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COMMONWEALTH PENNSYLVANIA v. JOSEPH P. MORTIMER (01/21/86)

submitted: January 21, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH P. MORTIMER, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Mercer County at No. 173 Criminal, 1985.

COUNSEL

Raymond H. Bogaty, Public Defender, Grove City, for appellant.

Charles S. Hersh, Assistant District Attorney, Hermitage, for Com., appellee.

Rowley, McEwen and Tamilia, JJ.

Author: Rowley

[ 356 Pa. Super. Page 263]

OPINION OF THE COURT

On December 27, 1984, appellant Joseph Mortimer was charged with taking an "Atari Pitfall" video tape, worth $10.97, from a Hills Department Store. He appeared before the Court of Common Pleas, Mercer County, on June 12, 1985 and pled guilty to retail theft. This was appellant's second conviction for retail theft. His first conviction occurred in 1980 when he pled guilty before a district magistrate, without the benefit of counsel, and was fined $100 and assessed $26 costs. At sentencing on June 12, 1985, the trial court considered the prior conviction and enhanced the grading of the current offense from a summary violation

[ 356 Pa. Super. Page 264]

    to a second degree misdemeanor, pursuant to 18 Pa.C.S. § 3929(b)(1)(ii).*fn1 The court then sentenced appellant to a minimum of 60 days and a maximum of 8 months in the Mercer County Jail. Following the imposition of sentence for the second retail theft conviction, appellant filed a Motion to Modify the Sentence alleging that the trial court erred in using his prior uncounseled conviction to enhance the present charge. The motion was denied and this appeal followed.

On appeal, appellant raises one issue, alleging that the trial court erred in ruling that a prior uncounseled guilty plea may be used to enhance the grading of a subsequent retail theft conviction from a summary offense to a misdemeanor. According to appellant, the enhanced grading of retail theft under these circumstances violates article I, section 9 of the Pennsylvania Constitution and the Sixth Amendment to the United States Constitution by denying criminal defendants the right to counsel. The crux of appellant's argument is that all defendants charged with summary criminal offenses are constitutionally entitled to the assistance of counsel. In the alternative, appellant argues that criminal defendants have the right to counsel in summary proceedings if the summary conviction is to be used to enhance the grading of a subsequent offense.

In holding that appellant's arguments lacked merit, the trial court discussed Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), a United States Supreme Court plurality opinion relied on by appellant. The court noted that Baldasar lacks a majority opinion and fails to set forth a clear holding. Baldasar is further complicated by a division among the federal courts as to which rule of interpretation should be applied to the case.*fn2 After analyzing

[ 356 Pa. Super. Page 265]

    the case according to each interpretation, the court concluded that under either approach, ...


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