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State v. Schulte10/5/2004
understanding of the consequences of such a plea. It is true that the principles set forth in State v. Luther, 213 Neb. 476, 329 N.W.2d 569 (1983), and State v. Slezak, 226 Neb. 404, 411 N.W.2d 632 (1987), the cases relied on by Schulte, are valid Nebraska law. However, the arguments raised by Schulte based on these two cases are akin to the second-tier challenges prohibited by State v. Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999), as impermissible collateral at-tacks. As such, we need not address them further in the present appeal. If Schulte had wanted to raise a second-tier challenge to the South Dakota proceedings, or to challenge the constitutionality of the South Dakota statute allowing a defendant's attorney to enter guilty pleas in misdemeanor cases on a defendant's behalf by means of power of attorney, the time to do so was during the South Dakota proceedings followed by such direct appeal as Schulte then saw fit to bring. Schulte's due process rights were satisfied by the availability of such procedure, and to challenge the validity of the South Dakota conviction during the present enhancement proceeding on grounds other than Sixth Amendment grounds is to make an impermissible collateral attack on the South Dakota conviction.
In sum, the record shows that for purposes of the present enhancement, the requirements for a valid guilty plea in South Dakota were met. The record clearly shows that Schulte was represented by counsel at the time of the South Dakota plea and that his attorney was authorized by Schulte to enter a guilty plea on his behalf. Schulte has no basis to raise a first-tier challenge to the South Dakota conviction, and the time has passed for the second-tier challenge Schulte attempts to raise in the present appeal. We find that the district court did not err in affirming the county court's decision to use the South Dakota conviction to enhance Schulte's present Nebraska DUI conviction to third offense.
CONCLUSION
The district court did not err in affirming the county court's decision to use the South Dakota conviction to enhance Schulte's present Nebraska DUI conviction to third offense.
Affirmed.
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