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Sentence Enhancement For Prior DUI Conviction In Nebraska

In State v. Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999), the defendant challenged the use of a prior driving under the influence (DUI) conviction for penalty enhancement upon the ground that the record of that conviction did not disclose she had expressly waived certain constitutional rights when she entered a plea of guilty.

However, the record did show that she was represented by counsel. Louthan held that the due process requirements of both the federal and state Constitutions are satisfied by the right of direct appeal from a plea-based DUI conviction and a statutory right pursuant to Neb. Rev. Stat. § 60-6,196(3) (Reissue 1998) to challenge the validity of a prior plea-based DUI conviction offered for the purposes of enhancement on the ground that it was obtained in violation of a defendant's Sixth Amendment right to counsel.

Louthan would be directly on point in support of the State's position in the instant matter except that Louthan related to DUI convictions and the court did not discuss the use of prior convictions for enhancement of penalty under the Nebraska habitual criminal act.

However, in the process of deciding Louthan, the Supreme Court cited Custis v. United States, 511 U.S. 485, 114 S. Ct. 1732, 128 L. Ed. 2d 517 (1994), where the defendant challenged the use of prior state court convictions to enhance a federal felony charge.

In Custis, the government sought to enhance the penalty of federal drug and firearm charges with a robbery conviction in Pennsylvania and a burglary conviction in Maryland.

The prior records showed that the defendant was represented by counsel in the previous state court proceedings, but the defendant claimed that the state proceedings were constitutionally suspect.

The Court recognized its previous decision in Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967), which held that a collateral attack on a prior conviction used for sentence enhancement purposes cannot extend beyond the right to counsel as provided in Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). Custis held that only a violation of the right to counsel would allow a collateral attack on a state conviction used for enhancing a federal penalty.

Accordingly, Custis allowed the previous state court convictions to be used for enhancement purposes, notwithstanding the defendant's alleged defects, which were quite similar to the defects the defendant in this case claims.

It is clear that Louthan did not extend its holding to anything other than DUI convictions. However, it is also clear that the U.S. Supreme Court has held that the Constitution of the United States does not prohibit the use of prior convictions that do not show compliance with certain of the constitutional rights embodied in Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), except when they show the denial of the right to court-appointed counsel.

In Custis, supra, and in State v. Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999), both courts recognized the practical reasons for not requiring the record of the prior conviction to show compliance with all of the Boykin rights when the conviction is attacked collaterally at a later time.

One such reason is the fact that the record frequently is not preserved after the time for a direct appeal has passed.

Another reason is that a defendant could have litigated any constitutional violations in a direct appeal. In line with these points is a third and important one, the finality of judgments.

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