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BUSH v. STATE12/1/1995
eliance on the appellant's prior robbery conviction was never raised in the trial court, it must be reviewed under the plain error rule. It is reasonable to conclude from the record that the appellant consented to the admission of the evidence of his prior conviction. We further note that the appellant's counsel even referred to the prior conviction when, in arguing to the jury in the sentencing phase, he stated, "A conviction in 1970, a debt that has been paid."
Section 13A-5-10.1, which pertains to the proof of prior felony convictions for enhancement under the Habitual Felony Offender Act, provides, "Certified copies of the case action summary sheets, docket sheets, or other records of the court are admissible for the purpose of proving prior convictions of a crime, if the prior conviction is otherwise admissible under the laws of this state." This has also been recognized as a proper method for proving a prior conviction to establish the existence of an aggravating circumstance in a capital case. See Jones v. State, 520 So.2d 543 (Ala. Cr. App. 1984), aff'd, 520 So.2d 553 (Ala.), cert. denied, 488 U.S. 871, 109 S.Ct. 182, 102 L.Ed.2d 151 (1988); Cosby v. State, 627 So.2d 1059 (Ala. Cr. App. 1993).
The appellant's contention that the court record of the 1970 robbery conviction fails to show that he was represented by counsel is without merit. The docket sheet shows that the appellant was represented by H. Perdue. Docket sheet entries recite that the appellant was represented by counsel at arraignment and at the guilty plea and sentencing proceedings. If the court document indicates that a defendant was represented by counsel, it is presumed that counsel was present at all critical stages of the proceedings. Section 13A-5-10.1(c).
The appellant's contention that the trial court should not have relied on his prior conviction because the state failed to prove that his guilty plea was knowingly and voluntarily entered is, likewise, without merit. Such an assertion amounts to a collateral attack on his 1970 robbery conviction. The proper forum for attacking the validity of the prior conviction would be by Ala.R.Cr.P. 32 post-conviction petition in the court of conviction. Ex parte Madden, 602 So.2d 1192 (Ala. 1991); Johnson v. State, 541 So.2d 1112 (Ala. Cr. App. 1989). Here, the trial court could not have looked beyond the facial validity of the conviction. In this case, the judgment of the Montgomery Circuit Court appears valid upon its face. It reflects that the circuit court had jurisdiction of the offense charged and the defendant, William Edward Bush. Proof of the conviction and proof that the appellant was represented by counsel at the time of the conviction were all that was required. In our opinion, the state met this burden and proved the conviction beyond a reasonable doubt. We find no plain error in these contentions.
V.
The appellant contends that in overriding the jury's sentence recommendation,
the trial court considered "improper information" contained in the presentence report. He states that this "improper information" included "nonstatutory aggravating evidence" about his juvenile record. He does not identify any other portions of the presentence report that he considers improper.
The presentence report was prepared and filed in accordance with § 13A-5-5; § 13A-5-47(b); and Rule 26.3, Ala.R.Cr.P., and was considered by the trial court in determining the appellant's sentence. It shows two juvenile adjudications involving the appellant in 1965 and in 1968. The appellant cites Freeman v. State, 555 So.2d 196, 212 (Ala. Cr. App. 1988), aff'd, 555 So.2d 215 (Ala. 1989), cert. denied, 496 U.S. 912, 110 S.Ct. 2604, 110 L
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