The opinion
Steele Hays, Justice, dissenting. I agree with the majority on the first three points, but not on the last point.
The majority holds that the state did not make a prima facie case on the evidence of prior convictions based on standards set out in our previous cases. I fail to see however, how that conclusion is supported by our case law or. the authority on which the majority has relied.
Both Klimas v. State, 259 Ark. 301 , 534 S.W.2d 202 (1976) and McConahay v. State, 257 Ark. 328 , 516 S.W.2d 887 (1974) state that it is the presumption of waiver of counsel from a silent record that is impermissible. Silence on the matter does not make the record of conviction irrevocably inadmissible or inherently tained. Klimas in fact states the proper procedure to prove waiver of counsel when the record is silent:
It seems clear to us that when evidence, in whatever form, of a prior conviction is offered which is silent as to representation of the defendant by counsel or his waiver of the right of assistance of counsel, the state must first lay a foundation for its admission by evidence tending to show that defendant was in fact, represented by counsel or that he had knowingly and intelligently waived his right to the assistance of counsel.
And in Parker v. State, 258 Ark. 328 , 516 S.W.2d 887 (1974), we found that Ark. Stat. Ann. § 43-2330 (Prima Facie Evidence of Former Conviction), while it must be strictly construed, does not prevent proof of prior convictions by admissible evidence other than that mentioned in the statute. In McConahay, commenting on the proper procedure to cure the constitutionally defective record, silent on the matter of counsel, we said: “The burden was upon the state to offer proper documents or evidence before the jury to correct the defects.”
Here, a silent record is not the issue, only the procedure followed in recording the information on the record. In addition to the stamped notation that counsel was waived, albeit after the fact, the clerk of the court stated unequivocally several times in her testimony that it was always the judge’s practice to inquire of the defendant whether he was represented by counsel or wished to be and that counsel would be appointed if necessary.
The appellant does not in any way contend that this was not the case, but objects only to the manner in which the waiver was recorded. No argument is given nor authority cited to show how the procedure in this case undermines the purpose of or fails to meet the standards for adequate proof of former convictions.
The evidence presented by the state was sufficient and properly admitted under the standards of Parker and Klimas to make at least a prima facie case that appellant had waived counsel. There is nothinginour line of cases on this point or in the majority opinion that indicates how such a showing was not made.