State v. Ferguson
In State v. Ferguson. 2007 UT 1, 169 P.3d 423, the Court clarified the burden-shifting framework for a defendant claiming deprivation of counsel.
Although the outcome in Mr. Peterson's case is the same as under the court of appeals' analysis, we reiterate the correct framework that we announced in Ferguson.
In that case, Mr. Ferguson was charged with violating a protective order, a class A misdemeanor. Id.
Because Mr. Ferguson had previously been convicted on the same charge, the state sought to enhance the new charge to a third degree felony. Id.
At the preliminary hearing, the state offered a certified copy of Mr. Ferguson's prior conviction. Id. Mr. Ferguson objected and stated that the original conviction had been obtained illegally because, as was shown on the conviction notice, he had not been represented by counsel. Id.
Mr. Ferguson then argued that a prior uncounseled misdemeanor conviction could not be used for enhancement purposes. Id.
In State v. Ferguson, the state met its initial burden when it presented a certified copy of Mr. Ferguson's conviction. The conviction reflected that Mr. Ferguson had not been represented by counsel, and therefore the record was not silent on the issue of waiver.
The Court held that the presumption of regularity applied.
Once regularity was established, we held that the burden shifts to the defendant to rebut the presumption by "offering evidence that he 'did not knowingly waive counsel.'" Id.
The Court noted that this burden is very minimal. "Requiring that defendants produce evidence in addition to their own testimony would shift to the defendants the ultimate burden of proof," an outcome that we sought to avoid. Id.
The Court therefore required that a defendant "need only come forward with some evidence to rebut the presumption of regularity," and that a defendant's "own testimony . . . is sufficient for this purpose."
Once such evidence is produced, "the burden then shifts to the State to demonstrate by a preponderance of the evidence that the defendant knowingly waived his right to counsel." Id.
In sum, a presumption of regularity attaches to any previous judgment, including those by a justice court.