APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
539 N.E.2d 893, 183 Ill. App. 3d 957, 132 Ill. Dec. 330 1989.IL.822
Appeal from the Circuit Court of Macon County; the Hon. Rodney A. Scott, Judge, presiding.
JUSTICE LUND delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND
On June 24, 1988, defendant Luke Albert Masters, after being convicted in absentia, was sentenced in absentia to 18 months' imprisonment for committing the offense of retail theft with a prior conviction for retail theft, in violation of section 16A-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 16A-3). The question presented for review is whether a prior, uncounseled misdemeanor conviction, in which defendant waived counsel, can be used to enhance a subsequent misdemeanor to a felony. We hold that it can.
On January 2, 1988, defendant and some friends were in a Venture store in Decatur. The store security guards observed defendant put on a pair of new shoes and hide his old ones. They also observed the others bring various items and put them in defendant's coat. Defendant left without paying for these items and was stopped in the parking lot. His coat contained a slit on the inside which would open into a large pocket. When interviewed, defendant stated: "What is there to talk about, I am guilty and I shouldn't have done it." The value of the items taken was under $150.
Defendant appeared for his preliminary hearing but failed to appear for his trial, and was convicted in absentia. At the sentencing, the State introduced a certified copy of defendant's November 30, 1987, conviction for misdemeanor retail theft. Commission of retail theft of property valued under $150 is a Class A misdemeanor unless the perpetrator has certain prior convictions, including retail theft, in which case it becomes a felony. (Ill. Rev. Stat. 1987, ch. 38, par. 16A-10.) Over defendant's objection, the court allowed its admission, which enhanced the instant offense to a felony, and sentenced defendant to 18 months' imprisonment.
Defendant, observing the earlier conviction arose out of a pro se guilty plea, contends the use of that conviction to enhance the present one is improper. He argues that pursuant to Baldasar v. Illinois (1980), 446 U.S. 222, 64 L. Ed. 2d 169, 100 S. Ct. 1585, the use of an uncounseled misdemeanor conviction to enhance a subsequent misdemeanor to a felony is impermissible.
Baldasar is the most recent in a series of cases dealing with the necessity of the presence of counsel in misdemeanor prosecutions. In Argersinger v. Hamlin (1972), 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006, the Court held that no person may be imprisoned for any offense unless he is represented by counsel at his trial. In Scott v. Illinois (1979), 440 U.S. 367, 59 L. Ed. 2d 383, 99 S. Ct. 1158, the Court answered a question left unanswered in Argersinger, and held that this requirement of counsel did not apply if the defendant was not sentenced to imprisonment. In Baldasar, the Court determined, in a per curiam decision, that an uncounseled misdemeanor conviction cannot be used to enhance a subsequent misdemeanor conviction to a felony.
This leaves unanswered the question of whether a misdemeanor conviction, in which the defendant knowingly waives counsel and proceeds pro se, can be used to enhance a subsequent misdemeanor to a felony. Our review has convinced us that it can.
The above-cited cases, by their very language, answer this question. In Argersinger (407 U.S. at 37, 32 L. Ed. 2d at 538, 92 S. Ct. at 2012), the 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." (Emphasis added.)
In Scott, the Court quoted the above language and held the State could not sentence an indigent defendant to imprisonment unless it afforded him the right to counsel. It did not require the defendant avail himself of that opportunity. Similarly, in Baldasar (446 U.S. at 223, 64 L. Ed. 2d at 172, 100 S. Ct. at 1585), the opinion noted that defendant "was not represented by a lawyer and did not formally waive any right to counsel," which suggests a different result would occur if, in fact, counsel had been waived. Thus, we are led to the inexorable Conclusion that the sole obligation of the State, as set forth in these cases, is to offer indigent defendants the representation of counsel. Once that ...