State v. Wiltshire

• Decision Date: 30 October 1992
• Docket Number: Nos. S-91-639,S-91-640,s. S-91-639
• Citation: 491 N.W.2d 324,241 Neb. 817
• Parties: STATE of Nebraska, Appellee, v. Derald B. WILTSHIRE, Appellant.
• Court: Nebraska Supreme Court

Page 324

491 N.W.2d 324

241 Neb. 817

STATE of Nebraska, Appellee, v. Derald B. WILTSHIRE, Appellant.

Nos. S-91-639, S-91-640.

Supreme Court of Nebraska.

Oct. 30, 1992.

Syllabus by the Court

1. Drunk Driving: Constitutional Law: Jury Trials. A defendant charged with third-offense driving while intoxicated, who is subject to a sentence of up to 6 months in jail and a 15-year operator's license suspension, is constitutionally entitled to a jury trial.

2. Convictions: Constitutional Law: Waiver: Sentences. A guilty-plea conviction based on an ineffective waiver of rights by the defendant is constitutionally invalid, and its use for sentence enhancement may be challenged if the appropriate procedural steps are followed.

3. Prior Convictions: Right to Counsel: Collateral Attack. Enhancement evidence challenges dealing with a lack of counsel do not constitute collateral attacks on the prior conviction and are permissible at the enhancement hearing.

4. Drunk Driving: Prior Convictions: Right to Counsel: Waiver. Statute permitting driving while intoxicated enhancement evidence "objections" at the enhancement hearing refers only to challenges based on failure to show that in the prior proceeding the defendant had counsel or voluntarily and intelligently waived his right to counsel.

5. Prior Convictions: Appeal and Error. Enhancement evidence challenges that do not deal with lack of counsel may be raised only in a direct appeal from the prior conviction or in a separate proceeding commenced for the express purpose of setting aside the judgment alleged to be invalid.

Dennis R. Keefe, Lancaster County Public Defender, for appellant.

Don Stenberg, Atty. Gen., and Delores Coe-Barbee, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, District Judge, Retired.

WHITE, Justice.

Derald B. Wiltshire appeals the district court affirmance of his conviction for third-offense driving while intoxicated (DWI), in violation of a Lincoln city ordinance. Wiltshire was sentenced under the city recidivist ordinance to 6 months in jail, a $500 fine, and a 15-year suspension of his operator's license.

Wiltshire was arrested on August 31, 1990, after police observed him driving erratically. Wiltshire failed a Breathalyzer test and was charged with DWI, in violation of Lincoln Mun.Code § 10.52.020. During trial in Lancaster County Court, Wiltshire requested a jury trial. The court denied the motion and convicted Wiltshire of DWI.

At the enhancement hearing, the State offered into evidence two of Wiltshire's prior DWI convictions, seeking to enhance the present conviction to a third offense. Wiltshire's counsel objected to the offer of a 1982 guilty-plea conviction on the grounds that the conviction was constitutionally invalid. Counsel argued that nothing in the record of the 1982 proceeding indicated that Wiltshire had been informed of or had knowingly, intelligently, and voluntarily waived his rights to confrontation of witnesses and freedom from self-incrimination--two of the "Boykin rights" guaranteed an accused by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Wiltshire was represented by counsel when he pled guilty in the 1982 DWI proceeding.

In addition to objecting to the proffered conviction at the enhancement hearing, Wiltshire's counsel filed a "Petition for Relief in a Separate Proceeding," which attacked the validity of the 1982 conviction. The separate petition asked the county court to declare the 1982 conviction invalid and to refrain from using the 1982 conviction for enhancement purposes.

The county court overruled the objections and overruled and dismissed the separate petition. The court found Wiltshire guilty of third-offense DWI, based in part on enhancement from the 1982 conviction. Wiltshire was sentenced to 6 months in jail, a $500 fine, and a 15-year suspension of his operator's license. The district court affirmed.

Wiltshire assigns as error that the district and county courts erred in (1) denying a jury trial for a conviction involving a sentence of 6 months in jail and a 15-year license suspension; (2) failing to find that the 1982 conviction was constitutionally invalid because the 1982 record does not indicate that Wiltshire was adequately informed of his rights or that he knowingly, intelligently, and voluntarily waived those rights before pleading guilty; (3) failing to allow Wiltshire to challenge the constitutional validity of the 1982 conviction at the enhancement proceeding; and (4) failing to set aside the 1982 conviction and allowing the 1982 conviction to be used to enhance the 1990 conviction to a third offense.

A conflict exists between Nebraska law and federal law as to when a jury trial is mandated for a DWI case. This court has previously held that jury trials are not required in DWI cases, even when the sentence is enhanced due to prior convictions. E.g., State v. Richter, 225 Neb. 871, 408 N.W.2d 324 (1987) (holding no jury trial required for third-offense DWI with a sentence of 180 days in jail, $500 fine, and 15-year license suspension); State v. Lynch, 223 Neb. 849, 394 N.W.2d 651 (1986) (holding no jury trial required for second-offense DWI with a sentence of 30 days in jail, $500 fine, and 1-year license suspension).

This court's denial of jury trials in enhanced DWI cases is based on Neb.Rev.Stat. § 25-2705 (Reissue 1989), which provides, in pertinent part: "Either party to any case in county court, except criminal cases arising under city or village ordinances, [and] traffic infractions ... may demand a trial by jury." (Emphasis supplied.) We have held that this provision does not provide the county court with discretion to grant a jury trial in cases involving municipal ordinance violations. State v. Blair, 230 Neb. 775, 433 N.W.2d 518 (1988).

Since our decision in State v. Richter, supra, however, new federal case law that conflicts with our Nebraska decisions has arisen on the jury issue. In Blanton v. North Las Vegas, 489 U.S. 538, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989), the U.S. Supreme Court clarified the federal constitutional right to a jury trial in a DWI case.

In Blanton, one defendant, after being denied a jury trial, was convicted of first-offense DWI. The Nevada sentencing statute provided for a maximum of 6 months in jail, a $1,000 fine, and a 90-day license suspension. The Supreme Court affirmed the judgment of the Nevada courts, holding that this situation did not mandate a jury trial. The Court reasoned that jury trials are required only if the offense is regarded as "serious." The best indication of the seriousness of the offense is the maximum penalty prescribed by the legislature. The Court noted that offenses carrying maximum periods of incarceration of 6 months or less are presumed to be petty. However, the Court went on to state:

A defendant is entitled to a jury trial in such circumstances [where the maximum prison term for the offense is 6 months or less] only if he can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a "serious" one.

489 U.S. at 543, 109 S.Ct. at 1293.

Based on the language in Blanton, the U.S. Court of Appeals for the Eighth Circuit granted habeas relief to Richter (from State v. Richter, supra ), holding that a 15-year license suspension sufficiently indicates that the Legislature considers third-offense DWI "serious." Richter v. Fairbanks, 903 F.2d 1202 (8th Cir.1990). The Eighth Circuit concluded that Richter was entitled to a jury trial and that § 25-2705 (then Neb.Rev.Stat. § 24-536 (Reissue 1985)) was unconstitutional because it denied him this right.

The 6th Amendment right to trial by jury applies to the states through the 14th Amendment to the U.S. Constitution. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). A review of Blanton and Richter v. Fairbanks convinces us that Nebraska law no longer comports with federal constitutional principles in this area. We believe that, based on our Legislature's dealings with the drunk driving problem, the Eighth Circuit properly applied the Blanton "seriousness" test to this situation. We therefore follow that reasoning and overrule our decision in State v. Richter, supra, to the extent it is inconsistent with our holding today.

The "seriousness" with which the legislature regards an offense dictates whether the offender is entitled to a jury trial. Blanton, supra. Four years before Blanton we stated, "We have no difficulty concluding, as did the Legislature, that drunk driving is a serious offense, particularly when the defendant has previously committed the same act." State v. Michalski, 221 Neb. 380, 394, 377 N.W.2d 510, 520 (1985). We are no less convinced today. The imposition of a 15-year suspension of driving privileges is such a significant additional penalty that it clearly shows serious legislative concern about this offense.

Neb.Rev.Stat. §§ 39-669.07(2)(c) and 39-669.08(4)(c) (Cum.Supp.1990) require a 15-year license suspension for anyone convicted of third-offense DWI (at least three convictions within the preceding 10 years) under § 39-669.07, § 39-669.08, or any municipal ordinance enacted pursuant to those sections. We now hold that any such defendant is constitutionally entitled to trial by jury. Section 25-2705 is unconstitutional to the extent that it requires otherwise.

We further hold, however, that a jury trial is required for DWI cases only when the charge is third offense or greater. Sections 39-669.07(2)(b) and 39-669.08(4)(b) require a 1-year license suspension for second-offense DWI. This "additional penalty" will not require a jury trial if the period of incarceration is less than 6 months. Although the second-offense license suspension is twice the...