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State v. Berger3/18/1999
Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Michael O. McGuire, Judge.
AFFIRMED.
[ ] Nevada Joe Berger appealed from an order denying a motion to suppress his 1994 and 1996 convictions for being in actual physical control of a motor vehicle while under the influence of intoxicating liquor (APC). Berger argues his prior APC convictions should not be used to enhance his sentence for a 1998 conviction for driving under the influence of an intoxicating liquor (DUI). We affirm.
I.
[ ] On April 9, 1998, Berger was charged with DUI, a class A misdemeanor. The information alleged it was Berger's third violation of N.D.C.C. § 39-08-01 in a five- year period. Berger pled guilty to APC on July 1, 1994, in Williams County and again on October 22, 1996, in Morton County. Berger filed a motion to suppress those APC convictions to prevent sentence enhancement as a third-time offender under N.D.C.C. § 39-08-01. The trial court denied the motion to suppress, and on August 31, 1998, Berger entered a conditional guilty plea under N.D.R.Crim.P. 11(a)(2).
II.
[ ] Our standard of review of a trial court's denial of a motion to suppress is set out in State v. Garrett, 1998 ND 173, 11, 584 N.W.2d 502 (citations omitted):
"The trial court's Disposition of a motion to suppress will not be reversed if, after conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court's findings, and the decision is not contrary to the manifest weight of the evidence."
[ ] Berger argues there is insufficient evidence in the record to prove his 1994 and 1996 APC guilty pleas complied with N.D.R.Crim.P. 11. Berger failed to submit evidence from the APC proceedings to support his motion to suppress. The 1994 plea agreement, plea, and order and the 1996 criminal judgment were introduced by the State in opposition to the motion. Berger argues, however, it is the State's further affirmative burden to demonstrate the prior pleas were voluntary under Rule 11(c) and rested upon a factual basis under Rule 11(e) and contends the State has not met its burden of proof. We disagree.
[ ] In State v. Orr, 375 N.W.2d 171, 178-79 (N.D. 1985), we held absent evidence of a valid waiver of a defendant's right to counsel in a prior proceeding, an earlier conviction cannot be used to enhance a sentence for a subsequent offense. Our decision in Orr, at 178, was based on the belief uncounseled convictions are inherently unreliable and should be viewed with skepticism. The constitutional right to counsel is "fundamental because it enables an accused to procure a fair trial." Id. at 177-78. " counsel will, if not guarantee, then at least facilitate the optimum outcome for a defendant in a given case." Id. at 178. In Orr, at 179, we ruled a "silent record is insufficient to overcome the presumption that the prior uncounseled conviction was void for enhancement purposes."
[ ] In State v. Pitman, 427 N.W.2d 337, 343 (N.D. 1988), Pitman argued his 1985 Kansas DUI conviction should not be used to enhance his sentence because there was an insufficient record to prove he was advised of his constitutional rights before waiving them. This court concluded " e believe that when, as here, the record clearly establishes that the defendant was represented by counsel when he waived his right to trial, the defendant must do more than simply request that the State prove that the defendant validly waived a trial." Id. We further explained in Pitman, at 343 n.5:
"Pitman does not assert that he was not informed of his
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