July 2012 • Volume 100 • Number 7 • Page 346
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Uncounseled misdemeanor convictions can trigger felony DUI sentences
The Illinois Supreme Court ruled that prior misdemeanor DUI convictions – even if the defendant was unrepresented – can be used to bump a later DUI charge to a felony.
Repeat offenders beware: Your prior misdemeanor DUI convictions could be used to enhance your next drunken-driving charge to a felony, even if you were not represented by a lawyer in earlier trials.
The Illinois Supreme Court has determined that a valid uncounseled misdemeanor conviction can be used for sentence enhancement in a subsequent conviction under section 11-501(d)(2)(C) of the Illinois Vehicle Code, which mandates Class 2 felony imprisonment for defendants previously convicted of three or more similar violations.
In the May opinion in People ex rel. Glasgow v. Kinney, 2012 IL 113197, the supreme court expressly overruled the 1991 appellate court decision in People v. Finley, 209 Ill.App.3d 968, 568 N.E.2d 412 (3d Dist.), which had prohibited the use of prior uncounseled misdemeanor convictions to enhance current charges to felonies under the Illinois enhancement statute.
The impact of Nichols
Writing for a unanimous Illinois Supreme Court, Chief Justice Thomas Kilbride noted that the Finley court had relied upon the U.S. Supreme Court opinion in Baldasar v. Illinois, 446 U.S. 222 (1980), which itself has already been overruled by the federal high court in Nichols v. U.S., 511 U.S. 738 (1994).
The Nichols decision addressed the use of prior uncounseled misdemeanor convictions for enhanced sentences, but did not expressly mention whether it applied to enhancements that result in a mandatory term of imprisonment, as is the result of the Illinois statute at issue in Kinney.
The defendant in Kinney argued that Nichols was not relevant to the sentencing for his fourth DUI conviction because Nichols did not address the specific issue of whether his prior misdemeanor conviction could be used to enhance his current sentence to include mandatory imprisonment when he was not represented by counsel during the previous trials.
“We disagree,” Kilbride wrote. “Nichols drew no distinction between enhancements that lengthen a term of imprisonment and enhancements that result in a mandatory term of imprisonment. To the contrary, Nichols held that ‘an uncounseled conviction valid under [law] may be relied upon to enhance the sentence for a subsequent offense, even though that sentence entails imprisonment.’”
The Kinney court held that section 11-501(d)(2)(C) of the Illinois Vehicle Code is “precisely the type of recidivist statute contemplated by the Nichols decision,” and the statute therefore should be interpreted to include uncounseled misdemeanor convictions for enhancement purposes in subsequent cases.
The waiver-of-counsel question
DUI defense attorney Donald J. Ramsell, who is a past chair and current member of the ISBA Traffic Laws and Courts Section Council, said Illinois used to prohibit any and all use of uncounseled misdemeanor convictions for enhancement purposes, but that policy changed after the Nichols decision in 1994. As such, it did not surprise Ramsell that the supreme court overruled Finley to allow these kinds of enhancements.
“The Nichols case came down from the U.S. Supreme Court and we basically just said, okay, we no longer abide by that [Finley] rule that every one of the uncounseled convictions can’t be used for enhancements,” Ramsell said.
What did surprise Ramsell was the Kinney court’s silence on whether the prior uncounseled misdemeanor convictions must have included a valid waiver of counsel in order to qualify for subsequent enhancements.
“The U.S. Supreme Court has long held that uncounseled misdemeanor convictions cannot be used to enhance later crimes to a felony if there has not been a valid waiver of counsel in the underlying misdemeanor case,” Ramsell said, citing to Scott v. Illinois, 440 U.S. 367 (1979), which was briefly mentioned in the Kinney opinion on a different issue.
Ramsell said the Scott decision holds that uncounseled misdemeanor convictions cannot be used for subsequent enhancements unless there was a valid waiver, but the Kinney court failed to expressly carve that out as an exception to the blanket rule it was creating.
“They really don’t make any reference to the fact of whether there was or wasn’t an effective waiver of counsel,” Ramsell said. “It’s not even talked about. It’s kind of bizarre.”
Neither did the Kinney court discuss the differences between federal and Illinois laws in regards to when a defendant has a right to counsel in misdemeanor convictions, which could be a benchmark for whether an uncounseled conviction should qualify for a subsequent enhancement. Ramsell said this right attaches whenever there is the possibility of jail time for the defendant under Illinois law, but only when jail time is actually imposed under the federal constitution.
These issues, according to Ramsell, suggest the state’s public policy could dictate that these kinds of prior convictions should not be used for subsequent sentence enhancements.
“The silence on those two issues I think is disconcerting because now, as a defense attorney, what’s going to happen is when I file a motion to bar an uncounseled conviction that didn’t have a waiver, somebody’s going to read this Kinney decision like it defeats everything,” Ramsell said.