6. Constitutional Law: Due Process: Drunk Driving: Prior Convictions: Right to Counsel: Case Overruled. The due process requirements of both the state and federal Constitutions are satisfied by the right of direct appeal from a plea-based driving under the influence conviction and the procedure set forth in Neb. Rev. Stat. § 60-6,196(3) (Reissue 1998), which permits a defendant to challenge the validity of a prior driving under the influence conviction offered for purposes of enhancement on the ground that it was obtained in violation of the defendant's Sixth Amendment right to counsel. To the extent that State v. LeGrand, 249 Neb. 1, 541 N.W.2d 380 (1995); State v. Wiltshire, 241 Neb. 817, 491 N.W.2d 324 (1992); State v. Crane, 240 Neb. 32, 480 N.W.2d 401 (1992); State v. Oliver, 230 Neb. 864, 434 N.W.2d 293 (1989); State v. Davis, 224 Neb. 518, 398 N.W.2d 729 (1987); State v. Hamblin, 223 Neb. 469, 390 N.W.2d 533 (1986); State v. Fraser, 222 Neb. 862, 387 N.W.2d 695 (1985); and State v. Baxter, 218 Neb. 414, 355 N.W.2d 514 (1984), hold that a prior conviction sought to be used for enhancement in a driving under the influence prosecution can be collaterally attacked in a separate proceeding, they are overruled. Appeal from the District Court for Stanton County, ROBERT B. ENSZ, Judge, on appeal thereto from the County Court for Stanton County, STEPHEN P. FINN, Judge.
The separate proceedings utilized by Tunender were consistent with State v. Wiltshire, 241 Neb. 817, 491 N.W.2d 324 (1992), and the Supreme Court predecessors to Wiltshire. See, e.g., State v. Oliver, 230 Neb. 864, 434 N.W.2d 293 (1989); State v. Crane, 240 Neb. 32, 480 N.W.2d 401 (1992); State v. Tejral, 240 Neb. 329, 482 N.W.2d 6 (1992). Moreover, although an issue not yet decided as of March 9, 1995, the venue of Tunender's separate proceedings, the Holt County District Court, was also correct.
The Oliver decision was called into question in a subsequent habeas corpus proceeding, Oliver v. Spire, No. CV89-L-149, 1989 WL 230917 (D. Neb. Sept. 10, 1990), where the federal district court found the rule announced by the Nebraska Supreme Court in Oliver ambiguous. The Nebraska Supreme Court attempted to further define the Oliver rule in State v. Crane, 240 Neb. 32, 480 N.W.2d 401 (1992). In Crane, the court stated that the federal court had misread the Oliver holding.
The challenge of a prior plea-based conviction based on the lack of a Boykin-type colloquy constitutes a collateral attack on the judgment. See State v. Crane, 240 Neb. 32, 480 N.W.2d 401 (1992). In State v. Wiltshire, 241 Neb. 817, 827, 491 N.W.2d 324, 330 (1992), we stated: "Unlike a lack-of-counsel challenge, which automatically makes the conviction unreliable, a Boykin challenge requires a review of the record and a determination of whether the plea was knowing, intelligent, and voluntary."
We hold that challenges to prior plea-based convictions for enhancement proceedings may be made only for the failure of the face of the transcript to disclose whether the defendant had counsel or knowingly, understandingly, intelligently, and voluntarily waived counsel at the time the pleas were entered. In State v. Crane, 240 Neb. 32, 35, 480 N.W.2d 401, 403 (1992), this court stated: We have repeatedly held that, as a procedural matter, a defendant cannot collaterally attack a prior conviction in an enhancement proceeding and that challenging a prior plea-based conviction based on the lack of a Boykin-type colloquy constitutes a collateral attack.
Supp. 1990). See, also, State v. Crane, 240 Neb. 32, 480 N.W.2d 401 (1992) (the 10-year period of 39-669.07(2)(c) is determined by and measured from the dates of the prior offenses, not the dates of the convictions for such prior offenses).
Additionally, the use of an invalid conviction to satisfy the requirements of a recidivist statute results in a conviction based on insufficient evidence; i.e., the defendant is convicted without the State's having to prove the validity of the requisite underlying convictions. See, Smith, supra; State v. Crane, 240 Neb. 32, 480 N.W.2d 401 (1992). While there is a clear right to challenge invalid convictions and a sound rationale behind that right, the more problematic point is the proper method for levying the challenge.
The difficulty from Partee's point of view is that we have consistently held that in order to prove a prior plea-based conviction for habitual criminal and other enhancement determinations, the State need only establish that at the time of the prior conviction the defendant had, or waived, counsel. State v. Tejral, ante p. 329, 482 N.W.2d 6 (1992); State v. Crane, ante p. 32, 480 N.W.2d 401 (1992); State v. Johns, 233 Neb. 477, 445 N.W.2d 914 (1989); State v. Oliver, 230 Neb. 864, 434 N.W.2d 293 (1989). Challenges claiming that a plea-based conviction is constitutionally infirm because the defendant did not voluntarily and intelligently waive his or her other Boykin rights constitute an impermissible collateral attack on the conviction.
The records concern a 1983 and a 1985 conviction. Challenges to prior plea-based convictions for enhancement proceedings may only be made for the failure of the record to disclose whether the defendant had or waived counsel at the time the pleas were entered. State v. Crane, ante p. 32, 480 N.W.2d 401 (1992). In other words, "to prove a prior conviction for enhancement purposes, the State need only show that at the time of the prior conviction the defendant had, or waived, counsel."
However, the defendant may challenge the validity of such a conviction based upon the failure of the record to disclose whether the defendant had or waived counsel at the time the plea was entered. See State v. Crane, 240 Neb. 32, 480 N.W.2d 401 (1992), overruled on other grounds, State v. Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999). [4,5] When using a prior conviction to enhance a sentence, the State need show only that at the time of the prior conviction, the defendant had, or waived, counsel.