Opinion
No. 108,281.
2013-11-4
STATE of Kansas, Appellee, v. Jason Carl RIPPEL, Appellant.
Appeal from Johnson District Court; Stephen R. Tatum, Judge. Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Stephen R. Tatum, Judge.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., GREEN, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Jason Carl Rippel appeals the district court's finding and ruling that he had waived his Sixth Amendment right to counsel in a previous conviction of driving under the influence of alcohol (DUI), which resulted in the district court counting that previous DUI as part of his criminal history when he was sentenced in this case.
Rippel argues the State failed to prove he waived his right to counsel in the earlier case because the waiver of counsel form relied on by the State listed a different case number than was listed for the journal entry of conviction.
A review of the record clearly shows there was substantial competent evidence to support the district judge's ruling that Rippel waived his right to counsel in the case at issue and Rippel was correctly sentenced to DUI, third offense. Consequently, we affirm.
The record reflects that in February 2012, Rippel pled guilty to DUI, third offense. A presentence investigation (PSI) report indicated that Rippel had two prior DUIs, including case No.2009–0330, a November 2, 2011, Roeland Park DUI conviction. Prior to sentencing, Rippel challenged this conviction, alleging that he had not been informed of his Sixth Amendment right to counsel and had never waived that right. As a result, Rippel claimed that this uncounseled misdemeanor conviction could not be included in his criminal history score and used to enhance his sentence.
At sentencing, the State presented testimony from Lisa Galvan, the court clerk for the City of Roeland Park. Galvan testified that one of her responsibilities is to maintain the court's records. Galvan maintained a record for Rippel, which she identified as State's Exhibit 1. State's Exhibit 1 consisted of a waiver of counsel form and a journal entry of conviction.
The waiver of counsel form was signed by Rippel on November 2, 2011, and listed the case number as 2009–2399. The journal entry of conviction for Rippel's case, also dated November 2, 2011, listed the case number as 2009–0330. Galvan testified that these numbers are associated with the same case and explained that the number listed on the waiver of counsel form—2009–2399—is the court generated case number, while the number listed on the journal entry—2009–0330—is the police report number.
The district judge overruled Rippel's objection to State's Exhibit 1 and accepted it as a record of the November 2, 2011, waiver of counsel for the DUI conviction listed in the PSI report.
As a result, the court found Rippel had three lifetime DUIs and sentenced him to an underlying jail term of 12 months, a 12–month term of probation, and imposed a $1,500 fine, plus costs and fees. Rippel appealed.
Rippel argues on appeal that Galvan's testimony was not consistent with the paper records that were presented.
The State responds that the evidence presented at sentencing is sufficient to show that Rippel had been informed of and waived his right to counsel in the November 2, 2011, DUI conviction from Roeland Park.
The State has the burden of proving a disputed criminal history. K.S.A.2012 Supp. 21–6814(c); State v. Tolliver, 22 Kan.App.2d 374, 380, 916 P.2d 725 (1996). The burden of proof is by a preponderance of the evidence, meaning the greater weight of the evidence. See K.S.A.2012 Supp. 21–6814(a), (c). This court's review is limited to determining whether substantial competent evidence supports the district court's finding that the State has met this burden. State v. Hughes, 290 Kan. 159, 162, 224 P.3d 1149 (2010). Substantial evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. 290 Kan. at 170.
An uncounseled misdemeanor conviction obtained in violation of the Sixth Amendment right to counsel may not be included in a defendant's criminal history for enhancement of a later criminal sentence without the defendant's knowing and intelligent waiver of the right to counsel. State v. Youngblood, 288 Kan. 659, Syl. ¶ 3, 206 P.3d 518 (2009); State v. Long, 43 Kan.App.2d 328, 334–37, 225 P.3d 754 (2010). In order to establish an effective knowing and voluntary waiver of the right to counsel, the evidence in the record must answer two critical questions: (1) Whether the defendant has been properly informed of his or her right to counsel; and (2) whether, after having been so informed, the defendant made a clear determination not to have counsel represent him or her. Hughes, 290 Kan. at 169.
Our examination of the record, the documents involved, and the transcript of Galvan's testimony clearly shows that there was substantial competent evidence to support the district court's decision.
The difference in the number was easily explained by Galvan. The waiver of counsel form listing 2009–2399 is the court generated number and 2009–0330 is the police report number. They relate to the same case. Substantial competent evidence supports the district court's finding that the State met its burden to prove by a preponderance of the evidence that Rippel was informed of and waived his right to counsel at his prior DUI conviction.
Affirmed.