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State v. Morigeau7/6/2000
ether the Justice Court sentence comports with the above statutes, the fact is that the Justice Court, in sentencing Morigeau on the 1990 DUI charge, clearly intended that home arrest be the equivalent of imprisonment. The Justice Court sentence states: "The Defendant may serve said jail sentence under house arrest if so arranged and paid for by the Defendant."
In State v. Hansen (1995), 273 Mont. 321, 903 P.2d 194, we addressed a related issue involving a charge of felony domestic abuse (third offense) in violation of § 45-5-206(3), MCA. In his first two misdemeanor convictions for domestic abuse, Hansen received suspended jail sentences. Hansen argued and the District Court agreed that his first misdemeanor conviction could not be used to convert a third offense into a felony because he was not represented by counsel and the State had not shown that he knowingly waived his right to counsel. In rejecting Hansen's argument and reversing the District Court, we stated:
The Sixth Amendment right to counsel in misdemeanor cases is limited to those cases in which imprisonment was actually imposed. United States v. Quemado (9th Cir. 1994), 26 F.3d 920, 923. Where no sentence of imprisonment was imposed, a defendant charged with a misdemeanor has no constitutional right to counsel. Scott v. Illinois (1979), 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383. Moreover, the imprisonment must be actual; a threat of imprisonment (such as a suspended sentence) is not enough to create a constitutional right to counsel. Scott, 440 U.S. at 373, 99 S.Ct. at 1161. Hansen, 273 Mont. at 325, 903 P.2d at 197.
Since Hansen had received a suspended sentence in the prior misdemeanor conviction, we concluded that a sentence of imprisonment had not been imposed. Accordingly, under Scott, he had no right to counsel. Whether he knowingly waived counsel was thus irrelevant. Hansen, 273 Mont. at 325, 903 P.2d at 197. The Hansen decision clearly stands for the proposition that the right to counsel only arises where imprisonment is actually imposed and, where a sentence is suspended, imprisonment is not "actually imposed."
The present case differs from Hansen in that, although some of Morigeau's sentence was suspended, 20 days of the sentence was not suspended. Morigeau thus had a 20-day period of "imprisonment" actually imposed by the Justice Court. The court gave Morigeau the option of serving that imprisonment in home arrest. Thus, under the specific facts of this case, home arrest was an alternate form of imprisonment rather than an alternative to imprisonment.
We hold that because the Justice Court actually imposed a sentence of imprisonment, Morigeau was entitled to appointment of counsel. Having not had the benefit of counsel in the 1990 conviction for DUI, that conviction cannot be used to convert a subsequent charge of DUI to a felony.
The Judgment of the District Court is affirmed.
W. WILLIAM LEAPHART
We concur:
J. A. TURNAGE
KARLA M. GRAY
WILLIAM E. HUNT, SR.
JIM REGNIER
TERRY N. TRIEWEILER
JAMES C. NELSON
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