State v. Teppert ( 2020 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    12/25/2020 12:10 AM CST
    - 695 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. TEPPERT
    Cite as 
    307 Neb. 695
    State of Nebraska, appellee, v.
    Aaron Teppert, appellant.
    ___ N.W.2d ___
    Filed November 6, 2020.   No. S-19-688.
    1. Sentences: Prior Convictions: Appeal and Error. A sentencing court’s
    determination concerning the constitutional validity of a prior plea-based
    conviction, used for enhancement of a penalty for a subsequent convic-
    tion, will be upheld on appeal unless the sentencing court’s determina-
    tion is clearly erroneous.
    2. Convictions: Presumptions: Right to Counsel: Waiver: Proof.
    Convictions obtained after Gideon v. Wainwright, 
    372 U.S. 335
    , 
    83 S. Ct. 792
    , 
    9 L. Ed. 2d 799
     (1963), are entitled to a presumption of regular-
    ity such that records of conviction are admissible unless the defendant
    can show that he or she did not have or waive counsel at the time
    of conviction.
    3. Sentences: Prior Convictions: Proof. In a proceeding to enhance a
    punishment because of prior convictions, the State has the burden to
    prove the fact of prior convictions by a preponderance of the evidence
    and the trial court determines the fact of prior convictions based upon
    the preponderance of the evidence standard.
    Appeal from the District Court for Scotts Bluff County:
    Andrea D. Miller, Judge. Affirmed.
    Paul Payne and Darin J. Knepper, Deputy Scotts Bluff
    Public Defenders, for appellant.
    Douglas J. Peterson, Attorney General, and Matthew Lewis
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    - 696 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. TEPPERT
    Cite as 
    307 Neb. 695
    Papik, J.
    Aaron Teppert appeals his conviction for driving under the
    influence (DUI), fourth offense. He argues that the district
    court erred by receiving evidence of a prior conviction offered
    by the State in support of sentence enhancement. We find that
    the district court did not err and therefore affirm.
    BACKGROUND
    Teppert was charged with and pleaded guilty to DUI and
    driving under suspension. At the subsequent sentence enhance-
    ment proceeding, the State sought to introduce evidence of
    three prior DUI convictions. Teppert did not object to the dis-
    trict court’s receipt of two of the prior DUI convictions, and
    those convictions are not at issue in this appeal.
    Teppert did object to the admission of court records showing
    that he was convicted of DUI in 2010 in Red Willow County
    Court. He argued that those records were inadmissible because
    they did not affirmatively show that he had counsel or had
    knowingly, intelligently, and voluntarily waived the right to
    counsel before entering his guilty plea in that case. We will
    discuss the content of the court records at issue in more detail
    in the analysis section below.
    The district court overruled Teppert’s objection, found that
    the current conviction was his fourth offense, and sentenced
    Teppert accordingly. Teppert appeals.
    ASSIGNMENT OF ERROR
    Teppert assigns one error on appeal. He contends the district
    court erred by receiving the records of his 2010 DUI convic-
    tion for purposes of sentence enhancement.
    STANDARD OF REVIEW
    [1] A sentencing court’s determination concerning the con-
    stitutional validity of a prior plea-based conviction, used for
    enhancement of a penalty for a subsequent conviction, will
    be upheld on appeal unless the sentencing court’s determina-
    tion is clearly erroneous. State v. Orduna, 
    250 Neb. 602
    , 550
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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. TEPPERT
    Cite as 
    307 Neb. 695
    N.W.2d 356 (1996), overruled on other grounds, State v. Vann,
    
    306 Neb. 91
    , 
    944 N.W.2d 503
     (2020).
    ANALYSIS
    Law Governing Admissibility of Records of Prior
    Convictions in Enhancement Proceedings.
    As both parties recognized at oral argument, the legal land-
    scape on the issue raised in this appeal changed after the dis-
    trict court proceedings and the filing of briefs in this case. For
    many years, this court held that evidence of a prior conviction
    was inadmissible unless the State proved that, at the time of the
    prior conviction, the defendant either had counsel or knowingly,
    intelligently, and voluntarily waived the right to counsel. See,
    e.g., State v. Nowicki, 
    239 Neb. 130
    , 
    474 N.W.2d 478
     (1991),
    overruled, Vann, 
    supra.
     See, also, Orduna, 
    supra.
     Under this
    rule, if a record was silent as to whether the defendant had or
    validly waived counsel in the prior proceeding, evidence of
    that conviction was not admissible; affirmative evidence that
    the defendant’s Sixth Amendment right to counsel was honored
    in the prior proceeding was required. See, e.g., State v. Garcia,
    
    281 Neb. 1
    , 
    792 N.W.2d 882
     (2011), overruled, Vann, 
    supra.
    At the enhancement proceeding in this case, Teppert relied
    on this line of cases to argue that the district court should not
    receive evidence of the 2010 DUI conviction.
    [2] Earlier this year in Vann, 
    supra,
     we overruled this line
    of cases. In Vann, we concluded that the rule prohibiting courts
    from presuming that prior convictions were obtained in com-
    pliance with the Sixth Amendment was based on a reading of a
    U.S. Supreme Court case, Burgett v. Texas, 
    389 U.S. 109
    , 
    88 S. Ct. 258
    , 
    19 L. Ed. 2d 319
     (1967), that the U.S. Supreme Court
    later rejected in Parke v. Raley, 
    506 U.S. 20
    , 
    113 S. Ct. 517
    ,
    
    121 L. Ed. 2d 391
     (1992). In light of Parke, we concluded that
    convictions obtained after the recognition of a federal constitu-
    tional right to counsel in state court in Gideon v. Wainwright,
    
    372 U.S. 335
    , 
    83 S. Ct. 792
    , 
    9 L. Ed. 2d 799
     (1963), are
    “entitled to a presumption of regularity such that records of
    conviction are admissible unless the defendant can show that
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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. TEPPERT
    Cite as 
    307 Neb. 695
    he or she did not have or waive counsel at the time of convic-
    tion.” Vann, 
    306 Neb. at 102
    , 944 N.W.2d at 512. Additionally,
    we noted that many other state and federal courts apply the
    same rule, including some courts that once applied the rule we
    followed prior to Vann. While the fact of a prior conviction was
    an element of the underlying offense in Vann, we made clear
    that the same rule would apply to the use of prior convictions
    in sentence enhancement proceedings.
    At oral argument, counsel for Teppert acknowledged that if
    Vann applied, the records of the 2010 DUI conviction would
    be entitled to a presumption of regularity and Teppert would
    have the burden to show he did not have or validly waive
    counsel at the time of that conviction. He argued, however,
    that because the enhancement proceeding occurred prior to the
    release of our opinion in Vann, we should reverse, and remand
    to the district court so that Teppert would have the opportunity
    to present evidence to carry his burden. Counsel for the State
    argued that no remand was necessary because the records were
    admissible whether the case is governed by Vann or the line of
    cases Vann overruled.
    We do not believe remand is required. As we will explain,
    even under the pre-Vann law, the district court did not err by
    receiving evidence of the convictions.
    Records Admissible Under Pre-Vann Law.
    [3] In a proceeding to enhance a punishment because of
    prior convictions, the State has the burden to prove the fact of
    prior convictions by a preponderance of the evidence and the
    trial court determines the fact of prior convictions based upon
    the preponderance of the evidence standard. See, State v. Hall,
    
    270 Neb. 669
    , 
    708 N.W.2d 209
     (2005); State v. Hurbenca, 
    266 Neb. 853
    , 
    669 N.W.2d 668
     (2003). Prior to our decision in
    Vann, in order for evidence of a prior conviction to be admit-
    ted for enhancement purposes, the State also had the burden to
    show by a preponderance of the evidence that the defendant
    had or waived counsel at the time of the prior conviction. See,
    e.g., Hall, 
    supra.
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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. TEPPERT
    Cite as 
    307 Neb. 695
    At the enhancement proceeding, the State offered various
    authenticated court records from a 2010 criminal case. Those
    records show that Teppert was charged with DUI, pleaded
    guilty, and was sentenced accordingly. The State argues that
    a September 30, 2010, journal entry and order from that case
    also shows that Teppert validly waived counsel before entering
    his guilty plea.
    The journal entry and order states that Teppert pleaded
    guilty and was found guilty, followed by sections summarizing
    the advisements given and the arraignment:
    APPEARANCES AND ADVISEMENT
    ....
    Defendant advised of the nature of the above charges,
    all possible penalties, effect of conviction on non-citizens,
    and each of the following rights: Counsel; Appointed
    Counsel; Trial; Jury Trial; Confront Accusers; Subpoena
    Witnesses; Remain Silent; Request Transfer to Juvenile
    Court; Defendant’s Presumption of Innocence; State’s
    Burden of Proof . . . ; Right to Appeal.
    Indigency inquiry held[:]
    Defendant adjudged indigent, public defender appointed.
    ARRAIGNMENT
    Defendant advised of and waived rights.
    Defendant waives jury trial.
    Defendant enters above pleas.
    Pleas entered knowingly, intelligently, voluntarily, and
    a factual basis for plea(s) found.
    Teppert argues that the district court could not have found
    that he validly waived his right to counsel at the plea hear-
    ing for his 2010 DUI conviction based on the journal entry
    and order. Teppert maintains that the journal entry and order
    is silent as to whether he validly waived his right to counsel
    before entering his guilty plea. We disagree.
    Teppert points out that the journal entry and order does not
    directly state that Teppert knowingly, intelligently, and volun-
    tarily waived the right to counsel. Nonetheless, we find that
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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. TEPPERT
    Cite as 
    307 Neb. 695
    one could reasonably conclude from the information included
    in the journal entry and order that Teppert validly waived the
    right to counsel. After stating that Teppert was advised of a
    number of rights, including the right to counsel, the journal
    entry and order states that Teppert was “advised of and waived
    rights.” Read together, we believe it fair to infer that Teppert
    waived the specific rights referred to earlier, including the right
    to counsel.
    The journal entry and order also contain several indications
    that Teppert waived his right to counsel knowingly, intelli-
    gently, and voluntarily. First, the fact that Teppert was advised
    about his rights before waiving them suggests a knowing,
    intelligent, and voluntary waiver. Second, the journal entry and
    order shows that after entering his guilty plea, Teppert invoked
    his right to counsel and was appointed counsel for sentencing.
    Teppert’s exercise of his right to counsel for the sentencing
    phase of the case also suggests he understood the right.
    Finally, the notation that Teppert entered his plea know-
    ingly, intelligently, and voluntarily shows that his waiver
    of counsel was also done knowingly, intelligently, and vol-
    untarily. We explored the relationship between a valid plea
    and a valid waiver of the right to counsel in State v. Orduna,
    
    250 Neb. 602
    , 
    550 N.W.2d 356
     (1996), overruled on other
    grounds, State v. Vann, 
    306 Neb. 91
    , 
    944 N.W.2d 503
     (2020).
    In Orduna, like this case, a record of the defendant’s prior
    conviction expressly stated that he had made a knowing,
    intelligent, and voluntary guilty plea, but did not expressly
    state that he had knowingly, intelligently, and voluntarily
    waived the right to counsel. We nonetheless found that the
    records affirmatively demonstrated a valid waiver of the right
    to counsel. We reasoned that if a trial court finds that a plea
    was entered knowingly, intelligently, and voluntarily, and the
    record reflects that the defendant also waived the right to
    counsel, the right to counsel must also have been waived
    knowingly, intelligently, and voluntarily. As we explained,
    “a plea cannot be legally sufficient unless those elements
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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. TEPPERT
    Cite as 
    307 Neb. 695
    underlying the plea are also legally sufficient.” Id. at 611, 
    550 N.W.2d at 362-63
    .
    As noted above, a sentencing court’s determination concern-
    ing the constitutional validity of a prior plea-based conviction,
    used for enhancement of a penalty for a subsequent conviction,
    will be upheld on appeal unless the sentencing court’s determi-
    nation is clearly erroneous. Orduna, 
    supra.
     Given all that the
    district court could fairly conclude from the journal entry and
    order, we cannot say the district court clearly erred by finding
    that Teppert knowingly, intelligently, and voluntarily waived
    his right to counsel prior to entering his guilty plea for his 2010
    DUI conviction.
    Because Teppert failed to demonstrate that the district court
    erred even if this case is reviewed under the more restric-
    tive rule governing the admissibility of prior convictions that
    applied prior to Vann, we see no basis to reverse the decision
    of the district court.
    CONCLUSION
    The district court did not err by receiving records of Teppert’s
    2010 DUI conviction and finding that his conviction in this
    case was his fourth offense. We affirm.
    Affirmed.