State v. Zankowski, 94-458

• Decision Date: 06 October 1995
• Docket Number: No. 94-458,94-458
• Citation: 140 N.H. 294,665 A.2d 1081
• Parties: The STATE of New Hampshire v. Jonathan S. ZANKOWSKI.
• Court: New Hampshire Supreme Court

Page 1081

665 A.2d 1081

140 N.H. 294

The STATE of New Hampshire v. Jonathan S. ZANKOWSKI.

No. 94-458.

Supreme Court of New Hampshire.

Oct. 6, 1995.

Jeffrey R. Howard, Attorney General (Jeffrey S. Cahill, Assistant Attorney General, on the brief), for the State.

Rebecca A. Thorne, Public Defender, Stratham, and James E. Duggan, Chief Appellate Defender, Concord, by brief, for defendant.

HORTON, Justice.

The defendant, Jonathan Zankowski, was convicted of driving while intoxicated (DWI), subsequent offense, RSA 265:82, :82-b (1993), after a bench trial in Superior Court (Barry, J.). On appeal, he argues that the trial court erred by admitting evidence of his prior DWI because the record is silent as to whether he knowingly and voluntarily waived his right to a jury trial on the prior conviction. For the purpose of this appeal only, we assume, without deciding, that the defendant can mount a collateral attack on his prior conviction at the trial on the subsequent charge. We affirm.

The finding of guilt on the defendant's prior charge for DWI was entered pursuant to District and Municipal Court Rule 2.14, which states:

In all prosecutions for misdemeanors and violations, the Court, in its discretion, may allow the defendant, upon advice of counsel, to plead not guilty, waive the presentation of evidence by the State, and the presentation of his defense. The Court shall require the prosecution to make an offer of proof. The Court may then find the defendant guilty and impose sentence. The defendant may then appeal to the Superior Court.

Rule 2.14 permits an expedited appeal to superior court for a jury trial de novo, but its discretionary language does not require the defendant to pursue such an appeal.

Upon advice of counsel, the defendant proceeded under Rule 2.14, and, somewhat at odds with the rule, admitted to facts sufficient for the district court to enter a finding of guilt. For reasons not reflected in the record, the defendant did not appeal to superior court and served the sentence ordered by the district court. Subsequently, the defendant was charged again with DWI. At trial, the State introduced the defendant's prior conviction for the purpose of enhancing the penalty pursuant to RSA 265:82-b, I(b)(1). The defendant objected, arguing that the prior conviction was invalid because the State could not show that he knowingly and voluntarily waived his constitutional right to a jury trial. The defendant, however, never alleged that he was unaware of this right or that his waiver was unknowing or involuntary; he merely argued that the record was silent.

The defendant relies primarily on State v. Hewitt, 128 N.H. 557, 517 A.2d 820 (1986). Applying the principles of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), we there held, in the context of a direct appeal from a guilty verdict by an eleven-person jury, that a trial court must elicit from a defendant a personal acknowledgement to ensure that a waiver of the right to a jury of twelve persons was both knowing and voluntary. Hewitt, 128 N.H. at 561, 517 A.2d at 822-23. We reversed based on an insufficient record. Id. at 561, 517 A.2d at 823. Even if we were to hold that Hewitt applies in a situation where a defendant fails to appeal a Rule 2.14 conviction, a decision we do not reach, the defendant would not prevail.

The procedural posture of an appeal determines which party bears the burden of proof in the determination of whether a waiver of a right to a jury trial was knowing and voluntary. Richard v....