State v. Garcia
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cases determined
in the
SUPREME COURT OF Nebraska
State of Nebraska, appellee, v.
Leopoldo J. Garcia, appellant.
___N.W.2d___
Filed January 21, 2011.
No. S-10-231.
1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress based on a
claimed violation of the Fourth Amendment, an appellate court applies a two-part
standard of review. Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error. But whether those facts trigger or violate Fourth
Amendment protections is a question of law that an appellate court reviews independently of the trial court’s determination.
2. 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.
3. Statutes: Judgments: Appeal and Error. The meaning of a statute is a question
of law, on which an appellate court has an obligation to reach an independent
conclusion irrespective of the decision made by the court below.
4. Constitutional Law: Search and Seizure. The Fourth Amendment guarantees
the right to be free of unreasonable searches and seizures.
5. Constitutional Law: Investigative Stops: Motor Vehicles: Search and
Seizure. A vehicle stop constitutes a seizure within the meaning of the Fourth
Amendment.
6. Investigative Stops: Motor Vehicles: Probable Cause. A traffic violation, no
matter how minor, creates probable cause to stop the driver of a vehicle.
7. Police Officers and Sheriffs: Investigative Stops: Motor Vehicles: Probable
Cause. After observing suspicious and dangerous driving behavior on private
property and watching the driver enter, under suspicious circumstances, onto a
public road, a police officer should not have to wait to observe further dangerous
driving behavior, subjecting the public to potentially serious harm, before stopping the driver to investigate.
8. Drunk Driving: Prior Convictions: Proof: Words and Phrases. While Neb.
Rev. Stat. § 60-6,197.02(1)(a)(i)(C) (Cum. Supp. 2008) defines a prior conviction,
()
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9.
10.
11.
12.
13.
§ 60-6,197.02(2) defines what shall constitute the State’s prima facie case proving such prior conviction.
Drunk Driving: Prior Convictions: Proof: Legislature: Intent. In providing
for a simple and straightforward means of establishing the State’s prima facie evidence of prior convictions, as defined by Neb. Rev. Stat. § 60-6,197.02(1)(a)(i)(C)
(Cum. Supp. 2008), the Legislature implicitly acknowledged that it would be
impractical, if not impossible, for the prosecution to prove particular factual
predicates which may be necessary elements in Nebraska, but of no concern
somewhere else.
Drunk Driving: Prior Convictions: Sentences. The fact that a defendant has
previously been convicted of driving under the influence is irrelevant to guilt or
innocence and is relevant only to the sentence to be meted out.
Sentences: Prior Convictions: Proof. In a sentence enhancement proceeding, it
is not fundamentally unfair to consider the relative positions of the defendant and
the prosecution and to place at least the burden of production on the defendant to
show that a prior conviction cannot be used for enhancement.
Prior Convictions: Right to Counsel: Waiver: Records: Proof: Sentences. A
transcript of a judgment which fails to contain an affirmative showing that the
defendant had or waived counsel is not admissible and cannot be used to prove a
prior conviction, because the State cannot meet its burden of proof with a judgment that would have been invalid to support a sentence in the first instance.
Right to Counsel: Records: Presumptions: Appeal and Error. Where a record
is silent as to a defendant’s opportunity for counsel, an appellate court may not
presume that such rights were respected.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, and
John C. Jorgensen for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
Heavican, C.J., Wright, Connolly, Gerrard, Stephan,
McCormack, and Miller-Lerman, JJ.
McCormack, J.
I. NATURE OF CASE
Leopoldo J. Garcia appeals his conviction of driving under
the influence (DUI), third offense, with a breath alcohol concentration of .15 or greater, in violation of Neb. Rev. Stat.
§ 60-6,197.03(6) (Supp. 2007). The police officer who conducted the stop had observed Garcia driving erratically in a
car dealership lot after business hours and then colliding with
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a pole before quickly driving onto a public highway and leaving his vehicle’s bumper behind in the lot. Garcia asserts that
because the observed behavior occurred on private property,
the officer lacked a reasonable, articulable suspicion that he
had or was about to be engaged in criminal activity. Garcia
also asserts that two prior California DUI convictions were
inadmissible for purposes of enhancement because California
DUI laws apply anywhere in the state, while, in Nebraska,
they apply only to highways and to private property open to
public access.
II. BACKGROUND
1. Traffic Stop
At 12:11 a.m. on October 20, 2008, Officer Emily Noordhoek
was waiting in her police cruiser at a red light when she
observed someone driving a black Nissan in the parking lot
of a car dealership located directly to her left. It was after
business hours. Noordhoek stated that the driver’s behavior
was “odd.” The vehicle was moving backward and forward,
as if the driver were trying to get it turned around. It then ran
into a wooden light pole. Noordhoek heard a loud noise, saw
the vehicle’s rear bumper fall to the ground, and watched the
driver speed away out of the lot, leaving the bumper behind.
Noordhoek was not able to observe at that time whether the
light pole had been damaged.
Noordhoek decided to stop the vehicle. It passed her cruiser,
heading in the opposite direction at the traffic light, and
Noordhoek activated her cruiser’s overhead lights and made a
U-turn to follow. She testified that the vehicle was slow to stop
and that she followed it approximately three or four blocks
before the driver pulled over.
When Noordhoek was finally able to stop the vehicle and
approach, the driver identified himself as Garcia. He presented a California identification card. He did not have a driver’s license or registration papers for the vehicle. Noordhoek
smelled a very strong odor of alcohol emanating from Garcia,
and she observed that his eyes were watery and red and that
he was slumped over as if he were about to fall asleep. When
Garcia was asked to exit the vehicle, he was unable to stand
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or walk without physical assistance. He was transported to
“detox,” where field sobriety tests were conducted. His performance indicated intoxication, and an Intoxilyzer test conducted approximately 40 minutes after the stop revealed his
breath alcohol level to be .190 of 1 gram of alcohol per 210
liters of breath.
Garcia was charged with DUI, third offense, with a concentration of more than .15 of 1 gram of alcohol per 210 liters of
breath. Garcia filed a motion to suppress all evidence against
him on the ground that Noordhoek lacked reasonable suspicion
to initiate the stop. Garcia argued that because he was not on
a public roadway and because Noordhoek did not observe any
damage to private property or know whether Garcia had any
right to be there, there was no basis for her to believe that he
had committed a crime. The trial court overruled the motion to
suppress, reasoning that any officer observing Garcia’s behavior in the car dealership lot could have formed a reasonable
suspicion that some crime had been committed. There were
“issues of trespass, possible property damage, maybe suspicion of DUI.” A bench trial was held on stipulated facts, and
Garcia was found guilty of DUI with a concentration of more
than .15.
2. Enhancement
An enhancement hearing was held to determine whether
Garcia’s sentence would reflect the DUI as his third offense.
Garcia objected to the admission of two prior California DUI
convictions: (1) a 2004 conviction for driving with an alcohol
concentration of .08 of 1 gram or more of alcohol per 210
liters of breath and (2) a 2007 conviction for driving with a
concentration of .08 of 1 gram or more, enhanced by reason
of having a concentration of .15 of 1 gram or more of alcohol
per 210 liters of breath. Both convictions were obtained upon
pleas of guilty. Garcia asserted that the State had failed to
show, as required by Neb. Rev. Stat. § 60-6,197.02(1)(a)(i)(C)
(Cum. Supp. 2008), that he had been convicted in California of
offenses which “at the time of the conviction . . . would have
been a violation of section 60-6,196.” Garcia also asserted that
the exhibits in support of his 2004 conviction failed to make
the necessary showing that he was represented by counsel. The
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trial court overruled Garcia’s objections to the exhibits and
found him punishable under § 60-6,197.03(6). He was sentenced to probation, with 180 days’ incarceration as a term of
the probation. Garcia appeals.
III. ASSIGNMENTS OF ERROR
Garcia argues that the trial court erred in (1) overruling his
motion to suppress the traffic stop and all evidence obtained
therefrom, (2) permitting his prior convictions under California
law for purposes of enhancement under § 60-6,197.02(1)(a)(i)(C),
and (3) imposing an excessive sentence.
IV. STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment,
we apply a two-part standard of review. Regarding historical
facts, we review the trial court’s findings for clear error. But
whether those facts trigger or violate Fourth Amendment protections is a question of law that we review independently of
the trial court’s determination.
[2] 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.
[3] The meaning of a statute is a question of law, on which an
appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.
V. ANALYSIS
1. R easonableness of Stop
Garcia argues that the stop which eventually led to his arrest
for DUI violated his Fourth Amendment rights and that the
trial court erred in overruling his motion to suppress all evidence obtained from the stop. In reviewing a trial court’s ruling
State v. Scheffert, 279 Neb. 479, 778 N.W.2d 733 (2010).
State v. Reimers, 242 Neb. 704, 496 N.W.2d 518 (1993).
State v. Lasu, 278 Neb. 180, 768 N.W.2d 447 (2009).
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on a motion to suppress based on a claimed violation of the
Fourth Amendment, we apply a two-part standard of review.
Regarding historical facts, we review the trial court’s findings
for clear error. Whether those facts trigger or violate Fourth
Amendment protections is a question of law that we review
independently of the trial court’s determination.
[4-6] The Fourth Amendment guarantees the right to be
free of unreasonable searches and seizures. And a vehicle
stop constitutes a seizure within the meaning of the Fourth
Amendment. We have said that a traffic violation, no matter how minor, creates probable cause to stop the driver of a
vehicle. But Garcia argues that he was on private property
when Noordhoek observed the behavior that formed the basis
for her decision to make the stop. He asserts that the rules
of the road do not apply to private property and that thus,
Noordhoek could not have observed any possible violation of
traffic laws.
Contrary to Garcia’s contention, many rules of the road are
applicable to private property. Neb. Rev. Stat. § 60-6,108(1)
(Reissue 2004) states that “sections 60-6,196, 60-6,197,
60-6,197.04, and 60-6,212 to 60-6,218 shall apply upon highways and anywhere throughout the state except private property which is not open to public access.” (Emphasis supplied.)
However, because the trial court made no factual determinations concerning whether the car dealership lot was open to
public access, we will assume for purposes of this appeal that
Garcia did not violate any rules of the road while in the lot.
This does not mean that Noordhoek was unjustified in stopping
Garcia’s vehicle.
[7] It is undisputed that by the time Noordhoek initiated the
stop, Garcia was driving on a public road. Garcia believes it is
dispositive that Noordhoek did not observe any unusual driving
State v. Scheffert, supra note 1.
See Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d
89 (1996).
See State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
State v. Louthan, 275 Neb. 101, 744 N.W.2d 454 (2008).
See, also, State v. Prater, 268 Neb. 655, 686 N.W.2d 896 (2004).
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behavior during the short period Garcia drove on the road
before he was stopped. But that does not matter. Noordhoek
observed Garcia driving in the lot. Garcia’s driving behavior
in the lot demonstrated his failure to control his vehicle. In
particular, he appeared to be incapable of safely completing
a simple driving maneuver in a relatively unobstructed space,
instead, running into a light pole with enough force that his
vehicle’s rear bumper fell off. Garcia’s “odd” and reckless
driving behavior created a reasonable suspicion, if not probable cause, that Garcia was driving while impaired by drugs
or alcohol. Whether it was against the law to drive while
impaired on the private lot, an officer observing this behavior
could conclude that the driver remained thus impaired when he
sped out from the lot and onto a public road. After observing
suspicious and dangerous driving behavior on private property
and watching the driver enter, under suspicious circumstances,
onto a public road, a police officer should not have to wait
to observe further dangerous driving behavior, subjecting the
public to potentially serious harm, before stopping the driver
to investigate.
Because Noordhoek had reasonable suspicion that Garcia
was driving under the influence, the stop of Garcia’s vehicle
did not violate his Fourth Amendment right to be free of
unreasonable search and seizure. We need not address additional nontraffic related offenses that may have also justified
the stop. The evidence of Garcia’s impairment derived from
the stop was admissible, and his conviction for DUI over .15
is affirmed.
2. Enhancement
(a) “[W]ould have been a violation of” Neb. Rev. Stat.
§ 60-6,196 (Reissue 2004)
We also conclude that the trial court did not err in considering Garcia’s prior California DUI convictions in sentencing
him under § 60-6,197.03(6). Garcia’s primary contention is
that the State failed to sustain its burden to show that the
See United States v. Sokolow, 490 U.S. 1, 109 S. Ct. 1581, 104 L. Ed. 2d
1 (1989).
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prior convictions satisfied the requirements of § 60-6,197.02.
Section 60-6,197.02(1)(a) provides that, for purposes of
enhancement,
[p]rior conviction means a conviction for a violation committed within the twelve-year period prior to the offense
for which the sentence is being imposed as follows:
....
(C) Any conviction under a law of another state if, at
the time of the conviction under the law of such other
state, the offense for which the person was convicted
would have been a violation of section 60-6,196[.]
Garcia argues that under § 60-6,197.02(1)(a)(i)(C), in order
to enhance based on a prior out-of-state DUI conviction, it is
the State’s burden of proof and of production to show either
(1) that the laws of Nebraska and the foreign jurisdiction have
the same scope of application or (2) that the peculiar facts surrounding the prior out-of-state DUI conviction would have been
punishable under Nebraska law. On their face, California’s DUI
prohibitions apply to any kind of property,10 while Nebraska
motor vehicle laws prohibit only driving under the influence
on highways or on private property that is “open to public
access.”11 Thus, Garcia argues that it was the State’s burden to
show what kind of property was involved in his prior California
DUI convictions. Since the record of the prior California convictions submitted by the State does not reflect this, he argues
that his sentence must be reversed.
The State, in contrast, asserts that by presenting certified
copies of the prior convictions and establishing, in accordance
with our case law,12 those convictions were counseled, it made a
prima facie case for enhancement and that the burden shifted to
Garcia to show why the prior offenses would not qualify under
§ 60-6,197.02. It relies on later subsections of § 60-6,197.02,
which state:
(2) In any case charging a violation of section 60-6,196
or 60-6,197, the prosecutor or investigating agency shall
10
11
12
Cal. Veh. Code §§ 23100 and 23152 (West 2000 & Cum. Supp. 2011).
§ 60-6,108(1).
See, e.g., State v. Ristau, 245 Neb. 52, 511 N.W.2d 83 (1994).
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use due diligence to obtain the person’s driving record
from the Department of Motor Vehicles and the person’s
driving record from other states where he or she is known
to have resided within the last twelve years. The prosecutor shall certify to the court, prior to sentencing, that
such action has been taken. The prosecutor shall present
as evidence for purposes of sentence enhancement a
court-certified copy or an authenticated copy of a prior
conviction in another state. The court-certified or authenticated copy shall be prima facie evidence of such prior
conviction.
(3) 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.
(Emphasis supplied.)
[8] We agree that subsections (2) and (3) must be read
in conjunction with subsection (1)(a)(i)(C) and that they
clearly set forth the burdens of production of the respective parties as concerns whether out-of-state convictions
are “prior convictions” for purposes of DUI enhancement.
While § 60-6,197.02(1)(a)(i)(C) defines a “prior conviction,”
§ 60-6,197.02(2) defines what shall constitute the State’s
“prima facie” case proving “such prior conviction.” And
§ 60-6,197.02(2) simply requires a court-certified or authenticated copy of the out-of-state conviction.
It is understood that the prior conviction must be for the
offense of DUI.13 But we do not read § 60-6,197.02 as placing upon the State the initial burden of showing a substantial
similarity of every element of the respective DUI laws or that
the facts surrounding the prior conviction would have resulted
in a violation of Nebraska DUI laws as they existed at that
13
See § 60-6,196.
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time. Not only does subsection (2) fail to include such facts
in its articulation of the State’s “prima facie evidence of such
prior conviction,” but subsection (3) provides that after the
court has made a finding of the “prior convictions,” the burden
falls to the defendant to “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.”
(Emphasis supplied.)
In State v. Williams,14 the West Virginia Supreme Court of
Appeals addressed enhancement based on a prior DUI conviction from another state which prohibited any “operation” of a
vehicle while under the influence, including running the engine
while parked. West Virginia’s DUI laws extended only to “driving,” which required movement of the vehicle. West Virginia’s
DUI statute provided for enhancement based on a prior out-ofstate conviction “‘of an offense which has the same elements’”
as West Virginia’s DUI statute.15 The court concluded that,
despite the fact that the term “‘operate’” is a broader concept
than to “‘drive,’” the “mere use of the term ‘operate’ in [the
other state’s DUI] statute is insufficient to find that [the] ‘same
elements’” have not been met.16
The court reasoned that most out-of-state DUI convictions
would include the factual prerequisite of vehicular movement.
It would be “‘improvident to indiscriminately expunge a defend
ant’s prior DUI offenses for sentence enhancement purposes’”
when the elements necessary for a conviction under the respective DUI statutes are otherwise consistent.17 The wholesale
elimination of the use of prior convictions from a state which
uses the term “operate,” or from any state with a similar minor
14
15
16
17
State v. Williams, 200 W. Va. 466, 490 S.E.2d 285 (1997), overruled in
part, State v. Hulbert, 209 W. Va. 217, 544 S.E.2d 919 (2001).
Id. at 469 n.3, 490 S.E.2d at 288 n.3. See, also, W. Va. Code Ann.
§ 17C-5-2 (LexisNexis 2009).
State v. Williams, supra note 14, 200 W. Va. at 470, 490 S.E.2d at 289. See,
also, State ex rel. Conley v. Hill, 199 W. Va. 686, 487 S.E.2d 344 (1997),
overruled in part, State v. Hulbert, supra note 14.
State v. Williams, supra note 14, 200 W. Va. at 469, 490 S.E.2d at 288,
quoting State ex rel. Conley v. Hill, supra note 16.
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variance, would also be contrary to the legislature’s intent to
increase the severity of sentences for recidivistic drunk driving. Therefore, insofar as it were possible that the defendant, in
connection with the prior DUI, was operating but not “driving”
the vehicle, the court held that the prosecution makes a prima
facie case for enhanced punishment as a second offense when
it presents evidence demonstrating the fact of an out-of-state
DUI conviction.18 The burden of going forward to show a factual predicate in relation to the prior offense that would not fit
the “driving” element of the West Virginia statute then shifted
to the defendant.19 Absent such a showing by the defendant, the
enhancement would stand.
Likewise, most out-of-state DUI convictions used for
enhancement in Nebraska will involve the factual predicate,
necessary under our DUI scheme, that the operation of the
vehicle be on public property or on private property open to
public access. The fact that another state’s DUI laws apply
more broadly to “all property” does not mean that it is the
State’s burden of production to come forward with evidence
showing the exact location of the defendant’s prior DUI—
because of the theoretical possibility that it was committed
on a kind of property to which Nebraska DUI laws would not
apply. Section 60-197.02(2) states that, to the contrary, the
State makes its prima facie case by presenting an authenticated
or certified copy of the prior conviction.
[9] All states prohibit driving under the influence of alcohol
or drugs.20 But subtle variations on that general theme are as
numerous as the states themselves. It was not our Legislature’s
intent to prohibit the consideration of prior out-of-state DUI
convictions simply because differing elements of the offense
or differing quantums of proof make it merely possible that
the defendant’s behavior would not have resulted in a violation of § 60-6,196, had it occurred here. In providing for a
18
State v. Williams, supra note 14. See, also, State ex rel. Conley v. Hill,
supra note 16.
19
See id.
20
See, National Survey of State Laws 137 (Richard A. Leiter ed., 6th ed.
2008); Annot., 17 A.L.R.3d 815 (1968 & Supp. 2010).
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simple and straightforward means of establishing the State’s
prima facie evidence of “prior convictions,” as defined by
§ 60-6,197.02(1)(a)(i)(C), the Legislature implicitly acknowledged that it would be impractical, if not impossible, for the
prosecution to prove particular factual predicates which may
be necessary elements in Nebraska, but of no concern somewhere else. In this case, for instance, whether Garcia was on
a public highway or on private property with “public access”
is not likely to be reflected anywhere in the record of the prior
California convictions, even assuming there were any obtainable records not already presented.
[10] Garcia, on the other hand, can easily attest to where
he was operating his vehicle in connection with the prior
California DUI convictions. Even in a criminal prosecution,
we have said that “‘if a negative is an essential element of the
crime, and is “peculiarly within the knowledge of the defend
ant,” it devolves upon him to produce the evidence, and upon
his failure to do so, the jury may properly infer that such evidence cannot be produced.’”21 This policy is even more apparent when the fact in question pertains not to an element of a
criminal offense, but goes to punishment only.22 The fact that
the defendant has previously been convicted of DUI is irrele
vant to guilt or innocence and is relevant only to the sentence
to be meted out.23
[11] The U.S. Supreme Court has explained that it is appropriately tolerant of the wide variety of approaches and procedures which states have adopted for addressing recidivism.24
This includes burden-shifting rules designed to simplify the
prosecution’s ability to make a prima facie case for purposes
of enhancement.25 The U.S. Supreme Court has said that it is
not fundamentally unfair to consider the relative positions of
21
State v. Minor, 188 Neb. 23, 26, 195 N.W.2d 155, 156-57 (1972), quoting
State v. Krasne, 103 Neb. 11, 170 N.W. 494 (1918).
22
See State v. Lee, 251 Neb. 661, 558 N.W.2d 571 (1997). See, also, Parke
v. Raley, 506 U.S. 20, 113 S. Ct. 517, 121 L. Ed. 2d 391 (1992).
23
See State v. Werner, 8 Neb. App. 684, 600 N.W.2d 500 (1999).
24
See Parke v. Raley, supra note 22.
25
See id.
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the defendant and the prosecution in this regard and to place
at least the burden of production on the defendant to show that
a prior conviction cannot be used for enhancement. In a case
challenging a statute which presumed out-of-state prior convictions to be valid until the defendant presented evidence showing otherwise, the Court explained:
When a defendant challenges the validity of a previous
guilty plea, the government will not invariably, or perhaps
even usually, have superior access to evidence. Indeed,
when the plea was entered in another jurisdiction, the
defendant may be the only witness who was actually
present at the earlier proceeding. If raising a . . . claim
and pointing to a missing record suffices to place the
entire burden of proof on the government, the prosecution
will not infrequently be forced to expend considerable
effort and expense attempting to reconstruct records from
farflung States where procedures are unfamiliar and memories unreliable. To the extent that the government fails to
carry its burden due to the staleness or unavailability of
evidence, of course, its legitimate interest in differentially
punishing repeat offenders is compromised.26
Due process, the Court concluded, does not require a state to
adopt one procedure over another simply on the basis that it
may produce results more favorable to the accused.27 The Court
held that the statute was not unconstitutional.
The prosecution presented prima facie evidence of Garcia’s
prior convictions by presenting a certified copy of his California
DUI convictions, which, as discussed further below, the State
demonstrated were counseled. The burden thus shifted to
Garcia to produce evidence rebutting the statutory presumption
that those documents did not reflect that an “offense for which
the person was convicted would have been a violation of section 60-6,196.”28 Despite the statutory possibility that a person
convicted of DUI in California may have been operating a
26
Parke v. Raley, supra note 22, 506 U.S. at 32.
See id.
28
§ 60-6,197.02(1)(a)(i)(C).
27
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vehicle while intoxicated on private property not open to public
access—behavior which is not a DUI offense in Nebraska—
Garcia has never even argued that his California DUI convictions were for crimes that actually took place on such property.
Absent a showing to the contrary, the trial court was correct
to conclude, based upon the State’s prima facie evidence, that
there were prior convictions which could be considered in
enhancing Garcia’s sentence.
(b) Right to Counsel
[12,13] Garcia also contends that the State failed to show
that at the time of his 2004 California DUI conviction, he
either had or waived counsel. We have held that a transcript
of a judgment which fails to contain an affirmative showing
that the defendant had or waived counsel is not admissible
and cannot be used to prove a prior conviction, because the
State cannot meet its burden of proof with a judgment that
would have been invalid to support a sentence in the first
instance.29 Furthermore, we have held that where a record is
silent as to a defendant’s opportunity for counsel, an appellate court may not presume that such rights were respected.30
Otherwise, 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.31
The certified copies of documents relating to the 2004 conviction show that Garcia entered his plea and was sentenced
during a hearing on September 17, 2004. The judge’s minutes
listed the constitutional rights of which Garcia was advised and
stated that “defense counsel concurs in [Garcia’s] plea and/or
admissions.” A “Case Print” reflects the same information. The
“Case Print” also reflects that during a pretrial hearing, Garcia
was represented by “Deputy Public Defender M. Williams.”
An advisement of rights, waiver, and plea form initialed and
29
30
31
See State v. Ristau, supra note 12.
Id.
State v. Reimers, supra note 2.
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signed by Garcia also shows the “Signature of Defendant’s
Attorney.” The signature, albeit largely illegible, attests to
an “Attorney’s Statement” that the form was reviewed by the
attorney with Garcia and that all rights were reviewed and
questions answered.
The trial court did not clearly err in concluding that the prior
California convictions were counseled.
Garcia concedes that his argument concerning his sentence
of 180 days’ jail time was addressed in State v. Dinslage.32 In
Dinslage, we concluded that it was within the trial court’s discretion to impose up to 180 days’ confinement as a condition of
probation. We find no error in Garcia’s sentence.
VI. CONCLUSION
For the foregoing reasons, we affirm.
32
Affirmed.
State v. Dinslage, 280 Neb. 659, 789 N.W.2d 29 (2010).
Jesus Tapia-R eyes, appellee, v.
Excel Corporation, appellant.
___N.W.2d___
Filed January 21, 2011.
No. S-10-474.
1. Workers’ Compensation: Appeal and Error. In determining whether to affirm,
modify, reverse, or set aside a judgment of the Workers’ Compensation Court
review panel, a higher appellate court reviews the finding of the trial judge who
conducted the original hearing; the findings of fact of the trial judge will not be
disturbed on appeal unless clearly wrong.
2. ____: ____. With respect to questions of law in workers’ compensation cases, an
appellate court is obligated to make its own determination.
3. Workers’ Compensation: Evidence: Appeal and Error. The workers’ compensation review panel may reverse or modify the findings, order, award, or judgment of the original hearing only on the grounds that the judge was clearly wrong
on the evidence or the decision was contrary to law.
4. Workers’ Compensation: Appeal and Error. Appeals from a workers’ compensation trial court to a review panel are controlled by the statutory provisions
found in the Nebraska Workers’ Compensation Act.
5. Workers’ Compensation. The Nebraska Workers’ Compensation Act is construed liberally to carry out its spirit and beneficent purposes.
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