APPEAL from the Circuit Court of Du Page County; the Hon.
ALFRED E. WOODWARD, Judge, presiding.
MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
Defendant, Thomas O. Baldasar, after trial by jury, was convicted of theft of property not exceeding $150 in value, as a second offense, a Class 4 felony (Ill. Rev. Stat. 1973, ch. 38, pars. 16-1(a)(1), 16-1(e)(1)) and was sentenced to a term of one to three years in the penitentiary.
• 1 The primary issue on this appeal is whether defendant's prior, uncounseled misdemeanor theft conviction could constitutionally be considered so as to elevate the present misdemeanor theft offense to a felony thereby increasing the possible penalty which might be imposed upon conviction. Defendant contends the holding of Argersinger v. Hamlin (1972), 407 U.S. 25, 32 L.Ed.2d 530, 92 S.Ct. 2006, bars such consideration. We do not agree.
In May 1975 defendant was convicted after bench trial of a misdemeanor theft and was sentenced to a one-year term of probation and fined $159. There is evidence he was not represented by counsel in that trial and no evidence that defendant waived his right to counsel at that time. The present case was tried in August 1976 on an information in which the first petty theft conviction was alleged and proved at trial in order to invoke the enhanced penalty provisions of the Criminal Code provided for such recidivist conduct. (Ill. Rev. Stat. 1973, ch. 38, par. 16-1(e)(1).) As a consequence, after conviction, defendant was sentenced to the penitentiary for conduct for which the maximum penalty would have been a term of less than one year in a penal institution other than a penitentiary except for the enhanced penalty made possible by defendant's prior theft conviction.
In Argersinger, that defendant was convicted of a misdemeanor after a trial conducted without counsel, where he had not waived his right to counsel, and he was sentenced to a term of 90 days in jail. In voiding that conviction, the United States Supreme Court stated,
"We hold, therefore, 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." (407 U.S. 25, 37, 32 L.Ed.2d 530, 538, 92 S.Ct. 2006, 2012.)
Defendant contends that he has been imprisoned in the present case as a direct or collateral result of his prior uncounseled conviction, and the mandate of Argersinger has now been violated in that the earlier conviction was applied to enhance the penalty imposed for his subsequent theft conviction.
Defendant concedes that his earlier 1975 theft conviction was itself valid under Argersinger. While he was not represented by counsel in that trial, he also was not imprisoned after being convicted of that theft offense. The penalty then imposed for that offense of probation and a fine left that case in the category recognized but not passed upon by the court in Argersinger where it stated,
"We need not consider the requirements of the Sixth Amendment as regards the right to counsel where loss of liberty is not involved, however, for here petitioner was in fact sentenced to jail." 407 U.S. 25, 37, 32 L.Ed.2d 530, 538, 92 S.Ct. 2006, 2012.
In Argersinger, the court held that no person may be imprisoned for any offense, petty, felony or misdemeanor, unless he is represented by or has effectively waived his right to counsel at trial. It directed itself only to cases wherein an uncounseled defendant had been convicted of a criminal offense and was then sentenced to imprisonment for that offense and that conviction. There is no language in the opinion suggesting a prospective application or readjudication of a defendant's right to counsel should he be convicted in the future of the commission of another offense and be then subject to another sentence. The notion that repeat offenders are subject to enhanced penalties for their conduct is so basic to our criminal justice system that it could not have escaped the notice of the Argersinger court. Yet, it carefully limited its holding to a conviction and the sentence imposed for that conviction.
The limited scope of Argersinger is further expressed in its statement that,
"The run of misdemeanors will not be affected by today's ruling. But in those that end up in the actual deprivation of a person's liberty, the accused will receive the benefit of `the guiding hand of counsel' so necessary when one's liberty is in jeopardy." (407 U.S. 25, 40, 32 L.Ed.2d 530, 540, 92 S.Ct. 2006, 2014.)
The "run of misdemeanors" would, indeed, be affected if we were to accept defendant's argument that the Argersinger court intended by the phrase "end up" or any other language to have contemplated its application to the facts in the instant case. In addition to the second or subsequent offense sentencing provision in our theft statute, with which we are directly concerned here, there are at least 10 similar enhanced penalty statutes which could not then be applied against the repeat offender they are designed to affect even though his earlier convictions met the Argersinger requirements as in the instant case. *fn1
While Illinois courts of review have previously considered applications of Argersinger in various contexts (City of Danville v. Clark (1976), 63 Ill.2d 408, 348 N.E.2d 844, cert. denied (1976), 429 U.S. 899, 50 L.Ed.2d 184, 97 S.Ct. 266; People v. Morrissey (1972), 52 Ill.2d 418, 288 N.E.2d 397; People v. Coleman (1972), 52 Ill.2d 470, 288 N.E.2d 396; People v. Scott (1976), 36 Ill. App.3d 304, 343 N.E.2d 517; People v. Kerner (1975), 32 Ill. App.3d 676, 336 N.E.2d 65; People v. Schultz (1974), 21 Ill. App.3d 1086, 316 N.E.2d 183; People v. Bailey (1973), 12 Ill. App.3d 779, 301 N.E.2d 481), none have decided the question we are presented in this case. Of those few states which have considered similar questions concerning the extension of Argersinger, five would tend to support defendant's position herein while two would reject it. The former include: City of Monroe v. Fincher (La. 1974), 305 So.2d 108; Alexander v. State (1975), 258 Ark. 633, 527 S.W.2d 928; Commonwealth v. Barrett (Mass. App. 1975), 322 N.E.2d 89; Maghe v. State (Okla. Crim. App. 1973), 507 P.2d 950; and State v. Kirby (1972), 33 Ohio Misc. 48, 62 Ohio ...