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Goins v. State8/4/2004
present). He also had the ability to keep an independent record of those proceedings. Goins claims to have no memory of the 1971 proceedings, but he was clearly in a better position than the State of Alaska to know that the proceedings had occurred and to know what transpired during those proceedings. In the absence of any evidence of government misconduct, we reject Goins's contention that the State of Alaska somehow denied him due process of law simply because the records of that conviction are now largely unobtainable.
We find our decision in Jerrel pertinent. In that case, after the trial court denied the defendant's petition for post-conviction relief, the defendant argued for the first time on appeal that she had been denied her constitutional right to be present at all stages of her original criminal trial. Jerrel argued that, because the trial record did not affirmatively show that she was present at a jury playback of evidence, it should be presumed that she was absent - or that, at least, the absence of a record raised sufficient doubt to warrant a remand for further proceedings. We rejected this claim, ruling that a presumption of regularity attached to Jerrel's conviction when she failed to pursue a direct appeal. We concluded that, under these circumstances, "the silence of the record operates to defeat Jerrel's claim ... not to establish it."
In other analogous circumstances, our supreme court and the Alaska Legislature have placed the burden on defendants who collaterally challenge their prior convictions to produce some evidence of the invalidity of those convictions. In State, Department of Public Safety v. Fann, the supreme court held that the defendant had the burden to prove by a preponderance of the evidence that a prior conviction used to enhance the term of his administrative driver's license revocation was constitutionally infirm. Alaska Statute 12.55.145(d), which governs the proof of prior convictions for purposes of presumptive sentencing, requires the defendant to prove by substantial evidence that a prior conviction does not meet the requirements of the statute. After the defendant has produced this evidence, the burden shifts to the State to prove the contrary beyond a reasonable doubt. Most other jurisdictions likewise place at least the initial burden on a defendant collaterally attacking a prior conviction to offer evidence that the conviction is invalid.
We need not decide exactly what burden of proof applies in this case because Goins offered no evidence that his 1971 conviction was entered in violation of his constitutional rights. There is no record of the 1971 proceedings, and Goins testified that he had no memory of them. Indeed, Goins testified that he "[didn't] even remember 1971." Given the presumption of regularity that attends all final judgments issued by a competent court, this absence of evidence defeats Goins's claim.
Goins additionally argues that we should presume he was denied his right to counsel because as late as 1973 - two years after his conviction - prosecutors in California were still arguing that the courts were not required to advise defendants in misdemeanor proceedings of their right to counsel. Goins relies on Mills v. People, which considered whether misdemeanor convictions were invalid under Boykin v. Alabama if the record did not affirmatively show that the defendant had voluntarily and intelligently waived his rights before entering a plea. Boykin does not concern a defendant's right to counsel. It stands for the proposition that courts cannot presume a voluntary plea from a silent record. The right to counsel in misdemeanor proceedings, and the duty of courts to advise defendants of that right, were well
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