Opinion
No. A-11-160
01-24-2012
STATE OF NEBRASKA, APPELLEE, v. JOHN T. KILMER, APPELLANT.
Patrick J. Boylan, Chief Deputy Sarpy County Public Defender, for appellant. Jon Bruning, Attorney General, and Kimberly A. Klein 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 Sarpy County: DAVID K. ARTERBURN, Judge. Affirmed in part, and in part sentence vacated and cause remanded with directions.
Patrick J. Boylan, Chief Deputy Sarpy County Public Defender, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.
IRWIN, MOORE, and CASSEL, Judges.
MOORE, Judge.
INTRODUCTION
John T. Kilmer appeals from his plea-based conviction for driving under the influence of alcohol (DUI), fifth offense, a Class III felony, and possession of a controlled substance, a Class IV felony. On appeal, Kilmer asserts that the district court erred by finding a sufficient factual basis for Kilmer's plea to fifth-offense DUI, that his trial counsel was ineffective by stipulating that this was Kilmer's fifth-offense DUI, and that the district court erred by imposing an excessive sentence for the DUI conviction. Because we find that the district court erred in enhancing Kilmer's sentence, we vacate the sentence for fifth-offense DUI and remand the cause with directions for another enhancement hearing and resentencing.
BACKGROUND
The State filed an information on January 26, 2010, charging Kilmer with one count of DUI, fifth offense; one count of possession of a controlled substance, Oxycontin; and one count of driving under suspension. In connection with the DUI charge, the State alleged that Kilmer had previously been convicted of DUI on November 7, 2002; February 27, 2003; May 13, 2004; and May 8, 2006.
A plea hearing was held on December 3, 2010. In exchange for Kilmer's plea to the underlying DUI offense and to the possession charge, the State agreed to dismiss the driving under suspension charge. The district court inquired whether there would be an enhancement hearing at the time of sentencing, and Kilmer's counsel advised the court that he had reviewed all of the "State-certified priors" and that "[t]hey appear to be valid priors." Counsel further informed the court that Kilmer was going to waive an enhancement hearing.
Because of the fifth-offense DUI charge, the district court specifically advised Kilmer of his right to have an enhancement hearing and of his rights at such a hearing. The court advised that the State would have to prove Kilmer's prior DUI convictions beyond a reasonable doubt and that Kilmer would have the right to object to the validity of any of the prior offenses. Kilmer indicated that he understood these rights and that he was waiving his right to an enhancement hearing. Kilmer confirmed that he had heard his counsel advise the court that the prior convictions were valid.
The State recited a factual basis, including the dates of four prior convictions. Kilmer's attorney did not object to the State's recitation of the factual basis, including the dates of any of the prior offenses, despite the fact that one of the dates stated in the factual basis (September 30, 2005) did not match a date alleged in the information (May 8, 2006).
The district court found that Kilmer had made his pleas freely, voluntarily, knowingly, and intelligently. The court found that there was a factual basis for the pleas, accepted Kilmer's pleas, found Kilmer guilty of fifth-offense DUI and possession of Oxycontin, and dismissed the driving under suspension charge.
At the conclusion of the plea hearing, Kilmer's attorney asked the court whether the State was going to offer the prior convictions to complete the record. The district judge stated that it was not necessary to put the prior convictions in the record, since they had been agreed to, to which Kilmer's attorney responded, "[v]ery well."
A sentencing hearing was held on December 3, 2010. The district court rejected probation, since Kilmer had been placed on probation eight times previously and still continued to reoffend. The court sentenced Kilmer to a term of 6 to 10 years' imprisonment and a fine of $1,000 for the fifth-offense DUI conviction. The court also suspended Kilmer's driver's license for 15 years. On the possession conviction, the court sentenced Kilmer to a concurrent term of 1 to 2 years' imprisonment.
Kilmer perfected a timely appeal to this court, and the case was submitted without oral argument pursuant to Neb. Ct. R. App. P. § 2-111(E)(5)(a) (rev. 2008).
ASSIGNMENTS OF ERROR
Kilmer asserts, restated, that the district court erred by finding a sufficient factual basis to enhance his plea to fifth-offense DUI and by imposing an excessive sentence. He also asserts that he received ineffective assistance of counsel.
STANDARD OF REVIEW
When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below. State v. Oceguera, 281 Neb. 717, 798 N.W.2d 392 (2011).
ANALYSIS
Enhancement to Fifth-Offense DUI.
Kilmer argues that the district court erred by finding a sufficient factual basis for his plea to fifth-offense DUI when it accepted the stipulation of the parties rather than receiving the records of the prior convictions into evidence or examining Kilmer as to whether he was represented by counsel or waived counsel on the prior convictions. Kilmer relies upon State v. Ziemba, 216 Neb. 612, 346 N.W.2d 208 (1984), in support of this assignment of error. In that case, the Nebraska Supreme Court discussed the requirements of enhancement proceedings in the DUI arena. The court stated that "the enhancement proceeding must satisfy the requirements set out in [Neb. Rev. Stat.] § 39-669.07" and State v. Smith, 213 Neb. 446, 329 N.W.2d 564 (1983). State v. Ziemba, 216 Neb. at 619, 346 N.W.2d at 214. The court recited the now well-known proposition that a transcript of a judgment used to prove a prior conviction must show that at the time of the conviction, the defendant was represented by counsel or waived his right to counsel. A defendant may, as in State v. Smith, supra, object to the admission of the record of a prior conviction on the basis that the record does not affirmatively establish that he was represented by counsel or waived his right to counsel. A transcript of judgment which does not contain such an affirmative showing is not admissible and cannot be used to prove a prior conviction. State v. Smith, supra. See, also, State v. Garcia, 281 Neb. 1, 792 N.W.2d 882 (2011) (transcript of judgment which fails to contain affirmative showing that defendant had or waived counsel is not admissible and cannot be used to prove prior conviction, because State cannot meet its burden of proof with judgment that would have been invalid to support sentence in first instance).
The court in State v. Ziemba, supra, went on to state that there is no requirement that the State prove a prior conviction by a transcript of the judgment if the defendant admits that he was in fact convicted as alleged in the complaint. "However, in accepting such a waiver the trial court must address the defendant and ascertain that he was represented by counsel at the time of the prior conviction or waived his right to counsel." State v. Ziemba, 216 Neb. at 620, 346 N.W.2d at 214. This particular language from Ziemba has been relied upon in several later cases. See, e.g., State v. Linn, 248 Neb. 809, 539 N.W.2d 435 (1995); State v. Ristau, 245 Neb. 52, 511 N.W.2d 83 (1994); State v. Foster, 224 Neb. 267, 398 N.W.2d 101 (1986); State v. Smyth, 217 Neb. 153, 347 N.W.2d 859 (1984); State v. Ellis, 216 Neb. 699, 345 N.W.2d 323 (1984).
In State v. Ristau, supra, the Supreme Court found plain error in the enhancement of a defendant's sentence for DUI absent proof that the defendant was represented by or waived counsel in a prior conviction for DUI. In that case, the defendant entered a guilty plea to second-offense DUI. At the plea hearing, the State summarized the facts supporting the charges, including recitation of a previous DUI conviction, which information was also contained in the complaint. The trial judge asked the defendant whether the facts as stated by the prosecutor were correct, which the defendant answered in the affirmative. The judge did not ask the defendant whether he had been represented by counsel or whether he had waived counsel during his prior conviction. Nor was a certified copy of the prior conviction offered or received into evidence. The Supreme Court concluded that while proof of prior convictions to establish a subsequent DUI charge may be waived by the voluntary and intelligent admission of the defendant, "there must nevertheless be proof in the record in some form that the prior convictions were obtained at a time when the defendant was represented by counsel or had knowingly waived such right." State v. Ristau, 245 Neb. at 57, 511 N.W.2d at 87. Because the record did not contain such proof, the Supreme Court vacated the defendant's sentence and remanded the cause with directions for resentencing.
Both Ziemba and Ristau also note the statutory requirements that are now contained in Neb. Rev. Stat. § 60-6,197.02(3) (Reissue 2010), which provides:
For each conviction for a violation of section 60-6,196 or 60-6,197, the court shall, as part of the judgment of conviction, make a finding on the record as to the number of the convicted person's prior convictions. The convicted person shall be given the opportunity to review the record of his or her prior convictions, bring mitigating facts to the attention of the court prior to sentencing, and make objections on the record regarding the validity of such prior convictions.
The Ristau case indicates that the statutory advisement must also be contained in the record. After being advised of his or her rights under the statute, a defendant may waive any or all of those rights. State v. Ziemba, 216 Neb. 612, 346 N.W.2d 208 (1984).
In the case at hand, the record does not contain the transcripts of the prior convictions, nor does it contain proof that Kilmer was represented by or waived counsel in the prior convictions. With regard to the statutory requirements, while the court advised Kilmer that he had the right to object to the validity of prior convictions at an enhancement hearing, it did not explicitly advise Kilmer of his right to review the record of his prior convictions or bring mitigating facts to the attention of the court prior to sentencing, as required by the statute.
The State argues that since Kilmer stipulated that he did have four prior convictions for DUI and chose to waive the enhancement hearing, the State was relieved of its burden of proving anything with respect to his prior convictions. The State's argument is without merit. Clearly, there is no requirement that the State prove a prior conviction by a transcript of the judgment if the defendant admits that he was in fact convicted as alleged in the complaint. State v. Ristau, 245 Neb. 52, 511 N.W.2d 83 (1994). However, in accepting such a waiver, the trial court must address the defendant and ascertain that he was represented by counsel at the time of the prior conviction or waived his right to counsel. Id. Although proof of prior convictions to establish subsequent-offense charges of DUI may be waived by the voluntary and intelligent admission of the defendant, there must nevertheless be proof in the record in some form that the prior convictions were obtained at a time when the defendant was represented by counsel or had knowingly waived such right. Id. Absent such proof on the record, it is plain error for a court to use a defendant's prior convictions to enhance the defendant's sentence. Id. There was no such proof in this case.
We find that the district court erred in enhancing Kilmer's sentence for DUI because the record contains no proof that Kilmer was represented by or waived counsel in a prior conviction for DUI. Accordingly, we vacate Kilmer's sentence for fifth-offense DUI and remand the cause to the district court with directions for another enhancement hearing and resentencing in accordance with the law. See State v. Oceguera, 281 Neb. 717, 798 N.W.2d 392 (2011). In all other respects, we affirm the judgment of the district court.
Other Assigned Errors.
Kilmer argues that his trial counsel's decision to waive enhancement and stipulate to the validity of the priors (including one that did not match the date as charged) amounted to ineffectiveness and was obviously prejudicial. Kilmer also argues that his sentence for the DUI conviction was excessive, because the State failed to prove that it was a fifth offense and, therefore, a Class III felony. Both of these assigned errors are dependent upon resolution of the first assigned error. Given our resolution of Kilmer's first assignment of error, we need not further consider whether trial counsel was ineffective. See Conley v. Brazer, 278 Neb. 508, 772 N.W.2d 545 (2009) (appellate court is not obligated to engage in analysis which is not needed to adjudicate controversy before it). Additionally, our determination that Kilmer's DUI sentence must be vacated and the cause remanded for a new enhancement hearing and resentencing renders moot his claim that the sentence imposed for his DUI conviction was excessive.
CONCLUSION
The district court erred in enhancing Kilmer's sentence for DUI, because the record contains no proof that Kilmer was represented by or waived counsel in the prior DUI convictions. We vacate Kilmer's sentence for fifth-offense DUI and remand the cause to the district court with directions to hold another enhancement hearing and resentence Kilmer. In all other respects, we affirm the judgment of the district court.
AFFIRMED IN PART, AND IN PART SENTENCE VACATED
AND CAUSE REMANDED WITH DIRECTIONS.