State v. David Cook, corrected 3-16-98
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 40 
Docket:	Cum-96-698	
Argued:	September 2, 1997
Decided:	February 27, 1998	


Panel:	WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.

STATE OF MAINE

v.

DAVID COOK

ROBERTS, J.

	[¶1]	David Cook appeals from a judgment entered in the Superior
Court (Cumberland County, Cole, J.) convicting him of operating an
automobile under the influence of intoxicating liquors (OUI), second offense,
in violation of 29-A M.R.S.A. § 2411 (1996 & Supp. 1997).  Cook contends
that the use of his prior uncounseled OUI conviction to obtain the mandatory
minimum imprisonment provided in section 2411(5)(B)(2){1} violates his
right to due process of law.{2}  We affirm the judgment. 
	[¶2]	In May 1993 Cook was convicted in the District Court (Portland,
MacNichol, J.) of OUI, first offense, in violation of 29 M.R.S.A. § 1312-B
(Pamph. 1993) repealed by P.L. 1993, ch. 683, § A-1 (effective, Jan. 1,
1995) without counsel and without a waiver of counsel.  Cook's uncounseled
conviction resulted in the imposition of a $350 fine and a 90-day suspension
of his driver's license.  In September 1995 Cook was arrested and charged
with OUI, second offense, in violation of 29 M.R.S.A. § 2411.  Cook objected
to the mandatory minimum imprisonment which accompanies OUI, second
offense, citing our decision in State v. Dowd, 478 A.2d 671 (Me. 1984),
where we applied the reasoning of Baldasar v. United States, 446 U.S. 222
(1980), to hold that article I, section 6-A of the Maine Constitution barred
the use of a prior uncounseled adjudication to invoke a mandatory jail term
in a subsequent proceeding.{3}  The State cited Nichols v. United States, 511
U.S. 738 (1994), in which the United States Supreme Court overruled
Baldasar and held that the Sixth Amendment to the United States
Constitution allowed the use of uncounseled convictions to enhance a
sentence of imprisonment in subsequent proceedings.  The Superior Court
overruled Cook's objection and imposed, inter alia, a seven-day jail term
pursuant to the mandate of 29-A M.R.S.A. § 2411(5)(B)(2).  This appeal
followed.

I.

	[¶3]	In order to decide the appeal now before us, we must first
determine whether Cook's prior uncounseled OUI conviction was
constitutionally obtained.  In Newell v. State, 277 A.2d 731 (Me. 1971), we
decided, pursuant to article I, section 6-A of the Maine Constitution, that an
indigent misdemeanor defendant in Maine is entitled to appointed counsel
in all serious misdemeanor cases, i.e., where the statutory penalty permits
imprisonment in excess of six months or a fine in excess of $500.  Pursuant
to the Sixth Amendment to the U.S. Constitution, however, an indigent
misdemeanor defendant is entitled to appointed counsel in all cases
involving actual imprisonment.  Scott v. Illinois, 440 U.S. 367 (1979). 
Because Cook was not sentenced to actual imprisonment, he was not
entitled to counsel pursuant to the Sixth Amendment for his first OUI
offense.  His prior uncounseled conviction was therefore constitutionally
obtained pursuant to the federal standard, but not pursuant to the state
standard.
	[¶4]	These standards, however, are incompatible, and this
incompatibility arises in two instances:  (1) when an indigent defendant is
charged with a serious misdemeanor as defined in Newell but is not
sentenced to any imprisonment and (2) when an indigent defendant is not
charged with a serious misdemeanor but is sentenced to a term of actual
imprisonment.  In the first instance, an indigent defendant is entitled to
appointed counsel under the Maine Constitution but not under the U.S.
Constitution.  In the second instance, the entitlement is reversed:  an
indigent defendant is entitled to appointed counsel under the U.S.
Constitution but not under the Maine Constitution.  
	[¶5]	The simultaneous application of these two standards
demonstrates their incompatibility.  The District Court cannot apply the
Maine standard alone, because such application would deprive some
indigent defendants of their federal right to counsel under the Sixth
Amendment.  Nor can the District Court apply the federal standard alone,
because that would deprive some indigent defendants of their state right to
counsel under article I, section 6-A.  In order to meet both standards, the
District Court is forced to apply them simultaneously, which has the
unintended effect of providing indigent defendants with a greater right to
counsel than that to which they are entitled under either the state or federal
standard alone.
	[¶6]	The present incompatibility of these two standards compels us
to clarify the law of Maine regarding right to counsel.  In so doing, we
overrule Newell and hold, consistent with the reasoning in Scott, that an
indigent misdemeanor defendant has a right to counsel under article I,
section 6-A of the Maine Constitution when imprisonment will actually be
imposed.  This "bright line" rule provides defendants, prosecutors, and
criminal courts in Maine with the clarity they deserve, while adhering to the
principle that actual imprisonment is a penalty different in kind from fines
or the mere threat of imprisonment.  See Scott v. Illinois, 440 U.S. at 373. 
To conclude otherwise would create further confusion, hinder the
administration of justice, and impose substantial costs on our judicial
system.

II.

	[¶7]	In Baldasar v. United States, 446 U.S. 222 (1980), the Court
held that an uncounseled misdemeanor conviction, constitutional under
Scott, could not be used under an enhanced penalty statute to convert a
subsequent misdemeanor into a felony subject to mandatory imprisonment. 
The Baldasar majority, however, offered three different rationales to support
its holding.  Justice Stewart, joined by Justices Brennan and Stevens,
reasoned that the enhanced penalty statute clearly violated the rule of Scott
by imposing actual imprisonment as a direct result of the previous
uncounseled conviction.  Id. at 224.  Justice Marshall, also joined by Justices
Brennan and Stevens, voiced his continued disagreement with the rule of
Scott, but reasoned after assuming Scott's validity that an uncounseled
misdemeanor conviction that was unconstitutional under Scott for the
purpose of directly imposing imprisonment remained unconstitutional for
the purpose of collaterally imposing imprisonment in a subsequent
proceeding.  Id. at 228.  Finally, Justice Blackmun refused to accept or apply
the rule of Scott, instead applying the rule of his Scott dissent-that an
indigent is entitled to counsel whenever he faces actual imprisonment or
the possibility of imprisonment in excess of six months-to conclude that
the Baldasar defendant should have had counsel for his prior conviction and
therefore the conviction was invalid for the purpose of imposing
imprisonment in the subsequent proceeding.  Id. at 229-30.
	[¶8]	We addressed the Baldasar decision in State v. Dowd, 478 A.2d
671 (1984), in which a defendant argued, as a matter of Maine
constitutional law, that his prior uncounseled OUI adjudication could not be
used to obtain the mandatory minimum imprisonment for his subsequent
conviction for operating after suspension (OAS).  At the onset of our Baldasar
analysis, we noted the fragmented nature of that plurality decision and the
extent to which the fragmentation had caused some courts to question
Baldasar's precedential value.  Id. at 677, n.9.  We then referred to the
concurrences of Justices Stewart and Marshall in concluding that Baldasar
extended the rule of Scott to bar not only direct but also collateral
imprisonment arising from an uncounseled misdemeanor conviction.  Id. 
Applying this extension under article I, section 6-A of the Maine
Constitution, we held that the defendant's prior uncounseled OUI
adjudication could not be used to impose actual imprisonment in his
subsequent OAS proceeding.  Id. at 678.
	[¶9]	In Nichols v. United States, 511 U.S. 738 (1994), the Supreme
Court revisited and overruled Baldasar, due in part to the confusion and
conflict its fractured holding had wrought in both state and federal courts. 
Id. at 742, 745-46.  Nichols involved a defendant who was sentenced under
the Federal Sentencing Guidelines to an additional twenty-five months'
imprisonment on the basis of an uncounseled misdemeanor conviction.  Id.
at 740.  In affirming the defendant's increased sentence, the Court held that
his uncounseled misdemeanor conviction, constitutional under Scott when
no imprisonment was directly imposed, was also constitutional for the
purpose of collaterally imposing imprisonment in the subsequent
proceeding.  Id. at 748.
	[¶10]	The Supreme Court offered two substantive reasons for its
decision to overrule Baldasar and allow the use of uncounseled misdemeanor
convictions for collateral imprisonment purposes.  First, the Court asserted
that enhanced penalty statutes,{4} regardless of their form, penalize only the
subsequent conviction and do not change the penalty for the prior
conviction.  Id. at 747.  Second, the Court noted that the use of prior
uncounseled but constitutional convictions for collateral imprisonment
purposes comports with "the traditional understanding of the sentencing
process," whereby a sentencing court may consider a broad swath of
information concerning a defendant, including not merely his prior
convictions but also his past criminal conduct, as long as that conduct is
proven by a preponderance of the evidence.  Id. at 747-48.
	[¶11]	We find the Court's reasoning in Nichols to be persuasive under
article I, section 6-A of the Maine Constitution.  In the case at bar, Cook
would face no imprisonment at all had he not reoffended.  The seven days of
incarceration he now faces punishes him solely for his second OUI offense,
and in no way adds to or alters the penalty he received for his initial OUI
conviction.  Further, in Maine a sentencing court has broad discretion to
determine the information it will consider, and due process requires only
that it be reliable.  State v. Berube, 1997 ME 165, ¶ 14, 698 A.2d 509. 
There is no constitutional problem with the sentencing court considering
Cook's prior uncounseled OUI conviction, where that conviction was
constitutionally obtained and proven beyond a reasonable doubt, when the
court can already consider the conduct underlying that conviction if proven
by a preponderance of the evidence.  
	[¶12]	We therefore overrule Dowd, concluding that article I, section
6-A of the Maine Constitution does not prevent the State's reliance on a
prior uncounseled but constitutional misdemeanor conviction to obtain a
mandatory minimum term of imprisonment in a subsequent proceeding.{5}  
	The entry is:
				Judgment affirmed.
                                                                 
Attorneys for State:

Stephanie Anderson, District Attorney
Julia A. Sheridan, Asst. Dist. Atty., (orally)
142 Federal Street
Portland, ME 04101

Attorney for defendant:

Robert A. Levine, Esq., (orally)
17 South Street
Portland, ME 04101

FOOTNOTES******************************** {1}. 29-A M.R.S.A. § 2411(5)(B)(2) provides, inter alia, a mandatory minimum imprisonment of 7 days for convicted OUI offenders having one previous OUI offense within a 10-year period. {2}. This issue arises in a somewhat unusual procedural posture, but the State has not objected and both parties have addressed in their briefs the merits of Cook's contentions. {3}. Article I, section 6-A of the Maine Constitution provides, in pertinent part, "No person shall be deprived of life, liberty or property without due process of law." The defendant in State v. Dowd, 478 A.2d 671 (Me. 1984), asserted his right to due process under article I, section 6-A rather than his right to counsel under article I, section 6 because in Maine an indigent defendant's right to appointed counsel is predicated on the former provision and not the latter. See State v. Sklar, 317 A.2d 160, 165 (Me. 1974) (discussing Newell v. State, 277 A.2d 731, 738 (Me. 1971). {4}. In his concurring opinion, Souter, J., stated that the case did not involve a mandatory enhancement of Nichols's sentence. Nichols v. United States, 511 U.S. 738, 751-54 (1994). {5}. Dowd presents an unusual circumstance where we treated an uncounseled OUI civil adjudication as if it were the equivalent of an uncounseled misdemeanor conviction. For the purposes of our analysis in this case, however, this is a distinction without a difference.