Appeal from the United States District Court for the Western District of Wisconsin. No. 82-C-696 -- Barbara B. Crabb, Chief Judge.
Cummings, Chief Judge, Posner, Circuit Judge, and Max Rosenn, Senior Circuit Judge.*fn*
ROSENN, Senior Circuit Judge.
In an effort to deal with the growing problem of drunk driving on the public highways, the Wisconsin legislature enacted a statutory system of progressive penalties for successive violations of its laws prohibiting the operation of a motor vehicle while under the influence of an intoxicant or a controlled substance (OWI). Appellant Schindler, convicted of a third violation under the statute, was sentenced to the minimum penalty for a third offense in accordance with the statutory standards. He sought habeas corpus relief in the United States District Court, 551 F. Supp 561, on the ground that it was unconstitutional to incarcerate him as a third offender because he had not been represented by counsel when he was tried for his first offense. The district court found merit in Schindler's petition and granted habeas corpus relief. The State appealed and we reverse.
In structuring its system of progressive penalties for operating a motor vehicle while under the influence of intoxicants,*fn1 Wisconsin provided that the first violation would only constitute a civil offense and mandated a forfeiture of not less than $100 nor more than $500. Subsequent violations within a five year period were crimes punishable by a combination of fine and imprisonment. For a third violation, the statute prescribed a fine of not less than $500 nor more than $2000 and imprisonment for not less than thirty days nor more than one year.
On October 12, 1978, Schindler was charged with his first offense of operating a motor vehicle under the influence of an intoxicant in violation of Wis. Stat. § 346.63(1). As a first offender he was subject only to a civil forfeiture of a sum of money. He was not represented by counsel in the proceedings establishing his violation and claims he was indigent. There is no indication that he was informed of a right to counsel or that he knowingly and voluntarily waived such right. Wisconsin does not provide counsel to first offense defendants because the proceedings are civil in nature.
Subsequently, petitioner committed a second violation of the statute and was tried and convicted of criminal charges, after first being informed of his right to counsel and waiving that right. On April 12, 1981, Schindler was again arrested for driving under the influence of an intoxicant. On July 29, 1981, he was tried and convicted of a third offense under the Wisconsin OWI statute. At the time of sentencing, his counsel objected to the use of third offender standards, arguing that Baldasar v. Illinois, 446 U.S. 222, 64 L. Ed. 2d 169, 100 S. Ct. 1585 (1980), prohibited the imposition of an enhanced penalty predicated upon an earlier uncounseled conviction. Petitioner maintained that under Baldasar he could not constitutionally be punished as a third offender when he had been denied counsel at the trial on his first offense. The trial court found Baldasar inapplicable and sentenced Schindler to the minimum sentence provided by the statute for a third offender. Schindler timely appealed to the Supreme Court of Wisconsin, but voluntarily dismissed his appeal when that court rejected an identical challenge in State v. Novak, 107 Wis.2d 31, 318 N.W.2d 364 (1982). Schindler thereupon filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Wisconsin.*fn2
The district court addressed the merits of the habeas corpus petition and saw a parallel in the facts of Baldasar, supra, in which the Supreme Court held that an uncounseled misdemeanor conviction, though valid, could not be used to enhance the punishment for a later offense by upgrading it to a felony. Relying on the Court's plurality opinion in Baldasar, the district court in the instant case held that an uncounseled civil forfeiture may not be used for enhancement purposes in computing a sentence for imprisonment on a later offense.*fn3
We commence our analysis with Burgett v. Texas, 389 U.S. 109, 19 L. Ed. 2d 319, 88 S. Ct. 258 (1967), in which the Court extended the rule established in Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963), that the right to counsel guaranteed by the sixth amendment applies in all state felony proceedings, "making it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one." 389 U.S. at 114. In Burgett the Court held that the prosecution may not offer evidence of a prior uncounseled felony conviction in an effort to enhance the defendant's punishment under the Texas recidivist statute. The Court explained, "The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright is inherently prejudicial. . . ." Id. 389 U.S. at 115. Five years later in United States v. Tucker, 404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972), the Court held that a prior conviction that was constitutionally invalid, having been obtained in violation of Gideon, could not even be considered by the judge in sentencing a defendant convicted of bank robbery.
In the same term as Tucker, the Court decided Argersinger v. Hamlin, 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006 (1972), and extended the right to counsel to misdemeanor proceedings where the accused is sentenced to a prison term. The Court rejected the notion that simply because crimes punishable by imprisonment for less than six months may be tried without a jury, they may also be tried without a lawyer. Id. at 30-31. It observed that although Gideon v. Wainwright, supra, involved a felony prosecution, the rationale of the decision applied to any criminal trial where the accused's liberty is in jeopardy, explaining, "The requirement of counsel may well be necessary for a fair trial even in a petty-offense prosecution." 407 U.S. at 33. The Court therefore held 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 (footnote omitted).
In Scott v. Illinois, 440 U.S. 367, 59 L. Ed. 2d 383, 99 S. Ct. 1158 (1979), the Court shed some light on the limitations of its prior decisions in Burgett, Tucker, and Argersinger. In Scott, an indigent uncounseled defendant had been convicted of shoplifting and fined $50 in an Illinois state court. Under the applicable statute, he had faced a possible sentence for such an offense of one year in jail, or a $500 fine, or both. The defendant contended that under the Supreme Court's sixth amendment decisions, particularly Argersinger, a state is required to provide counsel whenever imprisonment is an authorized penalty. The Supreme Court rejected this contention. The Court noted that in Argersinger it had drawn the line at actual imprisonment as "defining the constitutional right to appointment of counsel." 440 U.S. at 373. It therefore held in Scott "that the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the state has afforded him the right to assistance of appointed counsel in his defense." Id. at 373-74. Thus, conviction of an uncounseled indigent defendant is constitutionally valid, even if he has not waived his right to counsel, so long as the accused is not sentenced to an actual term of imprisonment.
Neither Scott nor Argersinger answered the question whether a valid uncounseled misdemeanor conviction not resulting in imprisonment could be used for collateral purposes. This issue arose for the Court's consideration in Baldasar v. Illinois, supra. Baldasar had been convicted of misdemeanor theft in May 1975 without being represented by a lawyer, and was given a fine and placed on probation. Six months later, he was charged with another offense under the same statute. At his trial the state introduced evidence of the prior conviction and asked that Baldasar be punished as a felon under the Illinois enhancement statute. His counsel unsuccessfully objected to the collateral use of his prior uncounseled conviction on the ground that because Baldasar had not been represented by a lawyer at the first proceeding, the ...