsequent conviction. Nichols, 114 s.ct.

at 1928.

Respondent insists Nichols is distinguishable and serves only

to modify Baldasar. Nichols dealt with a defendant whose sentence

was increased under the Federal Sentencing Guidelines because of a

prior misdemeanor. Respondent contends that Nichols therefore is

applicable to federal sentencing cases only. Moreover, respondent

points out that the defendant in Nichols was already charged with

a felony when the question of a potential sentence increase arose.

In the case at bar, the prior misdemeanor would serve to convert

the latest charge from a misdemeanor to a felony. Respondent

advocates a narrow reading of Nichols, while appellant insists it

should be read more broadly. In short, the disposition of this

case rests on a determination of how Nichols should be construed.

Such a determination is easily made. A cursory reading

reveals that Nichols does not modify Baldasar; it expressly

overrules it. Nichols, 114 S.Ct. at 1928. While it is true that

Nichols did not deal with the conversion of a misdemeanor to a

felony, that was precisely the issue in Baldasar. Furthermore,

Baldasar is a case appealed from a state court and does not concern

federal sentencing procedures. Instead, it addresses the issue of

whether a conviction under state law may be converted from a

misdemeanor to a felony, which is the same issue facing this Court

in the instant case. If the Supreme Court had not intended the

Nichols decision to apply to the facts given in Baldasar, it surely

would have carefully said so, and not overruled Baldasar in its

entirety.

5
Moreover, the language in Nichols indicates that the supreme

Court intended the decision to apply to state court cases as well

as federal sentencing cases.

Enhancement statutes, whether in the nature of criminal

history provisions such as those contained in the

[Federal] Sentencing Guidelines, or recidivist statutes

which are common place in state criminal laws -r do not

change the penalty imposed for the earlier conviction.

Nichols, 114 S.Ct. at 1927 (emphasis added). Section 45-5-206,

MCA, is precisely such a recidivist statute, providing a higher

penalty on a third offense for a defendant who continues to violate

the law.

We hold that, under the plain language of Nichols, a prior

uncounseled misdemeanor may properly be used to convert a

subsequent misdemeanor to a felony.

Respondent next argues that, even if a prior uncounseled

misdemeanor may generally be used for enhancement purposes, it

nevertheless cannot be so used in this case because the State

cannot show that respondent knowingly waived his right to counsel.

The Sixth Amendment right to counsel in misdemeanor cases is

limited to those cases in which imprisonment was actually imposed.

United States v. Quemado (9th Cir. 1994), 26 F.3d 920, 923. Where

no sentence of imprisonment was imposed, a defendant charged with

a misdemeanor has no constitutional right to counsel. Scott v.

Illinois (1979), 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383.

Moreover, the imprisonment must be actual; a threat of imprisonment

(such as a suspended sentence) is not enough to create a

constitutional right to counsel. ,Scott 440 U.S. at 373.

6
It was error for the trial court to demand that the State

prove respondent knowingly waived a right to counsel in the earlier

misdemeanor case. Respondent had no right to counsel in the

earlier case because no sentence of imprisonment was imposed;

whether he knowingly waived counsel is therefore irrelevant.

Moreover, the fact that the first misdemeanor may ultimately

contribute to imprisonment (should respondent be sentenced to a

jail or prison term for the later converted felony) does not

retroactively give respondent a right to counsel at the earlier

misdemeanor. "[AIn uncounseled misdemeanor, valid under Scott

because no prison term was imposed, is also valid when used to

enhance punishment at a subsequent conviction." Nichols, 114 s.ct.

at 1928.

Because we hold that a valid prior misdemeanor conviction may

properly be used to convert a later charge from a misdemeanor to a

felony, the decision of the District Court is reversed and this

case is remanded for further proceedings consistent with this

opinion.

Justice

We Concur:
September 26, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid,

to the following named:

Hon. Joseph P. Mazurek, Attorney General

Craig Coughlin, Assistant

215 N. Sanders

Helena MT 59620

Carlo Canty

Deputy County Attorney

155 West Granite Street

Butte MT 59701

Deirdre Caughlan

DUNLAP & CAUGHLAN, P.C.

27 West Broadway

Butte MT 59701

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA

BY: QWPDeputy

Y