State v. Schwab

• Decision Date: 28 June 2012
• Docket Number: No. 38797.,38797.
• Citation: 281 P.3d 1103,153 Idaho 325
• Court: Idaho Court of Appeals
• Parties: STATE of Idaho, Plaintiff–Respondent, v. Lynn Lewis SCHWAB, Defendant–Appellant.

153 Idaho 325

281 P.3d 1103

STATE of Idaho, Plaintiff–Respondent,

v.Lynn Lewis SCHWAB, Defendant–Appellant.

No. 38797.

Court of Appeals of Idaho.

June 28, 2012.

James K. Ball of Manweiler, Breen, Ball & Hancock, PLLC, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney General, Boise, for respondent. Mark W. Olson argued.

PERRY, Judge Pro Tem.

Lynn Lewis Schwab appeals from his judgment of conviction entered on his guilty plea to felony driving under the influence. For the reasons set forth below, we affirm.

I.FACTS AND PROCEDURE

In 2010, the state charged Schwab with felony driving under the influence (DUI) because Schwab had two prior DUI convictions within the previous ten years. I.C. §§ 18–8004, 18–8005(6). Schwab filed a motion in limine to prohibit the state from using his 2008 DUI conviction in Montana to enhance his DUI in this case from a misdemeanor to a felony. Following a hearing, the district court entered an order denying Schwab's motion. Pursuant to an I.C.R. 11 plea agreement, Schwab entered a conditional guilty plea to felony DUI and reserved his right to appeal the district court's denial of his motion in limine.¹ The district court sentenced Schwab to a unified term of seven years, with a minimum period of confinement of two years; suspended the sentence; and placed Schwab on probation for seven years. Schwab appeals.

II.ANALYSIS

A. Idaho Law

Idaho Code Section 18–8005(6) provides that any person who pleads guilty to or is found guilty of a DUI violation, who also pled guilty to or was found guilty of two such violations within the previous ten years, is guilty of felony DUI. Schwab argues that the state should not have been allowed to use his 2008 Montana DUI conviction to enhance his DUI in this case from a misdemeanor to a felony because he did not have knowledge of his Montana trial date and, therefore, was convicted in an uncounseled trial in which he never appeared, waived his right to counsel, or was informed of the dangers of self-representation. Thus, Schwab asserts that his Montana conviction was obtained in violation of his constitutional rights to counsel and to be present at trial.

Schwab acknowledges that the Idaho Supreme Court's decision in State v. Weber, 140 Idaho 89, 90 P.3d 314 (2004) contains language that has been read to foreclose a collateral attack on a prior conviction under the United States Constitution on any ground other than denial of the Sixth Amendment right to counsel. However, Schwab submits that this Court should read the Idaho Constitution to allow him to also attack his Montana conviction based on denial of the right to be present at trial. Specifically, Schwab cites Article I, Section 13 of the Idaho Constitution which provides that, in all criminal prosecutions, the party accused shall have the right to appear and defend in person and with counsel. In response, the state asserts that, pursuant to Weber and this Court's decision in State v. Warren, 135 Idaho 836, 25 P.3d 859 (Ct.App.2001), Schwab can only collaterally attack his Montana conviction based on denial of the right to counsel.

In Warren, the defendant was charged with eluding a police officer and a persistent violator sentence enhancement. Pursuant to a plea agreement, Warren entered a guilty plea to eluding a police officer and the state dismissed the persistent violator enhancement. Prior to sentencing, Warren moved to withdraw his guilty plea. Warren asserted that he pled guilty based on his counsel's advice that he could not collaterally attack his prior conviction for ineffective assistance of counsel in the prior proceeding for purposes of defending against a subsequent persistent violator enhancement. The district court denied Warren's motion. On appeal, this Court reasoned that, by attempting to challenge the prior conviction, Warren was asking a district court to deprive a prior state court judgment of its normal force and effect in a proceeding that had an independent purpose other than to overturn that prior judgment. We then cited the United States Supreme Court's decision in Custis v. United States, 511 U.S. 485, 496, 114 S.Ct. 1732, 1738–39, 128 L.Ed.2d 517, 528 (1994) in which the Court held that a defendant's due process right to collaterally attack a conviction used for sentencing enhancement purposes in a later proceeding is limited to the constitutional defect of failure to appoint counsel. Warren, 135 Idaho at 840, 25 P.3d at 863.

This Court further noted the policy considerations of ease of administration and finality of judgments supporting the Court's decision in Custis. Warren, 135 Idaho at 840, 25 P.3d at 863. In Custis, the Court reasoned:

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 [v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) ]. 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 [v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) ] and [ United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) ], 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. Johnson v. Zerbst, supra.

Ease of administration also supports the distinction. As revealed in a number of the cases cited in this opinion, failure to appoint counsel at all will generally appear from the judgment roll itself, or from an accompanying minute order. But determination of claims of ineffective assistance of counsel, and failure to assure that a guilty plea was voluntary, would require sentencing courts to rummage through frequently nonexistent or difficult to obtain state-court transcripts or ... records that may date from another era, and may come from any one of the 50 States.

.... The interest in promoting the finality of judgments provides additional support for our constitutional conclusion. As we have explained, "[i]nroads on the concept of finality tend to undermine confidence in the integrity of our procedures" and inevitably delay and impair the orderly administration of justice. United States v. Addonizio, 442 U.S. 178, 184, n. 11, 99 S.Ct. 2235, 2240, n. 11, 60 L.Ed.2d 805 [811, n. 11] (1979). We later noted in Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992), that principles of finality associated with habeas corpus actions apply with at least equal force when a defendant seeks to attack a previous conviction used for sentencing. By challenging the previous conviction, the defendant is asking a district court "to deprive [the] [state-court judgment] of [its] normal force and effect in a proceeding that ha[s] an independent purpose other than to overturn the prior judgmen[t]." Id., at 30, 113 S.Ct., at 523 .

Custis, 511 U.S. at 496–97, 114 S.Ct. at 1738–39, 128 L.Ed.2d at 528–29.

This Court also considered Warren's assertion that he was entitled to greater protection under Article I, Section 13 of the Idaho Constitution. We reasoned that Warren could attack the validity of his prior conviction on direct appeal and through post-conviction relief proceedings. Therefore, we concluded that no other mechanism for attacking the validity of Warren's prior conviction was necessary, especially one that deprived the prior state court judgment of its normal force and effect on grounds asserted by Warren in a proceeding with an independent purpose other than to overturn that prior judgment. Warren, 135 Idaho at 841, 25 P.3d at 864. Accordingly, we held that Warren could not collaterally attack his prior conviction for ineffective assistance of counsel in the prior proceeding for purposes of defending against a subsequent persistent violator enhancement. Id.

Shortly after Warren, in Weber, 140 Idaho 89, 90 P.3d 314, the Idaho Supreme Court addressed the scope of a defendant's right to collaterally attack the validity of misdemeanor DUI convictions offered by the state to support a charge of felony DUI pursuant to I.C. §§ 18–8004 and 18–8005. Weber challenged the validity of his prior convictions on the basis that his guilty pleas were obtained in violation of I.C.R. 11(c) and constitutional standards intended to ensure that guilty pleas are knowing and voluntary. The Court first noted the United States Supreme Court's holding in Custis that, with the sole exception of convictions obtained in violation of the right to counsel, a defendant in a federal sentencing proceeding has no constitutional right to collaterally attack the validity of previous state convictions used to enhance a sentence. Weber, 140 Idaho at 92–93, 90 P.3d at 317–18. The Court also highlighted the policy considerations of ease of administration and finality of judgments that supported the holding in Custis. Weber, 140 Idaho at 93, 90 P.3d at 318. The Court concluded that Weber had no right under the United States Constitution to collaterally attack the validity of his misdemeanor DUI convictions because his attack was based on grounds other than the denial of counsel. Id. at 94, 90 P.3d at 319.

The Court also noted that, while Weber had not cited a provision in the Idaho Constitution to establish a greater right than that afforded by the United States Constitution, the Court had never set forth a distinction between the rights afforded a defendant prior to entering a guilty plea under the Idaho Constitution...