But Alabama maintained that, even if the suspended sentence “can never be enforced,” there is nothing under the Constitution that prevents trial judges from imposing a suspended sentence anyway. 9, but at no time offered him assistance of counsel at state expense. 2000); Nev. Rev. 1989) (emphasis added). A suspended sentence is a prison term imposed for the offense of conviction. 411 U. S., at 783. 6; similarly, Alabama maintains, probation uncoupled from a prison sentence should trigger no immediate right to appointed counsel.

Fried Brief 18, 23-24. We present the facts you need to know about Sixth Amendment case law, standards, and litigation in the FACTS & RESOURCES section of our website. 27A, §§ 2(h)(2), 4(b)(2) (1957-1997); Nev. Rev.

(hereinafter Fried Brief). That burden consists not only of the cost of providing state-paid counsel in cases of such insignificance that even financially prosperous defendants sometimes forgo the expense of hired counsel; but also the cost of enabling courts and prosecutors to respond to the "over-lawyering" of minor cases.

A suspended sentence is a prison term imposed for the offense of conviction. See, e. g., Scott, 440 U. S., at 373 (any extension of Argersinger would "impose unpredictable, but necessarily substantial, costs on 50 quite diverse States"); see also Argersinger, 407 U. S., at 56-62 (Powell, J., concurring in result) (same). The circumstances in which those States currently allow prosecution of misdemeanors without appointed counsel are quite narrow.

See Martin, 46 Ala.

Stat.

See State's Brief and Argument on Petition for Writ of Certiorari to the Alabama Court of Criminal Appeals, p. 31, and State's Brief and Argument in Support of its Application for Rehearing, in No. "The maximum penalty faced would be a $100 fine and five days' imprisonment," Reply Brief 12 (citing Ala. Code § 12-11-30(5) (1995)), not the 30 days ordered and suspended by the Alabama Circuit Court, see supra, at 658. Courts have divided on the Sixth Amendment question presented in this case. Defendant-respondent LeReed Shelton, convicted of third-degree assault, was sentenced to a jail term of 30 days, which the trial court immediately suspended, placing Shelton on probation for two years. 5.02(1) (2001); Neb.

The judge sentenced him to 30 days in jail but immediately suspended the sentence, and instead placed Mr. Shelton on two-years’ probation under the condition that he pay a $500 fine, $25 in reparations, and $516.69 in restitution. 2d 202, 205 (Crim. Proc.

Argued February 19, 2002-Decided May 20, 2002 Defendant-respondent Shelton represented himself in an Alabama Circuit Court criminal trial.

App., at 312, 241 So. In short, Alabama has developed its position late in this litigation and before the wrong forum.

With him on the briefs were Sandra Jean Stewart and Stephanie N. Morman, Assistant Attorneys General. Respondent's 30-day suspended sentence, and the accompanying 2-year term of probation, are invalidated for lack of appointed counsel even though respondent has not suffered, and may never suffer, a deprivation of liberty.

We think it plain that a hearing so timed and structured cannot compensate for the absence of trial counsel, for it does not even address the key Sixth Amendment inquiry: whether the adjudication of guilt corresponding to the prison sentence is sufficiently reliable to permit incarceration.

661-662.

(a) The controlling rule is that "absent a knowing and intelligent waiver, no person may be imprisoned for any offense ... unless he was represented by counsel at his triaL" Argersinger, 407 U. S., at 37. Once guilt has been established, we noted in Nichols, sentencing courts may take into account not only "a defendant's prior convictions, but ... also [his] past criminal behavior, even if no conviction resulted from that behavior."

spondent was tried before a judge in State District Court, a court of record; he subsequently exercised his right, under Ala. Code § 12-12-71 (1995), to trial de novo before a jury in State Circuit Court, a higher court of record.

Over against the Court's uninformed intuition, there is an amicus brief. See App. App. Only 24 States have announced a rule of this scope.4 Thus, the Court's decision imposes a large, new burden on a majority of the States, including some of the poorest (e. g., Alabama, Arkansas, and Mississippi, see U. S. Dept.

Rule Crim. Rev. The Supreme Court disagreed,[1] and instead held that “a suspended sentence that may ‘end up in the actual deprivation of a person’s liberty’ may not be imposed unless the defendant was accorded ‘the guiding hand of counsel’ in the prosecution for the crime charged.”, Shelton, therefore, made clear that the right to counsel attaches to any case involving the potential for jail time. Here, revocation of probation would trigger a prison term imposed for a misdemeanor of which Shelton was found guilty without the aid of counsel, not for a felony conviction for which the right to counsel is unquestioned. Seen as a freestanding sentence, Alabama further asserts, probation could be enforced, as a criminal fine or restitution order could, in a contempt proceeding. Thus, the defendant in Nichols had no right to appointed counsel in the DUI proceeding because he was not immediately imprisoned at the conclusion of that proceeding.

Pp. Ann. Argersinger, 407 U. S., at 41." We hold that a suspended sentence that may "end up in the actual deprivation of a person's liberty" may not be imposed unless the defendant was accorded "the guiding hand of counsel" in the prosecution for the crime charged. (2) The Court rejects the first of two grounds on which amicus resists this reasoning, i. e., amicus' attempt to align this case with Nichols and with Gagnon v. Scarpelli, 411 U. S. 778. Brief for Respondent 5-27.3 Ala-.

Deprived of counsel when tried, convicted, and sentenced, and unable to challenge the original judgment at a subsequent probation revocation hearing, a defendant in Shelton's circumstances faces incarceration on a conviction that has never been subjected to "the crucible of meaningful adversarial testing," United States v. Cronic, 466 U. S. 648, 656 (1984). 660-674. Post, at 677. More typical of the situation that results in a suspended sentence, we think, is a case like Shelton's — a prosecution before a jury for third-degree assault, arising out of a fistfight that followed a minor traffic accident, see App. Shelton cannot be imprisoned, Alabama thus acknowledges, "unless the State has afforded him the right to assistance of appointed counsel in his defense," Scott, 440 U. S., at 374; see Reply Brief 9.

By reversing Shelton's suspended sentence, the State informs us, the court also vacated the two-year term of probation. § 106(c)(2) (1998)) may receive a suspended sentence uncounseled. Absent any prior presentation of the novel position the State now takes, this Court resists passing on it in the first instance. App., at 421, 265 So. We confine our review to the ruling the Alabama Supreme Court made in the case as presented to it: "[A] defendant who receives a suspended or probated sentence to imprisonment has a constitutional right to counsel." § 2A:158A-5.2 (1985); Rodriguez v. Rosenblatt, 58 N. J. See Ex parte Maye, 799 So. 15, n. 2. The Court has miraculously divined how the Alabama justices would resolve a constitutional question.1.

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