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State v. Schulte10/5/2004
Craig A. Schulte appeals from an order of the district court for Cedar County, Nebraska, which affirmed his Cedar County Court conviction for third-offense operating a motor vehicle while under the influence of alcoholic liquor (DUI), resisting arrest, no proof of financial responsibility, and a stop sign violation. On appeal, Schulte raises issues relating to the enhancement of his DUI conviction to third offense. For the reasons set forth herein, we affirm.
BACKGROUND
Pursuant to an amended complaint filed January 9, 2003, Schulte was charged with the following four counts: (1) third-offense DUI, a Class W misdemeanor, in violation of Neb. Rev. Stat. § 60-6,196 (Cum. Supp. 2002); (2) resisting arrest, a Class I misdemeanor, in violation of Neb. Rev. Stat. § 28-904 (Cum. Supp. 2002); (3) no proof of financial responsibility, a Class II misdemeanor, in violation of Neb. Rev. Stat. § 60-321 (Reissue 1998); and (4) failure to stop at a stop sign, a traffic infraction, in violation of Neb. Rev. Stat. § 60-6,148 (Reissue 1998).
On January 15, 2003, as part of a plea agreement, Schulte pled guilty to all four counts of the amended complaint, although he reserved the right to object to the prior DUI convictions proffered by the State at the enhancement stage of the proceedings. After the prosecutor recited the factual basis for Schulte's plea, with which facts Schulte agreed, the court found that there was a sufficient factual basis and that Schulte entered his plea of guilty to each count knowingly, freely, intelligently, and voluntarily. The court then conducted an enhancement hearing.
During the enhancement hearing, the State offered exhibit 1, a certified copy of documents related to Schulte's 1998 conviction for DUI in Cedar County, which exhibit was received by the court without objection. Exhibit 1 shows that Schulte was represented by counsel at the time of the 1998 plea and sentencing. The State also offered exhibit 2, a certified copy of documents related to Schulte's 1996 conviction for DUI in Yankton County, South Dakota. Exhibit 2 shows that although Schulte was rep-resented by an attorney during the South Dakota proceeding, Schulte did not appear personally to plead guilty to the DUI charge. Rather, the guilty plea was entered by Schulte's attorney, through use of a power of attorney as permitted under South Dakota law. See S.D. Codified Laws § 23A-7-5 (Michie 1998) (allowing attorney to enter plea for defendant charged with misdemeanor, which may be accepted by court after court's inquiry into whether attorney has advised defendant of his or her rights as per S.D. Codified Laws § 23A-7-4 (Michie 1998)).
Exhibit 2 contains a copy of the information charging Schulte, the power of attorney statement from Schulte's attorney, and the judgment of conviction. The power of attorney document shows that Schulte's attorney appeared before the court on Schulte's behalf and upon his authorization to enter a guilty plea to the DUI charge. The power of attorney document also reveals that Schulte's attorney had advised Schulte of and determined that Schulte understood the following: (1) the nature of the charge and the possible penalties; (2) that he had a right to be represented by counsel at every stage of the proceedings and that an attorney would be appointed to represent Schulte if necessary; (3) that he had the right to plead not guilty or to persist in such a plea if it had already been made and that he had the right to as-sistance of counsel, the right to confront and cross-examine witnesses, the right against self-incrimination, and the right to compulsory process; (4) that he had the right to a speedy public trial; and (5) that if he pled guilty or nolo contendere, the
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