State v. Bixby
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The defendant, Clay Y. Bixby, was convicted for driving under the influence (DUI), which was his third offense. He contended that the district court had erred in using evidence of his two prior DUI convictions to enhance his sentence. The Nebraska Supreme Court rejected this claim.
The court noted that the state had proven by a preponderance of the evidence that the offenses underlying Bixby’s previous convictions occurred within 15 years of the date of his current offense, as required for sentence enhancement. The court also rejected Bixby's claim that his South Dakota DUI offense was not sufficiently similar to his Nebraska DUI offense to be valid for sentence enhancement. The court determined that Bixby’s South Dakota DUI offense, as statutorily defined in South Dakota, would have been a violation of the Nebraska DUI statute and was thus valid to be used for sentence enhancement.
Lastly, the court rejected Bixby's argument that the district court failed to consider mitigating factors before sentencing. The court explained that under the precedent set in State v. Vann, any conviction record obtained after Gideon v. Wainwright is entitled to a presumption of regularity. Once the government establishes the existence of a prior conviction, it becomes the defendant’s burden to prove that he or she did not have counsel and did not waive the right to counsel at the time of conviction. The court concluded that Bixby's South Dakota DUI conviction was valid for sentence enhancement under this precedent, even though the record did not show whether Bixby had or waived counsel at the time of his sentencing in that case.
The court ultimately affirmed the sentence enhancement and Bixby's conviction for DUI, third offense.
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