State v. Brown
In State v. Brown, 165 Vt. 79, 86-87, 676 A.2d 350 (1996), in 1985, the defendant had entered a pro se guilty plea to a charge of DUI and received a suspended zero-to-nine-month sentence.
In connection with his 1993 sentence challenge, the defendant produced the record of the 1985 conviction, which indicated that counsel had been denied, but which did not provide the reason for the denial. The defendant argued that, because the record was silent as to the reason counsel was denied, the burden shifted to the prosecution "to establish that counsel was properly denied in the earlier proceeding." Brown, 165 Vt. at 86, 676 A.2d at 355.
The Court disagreed, finding "the Supreme Court's reasoning in Parke v. Raley persuasive," and stating:
Although defendants may have been denied counsel because the trial judge did not intend to impose a sentence of incarceration, it is equally plausible that counsel was denied because defendants were not needy. Given this ambiguity in the records of the prior convictions, defendants were obliged to show that counsel was improperly denied.
(Id. at 87, 676 A.2d at 355.)
The Court clarified that, in order to meet this burden:
"a defendant need not produce court records that affirmatively prove that counsel was denied in violation of DeRosa if no such records exist. A defendant could testify that the trial judge, when denying counsel, had promised not to impose a sentence of incarceration, or that he or she was indigent at the time but was never questioned about financial resources. To challenge the use of a prior conviction for sentence enhancement purposes based on DeRosa, however, a defendant must show that counsel was denied improperly. As defendants have not met this burden, we affirm their convictions." (Id. at 88, 676 A.2d at 355-56.)