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State v. Hall5/28/2004
t, sentence, and commitment order states that Hall appeared at the sentencing hearing with counsel. However, the record does not contain any evidence to affirmatively show that Hall had been represented by counsel or had waived counsel at the time of the jury's guilty verdict on July 16.
The facts in Hall's case mirror those of Thomas, where the State introduced evidence that Thomas had been represented by counsel at his sentencing on an earlier conviction, but the record contained no evidence showing that Thomas had been represented by counsel or had waived counsel prior to sentencing. In Thomas, we concluded that the evidence was insufficient to prove the earlier convictions were counseled for the purposes of habitual criminal sentence enhancement.
In this case, the State failed to meet its burden of showing that Hall had been represented by or had waived counsel at the time of his New Mexico conviction and it was error for the district court to find Hall to be a habitual criminal . As a result, we must vacate Hall's sentence and remand the cause to the district court with directions for a new enhancement hearing and for resentencing following the hearing. In doing so, we observe that no presentence investigation was performed prior to the district court's initial sentencing of Hall, and in fact, Hall notes in his appellate brief that the district court imposed sentence upon him without the benefit of such an investigation. We note that the applicable version of Neb. Rev. Stat. § 29-2261 (Cum. Supp. 2002) stated that " nless it is impractical to do so, when an offender has been convicted of a felony, the court shall not impose sentence without first ordering a presentence investigation . . . ." Upon remand, unless the district court determines that it is impractical to do so, the district court shall order a presentence investigation prior to Hall's resentencing.
CONCLUSION
We conclude that the district court did not err in accepting Hall's plea. However, with respect to enhancement, the State did not meet its burden of showing that Hall was represented by counsel at the time of his prior New Mexico conviction, and the district court's finding that Hall was a habitual criminal was error. We therefore vacate Hall's sentence and remand the cause with directions for a new enhancement hearing and for resentencing.
Affirmed in part, and in part sentence vacated and cause remanded with directions.
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