Fairbanks v. State

• Decision Date: 01 September 1991
• Docket Number: No. 150,150
• Citation: 331 Md. 482,629 A.2d 63
• Parties: John Franklin FAIRBANKS, Jr. v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 482

331 Md. 482

629 A.2d 63

John Franklin FAIRBANKS, Jr. v. STATE of Maryland.

No. 150, Sept. Term, 1991.

Court of Appeals of Maryland.

Aug. 20, 1993.

John L. Kopolow, Asst. Public Defender (Stephen E. Harris, Public Defender, both on brief), Baltimore, for petitioner.

Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

McAULIFFE, Judge.

This case involves sentencing under a recidivist statute, Article 27, § 643B(c), Maryland Code (1957, 1992 Repl.Vol.). The defendant, John Franklin Fairbanks, Jr., contends that his enhanced sentence was based on a predicate offense not shown by the State to have been free of constitutional infirmity. The defendant contends that the 1972 conviction relied on by the State is constitutionally infirm because there is no showing that he intelligently waived his right to trial by jury. The record discloses that the defendant was represented by counsel at the time of the previous conviction.

Relying upon Middleton v. State, 67 Md.App. 159, 506 A.2d 1191, cert. denied, 308 Md. 146, 517 A.2d 771 (1986), the defendant contends that having properly generated the issue by proffer or evidence, the burden of further production of evidence as well as the ultimate burden of proving that the predicate conviction was constitutional was upon the State, and that the State failed to sustain its burden. The State responds with two arguments: 1) the defendant was not entitled to mount a collateral attack on the 1972 conviction during recidivist sentencing proceedings when the defendant was represented by counsel at the earlier trial, and the grounds of the attack involve only the question of whether he was properly advised of his rights before waiving his right to a jury trial; and 2) alternatively, if a collateral attack may be made during a recidivist sentencing proceeding the burden should be on the defendant to prove the constitutional deficiency he alleges, and this defendant did not sustain that burden. We agree with the State's first argument, and in so doing necessarily resolve the burden of proof issue raised by the second argument.

In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the United States Supreme Court held that a state felony conviction imposed upon a defendant not represented by counsel, and without a valid waiver of counsel, was unconstitutional under the Sixth and Fourteenth Amendments. That ruling was fully retroactive. Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971). In Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), the Court held that a conviction invalid under Gideon could not be used for enhancement of punishment under a state's recidivist statute. We here consider the question of when, and under what circumstances, collateral challenges to the constitutional validity of predicate convictions can be raised at a sentencing hearing.

The spectrum of challenges that might be made is necessarily broad; constitutionally based challenges range from obvious and direct infirmities, such as denial of the right to counsel, to more general concepts. Thus, in addition to denial of right to counsel claims, we can expect to see constitutionally based challenges mounted on grounds of denial of effective representation by counsel, denial of right to jury trial, coerced confession, double jeopardy, self incrimination, uninformed or involuntary guilty plea, lack of due process, and the like. A single challenge to a prior conviction may involve multiple claims of constitutional infirmity. See, e.g., U.S. v. Custis, 988 F.2d 1355, 1358 (4th Cir.1993) (involving claims of ineffective assistance of counsel, uninformed guilty plea, and violation of due process, with respect to a single predicate conviction).

Allowing a defendant to mount any constitutionally based challenge to a predicate conviction at a recidivist (or other) ¹ sentencing proceeding would present significant procedural difficulties. Our rules do not establish a specific procedure for such challenges. Although the State is required to serve a notice of predicate convictions on the defendant before sentencing, Maryland Rule 4-245(c), there is no requirement that the defendant give notice of any proposed challenge to those convictions. On the other hand, there exists a statutory procedure for the orderly bringing of a collateral challenge against prior convictions resulting in continued confinement, parole, or probation. Maryland Uniform Post Conviction Procedure Act, Md.Code (1957, 1992 Repl.Vol.) Art. 27, §§ 645A through 645J, with supplementary rules of procedure, Maryland Rules 4-401 through 4-408. Common law actions, including the writ of error coram nobis, may be available for collateral attacks on prior convictions that no longer impose restraints on a defendant. Article 27, § 645A; Gluckstern v. Sutton, 319 Md. 634, 662, 574 A.2d 898, cert. denied, 498 U.S. 950, 111 S.Ct. 369, 112 L.Ed.2d 331 (1990); Brady v. State, 222 Md. 442, 447, 160 A.2d 912 (1960). Cf. United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 98 L.Ed. 248 (1954); U.S. v. Canales, 960 F.2d 1311, 1316 (5th Cir.1992).

Requiring that a defendant seeking to challenge a facially valid prior conviction utilize established procedures offers significant benefits. The defendant must allege with specificity the claimed deficiencies, thus allowing the State a reasonable opportunity to investigate, respond, and prepare a defense. Prior proceedings, including any direct appeals and previous collateral challenges, can be explored, with concomitant opportunity to determine whether the issues have been previously litigated, waived, or are otherwise barred by prior proceedings. See, e.g., Article 27, § 645A(a)(2), providing that a person may not file more than two petitions arising out of each trial for relief under the Post Conviction Procedure Act.

Because a facially valid conviction is entitled to a strong presumption of regularity, this procedure clearly places the burden of proof where it should be--upon the defendant attacking the conviction.

It must be remembered, however, that a judgment cannot be lightly set aside by collateral attack, even on habeas corpus. When collaterally attacked, the judgment of a court carries with it a presumption of regularity. Where a defendant, without counsel, acquiesces in a trial resulting in his conviction and later seeks release by the extraordinary remedy of habeas corpus, the burden of proof rests upon him to establish that he did not competently and intelligently waive his constitutional right to assistance of Counsel. If in a habeas corpus hearing, he does meet this burden and convinces the court by a preponderance of evidence that he neither had counsel nor properly waived his constitutional right to counsel, it is the duty of the court to grant the writ.

Johnson v. Zerbst, 304 U.S. 458, 468-69, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461 (1938) (footnote omitted). The Supreme Court recently enforced this principle, and made clear that its applicability turns upon the nature and desired effect of the challenge and not the character of the proceeding in which the challenge is mounted.

Although we are perhaps most familiar with this principle in habeas corpus actions, see, e.g., Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391, 77 L.Ed.2d 1090 (1983); Johnson [v. Zerbst, 304 U.S. 458, 464, 468 [58 S.Ct. 1019, 1023, 1024, 82 L.Ed. 1461] (1938) ], it has long been applied equally to other forms of collateral attack, see, e.g., Voorhees v. Jackson, 35 U.S. (10 Pet.) 449, 472, 9 L.Ed. 490 (1836) (observing, in a collateral challenge to a court-ordered sale of property in an ejectment action, that "[t]here is no principle of law better settled, than that every act of a court of competent jurisdiction shall be presumed to have been rightly done, till the contrary appears"). Respondent, by definition, collaterally attacked his previous convictions; he sought to deprive them of their normal force and effect in a proceeding that had an independent purpose other than to overturn the prior judgments. See Black's Law Dictionary 261 (6th ed. 1990); see also Lewis v. United States, 445 U.S. 55, 58, 65, 100 S.Ct. 915, 917, 920, 63 L.Ed.2d 198 (1980) (challenge to uncounseled prior conviction used as predicate for subsequent conviction characterized as "collateral").

Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 523, 121 L.Ed.2d 391 (1992). Requiring that a collateral attack of this type be brought in accordance with established procedures offers an additional benefit: if the defendant is successful in having a conviction overturned, the trial judge may grant full relief by ordering a new trial. ² A trial judge considering an objection to the use of a predicate conviction ordinarily determines nothing more than the admissibility of that evidence.

We do not hold that a collateral challenge to a prior conviction may never be made at a sentencing hearing. When the evidence relied upon by the State to establish the previous conviction on its face strongly tends to undermine the constitutional validity of the conviction, the strong presumption of regularity that accompanies a facially valid conviction is not present, and further inquiry will be required to determine admissibility. That was the case in Burgett v. Texas, supra, where the Court said: "[T]he certified records of the Tennessee conviction on their face raise a presumption that petitioner was denied his right to counsel in the Tennessee proceeding, and therefore that his conviction was void." Id., 389 U.S. at 114, 88 S.Ct. at 261. Two factors were critical in Burgett: first, the record offered by the State showed that the defendant was not represented by counsel; second, the record showed that the prior conviction was...