We granted certiorari from the Court of Appeals’ opinion in Thompson v. State , 256 Ga. App. 776 9 569 SE2d 884 2002, to address whether the trial court properly considered Henry L. Thompson’s three prior habitual violator convictions in aggravation of his sentence. Because the State conceded at the sentencing hearing that the convictions could not be used in aggravation because they were uncounseled and the transcript establishes affirmatively that the trial court nevertheless used the convictions to determine the length of Thompson’s sentence, we hold that the Court of Appeals erred by affirming the trial court’s ruling. Thompson was convicted of violating OCGA § 40-5-58 c 1, driving a motor vehicle after having been declared an habitual violator and receiving notice that his driver’s license had been revoked. Because the conviction occurred before the expiration of five years from the revocation, he was subject to punishment by a fine of not less than $750 or by imprisonment for not less than one nor more than five years or both. Id. At the sentencing phase of the proceedings, the State introduced certified copies of three prior habitual violator cases in which Thompson entered guilty pleas. At the time the three HV convictions were tendered, the prosecutor informed the court that the pleas were being introduced not for purposes of imposing a recidivist sentencing, Your Honor, simply because he was not represented by counsel at these particular pleas, but we do feel that they would be admissible for the Court, just as a presentence investigation would . . . not to use to enhance the sentence but to use to determine how much of the sentence should be probated. Counsel for Thompson objected, arguing that the uncounseled HV convictions, “should not be considered by the Court for any purpose at sentencing.” Although the trial court questioned defense counsel on whether the convictions were obtained in violation of Thompson’s right to counsel,1 the trial court made no finding on that issue, but instead explained its decision to allow the State to file the three prior HV convictions solely on the basis that the convictions were certified.
Thereafter, in entering the sentence, the court stated All these previous habitual violator offenses have been disposed of by probation apparently. But there comes a time when these repeated habitual violator offenses have to be strongly addressed. And perhaps they should have been more strongly addressed before. But at any rate in view of the fact that there are three previous convictions and here we are with another fourth conviction for violation of the Georgia Habitual Violator Act, I think it’s incumbent upon the Court to impose a sentence that is commensurate with the offense and I hereby impose a sentence of five years with three years to serve . . . . Thus, although the State offered the prior HV guilty pleas solely for the trial court’s consideration in determining the amount of probation Thompson should receive, i.e., as a type of presentence investigation, see OCGA § 42-8-29, the trial court did not consider the convictions in that light but instead affirmatively used the convictions in fixing the length of Thompson’s sentence. See McDuffie v. Jones , 248 Ga. 544 3 283 SE2d 601 1981 presentence investigation reports cannot be used in aggravation to determine length of sentence but may be used only in determining amount of sentence to probate; compare Williams v. State , 165 Ga. App. 553 3 301 SE2d 908 1983 nothing in record indicated evidence improperly used to extend length of sentence.2
