Opinion
Court of Appeals No. A-9899, No. 5488.
June 10, 2009.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court No. 3AN-05-11345 CR.
Carmen E. Clark and Pamela Dale, Law Office of Pamela Dale, P.C., Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Kenneth J. Dubie Jr. was convicted of felony driving while under the influence and felony refusal to submit to a breath test. These crimes were felonies because Dubie had two prior convictions within the preceding ten years for driving while under the influence: a 1998 Alaska conviction and a 1996 Michigan conviction.
AS 28.35.030(a), (n).
AS 28.35.032(a), (p).
See AS 28.35.030(n) AS 28.35.032(p).
In the superior court, Dubie argued that he had been denied his right to counsel in the Michigan proceedings and that, because of this, his Michigan conviction could not lawfully be used to enhance the degree of his crime or his mandatory minimum sentence. Superior Court Judge Michael L. Wolverton rejected this argument, and Dubie now appeals Judge Wolverton's ruling.
For the reasons explained below, we conclude that Dubie failed to overcome the presumption of regularity that governs after-the-fact review of judicial proceedings. We therefore uphold Judge Wolverton's ruling that Dubie's Michigan conviction is valid. We accordingly conclude that Dubie was properly convicted of felony DUI in the present case.
Note on the procedural posture of this case
Generally, a defendant wishing to attack the validity of a prior conviction must pursue a petition for post-conviction relief. However, if the prior conviction is being used to enhance the degree of a new offense or to enhance the mandatory minimum sentence for a new offense, the defendant has a limited right to attack the validity of the prior conviction in the trial or sentencing proceedings. A defendant may make such an attack only "if the defendant was completely denied the right to counsel in the prior proceeding — either because the defendant asked for counsel and was denied one or (more likely) because the defendant proceeded without counsel and the trial judge did not obtain a knowing waiver of the right to counsel."
Brockway v. State, 37 P.3d 427, 429-30 (Alaska App. 2001).
Id. at 430.
Because the superior court relied on Dubie's Michigan conviction to enhance the degree of his offense in the present case, as well as to enhance his mandatory minimum sentence, Dubie was entitled to attack his Michigan conviction on the ground that he was denied his right to counsel.
See id. See also Pananen v. State, 711 P.2d 528, 532 (Alaska App. 1985) ("[B]efore a prior conviction . . . can properly be relied on as the sole basis for imposition of an enhanced mandatory minimum jail term, fundamental fairness under the Alaska Constitution requires the sentencing court to determine that the defendant was afforded the right to counsel in the prior case.").
We note that Michigan law on this issue appears to be the same as Alaska law. In Michigan, if a defendant is convicted in violation of the right to an attorney, that conviction cannot be used as a predicate conviction to enhance a later criminal charge or sentence. Moreover, Michigan (like Alaska) allows a defendant to pursue a later collateral attack on a conviction if the defendant's right to counsel was violated. In other words, if Dubie was convicted of driving while under the influence in violation of his right to counsel, then neither Michigan nor Alaska would recognize that conviction as valid, and neither state would allow the government to rely on that conviction to enhance a later charge or sentence for driving while under the influence.
See Michigan Court Rule 6.610(F)(2) ("Unless a defendant who is entitled to appointed counsel is represented by an attorney or has waived the right to an attorney, a subsequent charge or sentence may not be enhanced because of this conviction[,] and the defendant may not be incarcerated for violating probation or any other condition imposed in connection with this conviction."). See also People v. Stratton, 384 N.W.2d 83 (Mich.App. 1985) (holding that, because the record failed to adequately demonstrate either that defendant had the assistance of counsel or knowingly waived the right to counsel, defendant's conviction could not be used to enhance a later sentence).
See People v. Carpentier, 521 N.W.2d 195, 200 (Mich. 1994) ("[W]e align ourselves with the rationale and result of Custis [ v. United States, 511 U.S. 485, 114 S. Ct. 1732, 128 L. Ed. 2d 517 (1994),] and hold that an alleged Gideon violation constitutes a jurisdictional defect that may be collaterally challenged by a convicted criminal defendant.").
Dubie's claim that he was denied his right to court-appointed counsel in the Michigan proceeding
In the superior court, when Dubie argued that his Michigan conviction was invalid, he relied primarily on a transcript of his Michigan change-of-plea hearing. This transcript reveals that, before Dubie pleaded guilty, the Michigan judge never explicitly advised Dubie that he had the right to court-appointed counsel if he was indigent, nor did the judge explicitly ask Dubie whether he was willing to waive this right.
In Alaska, courts must advise an indigent defendant of the right to appointed counsel, and make sure the defendant is willing to waive that right, before accepting an uncounseled plea. But Michigan law regarding the right to court-appointed counsel is different. Michigan — like many other states — defines the right to counsel according to the rule established by the United States Supreme Court in Argersinger v. Hamlin. In Argersinger, the Supreme Court ruled that no person could be imprisoned for any offense (whether classified as a felony or misdemeanor) unless the person was either represented by counsel or knowingly and intelligently waived the right to counsel. The Argersinger holding was later clarified in Scott v. Illinois, where the Supreme Court ruled that an indigent criminal defendant has a right to appointed counsel whenever incarceration is the actual penalty for a criminal conviction, but not where incarceration is merely a possible penalty.
407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972); see People v. Reichenbach, 587 N.W.2d 1, 4-6 (Mich. 1998).
Argersinger, 407 U.S. at 37, 92 S. Ct. at 2012.
440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979).
Id. at 373-74, 99 S. Ct. at 1161-62.
The Michigan Court Rules are based on the Argersinger-Scott formulation of the right to court-appointed counsel. Under these rules, whenever a defendant offers to plead guilty or no contest, the court is required to inform the defendant of the right to the assistance of counsel, but the court is not always required to inform the defendant of the right to the assistance of counsel at public expense because this right is conditioned on whether the defendant faces actual imprisonment if convicted.
Michigan Court Rule 6.610(E)(2) ("If the offense charged requires on conviction a minimum term in jail, the court shall inform the defendant that if the defendant is indigent the defendant has the right to an appointed attorney. The court shall also give such advices if it determines that it might sentence to a term of incarceration.").
Michigan Court Rule 6.610(D)(2) codifies the Argersinger-Scott test for an indigent defendant's right to court-appointed counsel. Under this rule, "[a]n indigent defendant has a right to an appointed attorney whenever the offense charged requires on conviction a minimum term in jail or the court determines that it might sentence to a term of incarceration, even if suspended." In other words, the right to counsel at public expense is only triggered under Michigan law when the defendant is facing a sentence of actual imprisonment. Accordingly, under Michigan Court Rule 6.610(E)(2), when a defendant offers a plea of guilty, the court is required to inform the defendant of the right to court-appointed counsel and obtain the defendant's waiver of that right only if the defendant's case presents one of the two situations that trigger the right to court-appointed counsel under Rule 6.610(D)(2).
In People v. Reichenbach, the Michigan Supreme Court confirmed the applicability of the Argersinger rule in Michigan, holding that "[i]f the indigent defendant is without an attorney and has not waived the right to an appointed attorney, the court may not sentence the defendant to jail." However, the Michigan Supreme Court also confirmed that unless one of the conditions in Michigan Court Rule 6.610(D)(2) applies, "[a] defendant [who is offering a guilty plea] does not have the right to appointed counsel . . . and, ipso facto, is not required to waive that right under [Michigan Court Rule] 6.610(E)(2)."
Id. at 8.
Id.
In reaching this conclusion, the Michigan Supreme Court expressly rejected the argument that Michigan law required the appointment of counsel for all indigent defendants "unless the [trial] court [affirmatively] determines at the time of accepting the [defendant's] plea that it will not sentence [the] defendant to jail." The court explained: "If [this] construction of [the law] were accepted, [a] trial court would be required to announce [at] both a plea hearing and a trial that imprisonment will not be imposed. The [Michigan] rules do not create any right in the defendant to such an advance determination."
Id. at 8 n. 16.
Id.
Turning now to the materials from Michigan that Dubie submitted to the superior court in this case, we note that the log notes of Dubie's Michigan arraignment (held on October 9, 1996) suggest that Dubie knew of his right to counsel, because he apparently told the court that he intended to hire a private attorney.
Five days later, at the change-of-plea hearing held on October 14th, Dubie received (and signed) an advice-of-rights form that explicitly advised him of his right to the assistance of counsel. This same advice-of-rights form also informed Dubie of his conditional right to a receive an attorney at public expense — i.e., his right to an attorney at public expense if his case fell within one of the categories we have just discussed. At the change-of-plea hearing, the Michigan judge confirmed that Dubie had read this advice-of-rights form.
The judge did not expressly explain the right to court-appointed counsel to Dubie, nor did the judge expressly ask Dubie to waive this right. But the transcript of the change-of-plea hearing suggests that the judge had not yet decided whether — in the words of Michigan Court Rule 6.610(E)(2) — he "might sentence [Dubie] to a term of incarceration."
At the close of the change-of-plea hearing, after the Michigan court accepted Dubie's guilty plea, the court imposed the restrictions on Dubie's driver's license mandated by Michigan law, but the court then deferred the remainder of Dubie's sentencing until a pre-sentence report could be prepared. The judge's decision to delay the sentencing and to order a pre-sentence report indicates that, at the time Dubie entered his guilty plea, the judge had not yet decided whether to impose a term of incarceration for Dubie's offense.
Dubie's sentencing hearing was held six months later, on April 17, 1997. At that time, the Michigan court was obviously contemplating a sentence of imprisonment because the court ultimately sentenced Dubie to serve 6 days in jail.
As we have explained, under Michigan law (and federal law as well), the fact that the Michigan court was actively considering a sentence of imprisonment triggered Dubie's right to court-appointed counsel. But the written judgment issued at the end of the April 1997 sentencing hearing — the only record we have of that hearing — expressly states that Dubie was advised of, and knowingly waived, his right to court-appointed counsel. This written judgement contains a checked box next to the declaration that Dubie "was advised of the right to counsel and appointed counsel[,] and knowingly, intelligently, and voluntarily waived that right."
In other words, the written judgment from Michigan affirmatively declares that Dubie was advised of his right to appointed counsel, and that Dubie knowingly and intelligently waived this right at some point before he was sentenced. When Judge Wolverton denied Dubie's motion to preclude the State from relying on the Michigan conviction, the judge pointed to this portion of the written judgment as proof that Dubie was properly advised of, and knowingly waived, his right to court-appointed counsel.
A presumption of regularity attaches to court proceedings. "[I]f a court has subject-matter jurisdiction over a criminal prosecution and personal jurisdiction over the defendant, `every act [of the court] is presumed to have been rightly done until the contrary appears.'" Because of this presumption, we must operate under the premise that the Michigan court honored Dubie's right to counsel as expressly declared in the Michigan court's written judgment.
Brodigan v. State, 95 P.3d 940, 944 (Alaska App. 2004).
Id. (quoting Jerrel v. State, 851 P.2d 1365, 1372 (Alaska App. 1993) (quoting United States v. Manthei's Bondsmen, 2 Alaska 459, 466 (D. Alaska 1905))).
As we explained above, Dubie is entitled to attack the validity of that Michigan conviction. But because of the presumption of regularity, it was Dubie's burden to affirmatively prove by a preponderance of the evidence that the prior conviction was constitutionally flawed.
See Dep't of Public Safety v. Fann, 864 P.2d 533, 538 (Alaska 1993); Brodigan, 95 P.3d at 944.
It may be true that, at his Michigan change-of-plea hearing, Dubie was never expressly advised of his right to court-appointed counsel if he was indigent, nor expressly asked to waive that right. But as we have explained, Michigan law follows the Argersinger rule. Under Michigan law, the right to court-appointed counsel attaches only if a defendant faces actual imprisonment — either because the offense carries a mandatory term of imprisonment, or because the judge is actively considering a sentence of imprisonment.
Given the Michigan judge's decision to defer Dubie's sentencing for several months to allow for the preparation of a pre-sentence report, one can reasonably infer that, at the time of the change-of-plea hearing, the judge was not yet actively contemplating a sentence of imprisonment — and, therefore, Dubie's right to court-appointed counsel was not yet triggered under Michigan law.
See Reichenbach, 587 N.W.2d at 8 n. 16.
Six months later, at Dubie's sentencing hearing, the Michigan judge was actively considering a sentence of imprisonment — he imposed 6 days in jail. But the record of that hearing ( i.e., the written judgment issued by the Michigan court at the conclusion of the hearing) affirmatively declares that Dubie was advised of, and knowingly waived, his right to court-appointed counsel.
In sum, given Michigan law on the right to court-appointed counsel, given the documentation we have from the Michigan court proceedings, and applying the presumption that court proceedings are conducted in a lawful and regular manner, it is reasonable to infer that Dubie was properly advised of his right to court-appointed counsel under Michigan and federal law, and that he knowingly waived this right, before the Michigan court imposed judgment on him.
Because Dubie failed to rebut the presumption of regularity in the Michigan proceedings, Judge Wolverton could properly conclude that the Michigan conviction could be used to enhance the degree of Dubie's offense, as well as Dubie's mandatory minimum sentence, in the present proceedings.
Conclusion
The judgment of the superior court is AFFIRMED.