concluding that Kentucky's procedure for litigating validity of prior convictions violated federal standards, but Kentucky rule was later found to "easily pass[] constitutional muster" by U.S. Supreme Court in Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992)
How later courts described this case
- concluding that Kentucky's procedure for litigating validity of prior convictions violated federal standards, but Kentucky rule was later found to "easily pass[] constitutional muster" by U.S. Supreme Court in Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992)
- Circuit Judge Ryan, concurring in part; dissenting in part
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Parke v. Raley, 506 U.S. 20 (1993)
877 F.2d 1275 (6th Cir. 1989), overruled on other grounds by Parke v. Raley, 506 U.S. 20
Disapproved — as noted by a later court
Moreover, Dunn has been disapproved by the Supreme Court in a case which upheld a statutory sentence enhancement procedure which operates to impose the burden of producing evidence of the invalidity of a prior conviction on the criminal defendant, even if records essential to a determination of the claim may have been destroyed or lost.
medium confidence
The opinion
RYAN, Circuit Judge
(concurring in part; dissenting in part).
Because my colleagues have correctly determined that the State of Kentucky failed to carry its burden of proving that Dunn waived his entitlement to a trial by jury and to confront his accusers, and his privilege against self-incrimination in connection with his 1970, 1973 and 1976 guilty pleas, I concur in the court’s decision af *1280 firming the judgment of the district court. My reasons are limited to those addressed in part II. of my brother’s opinion. I respectfully disagree, however, with what is written in part I. and dissent therefrom.
In the first place, what is written in part I. of the court’s opinion is dicta and is, therefore, unnecessary to the court’s decision. The defendant’s conviction was properly vacated by the district court because the transcript of the 1970 guilty plea demonstrates conclusively that the defendant did not knowingly waive his constitutional rights, and the extrinsic evidence that he did so with respect to the 1973 and 1976 convictions is not clear and convincing as required by Roddy v. Black, 516 F.2d 1380 (6th Cir.), cert. denied, 423 U.S. 917 , 96 S.Ct. 226 , 46 L.Ed.2d 147 (1975). And these conclusions are inescapable without regard to the Kentucky Supreme Court’s requirement that the defendant must introduce some evidence challenging the validity of his prior guilty pleas before the state may be required to assume and carry the burden of proving “that the underlying judgments were entered in a manner which did, in fact, protect the rights of the defendant.” Dunn v. Commonwealth, 703 S.W. 2d 874, 876 (Ky.1985), cert. denied, 479 U.S. 832 , 107 S.Ct. 121 , 93 L.Ed.2d 67 (1986). Therefore, there is no proper occasion, in my view, to address the constitutional issue raised by Dunn’s argument that the Kentucky procedure for challenging the validity of guilty pleas violates the Constitution.
But having chosen to address the point, my colleagues have, in my judgment, decided the matter incorrectly.
The Kentucky Supreme Court’s procedure announced in Dunn is not invalid under the Federal Constitution or any decisions of this court or of the United States Supreme Court, and certainly it does not contravene the rules announced in Boykin v. Alabama, 395 U.S. 238 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969), or Roddy, supra.
The rules announced in Boykin are that the constitutional validity of a plea of guilty requires “an affirmative showing that [the plea of guilty] was intelligent and voluntary,” 395 U.S. 238, 242 , 89 S.Ct. 1709, 1711 , and that the court will not presume the waiver by the defendant of his right to a trial by jury, to confront his accusers, and the privilege against self-incrimination “from a silent record.” The rules of Roddy v. Black, 516 F.2d 1380, 1384 (6th Cir.1975), are that
[t]he state must prove that the defendant’s guilty plea was voluntary and intelligent, and to do so it may introduce evidence extrinsic to the transcript of the plea acceptance.
And
[i]n the face of an inadequate transcript at the time of a guilty plea’s acceptance, the state must make a clear and convincing showing that the plea was in fact understandingly entered. 5
(Emphasis added.)
The Boykin and Roddy rules, forbidding the inference of a valid waiver of constitutional right from a “silent record” and requiring clear and convincing extrinsic proof of a valid waiver, respectively, are not metaphysical abstractions. They are concerned with the manner and measure of proof by which the state must meet a defendant’s claim that his previous guilty plea conviction is invalid, once there is a proper challenge to its validity, and not before. There is no occasion for the State of Kentucky or any state to carry any burden of proof about the validity of guilty pleas that were offered and accepted and reduced to judgment long ago, unless and until a defendant, in a subsequent judicial proceeding, offers a justiciable challenge to the presumed validity of the guilty pleas and the regularity of the judgments memo- *1281 ralizing them. The validity of all guilty plea convictions rest, in the first instance, upon the presumed validity or regularity of the judgment that has been entered upon this acceptance. Surely that presumed validity does not violate the Boykin rule against “presumpng] a waiver of these three important federal rights from a silent record.” No one would think for a moment, I should hope, that the presumption of regularity or validity of court proceedings does not extend to the millions of unchallenged guilty pleas, finalized in judgments of conviction, on the books of the thousands of courthouses of all the states of the union and in the federal courts. The Kentucky Dunn procedure merely imposes upon a defendant the burden to raise the issue of the validity of a presumptively valid previous guilty plea, to get something moving judicially, by producing some modicum of evidence in support of his claim, failing which his guilty plea continues to be presumed valid. All the Kentucky Supreme Court has required is that if the state is to be put to its proof that a presumptively valid judgment of conviction resting upon a guilty plea is indeed invalid because the defendant did not intelligently and voluntarily waive relevant federal constitutional rights, the defendant must do more than just make a naked claim about the matter. He must initiate a challenge by presenting some evidence “through his testimony or other affirmative evidence.” Dunn, supra. Under the Dunn procedure, once the defendant initiates an evi-dentiary challenge, the presumption of regularity which attaches to all judgments of courts of record vanishes and the state must then undertake to carry its “burden to prove that the underlying judgments were entered in a manner which did in fact protect the rights of the defendant.” Dunn, supra. The language in the Eighth Circuit’s opinion in Todd v. Lockhart, 490 F.2d 626, 628 (8th Cir.1974), which this court relied upon and quoted in its Roddy opinion, says as much: “once a state prisoner has demonstrated that the plea taking was not conducted in accordance with Boykin , the state may, if it affirmatively proves in a post-conviction hearing that the plea was voluntary and intelligent, obviate the necessity of vacating the plea.” (emphasis added).
I agree entirely with my brother that “[i]n view of Boykin and Roddy , ... where the record from the trial court is inadequate to affirmatively demonstrate that the plea was intelligent and voluntary, the state may not utilize a presumption to satisfy its burden of persuasion.” (emphasis added.) The Kentucky procedure set forth in Dunn does not permit the state to “satisfy” its “burden of persuasion” by invoking a presumption. It merely requires, as a procedural matter, that in order to impose upon the state a new burden to prove the validity of an heretofore presumptively valid guilty plea, the defendant must raise an issue as to its validity by offering some evidence of noncompliance with Boykin . When that is done, the state may not rely upon the presumption of regularity which attaches to all judgments of courts of record, including those generated by guilty pleas, to satisfy its newly assumed burden; it must instead proceed to prove, unaided by any presumption of regularity, that the plea in question is voluntary and intelligent.
When a defendant in Kentucky offers any evidence whatever in support of his claim that his guilty plea is constitutionally infirm, he has “refute[d] the presumption of regularity” of the guilty plea judgment he has challenged and the Commonwealth is required to prove its validity according to the standards announced in Boykin and Roddy . The Kentucky Supreme Court’s procedure does no violence to the rules announced in Boykin, Roddy, or any other binding federal constitutional precedent.
Kentucky has established a constitutionally sound procedure for the uniform, orderly and efficient determination of genuine, evidence-supported challenges to presumptively valid guilty pleas reduced to judgment in its courts, and this federal court is without authority to tell Kentucky its procedure is not acceptable.
Our views do not differ in substance with the Eight Circuit’s statement in Todd v. Lockhart, 490 F.2d 626, 627-28 (8th Cir.1974), that allowing evidence at a post-conviction hearing to “cure the otherwise defective plea-taking transcript ... [does] not return to the pre-Boy-kin practice of assuming that a defendant represented by counsel has entered a voluntary and intelligent plea. Rather, [it means] that once a state prisoner has demonstrated that the plea taking was not conducted in accordance with Boykin , the state may, if it affirmatively proves in a post-conviction hearing that the plea was voluntary and intelligent, obviate the necessity of vacating the plea.”