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State v. Gutierrez4/3/2003
endant produced no evidence to rebut the presumption of regularity).
II. 1999 Plea
Gutierrez also claims his 1999 plea was involuntary. In support of this assertion, Gutierrez produced an affidavit, which he claims rebuts the presumption of regularity that applies to his 1999 conviction. Gutierrez's affidavit asserts that the judge did not inform him of his right to counsel, that he was not offered the assistance of a public defender, that he did not read the papers before signing them, and that the judge did not explain his right to confront the witnesses against him or to call witnesses on his own behalf.
Utah law is silent as to whether a self-serving affidavit is sufficient to overcome the presumption of regularity afforded previous convictions. We are persuaded by analysis from other jurisdictions, however, that such an affidavit, by itself, is insufficient to invalidate a prior conviction.
We are further persuaded by analysis from other jurisdictions that a defendant seeking to rebut the presumption of regularity must produce a transcript, testimony regarding taking of the plea, a docket sheet, or other affirmative evidence. See, e.g., Robinson v. State, 649 So. 2d 1331, 1332 (Ala. Crim. App. 1994) (using stamped notation on docket sheet to refute defendant's contention that he was not informed of and did not waive right to counsel where record was otherwise silent); Collins v. State, 574 S.E.2d 423, 426 (Ga. Ct. App. 2002) (refusing defendant's mere assertion that plea was entered unknowingly and requiring defendant to produce a transcript, testimony regarding taking of plea, or other affirmative evidence to rebut presumption of regularity).
Gutierrez's 1999 plea was entered in the Springville Justice Court, which is not a court of record. Nevertheless, Gutierrez could have produced testimony from those who were present regarding the taking of his plea, the court's docket sheet, or other affirmative evidence. Instead, Gutierrez chose to rely solely on a self-serving affidavit asserting his plea was unconstitutional. We hold that his affidavit is not sufficient to overcome the presumption of regularity established in Triptow. A defendant must demonstrate the involuntariness of his plea by some evidentiary method other than his own bare assertions.
CONCLUSION
Gutierrez failed to rebut the presumption of regularity afforded his 1994 conviction because he did not produce any evidence that he entered his plea involuntarily. Similarly, Gutierrez failed to rebut the presumption afforded his 1999 conviction because he did not produce any evidence, other than his own self-serving affidavit, to support his claim that he entered the plea involuntarily. Accordingly, we affirm the trial court's denial of Gutierrez's motion to dismiss enhancement of DUI charges.
Norman H. Jackson, Presiding Judge
WE CONCUR:
Pamela T. Greenwood, Judge
Gregory K. Orme, Judge
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