
    Roger Dale BENSON v. CITY OF SHEFFIELD.
    CR-98-0280.
    Court of Criminal Appeals of Alabama.
    April 30, 1999.
    
      Bill Marthaler, Tuscumbia, for appellant.
    Tim W. Milan, asst, district atty., Tus-cumbia, for appellee.
   COBB, Judge.

Roger Dale Benson appeals from his conviction on a charge of harassment, in violation of City of Sheffield ordinance no. 8-83-1, which adopts § 13A — 11—8(a)(1)(b), Ala.Code 1975. Harassment is a Class C misdemeanor. Based on his plea of guilty, Benson was convicted; he was sentenced to 90 days’ imprisonment and was ordered to pay a $300 fine plus court costs. His sentence was suspended “on general good behavior” for two years. Benson did not receive actual jail time in sentencing. Benson argues that the trial court committed reversible error when it failed to inquire sua sponte into his indigency status and to appoint a lawyer to represent him before allowing him to enter a plea of guilty.

The record reflects that Benson was originally represented by retained counsel, but before trial, the trial court granted that lawyer’s motion to withdraw. The lawyer withdrew from the case because Benson had failed to pay him an agreed upon retainer. Benson appeared pro se at his trial hearing, having agreed to accept a plea agreement offer made by the prosecutor. At the beginning of the guilty plea inquiry, the following took place:

“MR. MILAM [Prosecutor]: I represent the City. He had an attorney who withdrew, James Atkinson.
“THE COURT: You don’t have an attorney now?
“DEFENDANT: No, sir.
“THE COURT: Do you understand you are charged with the crime of harassment?
“DEFENDANT: Yes, sir.
“THE COURT: Which is a Class C misdemeanor?
“DEFENDANT: Yes, sir.
“THE COURT: Have you gone over this form?
“DEFENDANT: Yes.
“THE COURT: Who did you go over it with?
“DEFENDANT: Me and Pam looked over it.
“THE COURT: You are representing yourself, do you understand?
“DEFENDANT: Yes.”

(R. 3.) The trial court then proceeded with its inquiry into Benson’s understanding of his rights:

“THE COURT: Do you understand you are entitled to a jury trial?
“DEFENDANT: Yes.
“THE COURT: Did you sign this form?
“DEFENDANT: The one that said I’m guilty?
“THE COURT: The Explanation of Rights Form and Plea of Guilty Form.
“DEFENDANT: Yes.
“THE COURT: You went over the form?
“DEFENDANT: Yes.
“THE COURT: Do you have any questions about it?
“DEFENDANT: No, sir.”

(R. 4.) The trial court thus determined that Benson had gone over and signed the Explanation of Rights Form, which included an explanation of the right of an indigent person to have counsel appointed to represent him, and the court then determined that Benson understood the terms of his plea agreement. Benson never claimed he was indigent and that he could not afford to pay his retained counsel. In fact, during the entire proceeding, Benson never even indicated that he wanted legal representation — either retained or appointed.

Although this case does not involve complex legal issues, it has, nevertheless, revealed a problematic and conflicting area of the law. The ever burgeoning caseload of appellate courts often hinders us from the careful and detailed analysis required for the orderly development of legal principles. The history of how the issue raised in this case has been treated by this court highlights this problem. Consequently, a more detailed review of the pertinent case-law is necessary.

In Argersinger v. Hamlin, 407 U.S. 25, 37-40, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the United States Supreme Court held:

“[A]bsent 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 trial.
“Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel. He will have a measure of the seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts.
“The run of misdemeanors will not be affected by today’s ruling. But in those that end up in the actual deprivation of a person’s liberty, the accused will receive the benefit of ‘the guiding hand of counsel’ so necessary when one’s liberty is in jeopardy.”

The Argersinger Court expressly reserved ruling on “the requirements of the Sixth Amendment as regards the right to counsel where [actual] loss of liberty is not involved.” Id. 407 U.S. at 37, 92 S.Ct. 2006. In Scott v. Illinois, 440 U.S. 367, 373, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), in which the United States Supreme Court affirmed an indigent appellant’s conviction for theft that was obtained without the benefit of counsel in a case where imprisonment was authorized, but in which the appellant was only fined $50, the Court wrote:

“[T]he central premise of Argersinger— that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment — is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointed counsel.”

In Salter v. State, 470 So.2d 1360, 1362 (Ala.Cr.App.1985), this court held that “the constitutional right to counsel is limited to criminal offenses resulting in actual imprisonment.” This court followed the guidelines in Argersinger and Scott and chose not to enlarge the rights of those persons convicted of misdemeanors who were not sentenced to actual imprisonment.

We cited these cases in Jowers v. City of Selma, 688 So.2d 278 (Ala.Cr.App.1996), a case with similar circumstances as those presented here. In holding that the appellant did not have a right to counsel in a misdemeanor in which a suspended sentence was imposed, we wrote:

“[The appellant’s] sentence of probation does not constitute actual imprisonment. Therefore, under Argersinger, Scott, and Salter, [the appellant’s] Sixth Amendment rights were not violated. If in the future, the trial court revokes [the appellant’s] probation and sentences him to jail, that revocation may constitute a violation of [the appellant’s] Sixth Amendment right to appointed counsel. However, we will not reverse the trial court on the mere possibility that, at a remote and future date, [the appellant’s] Sixth Amendment right may be violated.”

Jowers v. City of Selma, 688 So.2d at 279.

We note that in Williams v. City of Phenix City, 659 So.2d 1004 (Ala.Cr.App. 1995), this court held that a conditionally suspended sentence of imprisonment could not be imposed on an indigent defendant who had been denied counsel. However, in that case, the trial court conditioned the defendant’s release on the payment of the fines and court costs, and the defendant’s inability to pay resulted in an actual imprisonment. In the case before us, at the time of the hearing, the trial court was aware of the plea agreement for a suspended sentence conditioned only on general good behavior and imposed such a sentence after accepting the defendant’s guilty plea. Benson was never subjected to a deprivation of liberty. In Culberson v. State, 709 So.2d 1327 (Ala.Cr.App.1997), this court, citing only Williams, also held that an indigent misdemeanor defendant was entitled to counsel even though he was sentenced to a conditionally suspended sentence. In Culberson, the defendant, acting pro se, pleaded guilty to two counts of reckless endangerment and one count of harassing communications and was sentenced to 12 months’ confinement for each count, those sentences to run concurrently. The sentences were suspended and Cul-berson was placed on 24 months’ supervised probation. On the issue whether the trial court erred in not advising Culberson of his right to counsel, this court acceded to the request of the State and remanded the case to the trial court for a hearing to determine whether Culberson was indigent and to determine whether Culberson was properly advised of his right to counsel and whether he waived his right to counsel. In doing so, this court relied only on Williams, and completely ignored this court’s more recent application of Argersinger, Scott, and Salter as set out in Jowers.

We hold that, because Benson’s sentence did not include actual imprisonment and because there were no conditions that resulted in Benson’s imprisonment before he was placed on probation, there was no Sixth Amendment right to counsel for Benson to affirmatively waive. This court’s holding in Jowers is the correct interpretation, of the law concerning a defendant’s Sixth Amendment right, to counsel. Unless an appellant has actually suffered a deprivation of liberty, there is no Sixth Amendment right to counsel in a misdemeanor prosecution in which a suspended sentence was imposed. We should not reverse the trial court “on the mere possibility that, at a remote and future date, [Shelton’s] Sixth Amendment right may be violated” should there be a later attempt to revoke his probation and impose a sentence of confinement. Jowers v. City of Selma, 688 So.2d at 279.

It is certainly “best practice” for all trial courts that handle misdemeanor cases to fully advise defendants of their rights and to obtain signed waivers of the right to counsel. Nevertheless, extending all the protections afforded defendants facing felony charges to those misdemeanor defendants who are not in danger of being incarcerated, as this court did in Williams, would be a huge leap from where the law has been in Alabama. It is time for this court to reapply the holdings in Salter and Jowers. To the extent Williams and Cul-berson hold that a misdemeanor defendant is entitled to counsel if sentenced to conditionally suspended confinement, regardless of whether the defendant is actually incarcerated, those cases are overruled.

The trial court did not err when it did not sua sponte conduct an inquiry to determine Benson’s indigency and, if it found Benson indigent, to advise him of the right to appointed counsel and then to determine whether Benson was affirmatively waiving such a right. The right to counsel did not exist in this case. The judgment of the trial court is due to be, and is hereby, affirmed.

AFFIRMED.

McMILLAN and FRY, JJ., concur.

BASCHAB, J., dissents.

LONG, P.J., joins dissent.

BASCHAB, J.,

dissenting.

I disagree with the majority opinion, which holds that there is no right to counsel in a misdemeanor case when a sentence is imposed and then suspended. In Minnifield v. City of Alexander City, 616 So.2d 403, 406 (Ala.Cr.App.1993), we held:

“ ‘[Cjonviction of an uncounseled criminal defendant is constitutionally permissible so long as the defendant is not sentenced to a term of imprisonment. If an uncounseled defendant is sentenced to prison [or jail], the conviction itself is unconstitutional.’ United States v. Eckford, 910 F.2d 216, 218 (5th Cir.1990). ‘The right of a defendant to counsel in misdemeanor cases is limited to instances where the defendant was actually sentenced to jail.’ Loyd v. Director, Department of Public Safety, 480 So.2d 577, 578 (Ala.Civ.App.1985).”

(Emphasis added.) Furthermore,

“[t]he fact that some sentences ‘to imprisonment’ may be suspended or probated relates only to the terms of the execution and not to their basic definitional nature as sentences to imprisonment in the penitentiary.”

Parker v. State, 648 So.2d 653, 655 (Ala.Cr. App.1994). In Williams v. City of Phenix City, 659 So.2d 1004 (Ala.Cr.App.1995), this court held:

“ ‘Although Scott [v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979),] did not address the issue of whether a conditionally suspended term of imprisonment constitutes a “sen-tencef ] to a term of imprisonment,” the conclusion clearly follows from its holding. If a defendant cannot be ordered to serve a sentence of imprisonment, it seems obvious that a conditional sentence of imprisonment is equally invalid.’ United States v. Reilley, 948 F.2d [648,] 654 [ (10th Cir.1991)]....
“We hold that a conditionally suspended sentence of imprisonment cannot be imposed on an indigent defendant who is denied counsel.”

659 So.2d at 1006. The majority distinguishes Williams from the present case because Williams’ release from jail was conditioned on the payment of fines. However, the language of Williams is unequivocal; it does not draw such a distinction. In Culberson v. State, 709 So.2d 1327 (Ala.Cr.App.1997), we unanimously reaffirmed the holding in Williams. The majority argues that the holding in Culber-son was erroneous and that we should have relied on Jowers v. City of Selma, 688 So.2d 278 (Ala.Cr.App.1996), which held that there is no Sixth Amendment right to counsel where the defendant receives a suspended sentence and he does not actually serve time in jail. However, two judges dissented in lowers and, before Culberson was decided, the composition of the court had changed. Finally, lowers did not overrule or distinguish Williams. In fact, the majority in lowers completely ignored the holding in Williams.

The dissent in lowers noted:

“The United States Supreme Court in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), held that an accused is entitled to be represented by counsel when charged with a misdemeanor offense, if the accused faces a possible jail sentence as a result of conviction of that offense. The United States Supreme Court, quoting its opinion in Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970) stated:
“ ‘ “[T]he prospect of imprisonment for however short a time will seldom be viewed by the accused as a trivial or ‘petty’ matter and may well result in quite serious repercussions affecting his career and his reputation.” ’
407 U.S. at 37, 92 S.Ct. at 2012.
“The requirements of Argersinger v. Hamlin cannot be avoided by the court’s placing the defendant on probation in lieu of imprisonment. The appellant here faces imprisonment if he violates the terms of his probation or fails to pay his fines.”

688 So.2d at 280 (Taylor, P.J., dissenting, with Long, J., joining the dissent). The dissent in Jowers pointed out a major flaw in the rule that an accused is not entitled to counsel if his sentence is suspended. When a trial court suspends or probates a sentence, the court retains the authority to revoke that suspended or probated sentence and to reinstate the remaining term of imprisonment. If the court subsequently revokes the suspended or probated sentence, then the appellant faces actual imprisonment. At that time, the appellant’s right to counsel is implicated. If he was not represented by counsel in the prior proceedings and had not validly waived counsel, then his conviction would be unconstitutional once the suspended or probated sentence was reinstated. Thus, in such a case, a trial court would be prevented from revoking the suspended or probated sentence without invalidating the conviction. Essentially, the suspended or probated sentence would be a nullity because it could not be enforced. The majority in Jowers recognized this problem, stating, “If in the future, the trial court revokes Jowers’s probation and sentences him to jail, that revocation may constitute a violation of Jowers’s Sixth Amendment right to appointed counsel.” 688 So.2d at 280.

In light of the effect of the majority’s holding on the enforcement of suspended and probated sentences, the better reasoned holding is “that a conditionally suspended sentence of imprisonment cannot be imposed on an indigent defendant who is denied counsel,” as espoused by our holdings in Williams and Culberson. See also United States v. White, 529 F.2d 1390, 1394 n. 4 (8th Cir.1976) (stating, “we are unwilling to affirm [on direct appeal] the imposition of a suspended prison sentence since the possibility exists of its ripening into unconstitutional imprisonment”). Furthermore, this rule would not create an undue burden because “every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed ... unless the accused is represented by counsel.” Argersinger v. Hamlin, 407 U.S. 25, 40, 92 S.Ct. 2006, 2014, 32 L.Ed.2d 530 (1972). For the foregoing reasons, I must respectfully dissent. 
      
      . The record does not farther identify "Pam.”
     
      
      . The case was also remanded for the trial court to vacate the sentence of 12 months' confinement and the $750 fine imposed on the conviction of harassing communications, a Class C misdemeanor, and to resentence Culberson on that count because the imposed sentence exceeded the sentence limitations provided by statute (3 months’ confinement and a $500 fine).
     