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State v. Gonzales9/24/1997
idence that his acquiescence was not sufficiently understandingly and intelligently made to amount to an effective waiver.
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{16} Gonzales sought to carry his burden with his testimony concerning statements made to him in Magistrate Judge Wheeler's courtroom. On appeal, he asserts that his testimony was "not rebutted by the State." This is true in the technical sense that the State did not call a rebuttal witness after Gonzales finished testifying. Rule 5-607(H) NMRA 1996 (prosecution may present rebuttal evidence after defense rests). Nevertheless, his testimony was not uncontroverted.
{17} We assume but need not decide that, if believed, Gonzales' testimony would have supported a determination by the trial court that he had not waived his right to counsel voluntarily. Nevertheless, at a bare minimum, signed, written waivers of counsel, witnessed and countersigned by a Judge, must be considered prima facie evidence of compliance with the requirements of the rule. The State's prima facie showing rebutted Defendant's testimony sufficiently to raise a factual issue for the district court. Cf. ("The State . . . failed to produce any direct evidence contesting Garcia's claims.")
{18} As the record of the hearing on the supplemental information makes clear, Judge Grisham did not consider it necessary to hear the rebuttal evidence before deciding the issue. She made a credibility determination, weighed the evidence, and determined that rebuttal evidence would be superfluous. Determining credibility and weighing evidence are tasks entrusted to the trial court sitting as fact-finder. The trial court was free either to disbelieve Defendant's allegations or to reject the inference he asked the court to draw. See (fact-finder may reject defendant's version of events). We conclude that the State carried its initial burden of establishing a prima facie case and that Gonzales testimony was insufficient to compel a different factual determination.
IV.
{19} Gonzales also argues that the trial court erred in enhancing his sentence by eight years as an habitual offender. We agree. In , this Court held, "The Legislature did not intend that defendants convicted of a fourth or subsequent DWI offense should be subject to enhancement under both the felony DWI provision and the habitual offender statute." . Therefore, that portion of his sentence that has been enhanced must be reversed.
V.
{20} For the foregoing reasons, we affirm Gonzales' conviction for a fourth offense of driving while intoxicated under Section 66-8-102(G). We reverse the enhancement of his sentence by eight years as an habitual offender under Section 31-18-17. We remand for entry of an amended judgment and sentence.
{21} IT IS SO ORDERED.
PAMELA B. MINZNER, Justice
WE CONCUR:
GENE E. FRANCHINI, Chief Justice
JOSEPH F. BACA, Justice
PATRICIO M. SERNA, Justice
DAN A. McKINNON, III, Justice
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