Baldasar v. Illinois, 446 U.S. 222 (1980)

Author: Justice Powell

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Baldasar v. Illinois, 446 U.S. 222 (1980)


Last Term, in Scott v. Illinois, 440 U.S. 367 (1979), we rejected the claim that Argersinger v. Hamlin, 407 U.S. 25 (1972), requires the appointment of counsel for an indigent charged with a misdemeanor punishable by imprisonment, regardless of whether the defendant actually is sentenced to jail. We held explicitly that an uncounseled misdemeanor conviction is constitutionally valid if the offender is not jailed.

In 1975, the petitioner in this case was tried without the appointment of counsel and convicted of a misdemeanor theft. Although the statute authorized imprisonment, petitioner only was fined. The circumstances of that conviction, therefore, were precisely like those of the petitioner in Scott v. Illinois, and the conviction was constitutionally valid.

The question presented today is different from that decided in Scott. This case concerns the enhanced sentence imposed on petitioner Baldasar for a subsequent conviction for misdemeanor theft. Petitioner, who was represented by counsel at the second trial, concedes that he could have been sentenced to one year in jail for the second offense. He challenges only the addition of two years to his sentence, an enhancement that was based on his record as a recidivist. The Court holds that, even though the first conviction was valid, the State cannot rely upon it for enhancement purposes following a subsequent valid conviction. This holding undermines the rationale of Scott and Argersinger and leaves no coherent rationale in its place. A constitutionally valid conviction is now constitutionally invalid if relied upon as the predicate for enhancing the sentence of a recidivist.

In my view, this result is logically indefensible. More seriously, the courts that try misdemeanor cases daily no longer have clear guidance from this Court. No court can predict with confidence whether a misdemeanor defendant is likely to become a recidivist. The option of not imposing a jail sentence on an uncounseled misdemeanant, expressly preserved by Argersinger and Scott, no longer exists unless the court is willing prospectively to preclude enhancement of future convictions. I dissent both because I believe that Scott dictates a contrary result and because the courts of our Nation are entitled, at a minimum, to a clear rule on this important question.


Scott held that "actual imprisonment [is] the line defining the constitutional right to appointment of counsel." 440 U.S. at 373. Petitioner Baldasar concedes the validity under Scott of his uncounseled theft conviction in 1975. He argues, nevertheless, that the enhanced sentence imposed for the second offense included an element of imprisonment for the first conviction. Consequently, he continues, the enhancement violates the rule of Scott that a conviction may not lead to imprisonment unless retained or appointed counsel is available to the defendant. Although MR. JUSTICE BLACKMUN applies his own "bright line" approach to the question, four Members of the Court agree with petitioner’s contentions. See ante, p. 224 (STEWART, J., concurring); ante, p. 224 (MARSHALL, J., concurring).

This line of argument misapprehends the nature of enhancement statutes. These laws, commonplace in our criminal justice system, do not alter or enlarge a prior sentence. If, as in this case, a person with a prior conviction chooses to commit a subsequent crime, he thereby becomes subject to the increased penalty prescribed for the second crime. This Court consistently has sustained repeat offender laws as penalizing only the last offense committed by the defendant. E.g., Moore v. Missouri, 159 U.S. 673, 677 (1895); Oyler v. Boles, 368 U.S. 448, 451 (1962). Under Illinois law, a second conviction for petty theft may be treated as a felony with a prison term. The sentence imposed upon petitioner was solely a penalty for the second theft.

Moreover, petitioner’s argument ignores the significance of the constitutional validity of his first conviction. Petitioner questions neither the factual accuracy nor the legality of that conviction. In order to accept his argument, the Court creates a special class of uncounseled misdemeanor convictions. Those judgments are valid for the purposes of their own penalties as long as the defendant receives no prison term. But the Court holds that these convictions are invalid for the purpose of enhancing punishment upon a subsequent misdemeanor conviction.

By creating this new hybrid, the Court departs from the position it took after Gideon v. Wainwright, 372 U.S. 335 (1963), established the right to counsel in felony cases. Following Gideon, the Court consistently held that, because an uncounseled felony conviction was constitutionally invalid -- and therefore void -- it could not be put to other uses in court. In Burgett v. Texas, 389 U.S. 109, 115 (1967), the Court stated that an uncounseled felony conviction could not be used in a later trial to enhance punishment under a recidivist statute. Loper v. Beto, 405 U.S. 473, 483 (1972), barred impeachment of a defendant with such a felony conviction, and United States v. Tucker, 404 U.S. 443 (1972), held that a sentencing judge cannot consider a prior uncounseled felony.

Misdemeanor convictions, however, have been treated differently. Argersinger held that, in misdemeanor cases, the right to counsel applies only if the prosecution may "end up in the actual deprivation of a person’s liberty." 407 U.S. at 40. In a fully considered opinion last Term, the Court ruled in Scott that the Sixth Amendment does not bar an uncounseled misdemeanor conviction if the defendant is not imprisoned.{1}

Logically, just as a constitutionally invalid felony judgment could not be used for sentence enhancement in Burgett, the valid misdemeanor conviction in this case should be available to enhance petitioner’s sentence. But the Court makes no effort to defend its ruling on the basis of logic, or even on the policy ground that an uncounseled misdemeanor conviction is too unreliable to support enhancement of a subsequent sentence.{2} Instead, four Members of the Court rely on what I view as the incorrect statement that sentence enhancement equals imprisonment for the earlier offense, while a fifth Member adheres to the assertion, rejected in Scott, that a "bright line" should require counsel for prosecutions that could result in imprisonment for six months or more. Ante, p. 229 (BLACKMUN, J., concurring).{3}


The Court’s decision not only is analytically unsound, but also will create confusion in local courts and impose greater burdens on state and local governments. The Illinois Appellate Court pointed out that at least 11 Illinois laws, including the statute at issue here, impose enhanced penalties for repeat misdemeanants. 52 Ill.App.3d 305, 308, and n. 1, 367 N.E.2d 459, 462, and n. 1 (1977). Most state criminal codes have similar provisions. See, e.g., Note, 35 Ohio St. L.J. 168, 182, n. 72 (1974) (citing Ohio statutes). And the Solicitor General, urging affirmance in this case, emphasized that this decision will hamper enforcement of important federal statutes long in effect.{4} Providing counsel for all defendants charged with enhanceable misdemeanors will exacerbate the delays that plague many state misdemeanor courts and will impose unnecessary costs on local governments. Those communities that cannot provide counsel for misdemeanor defendants will lose by default the possibility of enhancing future sentences if criminal conduct persists. The result will be frustration of state policies of deterring recidivism by imposing enhanced penalties.

In addition, as the Illinois Appellate Court predicted, today’s ruling will incite further litigation claiming that uncounseled misdemeanor convictions cannot be used to impeach a defendant’s testimony, or that judges should not consider such convictions in later sentencing determinations. 52 Ill.App.3d at 310, 367 N.E.2d at 463. Following today’s pronouncement, there is no way to predict the outcome of any such claim.

But at least it is clear, regrettably, that the Court has frustrated its own effort in Scott to provide effective guidance to the local courts that try misdemeanor cases every day. I would affirm the decision of the Illinois Appellate Court that faithfully followed our decision in Scott.


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Chicago: Powell, "Powell, J., Dissenting," Baldasar v. Illinois, 446 U.S. 222 (1980) in 446 U.S. 222 446 U.S. 231–446 U.S. 235. Original Sources, accessed January 22, 2020,

MLA: Powell. "Powell, J., Dissenting." Baldasar v. Illinois, 446 U.S. 222 (1980), in 446 U.S. 222, pp. 446 U.S. 231–446 U.S. 235. Original Sources. 22 Jan. 2020.

Harvard: Powell, 'Powell, J., Dissenting' in Baldasar v. Illinois, 446 U.S. 222 (1980). cited in 1980, 446 U.S. 222, pp.446 U.S. 231–446 U.S. 235. Original Sources, retrieved 22 January 2020, from