Raymond H. Bogaty, Office of the Public Defender, Mercer, for appellants.
Samuel J. Orr, IV, Dist. Atty., Charles S. Hersh, Asst. Dist. Atty., James P. Epstein, Mercer, for appellee.
Nix, C.j., and Larsen, McDermott, Hutchinson, Zappala and Papadakos, JJ. Flaherty, J., did not participate in the consideration or decision of this case. Zappala, J., filed a concurring opinion. Nix, C.j., filed a dissenting opinion.
On May 20, 1982, appellant Emily Clay Bruce was found guilty by a judge of retail theft (second offense) for the theft of a gold necklace valued at $2.84. On September 9, 1982, appellant James Arden Thomas, Jr. pleaded guilty to retail theft (second offense) for the theft of a set of Champion spark plugs valued at $12.71. Because each of the appellants had a prior conviction for retail theft, the aforementioned crimes which are the subject of this appeal were graded as misdemeanors of the second degree, rather than summary offenses, and appellants were sentenced accordingly: appellant Bruce was sentenced to one year probation, and appellant Thomas was sentenced to seven days imprisonment.*fn1 On appeal, these cases were consolidated and the Superior Court affirmed per curiam, 337 Pa. Super. 632, 487 A.2d 441 (1984).
In these appeals, appellants present two related questions: 1) whether a prior conviction for the summary offense of retail theft, based upon an uncounseled guilty plea, may be used to enhance the grading and sentencing of a second conviction for the same offense; and 2) whether a prior conviction for the summary offense of retail theft, resulting from an uncounseled guilty plea entered when the defendant was a juvenile, may be used to enhance the
grading and sentencing of a second conviction for the same offense.
The Crimes Code provides in pertinent part:
Retail theft constitutes a:
(i) Summary offense when the offense is a first offense and the value of the merchandise is less than $150.
(ii) Misdemeanor of the second degree when the offense is a second offense and the value of the merchandise is less than $150.
(iii) Misdemeanor of the first degree when the offense is a first or second offense and the value of the merchandise is $150 or more.
18 Pa.C.S.A. § 3929(b)(1).*fn2
Appellants' first convictions for retail theft constituted summary offenses: In 1978, each appellant pleaded guilty, without the assistance of counsel, to one charge of retail theft;*fn3 at the times of their respective guilty pleas,
appellant Bruce was sixteen years of age and appellant Thomas was seventeen years old.*fn4
Appellants first contend that defendants in all summary criminal matters should have a right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution, but that even if they do not, the interests of justice dictate that defendants should have the right to counsel in any summary proceeding "if the Commonwealth is to use the summary convictions for enhancement."*fn5 We disagree.
The United States Supreme Court has "delimit[ed] the constitutional right to appointed counsel in state criminal proceedings," and has held that "the Federal Constitution does not require a state trial court to appoint counsel for a criminal defendant" who is not actually subjected to a term of imprisonment upon conviction. Scott v. Illinois, 440 U.S. 367, 373, 369, 99 S.Ct. 1158, 1162, 1160, 59 ...