Opinion
No. A-12-241
03-19-2013
STATE OF NEBRASKA, APPELLEE, v. ROBERT C. TAYLOR, APPELLANT.
Robb N. Gage for appellant. Jon Binning, Attorney General, and Erin E. Tangeman for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge. Affirmed.
Robb N. Gage for appellant.
Jon Binning, Attorney General, and Erin E. Tangeman for appellee.
INBODY, Chief Judge, and MOORE and RIEDMANN, Judges.
MOORE, Judge.
INTRODUCTION
Robert C. Taylor appeals from his plea-based conviction in the district court for Lancaster County of driving under the influence (DUI), fourth offense. On appeal, Taylor challenges the receipt of certain exhibits and the court's finding that one of his prior DUI convictions was a valid prior conviction for enhancement purposes. Finding no error in the district court's determination that the State proved Taylor's prior DUI convictions by a preponderance of the evidence, we affirm the conviction.
BACKGROUND
On August 26, 2011, the State filed an information in the district court, charging Taylor with DUI, fourth offense, a Class IIIA felony. The State alleged that Taylor had previously been convicted of DUI on March 17, 2002; November 25, 2001; and June 14, 1999.
On January 17, 2012, Taylor pled guilty to DUI. The State provided a factual basis for the offense, and the district court accepted Taylor's plea. The court then proceeded to the enhancement portion of the hearing.
At the enhancement hearing, the State offered five exhibits to establish Taylor's three prior convictions. Exhibit 3, certified court records of Taylor's 2001 DUI conviction, and exhibit 4, certified court records of Taylor's 1999 DUI conviction, were received without objection. The State advised the district court that the county court was unable to locate the court file for Taylor's 2002 DUI conviction. To prove Taylor's 2002 DUI conviction, the State offered exhibits 1, 2, and 5. Exhibit 1 is a certified copy of the electronic records of case No. CR02-4882 from JUSTICE, an online court records retrieval system in Nebraska. These documents show the citation number and the date the case was filed, as well as the dates of the plea and sentence, all of which occurred in 2002. Exhibit 2 is a certified copy of the bill of exceptions from that case, including the arraignment, the plea hearing, and the sentencing hearing, all of which occurred in 2002. Exhibit 5 is a certified copy of Taylor's driving record from the Nebraska Department of Motor Vehicles. Exhibit 5 shows the same citation number as exhibit 1, the same case number as exhibits 1 and 2, and the same judgment date as exhibit 2. Further, exhibit 5 shows the date the citation was issued as March 17, 2002. Taylor objected to exhibit 1 based upon relevance and to exhibit 5 based upon foundation, relevance, hearsay, and hearsay within hearsay. The district court overruled these objections and received the exhibits. Exhibit 2 was received without objection.
Using these three exhibits together, the district court found that the State met its burden of proof for the prior 2002 conviction. The court found that Taylor had three prior convictions and that the current DUI charge should be enhanced to a fourth offense.
Following a sentencing hearing, the district court entered an order on March 22, 2012, sentencing Taylor to 90 days' imprisonment, 3 years' probation, a $1,000 fine, and a license revocation of 15 years.
ASSIGNMENTS OF ERROR
Taylor asserts that the district court erred in receiving exhibits 1 and 5 over his objections and in finding that the State had proved that case No. CR02-4882 was a valid prior DUI conviction for enhancement purposes.
STANDARD OF REVIEW
A sentencing court's determination concerning the constitutional validity of a prior plea-based conviction, used for enhancement of a penalty for a subsequent conviction, will be upheld on appeal unless the sentencing court's determination is clearly erroneous. State v. Mitchell, 285 Neb. 88, 825 N.W.2d 429 (2013).
Viewing and construing the evidence most favorably to the State, an appellate court will not set aside a finding of an earlier conviction used for sentence enhancement which is supported by relevant and competent evidence. State v. Linn, 248 Neb. 809, 539 N.W.2d 435 (1995).
ANALYSIS
Taylor asserts that the district court erred in receiving exhibits 1 and 5 over his objections and in finding that the State had proved that case No. CR02-4882 was a valid prior DUI conviction for enhancement purposes.
In a proceeding to enhance punishment because of prior convictions, the State has the burden of proving such prior convictions by a preponderance of the evidence. State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011); State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009). Neb. Rev. Stat. § 60-6,197.02(1)(a) (Reissue 2010), in effect at the time of the instant offense, provides that, for purposes of enhancement, prior conviction means a conviction for a violation committed within the 12-year period prior to the offense for which the sentence is being imposed. Subsection (1)(c) of the statute further defines "[t]welve-year" period as computed from the date of the prior offense to the date of the current offense.
Receipt of Exhibits 1 and 5.
Taylor argues that the district court took improper judicial notice of exhibits 1 and 5 to show his prior conviction and the date thereof. However, the court did not take judicial notice of these documents; rather, the documents were received in evidence. While Taylor objected to the receipt of these exhibits into evidence, Taylor does not otherwise argue error in the overruling of his objections or the receipt of the exhibits into evidence. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court. State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010). Further, our review of these certified records shows that they are relevant and competent evidence of the facts shown therein. This argument is without merit. Sufficiency of Evidence to
Prove 2002 Conviction.
Taylor argues that without the actual court record, there is insufficient evidence to prove that the offense date for which he was convicted in case No. CR02-4882 occurred within the 12-year look-back period contained in the statute. We find no error in the district court's determination that exhibits 1, 2, and 5, taken together, satisfy the State's burden to prove this prior conviction.
Exhibit 1, the JUSTICE records, shows that the citation number in case No. CR02-4882 was LA795690. The same citation number is also used in exhibit 5, the record from the Nebraska Department of Motor Vehicles, with a citation date of March 17, 2002. Taken together, these exhibits demonstrate by a preponderance of the evidence that Taylor's DUI conviction in case No. CR02-4882 was for a violation committed within 12 years of the current offense. Further, the bill of exceptions, exhibit 2, shows that Taylor was represented by counsel at all stages of the proceeding--arraignment, plea, and sentencing.
Taylor cites State v. Linn, 248 Neb. 809, 539 N.W.2d 435 (1995), a DUI case in which the Nebraska Supreme Court found that an unsigned journal entry, which was certified to be a true copy by the county court clerk, failed to reflect the judicial act of rendering judgment and was insufficient to prove an earlier conviction for the purpose of sentence enhancement. We distinguished State v. Linn, supra, in State v. Fletcher, 8 Neb. App. 498, 596 N.W.2d 717 (1999), where we found that unsigned docket entries, together with certifications from the clerk of the district court and the judge of the district court, showed the prior convictions with satisfactory trustworthiness.
In the present case, while we do not have a certified copy of the actual order signed by the judge, we have a court-certified copy of the electronic records of the case, a bill of exceptions certified by a transcriber for the Lancaster County Court, and a certified copy of Taylor's driving record. It is clear from these exhibits that the county court rendered judgment against Taylor for a DUI offense occurring in 2002. This evidence, along with the records contained in exhibits 3 and 4, shows with satisfactory trustworthiness Taylor's prior convictions on at least three prior occasions on charges of DUI. Thus, the State properly met its burden of proving Taylor's current offense to be his fourth. Taylor's argument to the contrary is without merit. Opportunity to Review Record
of 2002 Conviction.
Finally, Taylor argues that because the court file was lost, he was unable to review the record of the prior 2002 conviction. Section 60-6,197.02(3) provides that the convicted person shall be given the opportunity to review the record of his or her prior convictions, bringing mitigating facts to the attention of the court prior to sentencing, and make objections on the record regarding the validity of such prior convictions. In this case, Taylor does not assert that he did not have an opportunity to review exhibits 1, 2, and 5 or that he was denied the opportunity to bring mitigating facts to the attention of the court prior to sentencing. Taylor did have the opportunity to make objections on the record to the validity of the 2002 prior conviction, and he did so.
The Nebraska Supreme Court has construed the language of § 60-6,197.02(3) as permitting within limits a challenge based upon denial of the Sixth Amendment right to counsel. State v. Scheffert, 279 Neb. 479, 778 N.W.2d 733 (2010); State v. Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999). In this case, Taylor does not challenge the validity of the 2002 conviction on this basis and the records clearly show he was represented by counsel at the time of the 2002 conviction and sentencing.
This argument is without merit.
CONCLUSION
The district court did not err in enhancing Taylor's DUI conviction to a fourth offense.
AFFIRMED.