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www.nebraska.gov/apps-courts-epub/
01/29/2021 09:08 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 conviction, will be upheld on appeal unless the sentencing court’s determination 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 regularity 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 enhancement proceeding, the State sought to introduce evidence of
three prior DUI convictions. Teppert did not object to the district 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 conviction for purposes of sentence enhancement.
STANDARD OF REVIEW
[1] A sentencing court’s determination concerning 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 determination is clearly erroneous. State v. Orduna, 250 Neb. 602, 550
- 697 -
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 landscape on the issue raised in this appeal changed after the district 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 compliance 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 constitutional 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
- 698 -
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 conviction.” 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 admitted 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.
- 699 -
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 hearing 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 voluntarily waived the right to counsel. Nonetheless, we find that
- 700 -
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, intelligently, 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 knowingly, intelligently, and voluntarily shows that his waiver
of counsel was also done knowingly, intelligently, and voluntarily. 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
- 701 -
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 concerning 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 determination 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 restrictive 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.
