Petition for Writ of Certiorari — Simmons v. Dunn

Supreme Court brief1990

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caeeaae JOSEPH F. SPANIOL, JR,

CLERK

‘

IN THE \ so

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

RON SIMMONS, CHAIRMAN OF THE

KENTUCKY PAROLE BOARD; THE

COMMONWEALTH OF KENTUCKY CORRECTIONS

CABINET AND THE ATTORNEY GENERAL OF

THE COMMONWEALTH OF KENTUCKY

Petitioners

versus

GENE MORRIS DUNN

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

FREDERIC J. COWAN

ATTORNEY GENERAL

DAVID A. SEXTON

ASSISTANT ATTORNEY GENERAL

CAPITOL BUILDING

FRANKFORT, KENTUCKY 40601-3494

(502) 564-4051

COUNSEL FOR PETITIONERS

— —<-

—_——_—-~

4 —

—

~~~ as

QUESTIONS PRESENTED

WHETHER THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

ERRED WHEN IT HELD THAT THE

PROCEDURE ESTABLISHED BY THE

KENTUCKY SUPREME COURT IN DUNN V.

KENTUCKY, 703 S.W.2d 874 (KY.

1985), cert. denied, 479 U.S. 832

(1986) VIOLATED THE DUE PROCESS

CLAUSE OF THE FOURTEENTH AMENDMENT

BY PLACING A BURDEN OF PRODUCTION

ON A DEFENDANT ATTACKING THE USE

OF A PRIOR GUILTY PLEA IN A

SUBSEQUENT PERSISTENT FELONY

OFFENDER PROCEEDING.

II.

WHETHER THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

ERRED IN ITS REVIEW OF THE FACTUAL

DETERMINATIONS OF THE KENTUCKY

SUPREME COURT WHEN IT HELD THAT

THE KENTUCKY SUPREME COURT WAS

REQUIRED BY THE DUE PROCESS CLAUSE

OF THE FOURTEENTH AMENDMENT TO

IMPOSE A CLEAR AND CONVINCING

BURDEN OF PERSUASION UPON THE

STATE WHEN A DEFENDANT MOVES TO

SUPPRESS THE USE OF A PRIOR GUILTY

PLEA IN A SUBSEQUENT PERSISTENT

FELONY OFFENDER PROCEEDING.

TABLE OF CONTENTS _

QUESTIONS PRESENTED .........246..

TABLE OF

OPINIONS

CONTENTS ......5 ee ee eeeess

BELOW wc ccc cc ccccccccccces

PURIGDICTION ...cccrcccccsccsccees

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE ..........4..

REASONS FOR GRANTING THE WRIT ..

CONCLUSION ..cccccscccccccccsccvees

APPENDIX

iii-v

la-52a

TABLE OF AUTHORITIES

Page

CASES:

(Note: Cases in Alphabetical Order)

Andersen v. Maryland,

427 U.S. 463, 470 n. 5 (1976) .... 12

Boykin v. Alabama,

398 U.S. 238 (1969) cc cccccccce 9,13,17,23

Brady v. United States,

BOe Gets CEbe COE CAPTOD cocecccs 28

Colorado v. Connelly.

479 U.S. 157, 167-168 (1986) .... 24

Dunn v. Kentucky,

703 S.W.2d 874 (Ky. 1985),

cert. denied, 479 U.S. 832 (1986) 2,6,8,12

Dunn v. Simmons,

877 F.2d 1275 (6th Cir. 1989) .... 2

In re Winship,

BOe Bello BE CEOCOD ceoceceseceess 24

Lakeside v. Oregon,

435 U.S. 333, 336, n. 3 (1978) .. 12

Lego v. Twomey,

Ge Weta BEE EEUU) cececeeessscs 25

v. Beto,

-S. 473, 480 n. 6 (1972) ... 15,16

fo} le)

cin

Luna v. Black,

772 F.2d 448 (8th Cir. 1985) .... 17

Marshall v. Lonberger,

459 U.S. 422 (1983) ... ccc cccceee 23

rw uw

McMillen v. Pennsylvania,

477 U.S. 79, 85-86 (1986) .......

Nix v. Williams,

467 U.S. 444, n. 5 (1984) .......

North Carolina v. Alford

ee ee Oe ED co ccaccces

Patterson v. New York,

432 U.S. 197, 201-202 (1977)

People v. Harris,

459 N.E.2d 170, 172 (N.Y. 1983)

People v. Sumstine,

687 P.2d 904 (Calif. 1984) ......

Robards v. Rees,

789 F.2d 379, 385 (6th Cir. 1986)

Roddy v. Black,

516 F.2d 1380, 1384 (6th Cir.),

cert. denied, 423 U.S. 917 (1975)

Rummel v. Estelle,

445 U.S. 263, 284 (1980) ........

Smith v. Phillips.

GSS GD.B. SOO CAPSS) cesccccccccce

Vv ‘

385 U.S. 554, 568-569 (1967)

613 P.2d 84 (Or.Ct.App. 1980)

Vv. : >

580 P.2d 495 (N.M.Ct.App. 1978)

Sumner _v. Mata

G49 U.S. SED wc cccccccceccccccess

14,24

18,19

10,11,23

United States v. Chrans,

869 F.2d 1084, 1087 (7th Cir. 1989)

United States v. Matlock,

415 U.S. 164, 178, n. 14 (1974)

Wainwright v. Goode

GGG Gebe FO CARSSD cocecccccececs

Vv .

655 P.2d 834 (Colo. 1982) .......

CONSTITUTION:

Fourteenth Amendment, U. S. Constitution,

BOSCAOR 2 cccccccccccccccccecsess

KENTUCKY REVISED STATUTES:

BRS S3Z2.080(3) wnveccccccccscsccsecs

2B U.S.C. BLSSE( A) wn cece cccccees

2B U.S.C. $2SSE(G) wc ccccccsccces

TEXTS :

2 W. LaFave, J. Israel,

Criminal Procedure, §20.1

0 Ss

Finkelstein, A Statistical

Zeisel, The Disposition of

Felony Arrests, 1981 A.B.F. Re.J. 407

Note, Plea Bargaining and

the Transformation of the

Criminal Process

90 Harv. -— 3 Rev. 569 (1977) wncce

8,9,22,26

aoe

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

RON SIMMONS, CHAIRMAN OF THE

KENTUCKY PAROLE BOARD; THE

COMMONWEALTH OF KENTUCKY CORRECTIONS

CABINET AND THE ATTORNEY GENERAL OF

THE COMMONWEALTH OF KENTUCKY

Petitioners

versus

GENE MORRIS DUNN

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

Ron Simmons, Chairman of the Kentucky

Parole Board; the Commonwealth of Kentucky

Corrections Cabinet and the Attorney General of

the Commonwealth of Kentucky petition for a writ

of certiorari to review the judgment of the

United States Court of Appeals for the Sixth

Circuit.

OPINIONS BELOW

The opinion of the United States Court

of Appeals for the Sixth Circuit (Appendix at

26a - 49a) is reported as Dunn v. Simmons, 877

F.2d 1275 (6th Cir. 1989). The opinion of the

Kentucky Supreme Court (Appendix at la - 6a) is

reported as Dunn v. Kentucky, 703 S.W.2d 874

(Ky. 1985), cert. denied, 479 U.S. 832 (1986).

JURISDICTION

The judgment of the United States Court

of Appeals for the Sixth Circuit sought to be

reviewed was rendered on June 13, 1989.

(Appendix at 50a-5la). The petitioners'

Petition For Rehearing With a Suggestion For

Rehearing En Banc was denied by order of the

United States Court of Appeals for the Sixth

Circuit entered on July 31, 1989. (Appendix at

52a - 53a). The jurisdiction of this Court to

review the judgment of the United States Court

of Appeals for the Sixth Circuit is invoked

pursuant to 28 U.S.C. §1254(1).

ain

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourteenth Amendment to the United

States Constitution provides as follows:

Fourteenth Amendment

Section 1

All persons born or

naturalized in the United States

and subject to the jurisdiction

thereof, are citizens of the

United States and of the State

wherein they reside. No State

shall make or enforce any law

which shall abridge the privileges

or immunities of citizens of the

United States; nor shall any State

deprive any person of life,

liberty, or property, without due

process of law: nor deny to any

person within its jurisdiction the

equal protection of the laws.

STATEMENT OF THE CASE

Respondent was indicted on several

charges arising from an October, 1983 arrest in

Jefferson County, Kentucky and was also charged

with being a persistent felony offender in the

first degree under Kentucky's habitual criminal

statute, KRS 532.080. (R.2,. Appendix at p.

7). Respondent, through counsel, moved the

Jefferson Circuit Court to suppress the use of

four groups of prior convictions for enhancement

purposes under Kentucky's persistent felony

offender statute. (R.2, Appendix at pp. 1-6).

Specifically, respondent moved to prohibit the

Commonwealth from using prior felony convictions

from 1982, 1976, 1973 and 1970. (R. 2, Appendix

at p. 9).

Following a pre-trial evidentiary

hearing on respondent's motion to suppress the

prior convictions, (R. 2, Appendix at pp.

15-60), the Jefferson Circuit Court concluded

that a state statute - KRS 532.080(3) prohibited

the use of the 1982 conviction since that

las used herein, all references to

the record in this case are to the docket entry

number, the name of the document, and page

number as appears in the record on appeal to the

United States Court of Appeals for the Sixth

Circuit. The appendix referred to in this

petition which appears at docket entry number 2

is not the appendix to this petition but is a

document which was filed in the U. S. District

Court in this case.

conviction resulted only in a fine. (R. 2,

Appendix at p. 11). The transcript of the

pre-trial suppression hearing conducted in the

state trial court reflects that respondent did

not testify concerning his plea of guilty

leading to his 1976 conviction. (R. 2, Appendix

at pp. 26-47). Instead, the state trial court

judge utilized a transcript of the 1976 plea of

guilty, (R. 2, Appendix at pp. 9-10), and

declined to suppress the 1976 conviction. (R.

2. Appendix at p. 14). Respondent did, however,

testify on his own behalf at the suppression

hearing concerning the pleas of guilty made by

him in 1970 and 1973. (R. 2. Appendix at pp.

26-47).

The state trial court denied

respondent's motion to suppress the 1976, 1973

and 1970 convictions, (R. 2. Appendix at p. 14),

but expressed the need for clarification of the

burdens to apply when prior convictions are

attacked by way of a suppression motion in a

subsequent persistent felony offender

proceeding, (R. 2, Appendix at Bm. 13):

: ake

It would be of great assistance to

this Court if a Kentucky appellate

court would indicate whether the

Commonwealth must do more than

merely produce a certified copy of

the judgment at a P.F.O. trial,

and if so, what. Specifically.

whether after a defendant claims a

constitutional violation and

introduces some evidence (usually

his own extremely suspect

testimony) to support a claim, the

Commonwealth has the burden to

establish a knowing plea.

Respondent proceeded to trial in the

Jefferson Circuit Court and was ultimately

convicted of possession of a controlled sub-

stance and of being a persistent felon in the

first degree for which he was sentenced to

twenty years imprisonment. (R. 2, Appendix at

pp. 76-77).

Any question concerning the procedure

the Kentucky courts are to apply when a

defendant moves to suppress the use of prior

convictions in a persistent felony offender

proceeding was answered by the Kentucky Supreme

Court in Dunn v. Kentucky, 703 S.W.2d 874, 876,

cert. denied, 479 U.S. 832 (1986). (Appendix at

3a - 4a):

ate

ists rteenenteieemnellle

The second assignment of error

concerns the persistent felony

offender portion of the case.

Pursuant to the requirement of

Commonwealth v. Gadd, Ky.. 665

S.W.2d 915 (1984), the appellant

herein filed a motion to suppress

the previous felony convictions

which formed the basis of the PFO

status of the appellant. We deem

it necessary to discuss the

procedure to be followed at such

hearings, and to clarify the

burden of proof necessary for the

trial court to properly rule on

motions filed pursuant to our

opinion in Gadd. In researching

those jurisdictions which have

passed upon the question, we find

divergent views, but feel the

proper procedure is as follows:

In those cases in which the

defendant is indicted as a

persistent felony offender and

files a proper motion to suppress

any evidence of his prior

offenses, the burden is on the

Commonwealth to prove the

judgments of cunviction in each of

the underlying offenses upon which

it intends to rely. The

presumption of regularity of

judgment shall be sufficient to

meet the original burden of

proof. After the judgments of

conviction are introduced, the

burden shifts to the defendant to

show any infringement of his

rights or irregularity of

procedure upon which he relies,

such as those set out in Boykin v.

Alabama, 395 U.S. 238, 89 S.Ct.

1709, 23 L.Ed.2d 274 (1969), or

other pertinent cases. If the

defendant presents evidence,

erin

through his testimony or other

affirmative evidence, which

refutes the presumption of

regularity, the burden then falls

to the Commonwealth to prove that

the underlying judgments were

entered in a manner which did, in

fact, protect the rights of the

defendant. A silent record simply

will not suffice.

Following the decision of the Kentucky

Supreme Court, respondent then unsuccessfully

sought direct federal review, by this Court, of

the state high court by way of a petition for

writ of certiorari. Dunn v. Kentucky, 479 U.S.

832 (1986).

Respondent then filed a petition for

writ of habeas corpus, pursuant to 28 U.S.C.

§2254, in the United States District Court for

the Western District of Kentucky. (R. 1, Order

of July 27, 1987). The United States District

Court thereafter granted respondent's petition

for a writ of habeas corpus as it pertained to

his persistent felony offender conviction and

enhanced sentence. (Appendix at 7a - 25a).

The United States District Court "rejec[ted]

respondent's arguments that Dunn v. Common-

iin

pide —

wealth, supra, finds support in federal cases

- - -", (Appendix at 23a), and declined to defer

to the factual determinations of Kentucky's

highest court concerning what respondent knew

when he pled guilty in the state courts.

(Appendix at 24a).

A timely appeal was then taken by the

petitioners to the United States Court of

Appeals for the Sixth Circuit. The Court of

Appeals, ina 2-1 decision, “ concluded that

"the metnodology and standards utilized by the

Kentucky Supreme Court do not comply with

federal standards for determining whether a plea

of guilty is intelligent and voluntary for

purposes of the United States Constitution,"

(Appendix at 40a). The Court of Appeals

reasoned that Boykin v. Alabama, 395 U.S. 238

2circuit Judge Ryan dissented from

that portion of the majority's opinion which

held the Kentucky procedure constitutionally

flawed but did concur with the majority's

holding that the factual determinations of the

Kentucky Supreme Court were not entitled to the

28 U.S.C. §2254(d) presumption of correctness.

(Appendix at 4la - 49a).

-9-

{ A

o-4 om gals

‘

(1969) and Roddy v. Black, 516 F.2d 1380, 1384

(6th Cir.), cert. denied, 423 U.S. 917 (1975)

forbade Kentucky from placing a burden of

production on a defendant who has moved to

suppress the use of a guilty plea based

conviction because "Dunn permits the state to

carry its burden by utilizing a bare record of a

conviction upon a plea of guilty, in conjunction

with the time-honored presumption that

proceedings have been regularly and legally

performed." (Appendix at 33a - 34a).°

The Court of Appeals also rejected the

petitioners' argument that the United States

District Court erred when it did not defer to

the factual determinations of the Kentucky

Supreme Court. The Court of Appeals, relying on

3circuit Judge Ryan, in dissent,

wrote that the Kentucky procedure “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 a heretofore presumptively

valid guilty plea, the defendant must raise an

issue as to its validity by offering some evi-

dence of noncompliance with Boykin." (Appendix

at 48a).

-10-

SS — a ee

its decision in Roddy v. Black, supra, wrote

that the Kentucky Supreme Court was required, as

matter of federal constitutional law, to apply a

clear and convincing burden of persuasion when

reviewing the supplementing evidence of the

earlier pleas. (Appendix at 32a; 39a).

Applying what it acknowledged to be an

“extraordinary" burden of persuasion, (Appendix

at 3la),. the Court of Appeals held that the

state high court's determination of what

respondent knew when he pled guilty was not

entitled to the 28 U.S.C. §2254(d) presumption

of correctness.

On July 31, 1989 the United States

Court of Appeals for the Sixth Circuit denied

the petitioners' Petition for Rehearing With a

Suggestion For Rehearing En Banc. (Appendix at

52a - 53a). This petition for a writ of

certiorari to review the judgment of the United

States Court of Appeals for the Sixth Circuit

now follows.

REASONS FOR GRANTING THE WRIT

There are several important and special

reasons why this Court should exercise its

judicial discretion in favor of reviewing the

judgment of the Court of Appeals. The decision

of the Court of Appeals is clearly in direct

conflict with the Kentucky Supreme Court's

decision in Dunn v. Kentucky, supra. Further,

the decision of the Court of Appeals conflicts

with the law of several of Kentucky's sister

States. Finally, this case involves issues of

particular importance to the states' criminal

justice system since it implicates the ability

of a state to use a prior guilty plea to enhance

the sentence of a habitual criminal.

1.) There is a direct and unequivocal

conflict between the decision of the Court of

Appeals and the Kentucky Supreme Court, on a

federal issue, warranting review by this Court.

Andersen v. Maryland, 427 U.S. 463, 470 n. 5

(1976); Lakeside v. Oregon, 435 U.S. 333, 336,

n. 3 (1978). The Kentucky Supreme Court held

that a defendant moving to suppress the use of a

1 a

“

‘

}

sii

conviction obtained in violation of his rights

under Boykin v. Alabama, supra, must produce

some modicum of evidence to overcome the

presumption that the prior conviction is valid.

(Appendix at 4a). Once a defendant refutes the

presumption of regularity, the prosecution then

bears the ultimate burden of persuasion on the

contested issue. (Id.). The Court of Appeals,

in its decision, wrote that “this methodology

results in a standard different from federal

standards for proving a valid waiver of

constitutional rights.", (Appendix at 33a), and

that “the methodology and standards utilized by

the Kentucky Supreme Court do not comply with

federal standards for determining whether a plea

of guilty is intelligent and voluntary for

purposes of the United States Constitution,".

(Appendix at 40a). The conflict between the

Court of Appeals and Kentucky's court of last

resort could not be any more clear.

This Court should review this case to

decide whether the federal constitution

prohibits Kentucky from requiring a defendant to

x. ™

SS SS Lee es J ee ae eee 7 ———— SS eae —

make more than just a naked claim about his

prior conviction resting upon a guilty plea.

2.) The decision of the Court of

Appeals that Kentucky is forbidden by the

federal constitution from imposing a burden of

production upon a criminal defendant attempting

to suppress a prior guilty plea in a later

persistent felony offender proceeding is

contrary to the principles set out by this Court

in Patterson v. New York, 432 U.S. 197, 201-202

(1977):

It goes without saying that

preventing and dealing with crime

is much more the business of the

States than it is of the Federal

Government, Irvine v California,

347 US 128, 134, 98 L Ed 561, 74 S

Ct 381 (1954) (plurality opinion),

and that we should not lightly

construe the Constitution so as to

intrude upon the administration of

justice by the individual States.

Among other things, it is normally

“within the power of the State to

re ch

its laws are carried out,

i e oducin

evidence and the burden of

persuasion," and its decision in

this regard is not subject to

proscription under the Due Process

Clause unless “it offends some

rincipl f just ° oted in

in ts oid si7elie eX

the traditions and conscience of

our people as to be ranked as

fundamental." Speiser v Randall,

357 US 513, 523, 2 L Ed 2d 1460,

78 S Ct 1332 (1958); Leland v

Oregon, 343 US 790, 798, 96 L Ed

1302, 72 S Ct 1002 (1952); Snyder

v Massachusetts, 291 US 97, 105,

78 L Ed €74, 54 S$ Ct 330, 90 ALR

575 (1934). [emphasis added]

The Kentucky procedure simply requires

a defendant, having avoided the burden of trial

and often having received a sentence less than

the maximum possible, to come forward with some

sort of evidentiary basis to support his motion

to suppress a presumptively valid conviction

based on an earlier guilty plea. No fundamental

notions of justice are offended by the Kentucky

procedure. —

Kentucky's procedure is consistent with

what was written in Loper v. Beto, 405 U.S. 473,

480 n. 6 (1972) in discussing the obligation a

criminal defendant bears to substantiate an

allegation that his constitutional rights were

violated in a prior criminal proceeding:

x« *« * "(T]he Court of Appeals * *

* did not rest its decision on a

finding that the petitioner had

~~ =

rt NONI at

2 Le nad SOT te Cee

failed to meet his burden of

proving the invalidity of the

prior convictions. It reached the

merits of the legal question

involved, and we granted

certiorari to review that

decision. There is thus no basis

in the record upon which we may

either dismiss this case or affirm

the decision below on the ground

that the petitioner did not meet

his burden of proving that the

prior convictions were invalid.

See Burgett v. Texas, 389 U.S.

109, 114-115, 19 L.Ed.2d 319, 324,

88 S.Ct. 258; Losieau v. Sigler,

406 F.2d 795, 803; Williams v.

Coiner, 392 F.2d 210, 212-213"

The Kentucky procedure is consistent

with this statement from Loper v. Beto, supra,

and the cases cited therein. The Kentucky pro-

cedure simply requires the accused to do what is

required in the federal courts when the consti-

tutional validity of a prior conviction is

contested - present evidence to overcome the

presumption of regularity. United States v.

Chrans, 869 F.2d 1084, 1087 (7th Cir. 1989)

(defendant bears burden in habeas corpus pro-

ceeding to prove waiver of jury trial not freely

and intelligently made); Robards v. Rees, 789

F.2d 379, 385 (6th Cir. 1986) (petitioner bears

wittn

ee See tear —

a >

e 4 iS >

isan. -

- a a Lea hye Js.

= 7 inf a © -

Oey aye ee eee . 7

—

burden of producing evidence that he was not

represented by counsel); Luna v. Black, 772 F.2d

448 (8th Cir. 1985) (where accused introduces

evidence that prior conviction constitutionally

infirm, burden shifts back to government to

prove otherwise).

The Court of Appeals erred when it

ruled that the Kentucky procedure violated this

Court's admonition in Boykin v. Alabama, supra,

against presuming a waiver from a silent

record. The Kentucky procedure does not permit

the prosecution to satisfy its burden of

persuasion by invoking a presumption. It simply

requires that before the prosecution is forced

to assume a new burden of persuasion, as to what

has been a presumptively valid plea, a defendant

must produce some evidence to support his claim

of noncompliance with Boykin v. Alabama, supra.

The Kentucky Supreme Court specifically

cautioned that once the defendant satisfies his

burden of production "[{a] silent record simply

will not suffice." (Appendix at 4a). The Court

=. =

of Appeals erred when it declared the Kentucky

procedure constitutionally flawed.

3.) The decision of the Court of

Appeals also conflicts with the law of several

of Kentucky's sister states. In People v.

Sumstine, 687 P.2d 904 (Calif. 1984) the

California Supreme Court held that a criminal

defendant would be required to produce evidence

that his Boykin rights were infringed when he

sought to suppress the use of a prior conviction

in a subsequent sentence enhancement hearing,

Sumstine, supra at 913:

Yet the silence of the record

is not entirely without relevance.

When a defendant has made

allegations sufficient to justify

a hearing, the court must conduct

an evidentiary hearing in the

fashion set forth in Coffey:

"([T)he prosecutor shall first have

the burden of producing evidence

of the prior conviction sufficient

to justify a finding that

defendant ‘has suffered such

previous conviction.' (Pen.Code,

§ 1025.) . . . [W])hen this prima

facie showing has been made, the

defendant shall thereupon have the

burden of producing evidence that

his constitutional [Boykin/Tahl

rights were] infringed in the

Ee Ee eR ee

prior proceeding at issue. .

{[I1]f defendant bears this burden,

the prosecution shall have the

right to produce evidence in

rebuttal." [Fn. omitted.) (67

Cal.2d at p. 217, 60 Cal.Rptr.

457, 430 P.2d 15.) The state at

first need prove only the fact of

the prior conviction, but once the

defendant has produced evidence

tending to show his constitutional

rights were infringed, it will not

be sufficient rebuttal for the

state to simply invoke the

regularity of the silent record.

The Kentucky procedure and the one set

out in Sumstine, supra, are virtually identical.

In People v. Harris, 459 N.E.2d 170,

172 (N.Y. 1983), the New York court held, "Once

the fact of the prior conviction has been

established, it is then incumbent upon the

defendant to allege and prove the facts

underlying the claim that the conviction was

unconstitutionally obtained (CPL 400.21, SUBD.7,

PAR. [b])." See also, Watkins v. People, 655

P.2d 834 (Colo. 1982): State v. O'Neil, 580 P.2d

495 (N.M.Ct.App. 1978); State v. Annino, 613

P.2d 84 (Or.Ct.App. 1980).

This Court should grant review of this

case since the decision of the Court of Appeals

-19-

also conflicts with the virtually identical

procedures established by the court of last

resort in several of Kentucky's sister states.

4.) Guilty pleas play a significant

role in the criminal justice systems of the

various states. The great majority of criminal

cases in this country are disposed of by a plea

of guilty rather than proceeding to trial.*

It has been estimated that in most jurisdictions

in this country seventy to ninety percent of all

felony cases are resolved by a plea of guilty.

2 W. LaFave, J. Israel, Criminal Procedure.

§20.1 mn. 1 (1984). The guilty plea procedure

permits a defendant to limit his possible

punishment and allows the state to conserve its

scarce judicial and prosecutorial resources.

a v. Unit ates, 397 U.S. 742, 752 (1970).

‘Finkelstein, A Statistical Analysis

of Guilty Plea Practices in the Federal Courts,

89 Harv. L. Rev. 293 (1975); Zeisel, The

Disposition of Felony Arrests, 1981 A.B.F. Re.J.

407; Note, Plea Bargaining and the

Transformation of the Criminal Process, 90 Harv.

L. Rev. 569 (1977).

-20-

The use, by a state, of a criminal

conviction based on a plea of guilty ina

subsequent habitual criminal proceeding is

important since guilty plea convictions are the

prevalent form of conviction (as opposed to a

jury trial) and given the interests of the state

in the prosecution of its habitual criminals.

This Court has recognized that the purpose of

the states' recidivist statutes is to deter

repeat offenders and to segregate for extended

periods of time those who are unable, or

unwilling, to conform their conduct to the basic

requirements of society. Rummel v. Estelle, 445

U.S. 263, 284 (1980).

The decision of the Court of Appeals -

that the Kentucky Supreme Court is forbidden by

the federal constitution from requiring a

defendant to raise some modicum of evidence in

support of his claim that a prior guilty plea

should not be suppressed unnecessarily hampers

the state's use of presumptively valid guilty

pleas against its most incorrigible offenders.

This Court should review the judgment of the

ein

Wi Sythe Mae

steeeta titanate iaeriniemnt ee tees Bede te ee ee ee +s

Court of Appeals to clarify the evidentiary

burdens a state may properly impose when a

criminal defendant attempts to suppress the use

of a prior guilty plea in a subsequent habitual

criminal proceeding.

5.) The Court of Appeals also

declined to defer to the factual determinations

of the Kentucky Supreme Court as required by 28

U.$.¢. §2254(d)> See, Sumner v. Mata, 449

U.S. 539 (presumption of correctness applies to

factual determinations of state appellate

courts). In rejecting the Kentucky Supreme

Court's view of the evidence, the Court of

Appeals concluded that the state high court was

required, as matter of federal constitutional

law, to hold the prosecution to a "clear and

ile ‘ 6

convincing" burden of persuasion. The

SThe Kentucky Supreme Court, after

its review of the suppression hearing evidence,

determined that respondent was aware of his

rights and that he was satisfied with his

attorney at the time he entered his pleas.

(Appendix at 5a).

6The Court of Appeals specifically

noted that the burden of persuasion standard

applied by the Kentucky Supreme Court in this

case "was something less than clear and

convincing." (Appendix at 39a).

-22-

federal appellate court recognized that such a

standard was "extraordinary", (Appendix at 32a).

but held that it was required by this Court's

decision in Boykin v. Alabama, supra and its

decision in Roddy v. Black, supra. Applying

this extraordinary burden of persuasion to the

factual determinations of the Kentucky Supreme

Court, the Court of Appeals concluded that the

federal courts were not required to defer to the

state high court's factual determinations since

the factual determinations did not have fair

support in the record. (Appendix at 40a).

While the governing standard as to

whether a plea of guilty is voluntary is a

question of federal law, Marshall v. Lonberger,

459 U.S. 422 (1983), that does not mean that the

Court of Appeals was free to impose the clear

and convincing evidentiary standard oo» the

Kentucky state courts. Smith v. Phillips, 455

U.S. 209 (1982) (federal courts possess no

supervisory powers over the state courts). As

noted earlier in this petition, this Court has

repeatedly emphasized that questions concerning

the burden of persuasion in state criminal

trials are best left to the states unless the

state procedure is so fundamentally unjust or

unfair as to violate the Due Process Clause.

Patterson v. New York, supra; McMillen v.

Pennsylvania, 477 U.S. 79, 85-86 (1986).

Applying a preponderance of the evidence

standard to the prosecution's ultimate burden of

persuasion does not violate the Due Process

Clause since this court has "never held that the

‘clear and convincing evidence' standard is the

appropriate one" when the prosecution is

required to prove a waiver of federal

constitutional rights. Colorado v. Connelly,

479 U.S. 157, 167-168 (1986).

Of course, the state is required to

prove every element of an offense beyond a

reasonable doubt, In re Winship, 397 U.S. 358

(1970).? However, this Court has repeatedly

| 7The Court of Appeals, in its

opinion, recognized that the issue presented to

it in this case did not involve a question

involving the elements of respondent's

persistent felony offender conviction.

(Appendix at 29a).

-24-

held that a state need only prove the waiver of

constitutional rights by a preponderance of the

evidence in those instances where the state

bears the burden of proof. Lego v. Twomey, 404

U.S. 477 (1972) (state required to prove

voluntariness of confession at suppression

hearing by no more than preponderance of the

evidence); Nix v. Williams, 467 U.S. 444, n. 5

(1984). The Court of Appeals erred when it

held, as a matter of federal constitutional law,

that Kentucky must impose a clear and convincing

burden of persuasion standard on the prosecution

when the defendant moves to suppress a prior

guilty plea. This Court has stated that "the

controlling burden of proof at suppression

hearings should impose no greater burden than

proof by a preponderance of the evidence."

United States v. Matlock, 415 U.S. 164, 178, n.

14 (1974). The decision of the Court of Appeals

is "a wholly unjustifiable encroachment

upon the constitutional power of States to

promulgate their own rules of evidence to try

= =

their own state-created crimes in their own

state courts,". Spencer v. Texas, 385 U.S. 554,

568-569 (1967).

The refusal of the Court of Appeals to

defer to the factual determinations of the

Kentucky Supreme Court concerning what

respondent knew when he pled guilty is flawed

since it applied the extraordinary standard of

“clear and convincing" evidence to the facts

adduced at the suppression hearing. Applying a

preponderance of the evidence standard to the

facts in this case, the factual determinations

of the Kentucky Supreme Court do have fair

support in the recora.® 28 U.S.C. §2254(d);

Wainwright v. Goode, 464 U.S. 78 (1983).

Concerning his 1973 plea, respondent

answered "No" when his attorney asked him if the

trial judge had informed him of his rights to

8tThe Kentucky Supreme Court held that

respondent failed to satisfy his burden of

production as to his 1976 conviction since he

failed to testify or present any other

affirmative evidence on that conviction.

(Appendix at 5a).

trial by jury. the right to confront witnesses

and the right to remain silent. (R. 2, Appendix

at p. 27). However, upon cross-examination

respondent admitted knowing of his right to a

jury trial and his right to confront witnesses.

(R. 2, Appendix at pp. 27-29). The record also

reflects that respondent was represented by

—— as ee

counsel at his 1973 plea, (R. 2, Appendix at p.

9), amd admitted that he was seeking a “package

deal" at the time since he was, by his cwn

admission, “in the wrong". (R. 2, Appendix at

p. 32).

Concerning his 1970 guilty plea,

respondent again simply replied "No" when asked

if he had been informed of his rights to a jury

trial, to confront witnesses and to remain

Silent. (R. 2, Appendix at pp. 41-42).

Respondent admitted that he was represented by

counsel who "probably" explained that he could

have a trial if he wanted one, (R. 2. Appendix

at p. 43), and “guessed" that his attorney

negotiated a plea bargain arrangement because

-27-

that's what he [respondent] wanted. (R. 2,

Appendix at p. 43).

Based on these facts, the Kentucky

Supreme Court correctly concluded that the

prosecution had carried ite ultimate burden of

persuasion. There is fair support in the record

to support the conclusion that the prosecution

had shown, by a preponderance of the evidence,

that respondent's pleas were voluntary and

intelligent. See, North Carolina v. Alford, 400

U.S. 25, 31 (1970) ("standard was and remains

whether the plea represents a voluntary and

intelligent choice among the alternative courses

of action open to the defendant"); Brady v.

United States, 397 U.S. 742 (1970).

This Court should review this case to

determine if the Court of Appeals erred when it

held that the state high court was required, by

the United States Constitution, to hold the

prosecution to a “clear and convincing" burden

of persuasion.

-28-

Because the Court of Appeals believed

federal law required it to decide the case the

way it did, this Court has jurisdiction and

shoulad grant the petition, and review the

questions presented.

CONCLUSION

The petition for writ of certiorari

should be granted.

Respectfully submitted,

FREDERIC J. COWAN

/ ORNEY GENERAL

DAVID A. SEXTON

ASSISTANT ATTORNEY GENERAL

CRIMINAL APPELLATE DIVISION

CAPITOL BUILDING

FRANKFORT, KENTUCKY 40601-3494

(502) 564-4051

COUNSEL FOR PETITIONERS

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RENDERED: December 19, 1985

TO BE PUBLISHED

SUPREME COURT OF KENTUCKY

No. 85-SC-52-MR

GENE MORRIS DUNN, JR. APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT

Vv. HONORABLE JOHN W. POTTER, JUDGE

No. 83-CR-1535

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE GANT

AFFIRMING

Appellant was convicted of possession of

a Schedule II narcotic and sentenced after trial

as a first degree persistent felony offender to a

term of 20 years. Two issues are presented on

this matter of right appeal.

The first error asserted by appellant

concerns the exclusion of certain evidence during

the trial in chief. This evidence was taken by

avowal and related to the rehabilitation in

Jefferson County, and described the programs and

facilities available. The stipulated purpose of

this evidence was to permit counsel for appellant

to argue to the jury that they should fine the

appellant rather than incarcerate him so he might

continue in the programs. The statute under which

appellant was convicted is KRS 218A.990(7), which

provides a penalty range of from one to five

years, or a fine of from $3,000 to $5,000, or

both, which offense is a Class D felony under KRS

532.020(1)(a).

In considering the alleged error of

excluding this evidence, we note that no argument

is made, nor can it be, that said prohibition in

any way affected the determination of guilt or

innocence, but merely that it could have affected

the sentence on the original charge. However,

appellant herein was sentenced as a persistent

felony offender in the first degree with that

sentence to be served in lieu of the sentence

assigned by the jury on the principal charge. The.

evidence which was excluded was not offered in

mitigation of the persistent felony offender

procedure pursuant to KRS 532.080. As we have

stated, the felony of which the appellant was

convicted was a Class D felony and his resulting

sentence as a persistent felony offender was not

affected by the exclusion of this evidence.

The second assignment of error concerns

the persistent felony offender portion of the

case. Pursuant to the requirement of Commonwealth

v. Gadd, Ky.. 665 S.W.2d 915 (1984), the appellant

herein filed a motion to suppress the previous

felony convictions which formed the basis of the

PFO status of the appellant. We deem it necessary

to discuss the procedure to be followed at such

hearings, and to clarify the burden of proof

necessary for the trial court to properly rule on

motions filed pursuant to our opinion in Gadd. In

researching those jurisdictions which have passed

upon the question, we find divergent views, but

feel the proper procedure is as follows:

In those cases in which the defendant is

indicted as a persistent felony offender and files

a proper motion to suppress any evidence of his

prior offenses, the burden is on the Commonwealth

to prove the judgments of conviction in each of

the underlying offenses upon which it intends to

rely. The presumption of regularity of judgment

shall be sufficient to meet the original burden of

proof. After the judgments of conviction are

introduced, the burden shifts to the defendant to

show any infringement of his rights or

irregularity of procedure upon which he relies,

such as those set out in Boykin v. Alabama, 395

U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), or

other pertinent cases. If the defendant presents

evidence, through his testimony or other

affirmative evidence, which refutes the

presumption of regularity, the burden then falls

to the Commonwealth to prove that the underlying

judgments were entered in a manner which did, in

fact, protect the rights of the defendant. A

silent record simply will not suffice.

Applying this procedure to the case

before us, we find that the Commonwealth met its

Original burden as hereinabove prescribed by

introducing the proof of three pleas of guilty to

felony charges in 1976, 1973, and 1970, which

judgments did show the convictions and further

showed that the appellant was represented by

counsel on each occasion. Thereafter, the

appellant took the stand and testified, under oath

of course, that the trial judge had failed to

advise him of certain rights prior to the entry of

the plea of guilty in the 1976 and 1973

proceedings. No evidence was given to rebut the

presumption of regularity in relation to the 1970

conviction. At this juncture, the burden shifted

back to the Commonwealth on the two judgments

referred to, and the record is totally silent on

the issue of whether the trial judge advised him

of his righte. However, the Commonwealth

cross-examined the appellant concerning the issue,

and he readily admitted that he knew of the rights

about which he contends he was not informed by the

court. The evidence further indicated he was

satisfied with the manner in which he was

represented by counsel. We fail to see any

reversible error in the failure of the trial

court, if there was such failure, to advise the

appellant of rights he admits he already knew

existed.

The judgment is affirmed.

All concur.

ATTORNEY FOR APPELLANT:

Frank W. Heft, Jr.

J. David Niehaus

Office of the Jefferson District

Public Defender

200 Civic Plaza

719 West Jefferson Street

Louisville, KY 40202

ATTORNEY FOR APPELLEE:

David L. Armstrong

Attorney General

Capitol Building

Frankfort, KY 40601

C. Lloyd Vest, II

Assistant Attorney General

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

GENE MORRIS DUNN

Petitioner

Vv. NO. C 87-0462-L(B)

RON SIMMONS, CHAIRMAN,

PAROLE BOARD, CORRECTIONS

CABINET

Respondent

MEMORANDUM

This matter is before the Court on

motion of the petitioner, Gene Morris Dunn, for

entry of summary judgment granting his petition

for a writ of habeas corpus filed July 27, 1987,

pursuant to Title 28 U.S.C. § 2254, and on

motion of the respondent, Ron Simmons, to

dismiss the petition or, in the alternative, to

enter summary judgment.

On December 7, 1984, the petitioner was

convicted of possession of a controlled

substance and was sentenced as a first degree

persistent felony offender in Jefferson Circuit

Court. His five year sentence was enhanced to

20 years under KRS 532.080. His subsequent

appeal to the Kentucky Supreme Court was affirmed

in Dunn v. Commonwealth, 703 S.W.2d 874 (1985),

and his petition for writ of certiorari to the

United States Supreme Court was denied.

The issue raised in this petition for

writ of habeas corpus is whether petitioner was

denied federal due process of law by the

allocation of the burdens of proof and

production used in the persistent felony portion

of the proceedings. Specifically, petitioner

argues that the procedures used in the Kentucky

courts in ruling on the validity of his prior

convictions forming the basis for the persistent

felon charge violated Boykin v. Alabama, 395

U.S. 238, 89 S.Ct. 1709 (1969), and Roddy v. F

Black, 516 F.2d 1380 (6th Cir. 1975).

Petitioner maintains that although Kentucky's

highest court has ruled that a defendant must be

given an opportunity to exclude improper

evidence from consideration at a trial, it has

done so in a manner inconsistent with federal

constitutional law, denying him the due process

to which he is entitled under Bruton v. United

States, 391 U.S. 123, 88 S.Ct. 1620 (1968), and

Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct.

258 (1967).

Boykin, 395 U.S. at 243, 89 S.Ct. at

1712, held that an effective waiver of a federal

constitutional right is governed by federal

standards.

Several federai constitu-

tional rights are involved in a

waiver that takes place when a

plea of guilty is entered ina

State criminal trial. First, is

the privilege against compulsory

self-incrimination guaranteed by

the Fifth Amendment and applicable

to the States by reason of the

Fourteenth. Malloy v. Hogan, 378

U.ms Be, OS B.CB. 146809. AZ L. Ee. 26

653. Second, is the right to

trial by jury. Duncan v.

Louisiana, 391 U.S. 145, 88 S.Ct.

1444, 20 L.Ed.2d 491. Third, is

the right to confront one's

accusers. Pointer v. Texas, 380

U.S. 400, 85 §.Ct. 1065. 13

L.Ed.2d 923. We cannot presume a

waiver of these three important

federal rights from a silent

record.

lin Burgett it was held that the use

of a prior conviction which was constitutionally

invalid becatse made while a defendant was

denied his right to counsel was inherently

prejudicial when used in a sentence enhancement

proceeding.

Therein the Court, in discussing the

constitutionality of the process by which the

trial judge had accepted the petitioner's guilty

plea for robbery, held that, "[{i]t was error,

plain on the face of the record, for the judge

to accept the plea without an affirmative

showing that it was intelligent and voluntary."

Id.. 395 U.S. at 242, 89 $.Ct. at Al7ll. The

Court elaborated, 395 U.S. at 243, 89 S.Ct. at

L7iz. that:

What is at stake for an accused

facing death or imprisonment

demands the utmost solicitude of

which courts are capable in

canvassing the matter with the

accused to make sure he has a full

understanding of what the plea

connotes and of its consequence.

When the judge discharges that

function, he leaves a record

adequate for any review that may

be later sought [citations

omitted] and forestalls the

spin-off of collateral proceedings

that seek to probe murky memories.

In the instant case, the constitu-

tionality of the prior guilty pleas was attacked

during a pretrial hearing preceding the

persistent felon stage of the trial as required

by Alvey v. Commonwealth, Ky., 648 S.W.2d 858

10a

7 : - ———

. Vs 2S ee

a ee —

(1983). In its opinion and order the trial

court admitted that Kentucky differs from the

Sixth Circuit on how the constitutional issues

should be resolved, citing Roddy v. Black, 616

F.2d 1380 (6th Cir. 1975).

The Court will reach the

outcome it feels 99 out of 100

trial judges would reach and the

outcome that it feels would be

upheld on appeal 99 out of 100

times. However, this Court

believes that a majority of those

judges who would reach the result

reached here wouid do so by making

findings that were less than

sincere. These courts would

engage in presumptions or find

facts that common sense would

militate against. This Court will

find the facts as it thinks they

would be found by a factfinder

unhampered by the outcome that

they might produce. Hopefully,

the higher courts will answer some

questions so that lower courts can

deal with what must be an

important every day matter in a

Straight forward manner.

In addressing the validity of the two

1976 convictions, three 1970 convictions, and

one 1973 conviction, the Court found that as to

the 1973 and 1970 convictions, there was no

evidence except the judgments themselves, which

only recite that petitioner was represented by

lla

—~

counsel during those pleas. The 1976 plea to

two indictments was accompanied by a transcript

which indicated that petitioner was asked:

"Do you understand you have a right to a

trial on that if you wish?"

“Yes, sir."

“You wish to waive that right and plead

guilty because you are guilty, is that

correct?

Yes."

Essentially, the same two questions

were asked in regard to the second indictment.

The petitioner testified that there had been no

colloquy by the courts to determine whether he

was entering his 1970 and 1973 pleas voluntarily

and knowingly.

The trial court then made specific

findings:

"“(1) There has been a

failure to show that Mr. Dunn

knowingly and voluntarily waived

his constitutional rights in his

1970 and 1973 pleas.

(2) There has been a failure

to show that he did not knowingly

and voluntarily waive his

constitutional rights in the 1970

and 1973 pleas.

12a

(3) Mr. Dunn was not advised

of his constitutional rights

through a colloquy with the court

in his 1970 and 1973 pleas. (This

finding is based in part upon this

Court's review of transcripts,

where they exist, in other pleas

taken by the court in 1970 and

1973).

(4) The record is silent as

to whether Mr. Dunn's 1970 and

1973 pleas were knowing and

voluntary.

(5) As to the 1976 plea, the

record is not totally silent as to

whether his plea wa voluntary and

knowing, there being some

indication of understanding.

(6) As to the 1976 plea the

record is inadequate to establish

that the plea was knowing.

(7) As to the 1976 plea the

trial court did not comply with

Boykin or RCr. 8.08 (i.e. that the

court did not advise Mr. Dunn of

all of his constitutional rights,

make a record thereof or make a

finding that the plea was knowing).

(8) Based upon Mr. Dunn's

experience in prison and the

partial record, his plea in 1976

was, in fact, voluntary and

knowing.

(9) The Commonwealth has not

established by clear and

convincing evidence that the 1976

plea was voluntary and knowing.

13a

SE Be

(10) Mr. Dunn has "“claimed'

that his 1970, 1973 and 1976

convictions were not entered

knowingly and has introduced some

evidence to support that clain.

The Court next held that the 1976 plea

should not be suppressed. In ruling on the 1973

and 1970 pleas, the court recognized that cases

conflict on the effect of a plea, defective

under Boykin, on the use of such plea in

persistent felony proceedings.

This Court will rule, because

it believes the vast majority of

the other Kentucky courts would

reach the same result by hook or

crook, that the 1970 and 1973

convictions should not be

suppressed. It is doing so on the

grounds that Mr. Dunn has failed

to prove the underlying pleas were

entered unknowingly and that even

in the face of a silent record the

presumption in favor of a judgment

places the burden on Mr. Dunn to

prove the unconstitutionality of

the prior conviction. Ingram v.

Commonwealth, 427 S.W.2d 815, 819

(1968). Since virtually every

defendant's testimony on this

point will be suspect, the

presumption is virtually

unrebuttable.

So that there will be no mistake

should there be an appeal (sic).

If the Commonwealth has the burden

of establishing the constitutional

14a

soundness of prior convictions

after the Defendant has put them

in issue then any conviction based

upon the 1970 or 1973 convictions

should be reversed. If the

Commonweath's burden is to

establish by clear and convincing

evidence, then any conviction

based upon the 1976 convictions

should be reversed.

The Court then requested assistance

from reviewing courts that would clarify who has

the burden of proof on the voluntariness issue.

It is obvious that the Court, relying on Ingram,

placed the burden on the petitioner, although it

recognized that the Sixth Circuit requires that

where the transcript is inadequate the

Commonwealth has the burden to show a knowing

waiver with clear and convincing evidence.

Lonberger v. Jago, 635 F.2d 1189 (6th Cir.

1980), rev'd on other grounds, Marshall v.

Lonberger, 459 U.S. 432, 103 S.Ct. 843, 74

L.Ed.2d 646 (1983).

On appeal to the Kentucky Supreme

Court, petitioner was again denied relief. The |

Court, in a published opinion, outlined the

“proper” procedure to be followed:

15a

In those cases in which the

defendant is indicted as a

persistent felony offender and

files a proper motion to suppress

any evidence of his prior

offenses, the burden is on the

Commonwealth to prove the

judgments of conviction in each of

the underlying offenses upon which

it intends to rely. The

presumption of regularity of

judgment shall be sufficient to

meet the original burden of

proof. After the judgments of

conviction are introduced, the

burden shifts to the defendant to

show any infringement of his

rights or irregularity of

procedure upon which he relies,

such as those set out in Boykin v.

Alabama, 395 U.S. 238, 89 S.Ct.

1709, 23 L.Ed.2d 274 (1969), or

other pertinent cases. If the

defendant presents evidence,

through his testimony or other

affirmative evidence, which

refutes the presumption of

regularity, the burden then falls

to the Commonwealth to prove that

the underlying judgments were

entered in a manner which did,-in

fact, protect the rights of the

defendant. A silent record simply

will not suffice.

Applying this procedure to

the case before us, we find that

the Commonwealth met its original

burden as hereinabove prescribed

by introducing the proof of three

pleas of guilty to felony charges

in 1976, 1973, and 1970, which

judgments did show the convictions

and further showed that the

16a

appellant was represented by

counsel on each occasion.

Thereafter, the appellant took the

stand and testified, under oath of

course, that the trial judge had

failed to advise him of certain

rights prior to the entry of the

plea of guilty in the 1976 and

1973 proceedings. No evidence was

given to rebut the presumption of

regularity in relation to the 1970

conviction. At this juncture, the

burden shifted back to the

Commonwealth on the two judgments

referred to, and the record is

totally silent on the issue of

whether the trial judge advised

him of his rights. However, the

Commonwealth cross-examined the

appellant concerning the issue,

and he readily admitted that he

knew of the rights about which he

contends he was not informed by

the court. The evidence further

indicated he was satisfied with

the manner in which he was

represented by counsel. We fail

to see any reversible error in the

failure of the trial court, if

there was such failure, to advise

the appellant of rights he admits

he already knew existed.

Habeas petitions may be adjudicated on

the record of testimony at the state hearing

alone if the record reveals that the defendant

enjoyed a full and fair hearing under the

standards in Townsend v. Sain, 372 U.S. 293, 83

745, 9 L.Ed.2d 770 (1963); Clayton v.

17a

Blackburn, 478 F.2d 117 (5th Cir. 1978). The

state hearing in the instant case met the

required standard.

It is troubling, of course,

that the state in this case

misplaced or lost the petitioner's

guilty plea transcript notes. The

purpose of Boykin hearings,

besides protecting defendants, is

to help assure the finality of

state court convictions in order

to avoid collateral hearings in

which memories become hazy and the

evidence uncertain. Where no

transcript is made or available of

a guilty plea hearing, that

purpose is obviously frustrated.

See Blackledge v. Allison, 1977,

431 U.S. 63, 97 S.Ct. 1621, 52

L.Ed.2d 136.

However, it is still the

petitioner's burden in a habeas

proceeding to demonstrate, at

least prima facie, those facts

that establish a constitutional

violation. In deciding whether

the petitioner's testimony alone

meets that burden, and whether the

state violated its duty in not

making a transcript available, all

of the facts must be considered,

including any delay by the

petitioner in seeking relief and

his opportunities for earlier

applications.

Clayton v. Blackburn at 120.

18a

Petitioner insists that the trial court

and the Kentucky Supreme Court applied a

procedure governing the burden of proof in the

suppression hearing which conflicts with the

federal standards announced in Roddy v. Black,

516 F.2d 1380 (6th Cir. 1975). Roddy v. Black

did not involve a challenge to prior convictions

to be used in a persistent felony offender

hearing. The defendant in that case was faced

with revocation of his probation and waited

until that time to challenge the previously

entered guilty pleas. The Court did, however,

discuss Boykin in recognizing that a careful

on-the-record inquiry by the trial judge would

aid in the prevention of spin-off collateral

attacks.

If the discussion between

defendant and trial judge at the

time of a plea's acceptance leaves

doubt as to whether a plea was in

fact voluntary and intelligent,

however, a defendant is not

automatically entitled to a

reversal of his conviction.

Rather, in that circumstance if a

defendant argues in a

post-conviction proceeding that

19a

his plea was entered without his

consent or without an

understanding of the plea's nature

and consequences, Boykin places a

burden on the State to prove the

contrary. A habeas court may not

‘presume a waiver of [a

defendant's] federal rights from a

Silent record.' 395 U.S. at 243,

89 S.Ct. at 1712. The 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's

acceptance. (Citations omitted.)

x * &* *®

In 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

knowingly and understandingly

entered.

Roddy v. Black at 1384.

In Lonberger v. Jago, supra, the habeas

corpus petitioner was convicted of aggravated

murder with a "specification," resulting in

capital punishment under Ohio's penalty

enhancement statute. A prior conviction of

attempted murder was one of the "specifications"

statutorily prescribed. The petitioner made a

pretrial motion to dismiss the specification on

20a

the ground that his 1972 guilty plea to

attempted murder had not been knowingly or

voluntarily made. A hearing was held, wherein

the state offered as proof of voluntariness the

conviction statement and the transcript of the

plea's acceptance. The trial court, however,

rejected the defendant's arguments. On appeal

of the denial of defendant's petition for writ

of habeas corpus, the Sixth Circuit held that

because nowhere did it affirmatively appear in

the transcript of his plea that he was aware of

the nature of the charge, the transcript was

inadequate to show that he understood that he

was pleading guilty to attempted murder. "We

hold, therefore, that the state failed to meet

its burden to show by clear and convincing

evidence that the defendant understood the

nature of the charge against him." Id. at

1195. A writ of habeas corpus was ordered.

In addition to Ingram, supra, other

Kentucky cases clearly place the burden of proof

on the defendant in a persistent felon

2la

——— — a a = al Ga Oo oe oe oO == a

proceeding to show the unconstitutionality of

his prior pleas. See Gadd v. Commonwealth, Ky.,

665 S.W.2d 915 (1984), and Phillips v.

Commonwealth, Ky... 559 S.W.2d 724 (1977).

It is also clear under the federal

cases discussed that if there is an inadequate

record of a guilty plea, there may be no

assumption that the plea was validly made. "We

cannot presume a waiver of these important

federal rights from a silent record." Boykin at

1712. In the face of an inadequate transcript,

the government must prove the validity of the

prior convictions with clear and convincing

evidence. Roddy v. Black, supra. Lonberger v.

Jago, supra. The unpublished cases of Frazier

v. Scroggy. No. 86-5985 (6th Cir. Nov. 1, 1987),

and Sullivan v. Rees, No. 85-5753/5844 (6th Cir.

Sept. 26, 1986), are fully in accord with these

principles.

In the instant case there was no

transcript available as evidence of the 1970 and

1973 pleas, and only two questions were asked

during the 1976 plea. This Court is in

22a *

agreement with the trial court that the

requirements of Boykin were not met. However,

this Court disagrees that the burden was on the

petitioner to prove the invalidity of the

pleas. The Court rejects respondent's arguments

that Dunn v. Commonwealth, supra, finds support

in federal cases, as the authorities respondent

cites involve suppression in a search and

seizure context. The Court also rejects

respondent's contention that no federal question

is involved, and that Kentucky courts make a

practice of keeping the transcripts only a

certain period of time, thus putting the state

at an evidentiary disadvantage in collateral

proceedings.

Under the facts of this case a writ of

habeas corpus is appropriate. The trial court

acknowledged that if the Commonwealth had the

burden of proof then all of the pleas should be

suppressed. Petitioner was the only person to

testify at the suppression hearing, after which

the Court made express findings that (1) the

23a

petitioner was not advised of his rights in the

1970 and 1973 pleas through a colloquy with the

judge; (2) the record is silent as to whether

those pleas were knowing and voluntary; (3)

there has been a failure to show that petitioner

knowingly and voluntarily waived his rights in

1970 and 1973, and (4) the Commonwealth has not

established by clear and convincing evidence

that the 1976 plea, defective under Boykin and

Ky.R.Cr.P. 8.08, was Knowing and voluntary.

A state court's findings are presumed

correct if they are basic, primary, or

historical facts; mixed determinations of law

and fact are open to full review by this Court.

Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct.

1708, 64 L.Ed.2d 333 (1980). The governing

standards as to whether a plea is voluntary is

governed by federal law. Marshall v. Lonberger,

supra. The basic facts, found by the trial

court after a full evidentiary hearing, were

incorrectly applied by placing the burden on the

petitioner and his petition for writ of habeas

corpus will be granted.

24a

An appropriate order has been entered

this 30th day of November, 1987.

THOMAS A. BALLANTINE, JR.

United States District Judge

Copies to: Petitioner

Counsel of record

RECOMMENDED FOR FULL TEXT PUBLICATION

See, Sixth Circuit Rule 24

No. 88-5015

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GENE M. DUNN, JR., )

Petitioner-Appellee, )

)ON APPEAL from the

Vv. ) United States

District Court

for the Western

District of

Kentucky

RON SIMMONS, CHAIRMAN, PAROLE

BOARD, CORRECTIONS CABINET,

and

DAVID L. ARMSTRONG,

Respondents-Appellants.

we Oe ee ee ee

Decided and Filed June 13, 1989

Before: RYAN and NORRIS, Circuit

Judges; and LIVELY, Senior Circuit Judge.*

NORRIS, Circuit Judge, delivered the

opinion of the court, in which LIVELY, Senior

Circuit Judge, joined. RYAN, Circuit Judge (pp.

10-14) delivered a separate opinion concurring

in part and dissenting in part.

*The Honorable Pierce Lively became Senior

Circuit Judge on January 1, 1989.

26a

ALAN E. NORRIS, Circuit Judge. This is

an appeal by the state from an order of the

district court granting a writ of habeas corpus

to petitioner, Gene M. Dunn, Jr. Dunn was found

guilty by a Kentucky jury of the substantive

offense of possession of a controlled substance,

and of being a persistent felony offender (PFO),

and these convictions were upheld by the

Kentucky Supreme Court. The effect of the

district court's order is to relieve Dunn of his

conviction as a PFO and its enhanced sentence,

but to leave undisturbed his conviction for

possession of a controlled substance.

Prior to trial, Dunn sought to have the

PFO indictment dismissed, contending that the

1970, 1973, and 1976 convictions upon which that

charge was based, should be suppressed. He

argued that the prior convictions were based

upon invalid guilty pleas, since those pleas

were accepted without Dunn having intelligently

and voluntarily waived federal constitutional

rights to which he was entitled. While

expressing concern that he was required to

27a

follow case law from Kentucky appellate courts

that conflicted with federal standards for

determining whether federal rights are validly

waived, the state trial judge overruled the

motion. The jury then found Dunn guilty of the

PFO charge, as well as of the substantive

offense.

In his petition for a writ of habeas

corpus, Dunn maintained that the Kentucky courts

improperly adjudicated the validity of his prior

convictions. The district court agreed.

The state first contends that the

district court erred when it determined that the

prior convictions, upon which Dunn's PFO

conviction was based, were invalid since the

State failed to demonstrate that Dunn intelli-

gently and voluntarily waived his federal

constitutional rights when he entered the guilty

pleas resulting in those convictions. Specifi-

cally, the state argues that the Kentucky

Supreme Court has correctly assigned the burdens

of evidence production and persuasion in

28a

proceedings to determine if federal constitu-

tional rights have been waived in guilty plea

proceedings.

Under Kentucky's PFO statute, Ky. Rev.

Stat. Ann. § 532.080 (Baldwin 1984), the state's

burden in proving the fact of a prior felony

conviction is to persuade the jury beyond a

reasonable doubt. Hon v. Kentucky, 670 S.W.2d

851, 853 (Ky. 1984). Resolution of that

question of fact is not involved in this appeal;

instead, we are reviewing the determination of a

question of law initially made by the state

trial court after a suppression hearing,

affirmed by the Kentucky Supreme Court, and

ultimately addressed by the district court upon

Dunn's petition for a writ of habeas corpus.

That question of law concerns the legal validity

of Dunn's prior convictions.

Generally, when courts are called upon

to decide this question of law, a prior

conviction is being examined in the context of a

pretrial motion filed in a PFO prosecution, or

in a post-conviction inquiry into whether the

29a

conviction is invalid. The question is whether

the conviction is based upon a guilty plea

accepted in the absence of a valid waiver by the

accused of the federal constitutional rights he

surrendered by pleading guilty.

In Boykin v. Alabama, 395 U.S. 238

(1969), the United States Supreme Court noted

that, for purposes of establishing that when a

state court defendant entered a guilty plea he

also waived federal constitutional rights to

trial by jury and to confront one's accusers

and the privilege against compulsory self-

incrimination, the state is required to prove

that the plea was intelligent and voluntary.

“We cannot presume a waiver of these three

important federal rights from a silent record."

Id. at 243. Where the waiver is subsequently

challenged, the state normally will attempt to

demonstrate its effectiveness by introducing a

transcript of the proceedings surrounding the

trial court's acceptance of the guilty plea, and

other trial court records. Where the records

leave doubt as to whether the plea was in fact

30a

intelligent and voluntary, the state may look to

evidence extrinsic to the court records, such as

the recollection of those attending the plea

proceedings. However, in the face of a record

which is inadequate to demonstrate the

regularity of proceedings at the time of a

guilty plea's acceptance, the state must make a

clear and convincing showing with this extrinsic

evidence that the plea was in fact intelligently

and voluntarily entered. Roddy v. Black, 516

F.2d 1380, 1384 (6th Cir.), cert. denied, 423

U.S. 917 (1975). We have imposed this

extraordinary standard of persuasion in view of

misgivings inherent in "collateral proceedings

that seek to probe murky memories," a problem

not present where the contemporary record

demonstrates a valid waiver. Boykin, 395 U.S.

at 244.

Federal law governs the appropriate

standards for determining whether a plea of

guilty is intelligent and voluntary for purposes

of the United States Constitution. Marshall v.

Lonberger, 459 U.S. 422, 431 (1983); Boykin, 395

3la

-_~_ = - as:).. A = mie —

7 — a ee ee ee

U.S. at 243. Because the circumstances

surrounding the acceptance of a guilty plea

necessarily must be examined, federal standards

control the limited fact-finding role required

of the court in arriving at a determination of

this question of law. In view of Boykin and

Roddy, we conclude that among those standards

must be counted these: 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.

And, where it seeks to satisfy that burden by

supplementing an incomplete contemporaneous

record with extrinsic evidence that evidence

must be clear and convincing.

In the course of its opinion affirming

Dunn's convictions, the Kentucky Supreme Court

set out its view of the methodology a state

trial court should employ in determining whether

a prior conviction predicated upon a guilty plea

is valid under the United States Constitution:

In those cases in which

the defendant is indicted as

a persistent felony offender

and files a proper motion

32a

to suppress any evidence of his

prior offenses, the burden is on

the Commonwealth to prove the

judgments of conviction in each of

the underlying offenses upon which

it intends to rely. The

presumption of regularity of

judgment shall be sufficient to

meet the original burden of proof.

After the judgments of conviction

are introduced, the burden shifts

to the defendant to show any

infringement of his rights or

irregularity of procedure upon

which he relies, such as those set

out in Boykin v. Alabama, 395 U.S.

238, 89 S.Ct. 1709, 23 L.Ed.2d 274

(1969), or other pertinent cases.

If the defendant presents evidence

through his testimony or other

affirmative evidence which refutes

the presumption of regularity, the

burden then falls to the Common-

wealth to prove that the

underlying judgments were entered

in a manner which did, in fact,

protect the rights of the

defendant. A silent record simply

will not suffice.

Dunn v. Kentucky, 703 S.W.2d 874, 876 (Ky. 1985),

cert. denied, 479 U.S. 832 (1986).

Manifestly, this methodology results in

a standard different from federal standards for

proving a valid waiver of federal constitutional

rights. Dunn permits the state to carry its

burden by utilizing a bare record of a

conviction upon a plea of guilty, in conjunction

33a

with the time-honored presumption that judicial

proceedings have been regularly and legally

performea.?

Under the Dunn procedure, the state

retains the burden of persuasion on the ultimate

question of intelligent and voluntary waiver.

But, once the state establishes the plain record

of conviction, the burden of producing evidence

shifts to the defendant to show an irregularity

in the plea procedure since that unadorned

record, bolstered by the presumption, is held by

Dunn to be sufficient to establish a prima facie

case that the guilty plea was validly accepted.

The defendant is permitted to "refute" this

presumption, presumably by evidence that would

be sufficient to support a finding that the plea

proceedings were inadequate.

Although the Dunn procedure ostensibly

permits the use of the presumption only to

1This court, in a comment which

arguably was not necessary to the resolution of

the appeal then before it, recently noted

inconsistencies between opinions of the Kentucky

Supreme Court and Boykin. Rudolph v. Parke, 856

F.2d 738, 740 (6th Cir. 1988).

2Aa

satisfy a burden of production, in reality it

may be utilized by the state to carry its

ultimate burden of persuasion. That is because,

if the defendant offers no rebuttal, the state

will prevail; the presumption becomes a

substitute for evidence supplementing the

conviction record. The practical effect of the

Dunn procedure, then, is to allow the state to

prevail by carrying its burden of persuasion

upon the bare record of the fact that a

conviction was entered against the defendant.

This result ignores the Supreme Court's

admonition in Boykin against presuming a waiver

from a silent record. And, it offends this

court's requirement in Roddy, since, when the

state is said to have made out a bare prima

facie case, and it has done so only by relying

upon a presumption, the state cannot be said to

have met its burden of persuasion by supple-

menting an inadequate record with clear and

convincing evidence. In addition, the Dunn

procedure does not impose the clear and

convincing burden of persuasion in the event

35a

the state does utilize extrinsic evidence to

supplement the record.

tI.

The state also maintains that the

district court was bound by findings of fact

made by the Kentucky Supreme Court, and erred in

not deferring to that factual determination.

No transcript of the plea proceedings

leading to the 1970 and 1973 convictions was

available at the June 20, 1984 state trial court

suppression hearing, but there was a transcript

from the 1976 plea hearing. In the 1976

proceeding, the judge elicited positive answers

when he asked Dunn only if he understood that by

pleading guilty he was waiving his right to

trial by jury. and whether he was satisfied with

the services of his attorney who represented him

on the 1976 charges. At the suppression

hearing, Dunn testified that neither in the 1970

nor the 1973 proceedings had he been advised by

the trial judge of his rights to trial by jury,

to cross-examine witnesses, and to remain

silent. Upon cross-examination by the state,

36a

Dunn conceded that he had some knowledge “now

from the trials I have had" that he was entitled

to a jury trial and could cross-examine

witnesses, but said he “didn't understand

anything" back in 1970 and 1973.

Although the trial judge allowed the

convictions to stand, based upon his under-

standing that Kentucky case law placed upon Dunn

the burden of proving that the convictions were

invalid, he nevertheless clearly stated his view

of the evidence:

So that there will be no

mistake should there be an

appeal[.] [i]f the Commonwealth

has the burden of establishing the

constitutional soundness of prior

convictions after the Defendant

has put them in issue then any

conviction based upon the 1970 or

1973 convictions should be

reversed. If the Commonwealth's

burden is to establish by clear

and convincing evidence, then any

conviction based upon the 1976

convictions should be reversed.

The Kentucky Supreme Court addressed

this same evidence in the context of the

procedure it had set out earlier in its opinion:

37a

{Tjhe appellant took the stand and

testified . . . that the trial

judge had failed to advise him of

certain rights prior to the entry

of the plea of guilty in the 1976

and 1973 proceedings. No evidence

was given to rebut the presumption

of regularity in relation to the

1970 conviction. At this

juncture, the burden shifted back

to the Commonwealth on the two

judgments referred to, and the

record is totally silent on the

issue of whether the trial judge

advised him of his rights.

However, the Commonwealth cross-

examined the appellant concerning

the issue, and he readily admitted

that he knew of the rights about

which he contends he was not

informed by the court. The

evidence further indicated he was

satisfied with the manner in which

he was represented by counsel. We

fail to see any reversible error

in the failure of the trial court,

if there was such failure, to

advise the appellant of rights he

admits he already knew existed.

Dunn, 703 S.W.2d at 876.

If the Kentucky Supreme Court's view of

the evidence is correct, then it can be argued

that the Dunn procedure is irrelevant to the

resolution of this appeal, since the supreme

court concluded that the state carried its

ultimate burden of persuasion through evidence

supplementing the bare records of conviction.

38a

However, as we have previously noted,

where the record of the plea proceedings is

incomplete, the federal standard for determining

whether a plea of guilty is intelligent and

voluntary for purposes of the United States

Constitution demands that supplementing evidence

be clear and convincing. Although the Kentucky

Supreme Court did not specifically address the

measure of persuasion it was applying to Dunn's

answers on cross-examination, manifestly, it was

something less than clear and convincing. By

contrast, the state trial judge pointed to the

inescapable legal conclusion that must be drawn

in view of all the evidence presented to him at

the suppression hearing, were he to apply the

correct burdens of production and persuasion.

Moreover, a federal court is not required to

accord to a state court's determination of a

factual issue the presumption of correctness

required by 28 U.S.C. §2254(d), where that

determination is not fairly supported by the

record. 28 U.S.C. §2254(d)(8). In view of the

inconsistencies between the supreme court's

39a

recitation of the June 20, 1984 proceedings and

what actually occurred at that hearing, the

court's characterization of Dunn's testimony

upon cross-examination, that "he readily

admitted that he knew of the rights about which

he contends he was not informed by the court,"

is not fairly supported by the record.

IIl.

Because the methodology and standards

utilized by the Kentucky Supreme Court do not

comply with federal standards for determining

whether a plea of guilty is intelligent and

voluntary for purposes of the United States

Constitution, and the determination of a factual

issue by the Kentucky Supreme Court in Dunn's

appeal is not entitled to the presumption of

correctness and is incorrect as demonstrated by

the record in this cause, the order of the

district court is affirmed.

40a

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

affirming 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 °xtrinsic

evidence that he did so with respect to the 1973

4la

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 (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. Common-

wealth, 703 S.W.2d 874, 876 (Ky. 1985), cert.

denied, 479 U.S. 832 (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 p.eas

violates the Constitution.

But having chosen to address the point,

my colleagues have, in my judgment, decided the

Matter incorrectly.

42a

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, 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

[tjhe 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.

43a

And

{ijn 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. °®

Sour views do not differ in

substance with the Eighth

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-Boykin 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 intelli-

gent, obviate the necessity of

vacating the plea."

(emphasis added).

The Boykin and Roddy rules, forbidding

the inference of a valid waiver of constitu-

tional right from a “silent record" and

requiring clear and convincing extrinsic proof

44a

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 memoralizing 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 "presum[ing]) a waiver of these three

important federal rights from a silent record."

No one would think for a moment, I should hope,

45a

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 constitu-

tional 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

46a

affirmative evidence." Dunn, supra. Under the

Dunn procedure, once the defendant initiates an

evidentiary 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 ina

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-convicticn hearing that the plea was

voluntary and intelligent, obviate the necessity

of vacating the plea." (emphasis added).

I agree entirely with my brother that

“C[i]Jn view of Boykin and Roddy, .. . where the

record from the trial court is inadequate to

affirmatively demonstrate that the plea was

47a

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

4Ra

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.

49a

1 _

: =

; a

’

FILED

JUN 13, 1989

LEONARD GREEN, Clerk

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 88-5015

GENE M. DUNN, JR., Petitioner-Appellee,

Vv.

RON SIMMONS, Chairman, Parole Board,

Corrections Cabinet, and

DAVID L. ARMSTRONG, Repondents-Appellants.

Before: RYAN and NORRIS, Circuit Judges; and

LIVELY, Senior Circuit Judge*.

JUDGMENT

ON APPEAL from the United States Dis-

trict Court for the Western District of Kentucky.

THIS CAUSE came on to be heard on the

record from the said district court and was

argued by counsel.

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this court that the

judgment of the said district court in this case

be and the same is hereby affirmed.

50a

]

No costs taxed.

ENTERED BY ORDER OF THE COURT

Leonard Green, Clerk

/s/Leonard Green

Clerk

* Honorable Pierce Lively became Senior

Circuit Judge effective January 1, 1989.

5la

mene

No. 88-5015

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GENE M. DUNN, JR.,

Petitioner-Appellee,

ORDER

RON SIMMONS, CHAIRMAN PAROLE BOARD,

CORRECTIONS CABINET;

DAVID L. ARMSTRONG,

i i di

Respondents-Appellants

BEFORE: RYAN and NORRIS, Circuit Judges;

and LIVELY, Senior Circuit Judge.

The Court having received a petition

for rehearing en banc, and the petition having

been circulated not only to the original panel

members but also to all other active judges of

this Court, and no judge of this Court having

requested a vote on the suggestion for rehearing

en banc, the petition for rehearing has been

referred to the original hearing panel.

The panel has further reviewed the

petition for rehearing and concludes that the

issues raised in the petition were fully

considered upon the original submission and

52a

decision of the case. Accordingly, the petition

is denied. While Judge Ryan adheres to the

views expressed in his reported opinion, he

would not grant rehearing.

ENTERED BY ORDER OF THE COURT

/s/Leonard Green

Leonard Green, Clerk

53a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.