Right to Counsel

by Tracey Wilkinson, former staff attorney

It has long been established that a defendant has a sixth amendment right to counsel in all felony trials, regardless of the punishment imposed upon conviction. Gideon v. Wainwright, 372 U.S. 335 (1963). In Arsinger v. Hamil, 407 U.S. 25 (1972), the Supreme Court extended the right to counsel to all indigent misdemeanor defendants faced with the possibility of a jail sentence. On the other hand, when an indigent defendant will not be sentenced to imprisonment, the state is not required to appoint counsel for him, even if the crime is one for which imprisonment is authorized. Scott v. Illinois, 440 U.S. 367 (1979).

In the most recent Supreme Court case dealing with this issue, the court ruled that a defendant has a sixth amendment right to counsel at a misdemeanor trial when the defendant could be sentenced upon conviction to a term of imprisonment, even when the sentence was suspended. Alabama v. Shelton, 535 U.S. ___ (2002). The state argued that appointed counsel was not constitutionally required because the defendant faced only a misdemeanor charge, and upon conviction, defendant's sentence had been suspended and he had been placed on probation. However, when the defendant violated the terms of his probation, his sentence was activated and he faced imprisonment, even though he had not had the benefit of counsel. The Supreme Court rejected the state's argument. In proceedings where counsel has not been provided, a judge may order a fine, impose court costs, or require the defendant to pay restitution. But unless the defendant was represented by counsel, or properly waived counsel, a judge cannot constitutionally impose even a suspended term of imprisonment. If a term of imprisonment is to be imposed upon defendant's conviction, suspended or otherwise, the sixth amendment right to counsel applies. Id.

Alabama v. Shelton leaves a few unanswered questions. For example, although the Court ruled that the suspended sentence imposed in this case could not be activated, it did not reverse the conviction. One would assume that the conviction was invalid, but the Court left the question open. For that reason, it is unclear whether uncounseled prior convictions in which a term of imprisonment was imposed may be used to prove an element of a subsequently charged offense, to impeach a defendant at trial, or to calculate prior record levels under structured sentencing schemes. There are also questions about whether the Court announced a new rule of constitutional law in Shelton, or whether the case will be given retroactive application to invalidate prior misdemeanor convictions obtained without counsel.