Summary
In Neville v. State, 41 Ark. App. 65, 848 S.W.2d 947 (1993), we found proof of representation lacking where the two docket sheets in question listed the respective names of Richard Lewallen and Susan Wilson under the column designated "Atty."
Summary of this case from Mangiapane v. StateOpinion
CA CR 92-647
Opinion delivered February 24, 1993
1. CRIMINAL PROCEDURE — SENTENCE ENHANCEMENT — WHEN PRIOR CONVICTION CAN BE USED TO ENHANCE PUNISHMENT. — A prior conviction cannot be used to enhance punishment unless the defendant was represented by counsel or he validly waived counsel; representation by counsel or a waiver of the right to counsel cannot be presumed from a silent record. 2. CRIMINAL PROCEDURE — SENTENCE ENHANCEMENT — ENTRIES ON DOCKET WERE TOO AMBIGUOUS TO BE RELIED ON TO ESTABLISH THAT APPELLANT WAS REPRESENTED OR VALIDLY WAIVED COUNSEL. — Where, although the records were not silent, the two docket entries were too ambiguous to be relied upon to establish that the appellant was represented or validly waived counsel and there was no other proffered evidence to explain or clarify the entries, it was error for the trial court to admit them in order to enhance the appellant's sentence.
Appeal from Pulaski Circuit Court, Seventh Division; John B. Plegge, Judge; reversed and remanded.
William R. Simpson, Jr., Public Defender, by: Michelle Young Leding, Deputy Public Defender, for appellant.
Winston Bryant, Att'y Gen., by: Brad Newman, Asst. Att'y Gen., for appellee.
The appellant, Robert Neville, was convicted in a non-jury trial of driving while intoxicated, fourth offense. On appeal, the appellant contends that the trial court erred in admitting two of his prior DWI convictions which, together with a third prior DWI conviction, were used to enhance his sentence as provided in Ark. Code Ann. 5-65-111(b)(3) (1987).
The State introduced into evidence certified copies of court dockets to prove the appellant's prior convictions of DWI. Although three docket sheets were introduced, only two are challenged on appeal. The two documents in issue are court dockets from Pulaski County Municipal Court. There is a column designated "Atty:" on both sheets. Immediately after this designation on the first docket sheet appears the name Richard Lewallen. The name Susan Wilson appears after this designation on the other docket sheet in issue.
The appellant argues that the admitted documents were too ambiguous on the issue of whether appellant had been counseled or validly waived his right to counsel in his prior cases. He contends that our decision in Tims v. State, 26 Ark. App. 102, 760 S.W.2d 78 (1988), supp. op. on reh'g granted, 26 Ark. App. 106-A, 770 S.W.2d 211 (1989), requires that this case be reversed. We agree.
It is clear that a prior conviction cannot be used to enhance punishment unless the defendant was represented by counsel or he validly waived counsel. Baldasar v. Illinois, 446 U.S. 222 (1980); State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984). Representation by counsel or a waiver of the right to counsel cannot be presumed from a silent record. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984); Rodgers v. State, 31 Ark. App. 159, 790 S.W.2d 911 (1990).
In Tims v. State, supra, the document evidencing a prior conviction contained a column for the name of the arresting officer in which appeared the words "Atty. O'Brien." The appellant in Tims argued that the entry could mean that the attorney was either the defense counsel or the prosecuting attorney. We held that although this was not a silent record, in the absence of further evidence, the record was too ambiguous to determine whether the defendant was represented or had validly waived counsel. We see no meaningful distinction between the facts of Tims and the facts presented in the case at bar. Here, as in Tims, although the records were not silent, there was no other proffered evidence to explain or clarify the entries. In the case at bar, the two docket entries, absent further evidence, were too ambiguous to be relied upon to establish that the appellant was represented or validly waived counsel. Therefore, we reverse and remand for a new trial, consistent with our supplemental opinion in Tims v. State, 26 Ark. App. 106-A, 770 S.W.2d 211 (1989).
Reversed and remanded.
ROBBINS and ROGERS, JJ., agree.