During a recent Ohio Municipal Judges Conference, the issue of “uncounseled pleas” was of interest to Judges around the State and this article is intended to share (with permission) some of the comments of Judge Sean Gallagher’s, Eighth District Court of Appeals*, presentation on that subject as well as a review of some of the cases relating to this subject.
An uncounseled prior misdemeanor conviction is one wherein the defendant was not represented by counsel and failed to make a knowing and intelligent waiver of counsel. A defendant who is afforded the right to counsel but rejects that right has not suffered an uncounseled conviction.
Further, no person may be imprisoned for an offense, whether a misdemeanor or felony, unless represented by trial counsel or a valid waiver is received. “The constitutionally protected right to the assistance of counsel is absolute…(and) absent a knowing and intelligent waiver, no person shall be imprisoned on any offense…unless he was represented by counsel….” Argersinger v. Hamlin (1972) 407 U.S. 25, 37, 92 S.Ct. 2006, Gideon v. Wainwright (1963) 372 U.S. 335, 893 S.Ct. 792. If a person is imprisoned and does not have counsel and the record does not reflect a valid waiver, then the prior is termed “uncounseled” and may not be used to enhance the penalty or degree of a subsequent conviction. State v. Brandon (1989) 45 Ohio St.3d 85, 86; 543 N.E.2d 501, 503. To have a prior misdemeanor conviction to be considered “uncounseled” we look to the essential elements of, was there a lawyer, or a valid waiver, and/or no imprisonment.
In considering the issue of imprisonment, it is not necessary that an actual term of imprisonment be imposed. The term “imprisonment” includes “credit for time served”, “jail credit”, “three day program”, incarceration”, “suspended sentence”, “community controlled sanction”, etc.
The U.S. Supreme Court stated in Alabama v. Shelton (2002) 535 U.S. 654, 122 S. Ct. 1764 that “a suspended sentence that may end up in the actual deprivation of a person’s liberty may not be imposed unless the defendant was accorded the guiding hand of counsel in the prosecution of the crime charged.” In those instances wherein it is clear that the defendant did not have a lawyer and no valid waiver was made but the defendant did not incur a “term of imprisonment”, it is not considered an uncounseled plea. State v. Rockburn, No. 82196, 2003 Ohio App. LEXIS 3243 (8th Dist. Jul. 3, 2003).