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State v. Woodruff11/21/1997
ion not resulting in a sentence of imprisonment must either be counseled or contain a waiver of counsel in order to be used to enhance a subsequent conviction.
{28} We begin by recognizing that the nature of the private interest involved for enhancement of a sentence in connection with a subsequent conviction differs from that in considering the right to counsel, generally. In the case of a prior conviction, the liberty interest involved at the outset was twofold: (1) the private interest of not being wrongly convicted of a crime; and (2) the right to be free from imprisonment for acts not committed by the defendant. By contrast, in the case of a subsequent conviction when the prosecutor seeks an enhanced penalty, there will always be a current conviction, constitutionally obtained, for which a sentence of imprisonment is likely available and potentially mandatory. The liberty interest for enhancement then is in the degree of sentencing available to or required of the Judge. The importance of the liberty interest varies depending on the degree of increased penalty available for enhancement resulting from the prior uncounseled conviction.
{29} In the context of DWI enhancement, we recognize that the Legislature's scheme of enhancement will rarely result in the use of more than one uncounseled misdemeanor conviction. The United States Constitution requires counsel in all misdemeanor convictions resulting in a sentence of imprisonment. Scott, 440 U.S. at 373-74. Because DWI convictions beyond the first require a mandatory minimum sentence of imprisonment, Section 66-8-102(F), (G), only first-time DWI offenders may be constitutionally denied the assistance of state-provided counsel.
{30} Woodruff complains of the use of one uncounseled DWI conviction. A first-time DWI offender may be sentenced to a maximum ninety days in jail and a maximum fine of $500. Section 66-8-102(E). A second-time DWI offender may be sentenced to a maximum of three hundred sixty-four days in jail, with a mandatory minimum of seventy-two hours that cannot be suspended or deferred, and a maximum fine of $1,000, with a mandatory minimum of $500. Section 66-8-102(F)(1). Thus, Woodruff's liberty interest for the use of one prior uncounseled misdemeanor DWI for enhancement is the difference between a ninety-day maximum sentence and a three hundred-sixty-four-day maximum sentence, seventy-two hours of which is mandatory. Section 66-8-102(E), (F).
{31} Second, we consider the risk of error. In this context, the risk of error is the probability that a defendant was convicted at an earlier time without the aid of counsel for an act the defendant did not commit, compared with the probability of such an occurrence if the earlier conviction had been counseled. Here, the risk of error must be evaluated in the context of sentence enhancement. There has always been a great deal of flexibility and discretion involved in sentencing. "Before making [the sentencing] determination, a Judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come." United States v. Tucker, 404 U.S. 443, 446, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972); see NMSA 1978, § 31-18-15.1 (1993) (providing for sentence alteration due to aggravating and mitigating circumstances). In addition, as a matter of federal constitutional law, a prosecutor need only demonstrate the existence of aggravating facts by a preponderance of the evidence. See McMillan v. Pennsylvania, 477 U.S. 79, 86, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986) (upholding the burden of proof imposed by the Pennsylvania Mandatory Sentencing Act). Thus, we can only determine whether a parti
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