Com. v. Gadd
| Citation | 665 S.W.2d 915 |
| Parties | COMMONWEALTH of Kentucky, Movant, v. Jerry Nolan GADD, Respondent. |
| Decision Date | 08 March 1984 |
| Court | United States State Supreme Court (Kentucky) |
Steven L. Beshear, Atty. Gen., Robert V. Bullock, Asst. Atty. Gen., Frankfort, for movant.
Rebecca Westerfield, Asst. Public Advocate, Louisville, for respondent.
This appeal is from that part of a decision of the Court of Appeals which reversed Gadd's conviction of being a persistent felony offender in the first degree and directed that he be given a new trial on that phase of his sentence. He was found guilty of theft by unlawful taking of over $100 and as a persistent felony offender in the first degree. He was sentenced to ten years in prison.
The sole question here is a review of that portion of the Court of Appeals decision which held that a defendant may use the persistent felony offender portion of a trial to claim for the first time that he did not have an attorney at the time of his 1958 felony conviction.
This Court reverses the decision of the Court of Appeals because the trial court did not err in refusing to permit Gadd to introduce evidence raising the question of the invalidity of a previous conviction during his persistent felony-offender trial. A defendant who wishes to raise the constitutional invalidity of a previous conviction must do so by pretrial motion.
The trial court refused to permit Gadd to present evidence that he was not represented by counsel when he pled guilty to a felony in 1958 in Ohio. The trial judge ruled that this attack on the validity of the Ohio conviction could only be undertaken in the court where Gadd had been convicted.
The appellee then testified out of the presence of the jury by avowal, pursuant to RCr 9.52, stating that he was not represented by counsel at the time he pled guilty and was convicted in Ohio. On cross-examination, he said "Well the best I can remember, I didn't even have one." He later stated "I'm pretty positive I didn't have one because see I'm just making a statement the best I can remember that far back." Whether his testimony was believable is not before us to review because the trial court has never decided this question. The trial judge ruled that it was irrelevant.
The Kentucky Court of Appeals reversed Gadd's conviction as a persistent felony offender and ordered a new trial on this charge. The Court of Appeals was in error in making a finding of fact as to the constitutional invalidity of the previous conviction. This is a question as to the admissibility of evidence which should have been decided by the trial court, not the appellate court. The function of an appellate court is limited to a review of such questions if properly presented to the trial court after the trial court has made its ruling.
The records from Ohio are silent concerning whether Gadd was represented by counsel at the time he entered his guilty plea in 1958.
A duly authenticated record of a judgment and conviction which is silent on the exercise of constitutional rights is prima facie evidence to establish the fact of conviction. It is the fact of conviction which the Commonwealth seeks to prove in introducing the judgment against a defendant charged as a persistent felon. KRS 532.080 does not specify that the Commonwealth must affirmatively prove both the fact of conviction and that the previous conviction was not obtained by constitutionally impermissible means.
The decision of the United States Supreme Court in Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), clearly provides that where a previous conviction is an element of the offense charged, the fact of conviction is not conclusive, and the previous conviction is subject to challenge as to constitutional validity at the trial of the new offense. In Burgett, supra, the Supreme Court was confronted with two records of conviction, one of which showed on its face that the defendant was not represented by counsel followed by a second record that was silent on the matter. The U.S. Supreme Court held that "presuming waiver of counsel from a silent record is impermissible."
Unlike Burgett, in this case, the Ohio conviction does not recite that Gadd appeared "without counsel." Here the nature of the record fails to suggest either the affirmative or the negative of this proposition. Here the face of the records does not show the conviction was obtained by constitutionally impermissible means.
Under...
To continue reading
Request your trial
-
Parke v. Raley
...respondent's guilty pleas were knowing and voluntary. The trial court held a hearing according to procedures set forth in Commonwealth v. Gadd, 665 S.W.2d 915 (Ky.1984), and Dunn v. Commonwealth, 703 S.W.2d 874 (Ky.), cert. denied, 479 U.S. 832, 107 S.Ct. 121, 93 L.Ed.2d 67 (1986). In Gadd,......
-
U.S. v. McGlocklin
...prior convictions were from the State of Kentucky, the Court explored the genesis of Kentucky's procedure, including Commonwealth v. Gadd, 665 S.W.2d 915 (Ky.1984), which had involved a challenge to a prior Ohio conviction. In Raley, the Supreme Court noted that in Gadd the Kentucky Supreme......
- Com. v. Smith
-
Bullitt v. Commonwealth
...and consequently failed to prove that Bullitt was guilty of a prior felony sex crime against a minor. We disagree.In Commonwealth v. Gadd, 665 S.W.2d 915, 917 (Ky. 1984), this Court observed that the persistent felony offender statute requires that the prosecution prove only the fact of a p......