2005-226, PETITION OF THE STATE OF NEW HAMPSHIRE (State v. Marcoux)

support imposing an enhanced sentence pursuant to RSA 265:82-b, II. whether the previous DWI conviction was a valid prior conviction that would

upon a complaint which alleged that he had previously been convicted of DWI. Marcoux, was tried on the charge of driving while intoxicated (DWI), based

trial court found the defendant guilty of DWI, and asked the parties to brief (amended 2004, 2005, and 2006; repealed 2006). On February 7, 2005, the See RSA 265:82, I (2004) (repealed 2006); RSA 265:82-b, II (Supp. 2004)

The record supports the following facts. The defendant, Richard

We vacate the sentence and remand. R. 11, challenging a sentencing order of the Concord District Court (Boyle, J.). DUGGAN, J. The State filed a petition for writ of certiorari, see Sup. Ct.

brief and orally, for the defendant. Christopher M. Johnson, chief appellate defender, of Concord, on the to press. Errors may be reported by E-mail at the following address: general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney

page is: http://www.courts.state.nh.us/supreme.

editorial errors in order that corrections may be made before the opinion goes No. 2005-226 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Concord District Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as declined to impose an enhanced sentence under RSA 265:82-b, II.

p. 2 conviction to be valid beyond a reasonable doubt.” Accordingly, the trial court

sentencing order and driving record . . . the State [had] not proven the prior original.) The trial court also concluded that “[g]iven the irregularities in the addressed in the prior conviction, a misdemeanor level offense.” (Ellipsis in

the [defendant’s] right to counsel was either invoked or waived . . . or even

because the court was “unable to determine beyond a reasonable doubt that

court concluded that the State did not prove that the prior conviction was valid doubt by the State that would result in the enhanced sentence.” The trial there [was] a valid prior conviction that [had] been proven beyond a reasonable

the absence of those documents, it was “faced with the issue of whether or not

sentence mandated by RSA 265:82-b.” The trial court further stated that, in decide, and the defendant would have been sentenced for the enhanced been offered by the State, then there would be no further issues for the court to

waiver of rights form,” and noted that “[h]ad either or both of these documents denied.

previously been convicted of DWI because “the State the back of the criminal complaint or an executed acknowledgement and conviction.” The trial court pointed out that it “[did] not have before it either initial burden on the collateral attack of his prior conviction. The motion was whether or not the [defendant] was represented by counsel in the prior criminal represent him or that he did not understand his rights, he did not meet his represented on the earlier charge, and did not allege that counsel did not

argued that the State could not utilize the prior conviction to prove that he had

stated that “[n]either the sentencing order nor the driving record indicate because the defendant alleged only that the State failed to prove that he was

history record,” which did not list the charge or conviction. The defendant guilty on the same charge; and (4) a certified copy of the defendant’s “criminal from the New Hampshire Division of Motor Vehicles, indicating a finding of purpose of sentence enhancement. In its sentencing order, the trial court The State moved to reconsider the sentencing order, arguing that

his right to court-appointed counsel in that case. (Emphasis added.)

of DWI, second offense; (3) a certified copy of the defendant’s driving record that the January 15, 1998 conviction was a valid prior conviction for the

indicating whether the defendant had been advised of his right to counsel or

January 15, 1998 sentencing order indicating a finding of guilty on the charge The trial court ruled that the State had not met its burden of proving with DWI and alleging a prior conviction for DWI; (2) a certified copy of a June 13, 1997 complaint from the Salem District Court charging the defendant

appearance of counsel or waiver of right to counsel form, nor any documents

evidence of the defendant’s prior conviction: (1) a certified copy of the front of a In support of an enhanced sentence, the State offered the following the burden of proving that he had p. 3 representation in the prior proceeding, but “merely argued that the State had

never alleged that he had been denied his constitutional right to legal

contends that the defendant in this case failed to satisfy his burden because he conviction must at least allege, if not prove, a basis for a finding of invalidity. It rebut this presumption of validity and collaterally attack the previous ground that the State had not proven the

specific nature of his challenge to the validity of the prior conviction” so as to presumption of validity.” Accordingly, it argues that a defendant seeking to 117 N.H. 433, 435-36 (1977), he argues that he is required only to “allege the the trial court could have declined to impose an enhanced sentence on the representation by counsel in the prior proceeding. Citing State v. Desbiens, the trial court erred in that respect, we need not vacate his sentence because conviction without affirmatively alleging, or offering evidence of, a lack of State to prove the validity of his prior conviction. He also argues that, even if The defendant contends that he may challenge the validity of his prior unsustainable exercise of discretion or has acted arbitrarily or capriciously. jurisdiction, authority or observance of the law, or has engaged in an not been denied his right to counsel.” of one year or more in the state prison). determine whether another tribunal has acted illegally in respect to sentence review division only in cases where the person is sentenced to a term criminal case); RSA 651:58, I (Supp. 2005) (providing for review by the

order at issue in this case.

would result in substantial injustice. The State contends that “evidence of a prior conviction carries with it a

I. Burden of Proof defendant argues that the trial court did not err in placing the burden upon the

the absence of a right to appeal, and only at the discretion of the court, to

circumstances in which the State may appeal to the supreme court in a

certiorari is the only avenue by which the State may appeal the sentencing

exercise our power to grant the writ sparingly and only where to do otherwise Petition of State of N.H. (State v. Campbell), 152 N.H. 515, 517 (2005). We

prove the prior conviction to be valid “beyond a reasonable doubt.” The The State also argues that the trial court erred in holding that the State had to show that the defendant’s prior conviction was free from constitutional defect.” Review on certiorari is an extraordinary remedy, usually available only in

conviction.

State argues that the trial court “erred in placing the burden on the State to Thereafter, the State petitioned this court for a writ of certiorari. The counsel.” that treatment); p. 4 evidence for purposes of satisfying that burden and the State did not object to

counsel at the time of the prior conviction. 4

insufficient to meet his burden of proving that the waiver was invalid).

[puts] in issue the question of whether he had previously been represented by where trial court treated the facts alleged in the defendant’s pleading as

representation by counsel or a knowing and intelligent waiver of that right. defendant was required to present evidence that he was not represented by

defendant, defendant’s general denial of the waiver of his right to counsel was on a collateral attack to the conviction); record contained a constitutionally sufficient waiver form signed by the

cf. State v. Buckwold, 122 N.H. 111, 112-13 (1982) (where

incumbent on the defendant, not the state, to go forward with evidence which of a lack of counsel); initial burden of presenting evidence on a collateral attack of a prior conviction time of one of the convictions he was challenging did not raise a presumption see also Arsenault, 153 N.H. at ___, 897 A.2d at 991-92 (defendant satisfied his insufficient to render a prior conviction invalid. See Gosselin, 117 N.H. at 121-22; the time of the conviction. On collateral review, a silent record alone is represented by counsel, the burden is then upon the State to prove conviction is silent as to whether or not he had been represented by counsel at Thus, to successfully mount a collateral attack in this case, the

cannot be used as the basis for an enhanced sentence. (1995) (same).

and voluntarily waived his right to a jury trial is insufficient to trigger reversal 991 (2006) (proof of a record that is silent as to whether defendant knowingly

22 (record that was silent as to whether defendant had been represented at the

presents evidence that places in dispute the question of whether he was In this case, the defendant concedes that the record of the prior

counsel and did not knowingly and intelligently waive his right to counsel arguing that the State has failed to prove representation. See id. at 121-22.

Id. at 122. The defendant cannot satisfy this burden by merely

a question of law. However, where nothing in the record of the prior conviction “raise[s] the

N.H. 115, 121 (1977). If it is evident from the record, or if the defendant

Prior convictions obtained when a defendant was not represented by

novo. See id. Accordingly, we review the trial court’s application of the law to the facts de

Because the relevant facts are not in dispute, the issue before us is solely

conviction’s validity.” “put the State on notice of [the] kind of evidence sufficient to establish the prior conviction. doubt. Given our conclusion above that the trial court erred in imposing any p. 5 in placing the burden upon the State to prove the validity of the defendant’s

must prove the validity of the defendant’s prior conviction beyond a reasonable question the validity of his prior conviction. Accordingly, the trial court erred

The State next argues that the trial court erred in holding that the State of the prior conviction, he failed to satisfy his initial burden of calling into specific allegation as to how his plea had not been voluntary or intelligent. II. Standard of Proof

not warrant further discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993). holdings in State v. Gosselin and State v. Zankowski, are without merit and do The defendant’s remaining arguments on this issue, regarding our

present any evidence that he had not been represented by counsel at the time presenting any evidence, he had failed in his motion to make a sufficiently We conclude that because the defendant in this case did not allege or

820 (1985) (emphasis added). the plea or his volition was in fact deficient.” State v. Harper, 126 N.H. 815, required to put into issue some evidence regarding how his understanding of incumbent on him to offer any evidence during the hearing.” that his plea had not been knowingly and intelligently made” and that he “was defendant [in Desbiens] was required to make more than conclusory allegations were thoroughly explained to him.” We have since clarified our holding in Desbiens, stating that “the

motion that his earlier plea of That failure alone was fatal to his collateral attack. Id. at 437.

concluded that regardless of whether the defendant bore the burden of Desbiens was required to present evidence. See id. at 435-36. Rather, we We, however, did not answer the question of whether the defendant in

prosecution ha[d] failed to meet its burden of proof, and that it was not

intelligently made” and that “the District Court did not assure that [his] rights

moved to suppress the evidence of his prior conviction, alleging in his written

showed the fact of conviction and representation by counsel, it did not show argued that the record of his prior conviction was deficient because, although it challenge to the validity of the prior conviction.” In Desbiens, the defendant either presenting evidence or merely “alleg[ing] the specific nature of his Relying upon Desbiens, the defendant argues that he had the option of the existence of the defendant’s prior conviction.

p. 6 Moreover, we agree with the trial court’s conclusion that the State had proven the existence of the defendant’s prior conviction had not been proven. that the trial court’s assessment of the weight of the evidence was such that

sentence mandated by RSA 265:82-b.” Given this conclusion, we cannot say

to decide, and the defendant would have been sentenced for the enhanced in the prior proceeding, “there would [have been] no further issues for the court rights form to indicate whether the defendant had been represented by counsel

this regard, and instead accept, for the purposes of argument, the defendant’s

weight of the evidence.” back of the criminal complaint or an executed acknowledgement and waiver of that it relies upon for purposes of sentence enhancement. He urges us to “accord[] great deference to [the trial court’s] assessment[] of the

. . . does not even list the prior . . . conviction.”

at 435. We decline to decide today what the applicable standard of proof is in

inconsistencies, it clearly stated in its order that if the State had offered the The State bears the burden of proving the existence of a prior conviction court in failing to find sufficient proof of [the existence of] a prior conviction.”

indicates a plea of not guilty and a finding of guilty [and] [t]he criminal record validity of the defendant’s prior conviction, it was required to prove the

However, despite the trial court’s acknowledgement of these the respect specifically challenged.” State’s proof of the existence of the prior conviction itself] would justify the trial

and a finding of guilty on the prior offense[, while] [t]he driving record . . . sentencing order because, even if the State were not required to prove the conviction. It noted that “[t]he sentencing order . . . indicates a plea of guilty evidence offered by the State to prove the existence of the defendant’s prior The trial court did in fact acknowledge several discrepancies in the

demonstrate to a clear and convincing degree that the [conviction is valid] in that “the ambiguities and contradictions [noted by the trial court regarding the existence of the prior conviction. See Desbiens, 117 N.H. at 435. He contends

because this issue could arise again on remand, we note that The defendant argues that we should not vacate the trial court’s

III. Proof of the Existence of a Prior Conviction

992.

into question the validity of the conviction, “the burden rests on the State to Arsenault has resolved it – once a defendant carries the initial burden of calling

we need not decide what standard of proof should have been utilized. However, burden upon the State to prove the validity of the defendant’s prior conviction, p. 7 7

the existence of the prior conviction beyond a reasonable doubt. prior conviction, we cannot say that no rational trier of fact could have found the unchallenged records presented by the State as proof of the defendant’s

the State or that he challenged the existence of his conviction. In the face of

the existence of the prior conviction beyond a reasonable doubt. viewing the evidence in the light most favorable to the State, could have found

from the trial court to indicate that he challenged the evidence presented by BRODERICK, C.J., and DALIANIS, GALWAY and HICKS, JJ., concurred.

and do not warrant further discussion. See Vogel, 13 p. 7 7 N.H. at 322. The defendant’s remaining arguments on this issue are without merit

appeal the burden shifts to the defendant to prove that no rational trier of fact,

trial court in this respect. The defendant has not provided us with any record most favorable to the State, was sufficient to satisfy the State’s burden in the found guilty on the charge of DWI, second offense, when viewed in the light January 15, 1998 sentencing order indicating that the defendant had been Emery, 152 N.H. p. 7 783, 788 (2005). The presentation of a certified copy of the

defendant’s prior conviction beyond a reasonable doubt in the trial court, on Assuming that the State had the burden of proving the existence of the

sentence need not be proved beyond a reasonable doubt). with State v. McLellan, 146 N.H. 108, 113 (2001) (generally, facts supporting must be made beyond a reasonable doubt as part of the State’s case-in-chief), 635, 636 (1993) (proof of defendant’s prior conviction to enhance sentence conviction beyond a reasonable doubt. Compare State v. Lougee, 13 p. 7 7 N.H. contention that the State must prove the existence of the defendant’s prior