LeGrand v. State, s. A-93-1086

• Decision Date: 10 January 1995
• Docket Number: Nos. A-93-1086,A-93-1087,s. A-93-1086
• Citation: 527 N.W.2d 203,3 Neb.App. 300
• Parties: Larry L. LeGRAND, Appellant, v. STATE of Nebraska, Appellee.
• Court: Nebraska Court of Appeals

Page 203

527 N.W.2d 203

3 Neb.App. 300

Larry L. LeGRAND, Appellant, v. STATE of Nebraska, Appellee.

Nos. A-93-1086, A-93-1087.

Court of Appeals of Nebraska.

Jan. 10, 1995.

Syllabus by the Court

1. Judgments: Appeal and Error. Regarding matters of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review.

2. Courts: Prior Convictions. The Nebraska Supreme Court has clearly stated that it will follow U.S. Supreme Court precedent recognizing the right to challenge the use of prior convictions for enhancement purposes.

3. Prior Convictions: Pleas: Records: Right to Counsel: Proof. It is impermissible to attack the validity of a prior conviction in an enhancement proceeding on any grounds, with one exception: Challenges to prior plea-based convictions offered for enhancement purposes are allowed when based on the transcript's failure to disclose whether the defendant had or waived counsel at the time the pleas were entered and when the defendant was sentenced to imprisonment for any period of time as a result of the pleas.

Robert Wm. Chapin, Jr., Lincoln, for appellant.

Don Stenberg, Atty. Gen., and Mark D. Starr, Lincoln, for appellee.

CONNOLLY, IRWIN, and MILLER-LERMAN, Judges.

CONNOLLY, Judge.

Larry L. LeGrand appeals the judgment of the district court for Dodge County, which affirmed the decision of the Dodge County Court, which denied LeGrand's petitions in a "separate proceeding" to have two prior Dodge County convictions for driving while intoxicated (DWI) declared invalid. The convictions were to be used for the purpose of enhancing LeGrand's most recent DWI arrest, which took place in Lancaster County, to a third offense. We affirm the decision of the district court because under the holdings in Custis v. U.S., 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994), and Nichols v. U.S., 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994), the "separate proceeding" is not constitutionally mandated.

I. BACKGROUND

On July 4, 1987, LeGrand was arrested in Dodge County and charged with a first-offense DWI. On August 11 the same year, LeGrand appeared with counsel for arraignment in Dodge County Court. A checklist form indicates that at that time, LeGrand was advised of the penalties for the offense and was informed of his privilege against self-incrimination; right to confront witnesses right to a jury trial; right to counsel; and right to due process, including proper notice and a fair and impartial hearing. LeGrand was also informed that upon a guilty plea he would effectively waive or forfeit the presumption of his innocence and all defenses available to him, thus relieving the State of the burden of proving his guilt beyond a reasonable doubt. LeGrand pled not guilty and requested a jury trial.

On September 18, 1987, LeGrand again appeared in Dodge County Court with his attorney and changed his plea on the DWI charge to guilty. The record indicates that the judge went through the same checklist used in the previous arraignment. This time, however, an additional paragraph containing the following language was checked:

Defendant advised the Court that he/she understood the nature of the charge(s), the possible penalties that might be imposed, and all rights available to him by law, and that this plea to the charge(s) was entered fully voluntar[il]y, knowingly, and intel[l]igently, with full understanding of the consequences. Upon inquiry by the Court, it was determined that there was a factual basis for the plea, that the necessary elements for the crime were met, and that the defendant had specifically committed the crime in question. The Court accepts the Defendant's plea and finds the Defendant guilty of the charge(s).

On October 13, 1987, LeGrand was sentenced for the DWI offense. Nothing in the record indicates that LeGrand appealed this conviction.

LeGrand was arrested and charged with his second DWI offense on October 12, 1990, in Dodge County. LeGrand appeared and was represented by counsel at his arraignment hearing on November 6. The county judge went through a checklist virtually identical to that used in the arraignment for the first DWI charge. LeGrand pled not guilty and requested a jury trial.

On February 19, 1991, LeGrand made another appearance in Dodge County Court, where, after being rearraigned, he pled guilty to the second DWI charge. Again, the county judge went through the checklist and checked the additional paragraph set out above. LeGrand was sentenced on March 26. Nothing in the record indicates that LeGrand appealed this conviction.

LeGrand's petitions allege that he was recently arrested on a third DWI charge in Lancaster County. The record is not entirely clear, but apparently the prosecutor in the Lancaster County case wishes to use the two previous Dodge County convictions to enhance the offense in Lancaster County to a third-offense DWI under Neb.Rev.Stat. § 39-669.07 (Cum.Supp.1992). In order to combat the Lancaster County prosecutor's attempt to enhance the charge, LeGrand filed two "Petition[s] in Separate Proceeding to Invalidate Convictions for Purposes of Enhancement" in Dodge County Court, alleging that the guilty pleas in the two prior Dodge County convictions were not based on a full advisement of LeGrand's constitutional rights as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and State v. Irish, 223 Neb. 814, 394 N.W.2d 879 (1986).

LeGrand's petitions were denied by the county court. LeGrand appealed the county court decision to the district court for Dodge County, which affirmed the county court decision. These appeals followed. While these appeals were pending, the State filed a petition to bypass the Nebraska Court of Appeals. The Nebraska Supreme Court denied that petition.

II. ASSIGNMENT OF ERROR

LeGrand argues that it was error for the district court to affirm the county court's decision overruling LeGrand's petitions in a "separate proceeding" to invalidate the two prior DWI convictions for the purposes of enhancement.

III. STANDARD OF REVIEW

LeGrand's assignment of error presents a question of law. Regarding matters of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review. State v. Roche, Inc., 246 Neb. 568, 520 N.W.2d 539 (1994); State v. White, 244 Neb. 577, 508 N.W.2d 554 (1993).

IV. ANALYSIS

The concept of attacking prior convictions in enhancement proceedings has a complex history in Nebraska. These cases require us to bring this convoluted saga to a swift and practical end. In light of the recent U.S. Supreme Court holdings in Custis v. U.S., 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994), and Nichols v. U.S., 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994), previous Nebraska Supreme Court decisions, holding that "separate proceedings" had to be available for defendants to challenge their prior convictions on Boykin grounds when those convictions were being used to enhance more recent crimes, are no longer compelling. Therefore, we hold that LeGrand's petitions to have his prior convictions declared invalid for the purposes of his impending enhancement proceedings should be dismissed.

1. HISTORY OF ATTACKS ON PRIOR CONVICTIONS IN NEBRASKA

(a) Groundwork: Burgett v. Texas and Boykin v. Alabama

For a long time it was questionable whether criminal defendants were allowed to make any kind of attack on their prior convictions outside of direct appeals. In State v. Ninneman, 179 Neb. 729, 140 N.W.2d 5 (1966), cert. denied 385 U.S. 838, 87 S.Ct. 85, 17 L.Ed.2d 72, Justice Carter made the following observation:

Defendant contends ... that he was denied the right to obtain counsel in his first conviction in 1961, and that it was therefore void and not useable to prove that he was subject to the increased penalty for a second violation. The finality of the previous conviction is established. Defendant did not appeal nor seek redress by habeas corpus. In fact, he entered a plea of guilty and satisfied the penalty for the 1961 offense. I submit that under the existing law of this state he may not collaterally attack irregularities in his first conviction to avoid the increased penalties for the second.

Id. at 735, 140 N.W.2d at 8-9 (Carter, J., concurring in the result).

Justice Carter's analysis was brought into question when the U.S. Supreme Court rendered its decision in Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). In Burgett, the Court held that challenges to the validity of prior convictions in enhancement proceedings were permissible when the prior conviction was allegedly invalid because the defendant was denied his Sixth Amendment right to counsel. A line of U.S. Supreme Court cases, beginning with Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), had established a rule making it "unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one." Burgett v. Texas, 389 U.S. at 114, 88 S.Ct. at 261. The Burgett decision opened the door for attacks on prior convictions obtained in violation of Gideon when those convictions were being used to enhance the punishment for a more current conviction.

Two years later, the U.S. Supreme Court decided Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Boykin had been arrested and charged with five counts of common-law robbery. The trial court appointed counsel to represent him, and 3 days later, at his arraignment, Boykin pled guilty to all five charges. The record did not reflect that the judge had asked any questions of Boykin regarding his plea, and Boykin never addressed the court. Boykin was sentenced to death on all five counts.

On direct appeal, the Alabama Supreme Court affirmed Boykin's convictions and sentences. The U.S. Supreme Court granted certiorari and reversed...