Dunn v. Simmons

• Decision Date: 31 July 1989
• Docket Number: No. 88-5015,88-5015
• Citation: 877 F.2d 1275
• Parties: Gene M. DUNN, Jr., Petitioner-Appellee, v. Ron SIMMONS, Chairman, Parole Board, Corrections Cabinet, and David L. Armstrong, Respondents-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1275

877 F.2d 1275

58 USLW 2055

Gene M. DUNN, Jr., Petitioner-Appellee, v. Ron SIMMONS, Chairman, Parole Board, Corrections Cabinet and David L. Armstrong, Respondents-Appellants.

No. 88-5015.

United States Court of Appeals Sixth Circuit.

Argued Aug. 25, 1988.

Decided June 13, 1989.

Rehearing and Rehearing En Banc Denied July 31, 1989.

J. David Niehaus, Public Defender (argued), Office of Jefferson Dist. Public Defender, Daniel T. Goyette, Louisville, Ky., for petitioner-appellee.

David A. Sexton, Asst. Atty. Gen. (argued), Frankfort, Ky., for respondents-appellants.

Before RYAN and NORRIS, Circuit Judges; and LIVELY, Senior Circuit Judge. ^*

ALAN E. NORRIS, Circuit Judge.

This is an appeal by the state from an order of the district court granting a writ of habeas corpus to petitioner, Gene M. Dunn, Jr. Dunn was found guilty by a Kentucky jury of the substantive offense of possession of a controlled substance, and of being a persistent felony offender (PFO), and these convictions were upheld by the Kentucky Supreme Court. The effect of the district court's order is to relieve Dunn of his conviction as a PFO and its enhanced sentence, but to leave undisturbed his conviction for possession of a controlled substance.

Prior to trial, Dunn sought to have the PFO indictment dismissed, contending that the 1970, 1973, and 1976 convictions upon which that charge was based, should be suppressed. He argued that the prior convictions were based upon invalid guilty pleas, since those pleas were accepted without Dunn having intelligently and voluntarily waived federal constitutional rights to which he was entitled. While expressing concern that he was required to follow case law from Kentucky appellate courts that conflicted with federal standards for determining whether federal rights are validly waived, the state trial judge overruled the motion. The jury then found Dunn guilty of the PFO charge, as well as of the substantive offense.

In his petition for a writ of habeas corpus, Dunn maintained that the Kentucky courts improperly adjudicated the validity of his prior convictions. The district court agreed.

I.

The state first contends that the district court erred when it determined that the prior convictions, upon which Dunn's PFO conviction was based, were invalid since the state failed to demonstrate that Dunn intelligently and voluntarily waived his federal constitutional rights when he entered the guilty pleas resulting in those convictions. Specifically, the state argues that the Kentucky Supreme Court has correctly assigned the burdens of evidence production and persuasion in proceedings to determine if federal constitutional rights have been waived in guilty plea proceedings.

Under Kentucky's PFO statute, Ky.Rev.Stat.Ann. Sec. 532.080 (Baldwin 1984), the state's burden in proving the fact of a prior felony conviction is to persuade the jury beyond a reasonable doubt. Hon v. Kentucky, 670 S.W.2d 851, 853 (Ky.1984). Resolution of that question of fact is not involved in this appeal; instead, we are reviewing the determination of a question of law initially made by the state trial court after a suppression hearing, affirmed by the Kentucky Supreme Court, and ultimately addressed by the district court upon Dunn's petition for a writ of habeas corpus. That question of law concerns the legal validity of Dunn's prior convictions.

Generally, when courts are called upon to decide this question of law, a prior conviction is being examined in the context of a pretrial motion filed in a PFO prosecution or in a post-conviction inquiry into whether the conviction is invalid. The question is whether the conviction is based upon a guilty plea accepted in the absence of a valid waiver by the accused of the federal constitutional rights he surrendered by pleading guilty.

In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court noted that, for purposes of establishing that when a state court defendant entered a guilty plea he also waived federal constitutional rights to trial by jury and to confront one's accusers and the privilege against compulsory self-incrimination, the state is required to prove that the plea was intelligent and voluntary. "We cannot presume a waiver of these three important federal rights from a silent record." Id. at 243, 89 S.Ct. at 1712. Where the waiver is subsequently challenged, the state normally will attempt to demonstrate its effectiveness by introducing a transcript of the proceedings surrounding the trial court's acceptance of the guilty plea, and other trial court records. Where the records leave doubt as to whether the plea was in fact intelligent and voluntary, the state may look to evidence extrinsic to the court records, such as the recollection of those attending the plea proceedings. However, in the face of a record which is inadequate to demonstrate the regularity of proceedings at the time of a guilty plea's acceptance, the state must make a clear and convincing showing with this extrinsic evidence that the plea was in fact intelligently and voluntarily entered. Roddy v. Black, 516 F.2d 1380, 1384 (6th Cir.), cert. denied, 423 U.S. 917, 96 S.Ct. 226, 46 L.Ed.2d 147 (1975). We have imposed this extraordinary standard of persuasion in view of misgivings inherent in "collateral proceedings that seek to probe murky memories," a problem not present where the contemporary record demonstrates a valid waiver. Boykin, 395 U.S. at 244, 89 S.Ct. at 1712.

Federal law governs the appropriate standards for determining whether a plea of guilty is intelligent and voluntary for purposes of the United States Constitution. Marshall v. Lonberger, 459 U.S. 422, 431, 103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1983); Boykin, 395 U.S. at 243, 89 S.Ct. at 1712. Because the circumstances surrounding the acceptance of a guilty plea necessarily must be examined, federal standards control the limited fact-finding role required of the court in arriving at a determination of this question of law. In view of Boykin and Roddy, we conclude that among those standards must be counted these: Where the record from the trial court is inadequate to affirmatively demonstrate that the plea was intelligent and voluntary, the state may not utilize a presumption to satisfy its burden of persuasion. And, where it seeks to satisfy that burden by supplementing an incomplete contemporaneous record with extrinsic evidence, that evidence must be clear and convincing.

In the course of its opinion affirming Dunn's convictions, the Kentucky Supreme Court set out its view of the methodology a state trial court should employ in determining whether a prior conviction predicated upon a guilty plea is valid under the United States Constitution:

In those cases in which the defendant is indicted as a persistent felony offender and files a proper motion to suppress any evidence of his prior offenses, the burden is on the Commonwealth to prove the judgments of conviction in each of the underlying offenses upon which it intends to rely. The presumption of regularity of judgment shall be sufficient to meet the original burden of proof. After the judgments of conviction are introduced, the burden shifts to the defendant to show any infringement of his rights or irregularity of procedure upon which he relies, such as those set out in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), or other pertinent cases. If the defendant presents evidence, through his testimony or other affirmative evidence, which refutes the presumption of regularity, the burden then falls to the Commonwealth to prove that the underlying judgments were entered in a manner which did, in fact protect the rights of the defendant. A silent record simply will not suffice.

Dunn v. Kentucky, 703 S.W.2d 874, 876 (Ky.1985), cert. denied, 479 U.S. 832, 107 S.Ct. 121, 93 L.Ed.2d 67 (1986).

Manifestly, this methodology results in a standard different from federal standards for proving a valid waiver of federal constitutional rights. Dunn permits the state to carry its burden by utilizing a bare record of a conviction upon a plea of guilty, in conjunction with the time-honored presumption that judicial proceedings have been regularly and legally performed. ¹

Under the Dunn procedure, the state retains the burden of persuasion on the ultimate question of intelligent and voluntary waiver. But, once the state establishes the plain record of conviction, the burden of producing evidence shifts to the defendant to show an irregularity in the plea procedure since that unadorned record, bolstered by the presumption, is held by Dunn to be sufficient to establish a prima facie case that the guilty plea was validly accepted. The defendant is permitted to "refute" this presumption, presumably by evidence that would be sufficient to support a finding that the plea proceedings were inadequate.

Although the Dunn procedure ostensibly permits the use of the presumption only to satisfy a burden of production, in reality it may be utilized by the state to carry its ultimate burden of persuasion. That is because, if the defendant offers no rebuttal, the state will prevail; the presumption becomes a substitute for evidence supplementing the conviction record. The practical effect of the Dunn procedure, then, is to allow the state to prevail by carrying its burden of persuasion upon the bare record of the fact that a conviction was entered against the defendant. This result ignores the Supreme Court's admonition in Boykin against presuming a waiver from a silent record. And, it offends this court's requirement in Roddy, since, when the state is said to have made out a bare prima facie case, and it has done so only by relying upon a presumption, the state cannot be said to have met its burden of persuasion by supplementing an inadequate record with clear and convincing evidence. In addition, the Dunn procedure does not...