State v. Orr

VANDE WALLE, Justice,

concurring specially.

For reasons stated later herein, I concur in the result reached by the majority opinion. I agree with much of what is stated therein. I write specially to express my doubt concerning the particular posture of this case in which the defendant does not even allege he was not informed of his right to counsel at the time of his plea of guilty in municipal court but only alleges he does not remember whether or not he was so informed. The majority opinion concludes that this is sufficient to cause the State to prove the validity of the prior uneounseled conviction. Footnotes 10 and 11 of the majority opinion analogize this to the burden the State has when it seeks to introduce evidence obtained by a warrant-less search and seizure because warrant-less searches and seizures are presumptively unconstitutional. But the problem with such an analogy is that the first conviction, uncounseled though it was, is not presumptively unconstitutional. Perhaps these statements reflect my difficulty with the concept that a conviction which is unquestionably valid in and of itself is invalid for the purpose of enhancement.

Secondly, I am not convinced there is a good reason for concluding, that Lewis v. United States, 445 U.S. 55 , 100 S.Ct. 915 , 63 L.Ed.2d 198 (1980), is not applicable. The rationale that the law involved in Lewis did not enhance punishment as a result of a prior conviction but rather enforced an essentially civil disability through a criminal sanction raises a serious question in my mind as to the soundness of the distinction. And, if there is such a distinction, it appears to me that our law concerning drunk drivers may very well serve the same purpose, i.e., it does not enhance punishment on account of the prior conviction but rather enforces an “essentially civil disability through a criminal sanction” — keeping the drunk driver off the road.

Finally, I am not convinced Article I, Section 12, of the North Dakota Constitution provides any greater protection than does the Sixth Amendment to the United States Constitution. Although the wording in the North Dakota Constitution is somewhat different, the significance of that difference escapes me and is not explained by the majority opinion. I agree with the majority opinion the history of our statutory law is that defendants in county and district court were entitled to counsel. Whether those provisions were equally applicable to municipal court may be open to question. But, as discussed below, I would reserve for another day the question of whether or not our constitutional provision provides greater protection than does the Sixth Amendment. Statements in the majority opinion, including those at footnote 6, *181 may well cast doubt upon the validity of the initial conviction in municipal court for its own purpose without the issue of enhancement, because they seem to imply that the comments to Rule 44, N.D.R. Crim.P., relative to Argersinger v. Hamlin, 407 U.S. 25 , 92 S.Ct. 2006 , 32 L.Ed.2d 530 (1972), do not limit the right to counsel under Article I, Section 12, of the North Dakota Constitution. If, indeed, that is the law, it would appear that the uncounseled plea of guilty, without any indication on the record of a knowing and valid waiver of the right to counsel, would make the conviction invalid under our Constitution despite the fact there was no imprisonment for the conviction, contrary to the holding in Ar-gersinger.

After having written the above, perhaps I should dissent rather than concur specially. However, I agree with the majority that uncounseled convictions are not always reliable. 1 I further agree with the majority that, as a matter of policy, the record in municipal court as well as other courts should reflect that a defendant was advised of his right to counsel (and the appointment of counsel in his behalf if he is indigent and entitled to appointment of counsel under Argersinger) and his voluntary waiver of counsel if, indeed, that happened. I believe a fair reading of Rule 11(f) of the North Dakota Rules of Criminal Procedure requires that result. We do not anticipate a question of constitutional law in advance of the necessity of deciding it and will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. See, e.g., State v. King, 355 N.W.2d 807 (N.D.1984). Thus I would leave for another day the significant constitutional issue reached by the majority opinion. The failure of the record of the previous conviction to reflect a valid waiver of right to counsel is sufficient reason to hold that the trial court must disregard the previous conviction for purposes of enhancement. A rule such as Rule 11(f) should be considered substantive as well as procedural and we may choose to enforce the rule in such a prophylactic manner.

ERICKSTAD, C.J., concurs.

. The unreliability of the uncounseled plea and subsequent conviction may well be due more to the fact that the ultimate consequences of the first conviction for driving while under the influence were not nearly so great in 1982, when the current law involving subsequent offenses was not so severe as it is now, than to the lack of legal counsel. There may well be persons who, under the former statutes, entered pleas of guilty after being advised by counsel that it would be less expensive to plead guilty and pay a fine than it would be to go to trial. Those persons cannot, of course, take advantage of today’s decision.