I’ve done a couple of previous posts — here and here – about uncounseled misdemeanor convictions used as enhancement for subsequent crimes.  I’ve also mentioned that the relevancy of whether they were uncounseled depends upon whether a jail sentence was imposed; under Supreme Court decisions, there’s no problem in using an uncounseled prior conviction, even if there wasn’t a valid waiver of counsel, if no “loss of liberty” ensues.

That leaves a couple of questions unanswered, though.  What if the court imposes a jail sentence, but suspends it?  And in DWI cases, there’s a 3-day mandatory jail sentence for a first offense, but the courts almost invariably allow the defendant the option of an alternative “alcohol education program,” in which the defendant holes up with a bunch of other rummies in a Holiday Inn for a weekend listening to people tell him that what he did wasn’t a good thing.  Does that count as jail time?

The 8th District answers both questions in Parma v. Romain.  The defendant was convicted of DWI in Parma, and sentenced as a third-time offender because of two prior convictions; he hadn’t been represented in either.  The court found a clear waiver in the second one, but no record of waiver in the first, a mayor’s court.  He’d been given a sentence of 10 days in jail there, with seven suspended, and he could spend the other 3 either in jail or in a 3-day alcohol program.

The court looked first at the suspended sentence.  The case law from a prior US Supreme Court decision is that “a suspended sentence that may end up in actual deprivation of a person’s liberty may not be imposed unless the defendant was accorded the guiding hand of counsel.”  (That’s a great way of putting it.  Just the other day, I guided my client to a six-month stretch at Grafton.)  In this case, the court noted that “the seven days of jail time were unconditionally suspended with no evidence of any reservation of the right to reinstate them in the future, and appellant was not placed on any probation or community control sanction that could subject him to incarceration in the future as punishment.”  The short version:  it didn’t count as a jail sentence which would require counsel or a valid waiver before it could be used to enhance a subsquent offense.

Not so with the three-day stay for the alcohol treatment program.  While that’s “served in a hotel setting rather than a jail, and the focus is on education and treatment, not punishment, participants are not free to leave and must comply with the program format.”  Probably not a finding that’s going to make it’s way into Holiday Inn’s next advertising campaign (“It’s as good as jail!”)….

While on the subject of uncounseled prior convictions, an object lesson on how to handle them is provided in the 1989 case of State v. Brandon, 45 Ohio St. 3d 85.  The defendant had argued that his previous conviction, a petty theft, had been uncounseled, but the court noted that he testified he’d served six months in jail on the charge.  To the court, this was proof that he’d had counsel:  the trial court couldn’t constitutionally give him jail time if he hadn’t had an attorney, he got jail time, therefore he must have had an attorney.  The Helleresque nature of that logic notwithstanding, the court’s opinion carries a warning for attorneys handling these situations:  you don’t have to do a lot, but you have to do something.  As the court notes,

The presumption we entertain is not irrebuttable. Appellee simply failed in his burden of presenting sufficient evidence to establish a prima-facie showing that his prior convictions were uncounseled.  Indeed, appellee’s burden in this regard was hardly difficult. Had appellee’s counsel simply asked appellee during testimony whether his prior convictions were counseled, a negative response would have established a prima-facie showing of constitutional infirmity. This one question and answer would have then placed on the state the burden of proving that appellee’s prior convictions were counseled.