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State v. Aragon11/21/1997
that result in a fine or other penalty." , . Uncounseled convictions that result in a sentence of imprisonment, whether actually served or suspended, violate the Sixth Amendment right to counsel as applied to the states through the Fourteenth Amendment. Argersinger v. Hamlin, 407 U.S. 25, 37, 32 L. Ed. 2d 530, 92 S. Ct. 2006 (1972). However, an uncounseled conviction not resulting in a sentence of imprisonment does not violate the Sixth Amendment right to counsel. Scott v. Illinois, 440 U.S. 367, 59 L. Ed. 2d 383, 99 S. Ct. 1158 (1979). Therefore, an uncounseled conviction that does not result in a sentence of imprisonment may be used to enhance the sentence for a subsequent offense. Nichols, 511 U.S. at 749.
{9} In the present matter, although Aragon's sentence for his 1978 conviction, like the sentence at issue in Gonzales, was suspended, Aragon's sentence did not include any term of imprisonment. Rather, Aragon was sentenced to a fine, the payment of which the trial court suspended. Under Nichols, the use of the 1978 conviction to enhance Aragon's present DWI does not violate the Federal Constitution. Thus, in this case, unlike Gonzales, we now must address Aragon's argument under the , (requiring examination of properly preserved state constitutional issue when asserted right is not protected under analogous provision of federal constitution).
{10} In , P37, 1997 N.M. LEXIS 475, *37, N.M. , P.2d (No. 23,958 slip op.), decided today, we concluded that no independent state constitutional ground for precluding the use of a prior uncounseled misdemeanor conviction had been established. As in Woodruff, Aragon complains of the use of one prior uncounseled misdemeanor conviction not resulting in imprisonment in the enhancement of his present DWI. That conviction elevated his 1984 offenses to second and third offenses. The use of Aragon's 1978 uncounseled misdemeanor conviction for enhancement is consistent with Woodruff. We therefore hold that Aragon's conviction for felony DWI does not violate the right to counsel or the right to due process protected by the New Mexico Constitution. N.M. Const. art. II, §§ 14, 18.
IV.
{11} The judgment and sentence entered under Section 66-8-102(G) is affirmed.
{12} IT IS SO ORDERED.
PAMELA B. MINZNER, Justice
WE CONCUR:
GENE E. FRANCHINI, Chief Justice
JOSEPH F. BACA, Justice
PATRICIO M. SERNA, Justice
DAN A. McKINNON, III, Justice
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