
    The State of Ohio v. Kirby.
    (No. 72-CR-693
    Decided October 5, 1972.)
    Common Pleas Court of Montgomery County.
    
      Mr. Lee C. Police and Mr. Lawrence Henke, III, county prosecutor’s office, for plaintiff.
    
      Mr. Michael J. McDonald, for defendant.
   Love, J.

On September 17, 1971, defendant was arrested for violation of R. C. 3719.50(A), possession of a harmful intoxicant. On September 20, 1971, defendant appeared in Dayton Municipal Court, without counsel and without waiving counsel, and entered a plea of guilty to the offense with which he was charged. Defendant was thereupon fined $25. (Case No. 355392)

On October 21, 1971, defendant was again arrested for possession of a harmful intoxicant in violation of R. C. 3719.50(A). On October 22, 1971, defendant appeared in Dayton Municipal Court, without counsel and without waiving counsel, and entered a plea of guilty to the offense with which he was charged. Defendant was thereupon sentenced to six months in the workhouse. On December 3, 1971, defendant was released from the workhouse and the remainder of his sentence was suspended. (Case No. 3562-95)

The question to he decided is whether an Ohio defendant may he sentenced under the enhanced provisions of the subsequent offender statute, R. C. 3719.99(N), where the records of the prior convictions either show that defendant had not been represented by counsel, or that the records of those convictions are silent regarding his waiving his right to counsel.

On April 4, 1972, defendant was again arrested for possession of a harmful intoxicant in violation of R. C. 3719.50(A). Pursuant to R. C. 3719.99(17), defendant was treated as a subsequent offender and on June 20,1972, was indicted for possession of a harmful intoxicant (subsequent offense), a felony for which the penalty upon conviction is imprisonment for from one to ten years.

At all times mentioned defendant was indigent.

Gideon v. Wainwright (1963), 372 U. S. 335, established the rule that the right to counsel guaranteed by the Sixth .Amendment was applicable to the states by virtue of the Fourteenth Amendment, making it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one. This rule was not limited to prospective applications. See Doughty v. Maxwell, 376 U. S. 202; Pickelsimer v. Wainwright, 375 U. S. 2.

The rule in Gideon is fundamental in Ohio. Article 1, Section 10 of the Ohio Constitution provides:

“ ... In any trial in any court the party accused shall be allowed to appear aud' defend in person with counsel 99

This constitutional provision is further supplemented by R. C. 2941.50(A) which imposes a mandatory duty upon the trial court to appoint counsel for an indigent accused.

£i. . . If he is without and unable to appoint counsel, the court shall assign him counsel. ...”

In regard to R. C. 2941.50(A), the Common Pleas Court of Lake County proelamed in State v. Torpey (1966), 8 Ohio Misc. 65:

“The duty is simply stated in most unambiguous language. It is not conditioned upon a request for counsel by the accused, nor is it satisfied by an offer to make counsel available if the accused wants one. The clear purport of the legislative language is that, conditioned solely on in-digency being established, counsel must be provided for every accused who has none.”

The rule of Gideon v. Wainwright was extended to misdemeanors carrying possible sentence of imprisonment in Angersinger v. Hamlin, 11 Cr. L. 3089 (June 12, 1972). In that opinion, the Supreme Court held, at page 3093:

“. . . 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 the trial.”

The Supreme Court, in Angersinger, supra, commented further at page 3091:

“The requirement of counsel may well be necessary for a fair trial even in a petty offense prosecution. We are by no means convinced that legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more. See, e. g., Powell v. Texas, 392 U. S. 514; Thompson v. Louisville, 362 U. S. 199; Shuttlesworth v. Birmingham, 382 U. S. 87.”

The use of felony convictions obtained in violation of the Gideon rule to support guilt or enhance punishment for another offense was prohibited in Burgett v. Texas, 389 U. S. 109 (1967). In Burgett, supra, defendant was charged in a five-count indictment and was tried under a Texas recidivist statute. During the trial, certified records of a prior Tennessee conviction were offered by the prosecution in the presence of the jury. These records did not show that defendant had been represented: by counsel, or that he had waived counsel. Defendant was convicted, and on November 13, 1967, the Supreme Court reversed, 389 U. S. 109. The Court stated, at page 114:

“Gideon v. Wainwright established the rule that the right to counsel guaranteed by the Sixth Amendment was applicable to the states by virtue of the Fourteenth, making it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one. And that ruling was not limited to prospective applications* See Doughty v. Maxwell, 376 U. S. 202; Pickelsimer v. Wainwright, 375 U. S. 2.

“In this ease the certified records of the Tennessee conviction on their face raise a presumption that petitioner was denied his right to counsel in the Tennessee proceeding, and therefore that his conviction was void. Presuming waiver of counsel from a silent record is unpermissible. Carnley v. Cochran, 369 U. S. 506. To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense (see Greer v. Beto, 384 U. S. 269) is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right.”

Here we are concerned wth a particular set of circumstances whereby two prior misdemeanor convictions may be used to make a subsequent similar offense a felony, thereby subjecting the defendant to being punished with up to ten years imprisonment under subsequent offender provisions of the statute.

The prior convictions of misdemeanors did not come within the purview of R. C. 2941.50(A), or State v. Torpey, supra. However, when used in the instant case, they become part of the indictment which charges a felony punishable by up to ten years in a penitentiary. When thus they are used they become a more “serious offense” than contemplated by R. C. 2941.50(A), or State v. Torpey, supra.

Accordingly, in view of the decision in Angersinger v. Hamlin, supra, extending the fundamental right to counsel to misdemeanor cases when a jail sentence is possible, and also in view of the decision in Burgett v. Texas, supra. which refused to allow the use of a felony conviction obtained in violation of the right to counsel guaranteed by the Sixth Amendment to support guilt or enhance punishment, when an allegation of prior convictions of the misdemeanor of possession of a harmful intoxicant is used to enhance punishment, it effectively becomes a “serious offense” (here a felony) which requires that the records of the prior convictions show that defendant was represented by counsel, or advised of his right to counsel and waived his right to counsel, before it can he used in the subsequent prosecution.

The plea in abatement is sustained and case is dismissed.

This decision and order was served upon all counsel as indicated below by ordinary mail on the 5th day of October, 1972.

Judgment for defendant.  