State v. Nowicki

• Decision Date: 20 September 1991
• Docket Number: No. 90-680,90-680
• Citation: 474 N.W.2d 478,239 Neb. 130
• Parties: STATE of Nebraska, Appellee, v. Michael S. NOWICKI, Appellant.
• Court: Nebraska Supreme Court

Page 478

474 N.W.2d 478

239 Neb. 130

STATE of Nebraska, Appellee, v. Michael S. NOWICKI, Appellant.

No. 90-680.

Supreme Court of Nebraska.

Sept. 20, 1991.

Syllabus by the Court

1. Courts: Appeal and Error. The Supreme Court, in reviewing decisions of the district court which affirmed, reversed, or modified decisions of the county court, will consider only those errors specifically assigned in the appeal to the district court and again assigned as error in the appeal to the Supreme Court.

2. Appeal and Error. The Supreme Court always reserves the right to correct error unassigned or uncomplained of but which is plainly evident from the record and prejudicially affects a litigant's substantial right, and which if left uncorrected would result in a miscarriage of justice or damage the integrity, reputation, and fairness of the judicial process, regardless of whether the error was raised at trial or on appeal.

3. Trial: Waiver. A party who fails to insist upon a ruling to a proferred objection waives that objection.

4. Trial: Evidence: Waiver. If when inadmissible evidence is offered, the party against whom such evidence is offered consents to its introduction, or fails to object or to insist upon a ruling on an objection to the introduction of the evidence, and otherwise fails to raise the question as to its admissibility, he or she is considered to have waived whatever objection he or she may have had thereto, and the evidence is in the record for consideration the same as other evidence.

5. Prior Convictions: Collateral Attack. A defendant generally is not permitted to relitigate a former conviction in an enhancement proceeding, and to that extent, such conviction cannot be collaterally attacked.

6. Prior Convictions: Collateral Attack: Right to Counsel: Appeal and Error. Objections challenging the validity of a prior conviction offered for the purpose of sentence enhancement, beyond the issue of whether the defendant had counsel or waived the right to counsel, constitute a collateral attack on the judgment. Such objections must be raised either by direct appeal from the prior conviction or in a separate proceeding commenced expressly for the purpose of setting aside the judgment alleged to be invalid.

7. Prior Convictions: Proof. The burden remains with the State to prove a prior conviction in an enhancement proceeding. This cannot be done by proving a judgment which would have been invalid to support a sentence of imprisonment in the first instance.

8. Right to Counsel: Records: Presumptions. Where a record is silent as to a defendant's opportunity for counsel, the court may not presume such rights were respected.

9. Prior Convictions: Records: Right to Counsel: Waiver: Collateral Attack. A defendant's objection to the introduction of a transcript of conviction which fails to show on its face that counsel was afforded or the right waived does not constitute a collateral attack on the former judgment.

10. Prior Convictions: Records: Right to Counsel: Waiver: Proof. A defendant may object to the admission of the record of a prior conviction on the basis that the record does not affirmatively establish that the defendant was represented by counsel or waived the right to counsel, and a transcript of judgment which does not contain such an affirmative showing is not admissible and cannot be used to prove a prior conviction.

11. Constitutional Law: Pleas: Records: Right to Counsel: Waiver. A verbatim transcript of the rendition of a guilty plea is not constitutionally required, nor does absence of such a transcript require a finding that the plea was invalid. A checklist or other docket entry which is sufficiently complete and specific may be used to establish a valid waiver of counsel.

12. Constitutional Law: Records. An original docket entry can be amended by a supplemental transcript to show that the original arraignment complied with constitutional requirements.

13. Records: Right to Counsel: Waiver. A docket entry which shows an advisement of the right to and the waiver of counsel at a sentencing hearing does not demonstrate that a defendant waived that right at the arraignment and trial.

14. Records: Right to Counsel: Waiver: Presumptions. Presuming the waiver of counsel from a silent record is impermissible.

15. Records. A checklist which is used as a substitute for a formal, written journal entry must be prepared with as much care and certainty as any record of a court in order to impart absolute verity.

16. Right to Counsel: Waiver. A knowing and intelligent waiver generally may not be inferred if a defendant appears pro se at trial after having been informed of his or her right to counsel.

17. Prior Convictions: Evidence: Right to Counsel: Waiver: Proof. When evidence, in whatever form, of a prior conviction is offered which is silent as to the representation of the defendant by counsel, the State must first lay a foundation for its admission by evidence tending to show that the defendant was, in fact, represented by counsel or that he or she had knowingly and intelligently waived that right.

Brent M. Bloom, Omaha, for appellant.

Robert M. Spire, Atty. Gen., Lincoln, and Gary P. Bucchino, Omaha City Prosecutor, and J. Michael Tesar, Omaha, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

HASTINGS, Chief Justice.

Defendant, Michael S. Nowicki, appeals from the district court for Douglas County, which affirmed a county court conviction of Nowicki for third-offense driving while intoxicated. We reverse and remand with directions.

In exchange for other charges' being dismissed, defendant, on May 16, 1990, pleaded no contest in the county court for Douglas County to operating a motor vehicle while under the influence of alcoholic liquor. The county court found Nowicki guilty and held an enhancement hearing at which two prior convictions of driving while intoxicated were introduced.

Defendant's counsel objected to a conviction dating from 1987 on the grounds that there was no checkmark on the docket entry indicating that defendant was actually found guilty. The court noted that Nowicki had been represented by counsel at the time of the sentencing and concluded that the conviction was valid.

A second conviction, dating from 1985, was also introduced at the enhancement hearing. Defendant's counsel objected to the conviction on the basis that there was no indication on the docket entry that defendant waived his right to counsel, that an indigency hearing was held, or that a public defender was appointed.

The court did not expressly state that an exhibit containing the 1985 and 1987 convictions was received into evidence. Nowicki's counsel, however, did not request a ruling on either objection. It is clear from the record that the two prior convictions were considered by the county court in imposing a sentence for operating a motor vehicle under the influence of alcoholic liquor, third offense. The county court imposed a sentence of 90 days in jail, a $500 fine, and a 15-year suspension of Nowicki's driver's license.

Defendant subsequently appealed the findings of the county court to the Douglas County District Court, which affirmed the county court's judgment.

Defendant appeals, assigning as error the action of the district court in (1) finding that the county court had received certified copies of both prior convictions into evidence; (2) affirming the ruling of the county court that Nowicki had intelligently waived his right to counsel during critical stages of the 1985 prosecution of Nowicki for drunk driving; and (3) affirming the ruling of the county court that Nowicki had pleaded no contest to the 1985 charge knowingly, voluntarily, and intelligently.

Defendant contends that the district court erred in finding that the county court had received certified copies of both prior convictions into evidence. Defendant claims that as a result, those convictions should not have been considered by the county court to convict defendant of third-offense driving while intoxicated. However, this issue has not properly been preserved for appeal, since the defendant failed to assign it as error to the district court.

This court adopted the following rule of practice in State v. Erlewine, 234 Neb. 855, 857, 452 N.W.2d 764, 767 (1990):

The Supreme Court, in reviewing decisions of the district court which affirmed, reversed, or modified decisions of the county court, will consider only those errors specifically assigned in the appeal to the district court and again assigned as error in the appeal to the Supreme Court. This rule shall be effective so as to apply to all county court decisions appealed to the district court after the filing date of this opinion.

Erlewine was filed on March 23, 1990. Nowicki filed his notice of appeal to the district court on May 16, 1990, and is therefore subject to our ruling in Erlewine. On June 27, 1990, Nowicki filed a notice of errors on appeal. In the notice, Nowicki assigned only the following error: "Specifically, Defendant avers that one of the previous convictions was insufficient to constitute a valid prior offense for enhancement purposes." Since Nowicki did not assign as error the failure of the county court to admit the exhibits into evidence, this court will not review this issue absent a finding of plain error.

The Supreme Court always reserves the right to correct error unassigned or uncomplained of but which is plainly evident from the record and prejudicially affects a litigant's substantial right, and which if left uncorrected would result in a miscarriage of justice or damage the integrity, reputation, and fairness of the judicial process, regardless of whether the error was raised at trial or on appeal. State v. Thomas, 229 Neb. 635, 428 N.W.2d 221 (1988). We conclude that no plain error has been committed in this case.

This court has held that a party who fails to insist upon a...