State v. Johnson

• Decision Date: 22 March 2012
• Docket Number: Docket No. Pen–10–510.
• Parties: STATE of Maine v. Frank C. JOHNSON.
• Court: Maine Supreme Court

2012 ME 39

38 A.3d 1270

STATE of Maine

v.Frank C. JOHNSON.

Docket No. Pen–10–510.

Supreme Judicial Court of Maine.

Argued: Dec. 12, 2011.Decided: March 22, 2012.

Aaron M. Frey, Esq. (orally), Bangor, for appellant Frank Johnson.

R. Christopher Almy, District Attorney, and Susan J. Pope, Asst. Dist. Atty. (orally), Prosecutorial District V, Bangor, for appellee State of Maine.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

LEVY, J.

[¶ 1] This appeal concerns the scope of a criminal defendant's right to collaterally attack a prior conviction used to support an enhanced charge or sentence in a subsequent prosecution. The defendant, Frank C. Johnson, appeals from a judgment of conviction for operating after habitual offender revocation (Class C), 29–A M.R.S. § 2557–A(1)(A), (2)(B) (2011), entered in the Superior Court (Penobscot County, R. Murray, J.),¹ following his conditional guilty plea pursuant to M.R.Crim. P. 11. Johnson argues that the court ( Anderson, J.) erred in denying his motion to strike a 2007 conviction offered by the State to enhance his current charge to a Class C crime. Because we determine that Johnson did not have the right to collaterally attack the 2007 conviction, we affirm the judgment.

I. BACKGROUND

[¶ 2] On June 22, 2009, Johnson was indicted for operating after habitual offender revocation (Class C), 29–A M.R.S. § 2557–A(1)(A), (2)(B).² As the basis for enhancing the charge from a Class D to a Class C offense, the indictment alleged that on March 6, 2007, Johnson had been convicted of operating under the influence of intoxicants, 29–A M.R.S. § 2411(1–A)(A) (2007).³

[¶ 3] After pleading not guilty, Johnson filed a motion to strike the 2007 conviction, contending that it was imposed illegally because it was based on a guilty plea that he alleged was not knowing and voluntary. He asserted that he had not been informed pursuant to M.R.Crim. P. 5 of important constitutional rights before he entered the guilty plea at the 2007 proceedings. Initially, the State agreed to amend the indictment so as to remove the allegation of the prior conviction, and Johnson pleaded guilty to operating after habitual offender revocation (Class D), 29–A M.R.S. § 2557–A(1)(A), (2)(A). A short time later, however, Johnson withdrew his guilty plea pursuant to M.R.Crim. P. 32(d), and renewed his motion to strike.

[¶ 4] In May 2010, the court ( Anderson, J.) held a hearing on Johnson's motion. The court admitted a transcript of Johnson's 2007 arraignment and received testimony from the court-appointed “lawyer for the day” who had represented Johnson. The court subsequently entered an order denying the motion to strike, finding that Johnson had been informed of the rights enumerated in M.R.Crim. P. 5 at the arraignment, and determining that the 2007 guilty plea was constitutionally valid. Johnson then entered a conditional guilty plea to the Class C charge of operating after habitual offender revocation, and the court ( R.Murray, J.) entered a judgment of conviction on that plea. See M.R.Crim. P. 11(a)(2). The court sentenced Johnson to seven months in jail and a fine of $1000. Johnson then brought this appeal.

II. DISCUSSION

[¶ 5] Johnson contends that the court ( Anderson, J.) erred in failing to strike his 2007 OUI conviction because the underlying guilty plea was not based on an effective waiver of his constitutional rights and therefore could not serve as the predicate offense for the Class C charge of operating after habitual offender revocation, 29–A M.R.S. § 2557–A(1)(A), (2)(B). He contends that his waiver of constitutional rights was not effective because the trial court failed to inform him of all the prescribed elements of M.R.Crim. P. 5(b) and (c).⁴ Specifically, Johnson asserts that the waiver of his constitutional rights was not effective because the record of the 2007 proceedings does not demonstrate that the trial court confirmed that he was present for the mass instruction, informed him of his right to remain silent or his right to trial by jury, or informed him of the maximum penalties he could receive if convicted and his duty to immediately pay any fine imposed. He also asserts that the record does not reflect that the lawyer for the day had explained to him the minimum and maximum penalties that he faced if convicted; that he had the right to remain silent; that he had the right to counsel; and that he had a duty to immediately pay any fine imposed.

[¶ 6] As Johnson concedes, he cannot prevail in this appeal unless we first accept the premise that, within the context of trial proceedings on a subsequent offense, a defendant may collaterally attack a prior conviction resulting from a guilty plea that is allegedly constitutionally flawed. After examining relevant federal and state precedent, we conclude that a criminal defendant may not collaterally attack a prior conviction during proceedings related to a different offense, unless the defendant alleges a violation of the Sixth Amendment right to counsel.

A. Federal Law

[¶ 7] We begin by examining relevant federal authority. In a series of decisions, the United States Supreme Court has addressed the propriety of using allegedly unconstitutional convictions in subsequent criminal proceedings. In Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), the Court held that predicate convictions obtained in violation of the right to counsel as recognized in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), cannot be used “against a person either to support guilt or enhance punishment for another offense.” ⁵ Similarly, in United States v. Tucker, 404 U.S. 443, 447–49, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), the Court held that uncounseled convictions in violation of Gideon could not be considered for sentencing purposes.

[¶ 8] In Custis v. United States, 511 U.S. 485, 487, 496, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994), the Supreme Court solidified earlier precedent by holding that, as a matter of federal constitutional law, a criminal defendant may collaterally attack an earlier conviction used to enhance a new sentence only on the basis that the defendant was deprived of the fundamental right to counsel guaranteed by the Sixth Amendment. In Custis, the Court addressed whether a defendant sentenced under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C.S. § 924(e) (LexisNexis 2011), could collaterally attack the validity of previous state convictions used to enhance his federal sentence, on the basis that his appointed counsel was ineffective, that his guilty plea was not knowing and intelligent, and that he had not been adequately advised of his rights in opting for a trial on stipulated facts. 511 U.S. at 496, 114 S.Ct. 1732. The Court held that, except for convictions obtained in violation of the right to counsel as recognized in Gideon, the defendant had no right under the ACCA or the United States Constitution “to collaterally attack prior convictions” in the course of his federal sentencing proceeding. Id. at 487, 496, 114 S.Ct. 1732. The Court stated:

Custis invites us to extend the right to attack collaterally prior convictions used for sentence enhancement beyond the right to have appointed counsel established in Gideon. We decline to do so. We think that since the decision in Johnson v. Zerbst [304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) ] more than half a century ago, and running through our decisions in Burgett and Tucker, there has been a theme that failure to appoint counsel for an indigent defendant was a unique constitutional defect. Custis attacks his previous convictions claiming the denial of the effective assistance of counsel, that his guilty plea was not knowing and intelligent, and that he had not been adequately advised of his rights in opting for a “stipulated facts” trial. None of these alleged constitutional violations rises to the level of a jurisdictional defect resulting from the failure to appoint counsel at all.

Id. at 496, 114 S.Ct. 1732.

[¶ 9] The special status afforded the right to counsel derives from the principle that “ ‘[t]he right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.’ ” Id. at 494–95, 114 S.Ct. 1732 (quoting Powell v. Alabama, 287 U.S. 45, 68–69, 53 S.Ct. 55, 77 L.Ed. 158 (1932)). The Court recognized that there is “a historical basis in our jurisprudence of collateral attacks for treating the right to have counsel appointed as unique.” Id. at 494, 114 S.Ct. 1732. The Sixth Amendment right to counsel, which was made binding on the States through the Fourteenth Amendment, is among the “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” Gideon, 372 U.S. at 341, 343–44, 83 S.Ct. 792 (quotation marks omitted).

[¶ 10] The rule to be drawn from Custis is this: within the context of a subsequent prosecution, the only federally recognized basis for a collateral attack on a prior conviction is a denial of the Gideon right to counsel. ⁶ This principle applies to preclude collateral attacks on prior convictions for any other reason, whether they form an element of the crime charged or are used to enhance a sentence. See United States v. Zarate–Martinez, 133 F.3d 1194, 1199 (9th Cir.1998) (“ Custis dealt only with the use of state convictions for sentence enhancement, but by analogy its reasoning extends to the similar use of prior convictions to establish guilt.”).

B. Maine Law and Other State Court Precedents

[¶ 11] Our decisions have been generally consistent with United States Supreme Court precedent regarding collateral challenges to prior convictions. For example, in State v. Vainio, 466 A.2d 471, 472, 476 (Me.1983), we addressed whether a defendant's 1962 felony conviction could be challenged in a 1982 prosecution for unlawful possession of a firearm. In rejecting the defendant's...