State v. Randen

• Decision Date: 03 September 1992
• Docket Number: No. 17765,17765
• Citation: 497 N.W.2d 107
• Court: South Dakota Supreme Court
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Craig Lee RANDEN, Defendant and Appellant. . Considered on Briefs

Page 107

497 N.W.2d 107

STATE of South Dakota, Plaintiff and Appellee, v. Craig Lee RANDEN, Defendant and Appellant.

No. 17765.

Supreme Court of South Dakota.

Considered on Briefs Sept. 3, 1992.

Decided March 3, 1993.

Mark Barnett, Atty. Gen., Frank Geaghan, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Michael S. Stonefield, Office of Public Defender, Rapid City, for defendant and appellant.

WUEST, Justice.

Craig Lee Randen (Randen) appeals his conviction for fourth offense driving while under the influence of alcohol (DUI) ¹. We reverse and remand.

FACTS

On August 15, 1991, state filed an information charging Randen with one count of driving while under the influence of alcohol (SDCL 32-23-1(2)), an alternative count of driving while having 0.10% or more of alcohol in his blood (SDCL 32-23-1(1)) and one count of false personation (SDCL 22-40-1). State also filed a Part II information charging Randen with fourth offense DUI (SDCL 32-23-4.6) based upon prior DUI convictions on: October 21, 1986 in Codington County, South Dakota; February 25, 1988 in Codington County; and, October 23, 1989 in Hughes County, South Dakota.

On August 20, 1991, Randen filed a pretrial motion for a determination that the prior convictions alleged in the Part II information were constitutionally invalid and, therefore, not available to support a conviction for fourth offense DUI. The motion was denied after a pretrial motions hearing on September 5, 1991.

On October 3, 1991, Randen entered a guilty plea to the charge of driving while having 0.10% or more of alcohol in his blood. The plea was entered pursuant to the terms of a plea bargain involving the dismissal of the alternative driving while under the influence of alcohol charge and the charge of false personation.

The trial on the Part II information took place on October 17, 1991. During trial, state submitted fingerprint evidence to establish that Randen was one and the same person as was previously convicted of DUI on the dates alleged in the information. Over Randen's objection, the trial court also took judicial notice of pertinent portions of the records of the prior convictions. At the close of trial, Randen moved for a judgment of acquittal on the basis that state failed to establish the constitutional validity of his prior convictions. The motion was denied and the trial court found Randen guilty of fourth offense DUI. A judgment was entered on November 12, 1991, sentencing Randen to five years in the penitentiary. Randen appeals.

ISSUE

WHETHER THE TRIAL COURT ERRED IN ALLOWING USE OF TWO CONSTITUTIONALLY INVALID CONVICTIONS TO SUSTAIN RANDEN'S CONVICTION FOR FOURTH OFFENSE DUI?

"[A] plea of guilty cannot stand unless the record in some manner indicates a free and intelligent waiver of the three constitutional rights mentioned in [Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) ]--self-incrimination, confrontation and jury trial--and an understanding of the nature and consequences of the plea." Nachtigall v. Erickson, 85 S.D. 122, 128, 178 N.W.2d 198, 201 (1970). Convictions based upon guilty pleas obtained in violation of Boykin cannot be used to enhance a sentence under the habitual offender statutes. State v. King, 383 N.W.2d 854 (S.D.1986); Application of Garritsen, 376 N.W.2d 575 (S.D.1985). This principle applies equally to DUI habitual offender proceedings. State v. Escalante, 458 N.W.2d 787 (S.D.1990).

Randen argues that the trial court erroneously allowed use of his two prior DUI convictions from Codington County to sustain his conviction for fourth offense DUI. He contends this is because the records of those convictions fail to establish compliance with Boykin in the plea-taking courts' acceptance of the guilty pleas on which the convictions were based.

Recently, in Stuck v. Leapley, 473 N.W.2d 476, 478-79 (S.D.1991), we carefully outlined the various burdens of proof in habitual offender proceedings ²:

[W]here the defendant places the constitutional validity of the prior convictions in issue by a motion to strike or other appropriate means, the state has an initial burden of proving the existence of prior valid convictions by a preponderance of the evidence....

[W]hen state meets its initial burden of proof, the burden shifts to the defendant to show that the prior convictions are invalid. This appears to require a plea transcript indicating that the prior plea was not valid, or testimony to that effect by a participant in the plea proceeding (i.e., defendant, defendant's attorney, the prosecutor, the judge, etc.). (emphasis original) (footnote and citations omitted).

In Stuck, we held that state met its initial burden of proving the constitutional validity of prior convictions challenged by a habeas corpus petitioner by submitting records of the convictions showing that, at the time the petitioner entered his guilty pleas, he was fully advised of his constitutional rights and was represented by counsel. Because the petitioner failed to offer plea transcripts indicating that the prior pleas were not valid and failed to offer any other evidence or testimony to that effect, we held that he failed to meet his burden of showing some invalidity in the prior convictions and upheld his habitual offender conviction.

The same is true in the present case with one important distinction. The records of the two prior Codington County convictions challenged by Randen plainly indicate that he did not have the assistance of counsel when he entered the guilty pleas on which the convictions were based. Court minutes from the 1986 Codington County plea proceedings state, "Deft present w/o Counsel." Similar minutes from the 1988 plea proceedings also state, "deft present w/o counsel." ³

"In [United States v. Tucker ], 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), the Supreme Court held that uncounseled convictions in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), may not be used to enhance punishment for another offense." United States v. Johnson, 767 F.2d 1259, 1276 (8th Cir.1985). However, a defendant may waive his right to counsel and a conviction obtained after such a waiver may be used to enhance a later criminal sentence. See, U.S. v. Pallais, 921 F.2d 684 (7th Cir.1990) (where circumstances convincingly showed that defendant knowingly waived his right to counsel in prior proceeding, previous conviction could be used to enhance punishment for later criminal offense). See also, Greene v. U.S., 880 F.2d 1299 (11th Cir.1989) (unless defendant waived his right to counsel, uncounseled guilty plea could not be used to enhance his sentence for a subsequent offense).

In U.S. v. Gallman, 907 F.2d 639 (7th Cir.1990), the Seventh Circuit Court of Appeals outlined the burdens of proof in habitual offender proceedings in terms similar to those recognized by this court in Stuck, supra:

[O]nce the government has shown that a defendant has three prior "violent felony" convictions, the burden rests with the defendant to show that the conviction was unconstitutional. See, United States v. Taylor, 882 F.2d 1018, 1031 (6th Cir.) (once government introduces record certifying valid conviction, burden shifts to defendant), modified, 1989 WL 88622, 1989 U.S.App. Lexis 19644 (1989); Luna v. Black, 772 F.2d 448, 450 (8th Cir.1985) (for burden of proof to shift to the government, accused must introduce evidence showing that conviction was unconstitutional).

Gallman, 907 F.2d at 643 (footnote omitted). However, the Circuit Court also cautioned:

In some circumstances, for example, where the certified record of conviction indicates on its face that the conviction was unconstitutional, the defendant's burden is automatically met and the defendant need introduce no evidence at all. See, e.g., United States v. Gantt, 659 F.Supp. 73 (W.D.Pa.1987) (where certified record of conviction shows "on its face" that defendant was without benefit of counsel, government had burden of proving otherwise).

Gallman, 907 F.2d at 643 n. 4. See also, U.S. v. Clark, 735 F.Supp. 861 (N.D.Ill.1990) (if certified copy of prior conviction shows defect on its face, such as a lack of counsel, burden remains with government to establish the conviction's validity).

Based upon the above authorities, in order to use Randen's prior Codington County convictions to enhance his sentence for fourth offense DUI, the burden remained with state to show that he either had the assistance of counsel in entering his Codington County pleas or that he knowingly, voluntarily and intelligently waived his right to counsel in those proceedings. See, Luna, 772 F.2d at 450 (where records of prior convictions show defendant was not represented by counsel at all critical stages of prior proceedings, burden shifts to state to prove defendant was represented). See also, Greene, 880 F.2d at 1303 (on direct appeal, government would have burden of proving effective waiver of right to counsel in prior guilty plea proceedings where it is undisputed defendant was unrepresented when he entered his guilty plea). Accord, State v. Orr, 375 N.W.2d 171 (N.D.1985) (state prosecuting motorist for second offense DUI based on presumptively void prior conviction entered on uncounseled guilty plea had burden of showing defendant had counsel or waived his right to counsel in prior proceeding).

Here, state failed to establish that Randen either had counsel or that he knowingly, voluntarily and intelligently waived his right to counsel in the prior Codington County DUI cases. Accordingly, state failed in its burden of establishing the validity of those convictions and the trial court erroneously took judicial notice of the records of the convictions in order to sustain Randen's conviction for fourth offense DUI.

In State v. Aspen, 412 N.W.2d 881 (S.D.1987), this court held that where the state failed to produce sufficient evidence of the defendant's habitual offender status...