Dressler v. State

• Citation: 819 P.2d 1288,107 Nev. 686
• Decision Date: 24 October 1991
• Docket Number: No. 21088,21088
• Parties: Robert James DRESSLER, Appellant, v. The STATE of Nevada, Respondent.
• Court: Supreme Court of Nevada

Page 1288

819 P.2d 1288

107 Nev. 686

Robert James DRESSLER, Appellant, v. The STATE of Nevada, Respondent.

No. 21088.

Supreme Court of Nevada.

Oct. 24, 1991.

Terri Steik Roeser, State Public Defender, and Janet S. Bessemer, Deputy Public Defender, Carson City, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, Scott Doyle, Dist. Atty. and Kristine L. Brown, Deputy Dist. Atty., Douglas County, Minden, for respondent.

OPINION

PER CURIAM:

On March 7, 1990, following a bench trial, the district court convicted appellant of one count of driving under the influence of alcohol with two or more prior convictions. NRS 484.379; NRS 484.3792(1)(c). The district court sentenced appellant to serve a term of two years in the Nevada State Prison, and fined appellant $2,000.

At sentencing, the state offered evidence of two prior convictions: (1) a Lassen County, California, conviction dated July 8, 1983; and (2) a Douglas County, Nevada, conviction dated February 10, 1990. Appellant objected to the use of the Lassen County conviction because the information incorrectly alleged that the conviction had occurred in San Mateo County, California, rather than Lassen County. The state moved to amend the information by way of interlineation to reflect the conviction actually occurred in Lassen County, rather than in San Mateo County. The state argued that the Lassen County conviction had been admitted into evidence at the preliminary hearing, and that, therefore, no prejudice to appellant would result from amending the information. After a continuation to allow briefing and to consider the matter fully, the district court overruled appellant's objection and allowed the amendment. This appeal followed.

Appellant first contends that the district court erred in permitting the state to amend the information after the verdict. Specifically, appellant asserts that, although the prior convictions used to enhance a DUI conviction are not a substantive part of the offense, "[t]he facts concerning a prior offense must be alleged" in the complaint or information, and "must also be shown at the preliminary examination...." NRS 484.3792(2). Further, an information may not be amended after the verdict is rendered. See NRS 173.095(1) (authorizing amendment of the information before verdict). Accordingly, appellant argues that the district court erred in allowing the state to amend the information to reflect that his 1983 conviction was in Lassen County rather than in San Mateo County.

We do not read NRS 484.3792(2) so restrictively. Certainly, the defendant in a DUI case should be put on notice of the possible penalties faced, and should be provided with enough information to challenge the validity of alleged prior convictions. The state must in good faith include in the information a description of each prior conviction that is as complete and accurate as possible. However, an error in the description of a prior conviction does not automatically preclude use of the prior conviction for enhancement purposes. Instead, unless the defendant can show that an omission or inaccuracy in describing a prior conviction has prejudiced him, the state is not precluded from using that prior conviction in seeking an enhancement of the defendant's punishment.

In the instant case, no such prejudice is alleged, and none occurred. The evidence of the Lassen County conviction was introduced at the preliminary hearing; appellant could not have been surprised to see the same evidence presented at his later sentencing. Further, unless appellant had convictions in two California Counties on the same date, it is unlikely he was misled by the typographical error complained of. We conclude that the information, even without amendment, was sufficient to allow the state to use the Lassen County conviction for enhancement purposes. We therefore need not determine whether the district court erred in allowing amendment of the information.

Appellant next contends that the district court erred in considering evidence of a prior felony conviction from Douglas County, Nevada, because the evidence at sentencing did not comport with this court's decision in Koenig v. State, 99 Nev. 780, 672 P.2d 37 (1983). Appellant argues that Koenig requires that a prior felony conviction based on a guilty plea may not be used for enhancement purposes in a subsequent proceeding unless "an official court record" exists showing that the prior conviction is constitutionally valid. ¹ Further, appellant argues that it is the burden of the state to produce such an official court record as a prerequisite to using a prior felony conviction for enhancement purposes. The state concedes that the Koenig standard was not met in this case.

In light of the arguments of the parties, we have decided to make a detailed evaluation of what the state must show before a prior conviction can constitutionally be used for enhancement purposes.

The Supreme Court has repeatedly affirmed the validity of recidivist or habitual criminal statutes. See Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). In Spencer, the Supreme Court upheld against constitutional attack a Texas rule of procedure which allowed the jury to be informed of the existence of the defendant's prior felonies, but required that the jury be instructed not to consider those prior felonies in reaching its verdict. In so doing, the Court concluded that the fourteenth amendment did not empower the Court to oversee the varied procedures in state courts for proving the existence of prior convictions for enhancement purposes.

In Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), the Supreme Court reversed the conviction of a criminal defendant because the state had introduced into evidence the record of a prior conviction which showed on its face that the defendant had not been represented by counsel but did not indicate whether the defendant had waived his right to counsel. Although the state had introduced the prior conviction for enhancement purposes, the Court's holding was not limited to use of a prior conviction for enhancement purposes. Instead, the Court first noted the well established rule that a waiver of counsel cannot be presumed from a silent record, and held that a conviction obtained in violation of the right to counsel cannot be used "either to support guilt or enhance punishment for another offense...." Id. at 115, 88 S.Ct. at 262. The Court further held that the error of admitting evidence of a presumptively unconstitutional conviction was inherently prejudicial. Id. at 114-15, 88 S.Ct. at 261-62.

The Burgett Court did not, however, place the burden of proving the constitutional validity of a prior judgment of conviction offered for enhancement purposes on the state. The prior judgment of conviction in Burgett raised a presumption of invalidity on its face; the question of the state's burden of proof with respect to a prior judgment of conviction offered for enhancement purposes was simply not before, and not addressed by the Court. This point is evidenced by the fact that the Court distinguished the Burgett situation from its earlier decision in Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), because in Spencer "the prior convictions were not presumptively void." Burgett, 389 U.S. at 115, 88 S.Ct. at 262.

In summary, Burgett prohibits the states from using a prior felony conviction for any purpose if the record of that conviction raises an unrebutted presumption that the prior conviction was obtained in violation of a specific federal constitutional right. Burgett does not prohibit the states from relying for enhancement purposes on presumptively valid prior judgments of conviction, nor does it place on the states the burden of proving that a presumptively valid judgment of conviction offered for enhancement purposes is not subject to challenge on any constitutional basis.

Later, in Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), the Supreme Court held that a misdemeanor conviction, the records of which showed that the defendant "was not represented by a lawyer and did not formally waive any right to counsel," could not be used to enhance a subsequent misdemeanor to a felony. Id. at 223-24, 100 S.Ct. at 1586. As in Burgett, the Baldasar Court did not address the issue of the state's burden of proof with respect to a prior judgment of conviction offered for enhancement purposes.

Although the United States Supreme Court has not addressed the question of what the state's burden is with respect to prior convictions offered for enhancement purposes, other courts have. For example, United States v. Gallman, 907 F.2d 639 (7th Cir.1990), concerned a defendant who was convicted of felony possession of firearms and receiving stolen property. The defendant, Gallman, received an enhanced sentence of a minimum of fifteen years without the possibility of parole. See 18 U.S.C. §§ 922(g)(1), 924(e) (providing an enhanced sentence for certain defendants with three prior convictions). On appeal, Gallman contended that one of his prior convictions could not be used for enhancement because it was based on a guilty plea which was not intelligently and voluntarily entered.

In discussing Gallman's contention, the court of appeals stated, "once the government has shown that a defendant has three prior 'violent felony' convictions, the burden rests with the defendant to show that the conviction was unconstitutional.... Thus, a defendant can overcome the government's proof of a conviction, but only if he musters evidence of that conviction's unconstitutionality." Gallman, 907 F.2d at 643 (citations omitted). The court noted further that "[i]n some circumstances ... where the certified record of conviction indicates on its face that the conviction was unconstitutional, the defendant's burden is automatically met and the defendant need introduce no...