State v. McCann

• Citation: 21 P.3d 845,200 Ariz. 27
• Decision Date: 17 April 2001
• Docket Number: No. CR-99-0227-PR.,CR-99-0227-PR.
• Parties: STATE of Arizona, Appellee, v. Mark James McCANN, Appellant.
• Court: Supreme Court of Arizona

21 P.3d 845

200 Ariz. 27

STATE of Arizona, Appellee, v. Mark James McCANN, Appellant.

No. CR-99-0227-PR.

Supreme Court of Arizona, En Banc.

April 17, 2001.

Janet Napolitano, Arizona Attorney General, by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section and Randall M. Howe, Assistant Attorney General, Phoenix, Attorneys for the State of Arizona.

Pima County Public Defenders' Office by Susan A. Kettlewell, Pima County Public Defender and Susan C.L. Kelly, Assistant Public Defender, Tucson, Attorneys for McCann.

AMENDED OPINION

McGREGOR, Justice.

¶ 1 In State v. Reagan, 103 Ariz. 287, 440 P.2d 907 (1968), we held that a court can use a prior conviction to enhance a sentence only if "the record of that prior conviction show[s] that [the] defendant was represented by counsel, or advised of his rights to counsel, and waived his right to counsel, before it can be used in [a] subsequent prosecution." Id. at 289, 440 P.2d at 909. The State asks us to reconsider that holding, asserting that the United States Supreme Court overturned the basis for our Reagan decision in Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992). We agree and, for the reasons explained below, hold that a rebuttable presumption of regularity attaches to prior convictions used to enhance a sentence or as an element of a crime.

I.

¶ 2 In 1997, the State charged defendant McCann with aggravated DUI, which is established if a person commits a DUI offense within sixty months of two prior DUI convictions. See ARIZ.REV.STAT.ANN. (A.R.S.) § 28-1383.A.2 (West Supp.1999) (formerly A.R.S. § 28-697 A 2). During trial, the court admitted into evidence certified copies of McCann's two prior DUI convictions. The records pertaining to his 1995 DUI conviction in the Tucson City Court do not disclose whether McCann was represented by counsel or had validly waived his right to counsel.

¶ 3 McCann objected, claiming the State had not "authenticated" the 1995 DUI conviction. He also unsuccessfully moved for a Rule 20 judgment of acquittal based on the fact that the court records from his 1995 DUI conviction failed to show conclusively that he was represented by or had waived counsel. Therefore, he argued, the State could not use the prior conviction to satisfy an element of the offense of aggravated DUI.¹

¶ 4 The court of appeals modified McCann's conviction and remanded for re-sentencing. Although the court of appeals held for McCann, it noted that "[t]he state's argument is not without merit," but regarded our decision in Reagan as controlling. State v. McCann, 2 CA-CR 98-0019, slip op. at 4 (Ariz.App. May 18, 1999).

¶ 5 The State then petitioned this Court and we granted review. Because this issue involves the interpretation of both the Arizona and Federal Constitutions, we review the trial court's decision de novo. See Massey v. Bayless, 187 Ariz. 72, 73, 927 P.2d 338, 339 (1996)

. We exercise jurisdiction pursuant to article VI, section 5.3 of the Arizona Constitution and Rule 31.19 of the Arizona Rules of Criminal Procedure.

II.

A.

¶ 6 In Reagan, we essentially adopted an exception to the presumption of regularity that attaches to final judgments and presumes that judgments were constitutionally obtained. The presumption is "deeply rooted in our jurisprudence ... even when the question is waiver of constitutional rights." Parke, 506 U.S. at 29,113 S.Ct. at 523 (citing Johnson v. Zerbst, 304 U.S. 458, 464, 468, 58 S.Ct. 1019, 1023, 1025, 82 L.Ed. 1461 (1938)).

¶ 7 Our Reagan decision relied upon Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), which held that certified records of a prior conviction that did not show the defendant was represented by or waived counsel raised a presumption that the defendant was denied his right to counsel. Id. at 114-15, 88 S.Ct. at 261-62. In accord with Burgett, we held that a prior conviction could not be used to enhance a defendant's sentence unless the record of the prior conviction affirmatively showed that the defendant either was represented by counsel or had validly waived his right to counsel. We concluded, as had the Supreme Court in Burgett, that we could not presume waiver of counsel from a silent record. See also Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969)

(holding that a valid conviction resulting from a guilty plea cannot be presumed from a silent record). Since 1968, Arizona courts have applied the Reagan rule, although not without some question as to its continued validity.²

¶ 8 In 1992, the United States Supreme Court reconsidered Burgett in Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992), and rejected the holding of Burgett on which our decision in Reagan relied. In Parke, the defendant challenged a Kentucky statute that enhanced sentences for repeat felons. The defendant moved to suppress two prior convictions, arguing that because the record failed to indicate whether the prior guilty pleas were knowing and voluntary, they did not comply with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Under the Kentucky statute, the government retained the ultimate burden of persuasion as to prior convictions, but a presumption of regularity attached to prior final judgments. When the government proved the existence of a prior conviction, the burden shifted to the defendant to produce evidence of its invalidity. If the defendant carried his burden, the state had to prove beyond a reasonable doubt the validity of the prior convictions.

¶ 9 In upholding the statute, the Court held that "Boykin does not prohibit a state court from presuming, at least initially, that a final judgment of conviction offered for purposes of sentence enhancement was validly obtained." Parke, 506 U.S. at 30, 113 S.Ct. at 524. The Court explained its rationale for departing from Burgett by noting that, at the time it decided Burgett, "state criminal defendants' federal constitutional right to counsel had not yet been recognized, and so it was reasonable to presume that the defendant had not waived a right he did not possess." Id. at 31, 113 S.Ct. at 524. Because Boykin rights were well established by the time the Court decided Parke, however, the state could rely upon the presumption of regularity that attaches to final judgments of conviction.

¶ 10 The defendant in Parke also challenged the Kentucky statute on the ground that it assigned to criminal defendants a burden of production. Addressing this point, the Court said, "[E]ven when a collateral attack on a final conviction rests on constitutional grounds, the presumption of regularity that attaches to final judgments makes it appropriate to assign a proof burden to the defendant." Id.

III.

A.

¶ 11 After the Court's Parke decision, many of our sister jurisdictions adopted the presumption of regularity for prior convictions used to enhance sentences or as elements of a crime. For instance, in Massachusetts v. Lopez, 426 Mass. 657, 690 N.E.2d 809, 814 (1998), the Massachusetts Supreme Judicial Court said:

Many other States have specifically relied on the Parke decision to reject collateral challenges to long-closed convictions by plea where sentencing enhancement is involved. We conclude that a collateral challenge, like the defendant's, to a prior conviction by guilty plea, if the challenge is to advance at all, must be accompanied by sufficient credible and reliable evidence to rebut a presumption that the prior conviction was valid. If a defendant meets this burden, then an evidentiary hearing may be warranted at which the burden will be on the Commonwealth to show that the defendant's plea proceedings were conducted in a way that protected his constitutional rights.

(Footnote omitted.)

¶ 12 The Virginia Supreme Court addressed the same issue in Harris v. Virginia, 26 Va.App. 794, 497 S.E.2d 165, 169-70 (1998), wherein it said:

When sentence enhancement is an issue, the Commonwealth has the burden of proving the existence of a defendant's prior, valid convictions, and it is assisted with this burden by the "presumption of regularity." Because every final judgment of a court of competent jurisdiction is presumed "to have been rightly done," a "final" criminal conviction is entitled to a "presumption of regularity" when challenged collaterally, even on the ground that it was constitutionally invalid. Thus, if the Commonwealth offers evidence sufficient to prove the existence of a defendant's prior criminal conviction, a presumption arises that the prior conviction was obtained in compliance with the defendant's right to counsel under the Sixth Amendment.

(Citations omitted); see also Colorado v. Padilla, 907 P.2d 601, 607 (Colo.1995)

("Given their status as merely one of those sentencing factors, prior convictions need not be proven beyond a reasonable doubt, and the sentencing court may afford these convictions the presumption of regularity that attaches to final judgments."); North Carolina v. Stafford, 114 N.C.App. 101, 440 S.E.2d 846, 848 (1994) ("[B]ecause we find that defendant may not collaterally attack the validity of his prior DWI convictions, we find that the trial court properly denied defendant's motion to suppress the evidence of his prior DWI convictions."); Nebraska v. Lee, 251 Neb. 661, 558 N.W.2d 571, 577 (1997) (holding that defendants may not "collaterally attack in a special proceeding a prior conviction that is an element of a subsequent offense").³

B.

¶ 13 The same reasoning that led other jurisdictions to follow the Parke decision applies in Arizona. Our case law and rules of criminal procedure have protected criminal defendants' constitutional right to counsel for more than a quarter of a century. For example, in State v. Anderson, 96 Ariz. 123, 392 P.2d 784 (1964), we extended the right to counsel in felony matters, recognized in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), to include...