State v. Triptow

• Decision Date: 01 March 1989
• Docket Number: No. 870008,870008
• Citation: 770 P.2d 146
• Parties: STATE of Utah, Plaintiff and Appellee, v. Gary Charles TRIPTOW, Defendant and Appellant.
• Court: Utah Supreme Court

Page 146

770 P.2d 146

STATE of Utah, Plaintiff and Appellee, v. Gary Charles TRIPTOW, Defendant and Appellant.

No. 870008.

Supreme Court of Utah.

March 1, 1989.

Rehearing Denied March 28, 1989.

Andrew A. Valdez, Salt Lake City, for defendant and appellant.

R. Paul Van Dam, Salt Lake City, L.A. Dever, Vernal, for plaintiff and appellee.

ZIMMERMAN, Justice:

Following a bench trial, defendant Gary Charles Triptow was convicted of theft, found to be an habitual criminal, and sentenced to a term of five years to life in the Utah State Prison as required by the habitual criminal statute. See Utah Code Ann. § 76-8-1001 (1978). He appeals only from the habitual criminal conviction. Triptow asserts that the trial court erred in admitting what purported to be copies of certain public documents containing hearsay as evidence of his prior convictions. He further argues that the State had the burden of proving that he was represented by counsel when he was previously convicted and that absent the challenged hearsay there is no evidence upon which any such finding can be based. We affirm.

Triptow was tried on the habitual criminal charge immediately following his conviction for second degree felony theft. Utah's habitual criminal statute provides for an enhanced sentence of five years to life for one convicted of either a second or a first degree felony when that person was previously convicted of two felonies of the requisite degree. Utah Code Ann. § 76-8-1001 (1978). ¹ The State attempted to prove Triptow's prior felony convictions by introducing five sets of copies of public documents (exhibits 7 through 11). Defense counsel objected to the introduction of the documents, arguing that they contained inadmissible hearsay and were not authenticated properly so as to qualify for any of the applicable hearsay exceptions. See Utah R.Evid. 801, 803, 804, 902. The trial court allowed all the documents to be admitted, and Triptow was convicted of being an habitual criminal.

Before this Court, Triptow concedes that one set of documents offered at trial, exhibit 9, was properly authenticated under Utah Rule of Evidence 902 and, therefore, was properly admitted under Utah Rule of Evidence 803(8). However, he contends that the remaining documents, exhibits 7, 8, 10, and 11, were not authenticated and should not have been admitted. We need not decide whether exhibits 7, 8, 10, and 11 were properly admitted because we conclude that exhibit 9 alone contains the evidence necessary to support a finding of guilt on the habitual criminal charge. Any error in admitting the other documents was harmless because they were merely cumulative of what was proven by exhibit 9. Therefore, any error must be disregarded under rule 30, Utah Rules of Criminal Procedure, and rule 103, Utah Rules of Evidence.

The documents constituting exhibit 9 show that before his theft conviction, Triptow had been twice convicted, sentenced, and committed in Utah for felony offenses, including one of the second degree. Triptow acknowledges that these express elements of section 76-8-1001 are satisfied by exhibit 9; however, he contends that there is what amounts to another element that must be proven by the State, one implied as a result of the United States Supreme Court's decisions in Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169, reh'g denied, 447 U.S. 930, 100 S.Ct. 3030, 65 L.Ed.2d 1125 (1980), and Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), dealing with the sixth amendment right to counsel. ² According to Triptow, those decisions hold that the use of an uncounseled prior conviction to enhance the penalty for a current offense constitutes an infringement of a defendant's sixth amendment right to the effective assistance of counsel. Triptow argues that to assure that the holdings of Baldasar and Burgett are implemented and the defendant's rights protected, a court considering an habitual criminal charge must require that before evidence of a prior conviction can be admitted, the State has the burden of showing not only that the conviction occurred, but also that the defendant had counsel at the time of the previous guilt determination.

We believe Triptow reads too much into Burgett and Baldasar. In each of those cases, the prosecution was allowed to introduce evidence of a prior conviction that was obviously uncounseled. The Supreme Court reversed, holding only that unless counsel was knowingly waived, an uncounseled prior conviction may not be used in a later prosecution "either to support guilt or enhance punishment for another offense." Burgett, 389 U.S. at 115, 88 S.Ct. at 262. In each case, it was plain that the defendant did not have the benefit of counsel during the previous conviction, ³ and in neither case did the Court reach the question of who bears the burdens of pleading and proof on the question of whether the defendant was counseled. That question is pivotal to Triptow's claim, and we note that neither party to this appeal has adequately addressed it.

Our own research has shown that a number of state courts have considered the question left open by Burgett and Baldasar, i.e., who bears the burden of proof on the issue of representation or waiver of counsel in prior proceedings leading to a conviction that is used to increase the penalty in a subsequent prosecution? Among those states, we have identified at least three divergent views on the question. ⁴ A significant factor is the degree to which the courts focus on the presumption of regularity that attends any judgment which has not been appealed from. See, e.g., Dunn v. Commonwealth, 703 S.W.2d 874, 876 (Ky.1985), cert. denied, 479 U.S. 832, 107 S.Ct. 121, 93 L.Ed.2d 67 (1986); People v. Knack, 128 A.D.2d 307, 312, 516 N.Y.S.2d 465, 469 (1987), aff'd, 72 N.Y.2d 825, 526 N.E.2d 32, 530 N.Y.S.2d 541 (1988). Some courts are of the view that after the state proves the fact of a defendant's prior conviction, this presumption of regularity requires that the defendant prove, by a preponderance of the evidence, that there was an actual lack of representation without a knowing waiver of counsel in the earlier proceeding. See, e.g., Croft v. State, 513 So.2d 759, 761 (Fla.Dist.Ct.App.1987) (per curiam); State v. Laurick, 222 N.J.Super. 636, 537 A.2d 792 (1987); In re Kean, 520 A.2d 1271, 1278 (R.I.1987). A second group of courts takes the position advocated by Triptow, which is to effectively disregard the presumption of regularity and require as an initial matter that the state affirmatively prove by at least a preponderance of the evidence either that the defendant was represented by counsel or that he or she knowingly waived counsel. See, e.g., State v. Morishige, 65 Haw. 354, 367, 652 P.2d 1119, 1129 (1982); State v. Hicks, 11 Kan.App.2d 76, 85-88, 714 P.2d 105, 113-15 (1986); State v. Elling, 11 Ohio Misc.2d 13, 463 N.E.2d 668 (Com.Pl.1983). A third group of courts takes a middle position. They acknowledge the presumption of regularity but allow the defendant to rebut that presumption by merely raising the issue and producing some evidence that counsel was not present and was not waived. This is enough to shift the burden to the state to affirmatively prove either representation or waiver by at least a preponderance of the evidence. See, e.g., Smith v. State, 477 N.E.2d 857, 865 (Ind.1985); Middleton v. State, 67 Md.App. 159, 161, 506 A.2d 1191, 1200 (1985), cert. denied, 308 Md. 146, 517 A.2d 771 (1986); State v. Smith, 66 N.C.App. 570, 579, 312 S.E.2d 222, 227 (1984).

Although this Court has not directly addressed the issue, we considered a somewhat analogous question in State v. Branch, 743 P.2d 1187 (Utah 1987), cert. denied, 485 U.S. 1036, 108 S.Ct. 1597, 99 L.Ed.2d 911 (1988). In Branch, the State introduced evidence of three prior convictions based on the defendant's guilty pleas. The defendant attacked his habitual criminal conviction by contending that the State had failed to prove that his prior guilty pleas were voluntary. This Court acknowledged that an involuntary guilty plea could not be used to support an habitual criminal conviction. 743 P.2d at 1192 (citing Burgett ). However, the defendant did not assert that his pleas were, in fact, involuntary. Rather he contended that the State had failed to affirmatively prove that the pleas were voluntary.

We invoked what was in effect a presumption of the regularity of the proceedings leading to the prior convictions because the defendant had been represented by counsel. We stated:

[I]n the absence of any evidence demonstrating the pleas were involuntary, the pleas are presumed to have been voluntary. See Moxley v. Morris, 655 P.2d 640, 641 (Utah 1982). A defendant can overcome this presumption by presenting to the trial court some evidence of involuntariness, thus shifting back to the State the burden of demonstrating voluntariness. The defendant is the party who can most readily demonstrate that the pleas were involuntarily made if they indeed were....

Id. at 1192-93; see also State v. Saunders, 699 P.2d 738, 743 (Utah 1985). Similarly, the defendant here is in the best position to raise the issue of lack of counsel for earlier convictions.

We hold that the procedure followed by the third group of courts discussed above most realistically balances the various policies at issue while fully protecting the right to counsel upon which Baldasar and Burgett are founded. As we observed in Branch, the defendant is the one best situated to know whether his or her sixth amendment right was infringed in the earlier proceedings; therefore, it is appropriate to presume that the right to counsel has been observed unless the defendant affirmatively contends to the contrary.

To be specific, when a defendant is charged as an habitual criminal, the State bears the burden of proving the prior conviction, sentencing, and commitment as required by section 76-8-1001. A previous judgment of...