State v. Delisle7/28/2000
On Appeal from District Court of Vermont, Unit No. 2, Addison Circuit May Term, 2000
Dean B. Pineles, J.
SKOGLUND, J.
In November 7, 1998, defendant Arthur Delisle was charged with driving under the influence of intoxicating liquor (DUI), in violation of 23 V.S.A. § 1201(a)(2). The information alleged that this was defendant's third offense, prior DUI convictions having been entered on October 18, 1983, and August 25, 1992. Defendant moved to strike the felony enhancement allegation based upon the 1983 conviction, claiming that the State could not prove that he had knowingly and voluntarily waived his rights in 1983. The trial court denied the motion, and, on April 16, 1999, defendant entered a conditional guilty plea to DUI, third offense, reserving his right to appeal the denial of his motion. On appeal, defendant argues that the 1983 conviction cannot be used as a predicate to the current offense because: (1) the record of the 1983 guilty plea contains no evidence of a valid waiver of rights; and (2) the 1983 conviction occurred more than fifteen years before the current offense was alleged to have occurred. We affirm.
In Boykin v. Alabama, 395 U.S. 238 (1969), the United States Supreme Court reversed a judgment of conviction because the trial judge had accepted the defendant's guilty plea "without an affirmative showing that it was intelligent and voluntary." Id. at 242. Boykin's requirements are embodied in V.R.Cr.P. 11, which requires a trial judge to address a defendant in open court to ensure that his plea is intelligent and voluntary. Where a defendant is faced with a misdemeanor charge, however, V.R.Cr.P. 43(c)(2) allows him to plead guilty in writing, as long as he signs a waiver form intended to ensure that his plea is intelligent and voluntary. See Reporter's Notes, V.R.Cr.P. 43.
In connection with his motion to strike, defendant presented the record of the 1983 case. According to the record, in 1983, defendant was convicted of misdemeanor DUI in absentia and without counsel, based upon his signature to a notice-of-plea-agreement form, and was sentenced to a $150.00 fine. The record also contains a letter to defendant from the court indicating enclosure of "the approved Plea Agreement and Waiver," but the file contains no signed waiver-of-rights form, and, of course, there was no oral Rule 11 colloquy.
Defendant first argues that, because the record of his 1983 guilty plea does not contain a waiver form, or any indication that he intelligently and voluntarily waived his rights, his 1983 plea is presumptively invalid and cannot now be used as a predicate for his multiple-offense DUI conviction. According to defendant, waiver of a defendant's constitutional rights cannot be presumed "from a silent record." Boykin, 395 U.S. at 243. The State asserts, in response, that a "presumption of regularity" attached to defendant's 1983 guilty plea when his judgment of conviction became final, thus shifting the burden to defendant to produce evidence showing that the plea was invalid. See State v. Brown, 165 Vt. 79, 86-87, 676 A.2d 350, 355 (1996). Further, the State argues, defendant has not met his burden.
In Parke v. Raley, 506 U.S. 20, 23 (1992), the defendant pled guilty to burglary in 1979 and 1981, and in 1986, was charged with both robbery and being a repeat felony offender. He moved to suppress the prior convictions, arguing that they were invalid under Boykin because the records did not contain transcripts of the plea proceedings, and thus the state could not prove that his pleas were intelligent and voluntary.
In ruling on the defendant's motion, the Kentucky state trial court applied the burden-shi
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