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State v. McCraine5/16/2003
d the lower court was clearly wrong when it denied the motion to suppress.
B. Motion to Dismiss
Appellant next contends that the trial court erred in denying his motion to dismiss because a third offense DUI charge could not be proven since the State did not adequately demonstrate Appellant had knowingly and voluntarily waived his right to counsel before tendering a guilty plea to a 1990 DUI conviction.
Our determination of whether a waiver of the right to counsel is valid is guided by our holding in syllabus point one of State ex rel. Widmyer v. Boles, 150 W.Va. 109, 144 S.E.2d 322 (1965), which states:
The right of the defendant in a criminal proceeding to the assistance of counsel is a fundamental right, the waiver of which will not be presumed by the failure of the accused to request counsel, by the entry of a guilty plea or by reason of a record silent concerning the matter of counsel and the conviction of a defendant in the absence of counsel or of an affirmative showing of an intelligent waiver of such right is void.
We have said that a criminal defendant's right to counsel is effectively waived when the conduct of the accused demonstrates that the waiver was knowingly and intelligently made. Syl. Pt. 1, State v. Britton, 157 W.Va. 711, 203 S.E.2d 462 (1974). Prima facie evidence of waiver of the right to counsel includes the completion of a written waiver form by a criminal defendant. State v. Armstrong, 175 W.Va. 381, 386-87, 332 S.E.2d 837, 842 (1985), overruled on other grounds by State v. Hopkins, 192 W.Va. 483, 453 S.E.2d 317 (1994). This Court has further recognized that once the State produces such evidence it is incumbent upon the accused to present evidence which would prevail against a finding of an informed waiver. 175 W.Va. at 386-87, 332 S.E.2d at 842.
In the case before us, the State's prima facie evidence presented at the pretrial hearing of the offer and waiver of counsel was a certified copy of a waiver of counsel form signed by Appellant in magistrate court the same day in 1990 that his plea of guilty to a DUI charge was submitted. There is no indication in the record that Appellant presented evidence at the hearing which would counter a finding of informed waiver. Instead, Appellant argued, as he does here, that the waiver document, standing alone, is insufficient to establish a knowing and voluntary waiver of counsel. Appellant urges this Court to require the circuit court to conduct a hearing in cases such as his at which a magistrate or court clerk is called as a witness to authenticate any waiver document, the magistrate before whom the waiver was signed offers testimony about the manner and circumstances under which the waiver was obtained, and any discrepancy between the identifying information of the person who signed the waiver and the defendant against whom charges are pending is resolved. *fn8
It is apparent from the record that the lower court afforded Appellant the opportunity at the pretrial hearing to challenge the validity of his waiver of the right to counsel in the 1990 DUI case. Nonetheless, Appellant chose not to actively challenge the State's prima facie evidence through factual development of the circumstances surrounding the signing of that form. Appellant was free to call the magistrate who accepted the waiver and plea in 1990 as a witness but elected not to do so. Likewise, Appellant did not raise serious objection as to the legitimacy of the signature on the waiver related documents the State presented to the lower court. Furthermore, Appellant's claim that the court documents were not properly authenticated by the magistrate court custodian of the record is misguided.
The Legislature
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