People v. Roybal, 79SA389

• Decision Date: 15 September 1980
• Docket Number: No. 79SA389,79SA389
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Andrew ROYBAL, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1121

618 P.2d 1121

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Andrew ROYBAL, Defendant-Appellant.

No. 79SA389.

Supreme Court of Colorado, En Banc.

Sept. 15, 1980.

As Modified On Denial of Rehearing Nov. 17, 1980.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Anthony M. Marquez, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, for defendant-appellant.

LOHR, Justice.

Andrew Roybal appeals from his conviction in district court for Driving After Judgment Prohibited, section 42-2-206, C.R.S. 1973. We reverse.

On June 19, 1977, the appellant was driving an automobile and ran over a curb and into a telephone pole. The police investigated the accident and discovered that the appellant's driver's license had been revoked because of his status as an habitual traffic offender. Thereafter, the appellant was charged with Driving After Judgment Prohibited. He waived his right to jury trial and was tried to the court. His resulting conviction is the basis for this appeal.

Section 42-2-203, C.R.S. 1973, grants the Colorado Department of Revenue, Motor Vehicle Division (DMV), authority to revoke the driver's license of an habitual traffic offender. ¹ An habitual traffic offender is any person who, after notice and hearing, is found to have sustained a designated number of convictions for specified traffic offenses within a prescribed period of time. Section 42-2-202, C.R.S. 1973. Operating a motor vehicle while such a revocation is in effect constitutes the class 5 felony of Driving After Judgment Prohibited. Section 42-2-206, C.R.S. 1973.

The appellant challenges his conviction on two principal grounds. The first, which we reject, is a multi-pronged attack on the constitutionality of the habitual traffic offender statute. The second raises serious issues concerning the constitutionality of one of the traffic convictions underlying the DMV's determination that the appellant is an habitual traffic offender. Because we conclude that the trial judge applied the wrong standard for burden of proof in testing the validity of that underlying conviction, we reverse the judgment of the trial court.

I.

The constitutional issues raised by the appellant in attacking the habitual traffic offender statute were resolved in favor of the statute's constitutionality in People v. McKnight, Colo., 617 P.2d 1178 (1980). The appellant has advanced no arguments which persuade us to reconsider that decision.

II.

The appellant first asserted the invalidity of one of the traffic offense convictions underlying his habitual traffic offender status in closing argument in the instant case. ² He contends that one of the convictions was entered in violation of his constitutional right to the assistance of counsel. U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16. He argues that this violation renders his license revocation invalid and destroys an essential part of the foundation for his conviction for Driving After Judgment Prohibited.

In the course of closing argument, and over the objection of the district attorney, the appellant was permitted to reopen his case to present a factual basis for his contention that one of the traffic offense convictions was invalid. That conviction was based upon the appellant's plea of guilty.

Roybal testified that he could not remember any details of the proceedings resulting in the challenged conviction. He had been involved in several county court traffic proceedings and remembered being represented by an attorney from the public defender's office most of the time. He had no specific recollection of particular cases or hearings.

The trial judge took judicial notice of the county court file with respect to the challenged conviction. It contained no indication whether Roybal was represented by counsel. That file was not made part of the record on appeal. The custodian of the county court records testified that the file would indicate the appearance of counsel if counsel had filed motions or documents or "(i)f the attorney entered his appearance on the case file." ³ The records custodian testified that tapes of the county court proceedings had been erased, consistent with a policy that such records be erased after six months if no appeal is taken. No other evidence with respect to representation by counsel was presented.

The trial court determined that the appellant had the burden of showing a constitutional violation by clear and convincing evidence. The trial court denied the appellant's motion for judgment of acquittal or in the alternative for new trial, based on the conclusion that the appellant had not met that burden. Sentence was imposed and Roybal appealed.

A.

Our recent decisions have established that a defendant charged with Driving After Judgment Prohibited, section 42-2-206, C.R.S. 1973, may attack the constitutional validity of traffic offense convictions which establish the basis for the defendant's habitual traffic offender status. People v. Heinz, 197 Colo. 102, 589 P.2d 931 (1979); see People v. Able, Colo., 618 P.2d 410 (1980). This rule is founded on the principle that an unconstitutionally obtained conviction cannot be used in a later proceeding to support guilt or enhance punishment. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); People v. Heinz, supra ; see United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); but cf. Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) (discussed in Part B, infra). If the appellant was entitled to counsel at the earlier proceeding, and if that right was denied or if there was no valid waiver of counsel by the defendant, a conviction resulting from that proceeding could not be used as part of the foundation for the criminal sanctions prescribed by section 42-2-206, C.R.S. 1973.

B.

The right to counsel does not depend upon a state legislature's classification of the crime charged. Absent a knowing and intelligent waiver, no person may be imprisoned for any offense however classified unless he was represented by counsel at his trial. Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979); Argersinger v Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).

The challenged traffic offense conviction was for driving under revocation in violation of section 42-2-130(1)(a), C.R.S. 1973 (1979 Supp.), an offense punishable by a mandatory jail sentence ⁴ of not less than five days nor more than six months. The record does not reflect whether the appellant was actually imprisoned, so it cannot be determined whether the appellant had the right to counsel in the traffic offense proceeding.

Even if the appellant had no right to counsel in the traffic offense proceeding because no imprisonment was imposed, the question remains whether a conviction obtained without benefit or waiver of counsel may be used as a foundation for a subsequent conviction which results in a sentence of imprisonment. In 1980 the United States Supreme Court decided two cases bearing on this question. In Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), it was held that a prior conviction obtained without benefit or waiver of counsel may not be used to increase a sentence for a later conviction even if no imprisonment was imposed for the prior conviction. However, in Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), a felony conviction so obtained, which resulted in a sentence of imprisonment, was permitted to support a federal criminal charge of possession of a firearm by a convicted felon. In Lewis the majority found that the federal statute unambiguously prohibits possession of a firearm by a convicted felon despite the fact that the predicate felony may be subject to constitutional attack. The United States Supreme Court found that the legislative focus was on the fact of prior conviction and not on the reliability of that conviction. Burgett v. Texas, supra, and its progeny were distinguished on that basis. In Lewis the Court concluded that neither the constitutional right to equal protection embodied in the due process clause of the Fifth Amendment nor the Sixth Amendment right to counsel was violated by the criminal statute.

Although the lesson of Baldasar and Lewis is not free from doubt, it appears that the United States Constitution does not always prohibit collateral use of uncounseled convictions to increase the penalty for subsequent criminal misconduct, but that only in the clearest of cases will a statute be construed to permit such use. ⁵ This is consistent with the federal rule of statutory construction that the ambit of criminal statutes should be resolved in favor of lenity. See, e. g., Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978); Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971).

Colorado criminal statutes are to be strictly construed in favor of the accused. E. g., Pigford v. People, 197 Colo. 358, 593 P.2d 354 (1979); People v. Cornelison, 192 Colo. 337, 559 P.2d 1102 (1977). This rule of statutory construction is very similar to the federal rule of lenity. The Driving After Judgment Prohibited statute on its face does not preclude collateral attack on the underlying traffic convictions.

A statute also must be construed in a manner consistent with constitutional requirements whenever such a construction is reasonable and practical. See Colorado State Board of Medical Examiners v. Jorgensen, Colo., 599 P.2d 869 (1979); Mr. Lucky's, Inc. v. Dolan, 197 Colo. 195, 591 P.2d 1021 (1979); People v. Gym of America, Inc., 177 Colo. 97, 493 P.2d 660 (1972). Therefore, it is necessary to attempt to construe the Driving After Judgment Prohibited statute in a manner consistent with the...