State v. Smith

• Decision Date: 04 February 1983
• Docket Number: No. 81-672,81-672
• Citation: 213 Neb. 446,329 N.W.2d 564
• Parties: STATE of Nebraska, Appellee, v. Paul L. SMITH, Appellant.
• Court: Nebraska Supreme Court

Page 564

329 N.W.2d 564

213 Neb. 446

STATE of Nebraska, Appellee, v. Paul L. SMITH, Appellant.

No. 81-672.

Supreme Court of Nebraska.

Feb. 4, 1983.

Syllabus by the Court

1. Prior Convictions: Proof. In a proceeding to enhance the punishment because of prior convictions, the burden remains on the State to prove such convictions.

2. Judgments: Prior Convictions: Proof. A judgment of conviction which would have been invalid to support a sentence of imprisonment in the first instance is not valid to enhance the punishment in a subsequent case.

3. Prior Convictions: Right to Counsel: Proof. That defendant's right to counsel was honored in a prior conviction may not be proved by a silent record.

4. Prior Convictions: Collateral Attack: Case Overruled. At an enhancement proceeding, a defendant's objection to the reception in evidence of a transcript of a former conviction which fails to show on its face that counsel was afforded or the right waived does not constitute a collateral attack on such prior conviction. To the extent that State v. Orosco, 199 Neb. 532, 260 N.W.2d 303 (1977), and State v. Voight, 206 Neb. 829, 295 N.W.2d 112 (1980), conflict with this holding, they are overruled.

Thomas M. Kenney, Douglas County Public Defender, and Bennett G. Hornstein, Asst. Public Defender, Lincoln, for appellant.

Paul L. Douglas, Atty. Gen. and Patrick T. O'Brien, Asst. Atty. Gen., Lincoln, for appellee.

KRIVOSHA, C.J., BOSLAUGH, McCOWN, WHITE, HASTINGS, and CAPORALE, JJ., and MORAN, D.J.

HASTINGS, Justice.

The defendant, Paul L. Smith, was found guilty by the District Court of third offense driving while intoxicated, a violation of Neb.Rev.Stat. § 39-669.07 (Reissue 1978), and sentenced accordingly. He has appealed to this court and assigns as error the reception into evidence, for enhancement purposes, of certified copies of two prior driving-while-intoxicated convictions. These transcripts of judgment failed to disclose whether, at the time of such convictions, the defendant was either represented by counsel or had waived the right to counsel.

There is no question concerning the basic conviction which resulted from a jury trial. However, at the hearing to determine whether or not the conviction was a third offense, the only things offered in evidence were two Omaha Municipal Court form transcripts of judgment which indicated the defendant had pleaded nolo contendere in each instance and upon "trial" was found guilty. One offense was in 1972 and the other in 1973. As we have stated above, nothing appears on either transcript to show if the defendant was represented by counsel or if he had waived such representation.

In State v. Tweedy, 209 Neb. 649, 654-55, 309 N.W.2d 94, 98 (1981), we said: "[N]o defendant may be imprisoned for any offense ... absent a knowing and intelligent waiver of his rights .... That means that such defendants are entitled to be informed of the nature of the charges against them, the right to assistance of counsel .... A voluntary and intelligent waiver of these rights must affirmatively appear from the record." (Emphasis supplied.)

By per curiam opinion in Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), the Supreme Court held that an uncounseled misdemeanor conviction may not be used to enhance the penalty and convert a subsequent misdemeanor into a felony with a prison term. The concurring opinion of Mr. Justice Marshall perhaps best explains the rationale of the Court. " '[I]ncarceration was so severe a sanction that it should not be imposed as a result of a criminal trial unless an indigent defendant had been offered appointed counsel to assist in his defense,' [citation omitted].

"That petitioner has been deprived of his liberty 'as a result of [the first] criminal trial' could not be clearer. If it had not been for the prior conviction, petitioner could not have been sentenced to more than one year for the present offense....

"... It [the subsequent sentence] was imposed as a direct consequence of that uncounseled conviction and is therefore forbidden under Scott [ v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383] and Argersinger [ v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530].

"We should not lose sight of the underlying rationale of Argersinger, that unless an accused has 'the guiding hand of counsel at every step in the proceedings against him,' [citation omitted] his conviction is not sufficiently reliable to support the severe sanction of imprisonment. [Citation omitted.] An uncounseled conviction does not become more reliable merely because the accused has been validly convicted of a subsequent offense. For this reason, a conviction which is invalid for purposes of imposing a sentence of imprisonment for the offense itself remains invalid for purposes of increasing a term of imprisonment for a subsequent conviction under a repeat-offender statute." Id. at 226-28, 100 S.Ct. at 1587-88.

We recognize that in State v. Voight, 206 Neb. 829, 295 N.W.2d 112 (1980), we held that in a proceeding to show a prior conviction for the...