Summary
In State v. Levey, 122 N.H. 375, 377, 445 A.2d 1089, 1090 (1982), we applied the same reasoning in rejecting a claim that the defendant could not be tried for DWI, subsequent offense, when her guilty plea to an earlier DWI offense was made without any warning that her plea would subject her to enhanced penalties in the future.
Summary of this case from Hess v. TurnerOpinion
No. 81-400
Decided April 27, 1982
1. Criminal Law — Plea of Guilty — Consequences In accepting a guilty plea, a trial court is not obligated to inform a defendant of all consequences of her plea, and a defendant need not be aware of all the future effects the plea might have.
2. Criminal Law — Plea of Guilty — Waiver of Constitutional Rights Where defendant, charged on July 24, 1981, with driving while under the influence of intoxicating liquor, formally waived her right to be represented by counsel and pleaded guilty to the charge, her signing of a constitutionally valid waiver of counsel and acknowledgment of rights form sufficiently established that her guilty plea was made knowingly, even though at that time she did not know that a mandatory jail sentence could be imposed for a subsequent offense, under the amendment to the statute governing driving while under the influence of intoxicating liquor providing for a mandatory jail sentence, which did not become effective until August 29, 1981, since she did not rebut the presumption which the waiver created, and, furthermore, counsel could not have provided the defendant with the information she was lacking regarding a future change in the law which would set a harsher penalty for a second offense of driving while intoxicated than had been imposed previously. RSA 262-A:62 I (Supp. 1979) (now RSA 265:82).
3. Constitutional Law — Operation of Vehicle Under the Influence — Particular Laws The 1981 amendment to the statute governing the offense of driving while under the influence, which imposed a mandatory jail sentence for subsequent offenses, did not violate the constitutional prohibition against ex post facto laws, since the amendment did not increase the penalty imposed on offenses predating the effective date of the statute, but created a penalty for an offense that would necessarily take place in the future, and merely allowed a conviction obtained before the amendment to be used in the assessment of the penalty for a subsequent offense. RSA 262-A:62 I (Supp. 1979) (now RSA 265:82).
4. Motor Vehicles — Operation Under the Influence — Particular Cases Where defendant was convicted of driving while under the influence of intoxicating liquor, on July 24, 1981, the defendant was on notice as to what would happen if she were again convicted of driving while intoxicated, where the statute governing driving while under the influence of intoxicating liquor was amended effective August 29, 1981, so as to impose a mandatory jail sentence for second offenses, and the penalty she faced if convicted on a charge arising from a second offense that allegedly occurred on September 27, 1981, would not result from the legislation, but rather from her own acts which took place after the effective date of the legislation. RSA 262-A:62 I (Supp. 1979) (now RSA 265:82).
5. Statutes — Construction and Application — Particular Words and Phrases Language in the 1981 amendment to the statute setting forth the offense of driving while under the influence of intoxicating liquor, which imposed a mandatory jail sentence for a subsequent offense, clearly indicated a legislative intent to include convictions predating the amendment in the term "prior convictions", since "prior convictions" as defined by the legislation included any proven conviction within 7 years preceding the date of the second or subsequent offense. RSA 262-A:62 I (Supp. 1979) (now 265:82).
Gregory H. Smith, attorney general (Richard C. Nelson, assistant attorney general, on the brief and orally), for the State.
Law Office of William H. Kennedy, of Keene (Lawrence G. Brann on the brief and orally), for the defendant.
The defendant, Pamela L. Levey, was charged with driving while under the influence of intoxicating liquor, subsequent offense, in violation of RSA 262-A:62 I (Supp. 1979) (current version at RSA 265:82 I), as amended by Laws 1981, 543:2. The second offense allegedly occurred on September 27, 1981, and the defendant's prior conviction was on July 24, 1981, in the Keene District Court. At the time of her first conviction, the defendant formally waived her right to be represented by counsel and pleaded guilty to the charge of driving while intoxicated.
Prior to the commencement of trial for her second offense, the defendant filed a written motion to have her case tried as a first offense because she asserted she was not aware that waiving her rights and pleading guilty to a first offense would affect her later. The defendant's first conviction was under the provisions of RSA 262-A:62 I (Supp. 1979) (current version at RSA 265:82 I), which permitted a jail sentence for a subsequent offense, but did not provide for the imposition of a mandatory jail sentence. On August 29, 1981, the amendment to RSA 262-A:62 I (now RSA 265:82 I) became effective and provided for the imposition of a mandatory jail sentence for conviction of a subsequent offense. The Keene District Court (Davis, J.) transferred to this court the question presented by the defendant's motion. We conclude that the defendant may be charged with driving while intoxicated, subsequent offense.
The defendant first argues that, at the time of her first offense, her guilty plea and her waiver of counsel were not knowingly and intelligently made because she did not know at the time that a mandatory jail sentence could be imposed for a subsequent offense. While we agree that the defendant did not possess that knowledge, we cannot conclude that the absence of such knowledge invalidated her waiver of counsel or guilty plea.
In accepting a guilty plea, a court is not obligated to inform a defendant of all consequences of her plea. State v. Fournier, 118 N.H. 230, 231, 385 A.2d 223, 224 (1978). Similarly, a defendant need not be aware of all the future effects the plea might have. See id. at 231, 385 A.2d at 224. Consequently, we conclude that the defendant's signing of a constitutionally valid waiver of counsel and acknowledgement of rights form sufficiently established that her guilty plea was made knowingly. See State v. Buckwold, 122 N.H. 111, 112, 441 A.2d 1165, 1166 (1982).
Additionally, we conclude that the defendant's waiver of counsel was knowingly and intelligently made. She signed a constitutionally valid waiver form, and she has not rebutted the presumption which that waiver created. See id. at 112, 441 A.2d at 1166. Furthermore, counsel could not have supplied the defendant with the information she was lacking regarding a future change in the law which would set a harsher penalty for a second offense of driving while intoxicated than had been imposed previously.
The defendant next argues that RSA 262-A:62 I (Supp. 1979) (current version at RSA 265:82 I) as amended violates the New Hampshire Constitution, pt. 1, art. 23 by creating an ex post facto law. We disagree. The amendment to RSA 262-A:62 I (Supp. 1979) (current version at RSA 265:82 I) did not increase the penalty imposed on offenses predating the effective date of the statute. Rather, the amendment created a penalty for an offense that would necessarily take place in the future. Merely allowing a conviction obtained before the amendment to be used in the assessment of the penalty for a subsequent offense does not violate the constitutional prohibition against ex post facto laws. See State v. Vashaw, 113 N.H. 636, 637-38, 312 A.2d 692, 693 (1973) (offenses prior to statute can be used as basis for conviction as an habitual offender); see also State v. Heald, 120 N.H. 319, 325, 414 A.2d 1288, 1291-92 (1980) (past criminal record may be a factor in determining sentence); cf. Baldasar v. Illinois, 446 U.S. 222, 223, 227-28 (1980) (a prior conviction can be used to impose a jail sentence only if the defendant had validly waived counsel at the time of the prior conviction).
As of the effective date of the 1981 amendment to RSA 262-A:62 I (current version at RSA 265:82 I), the defendant was on notice as to what would happen if she were again convicted of driving while intoxicated. The penalty she faces if convicted will not result from the legislation, but rather from her own acts which took place after the effective date of the legislation. See State v. Vashaw, 113 N.H. at 638, 312 A.2d at 693.
Finally, the defendant asks us to interpret the term "prior convictions" in the amendment to RSA 262-A:62 I (current version at RSA 265:82 I) as applying to only those convictions occurring after the amendment. While we might believe that interpretation to be the more just, the language of the amendment clearly indicates a legislative intent to include convictions predating the amendment in the term "prior convictions." "Prior convictions" as defined by the legislation include any proven conviction "within the 7 years preceding the date of the second or subsequent offense." Laws 1981, 543:2 I. (Emphasis added.) In light of the clear intent expressed in the statute, this court cannot interpret the legislation as the defendant requests. See Silva v. Botsch, 120 N.H. 600, 601, 420 A.2d 302, 302 (1980); In re Estate of Borkowski, 120 N.H. 54, 57, 410 A.2d 1121, 1122 (1980).
Remanded.
All concurred.