*1 opinion merely inquiry Timber observes that such would have disclosed a fraud in the issue; transaction there at suggests inquiry previous most, it owner was necessary under the circumstances that obtained in that mortgagor might case because whatever assurances the have concerning validity patently made of his title were unreliable. Because there is no evidence that Rourke had a reputation failing give being untruthful,6 notice or distinguishable. this case is summary judgment
The order on is reversed and the case proceedings. remanded for further Pearson, C.J., Utter, Brachtenbach, Dolliver, Dore, Andersen, Callow, Goodloe, JJ., concur. modification,
After further reconsideration deniеd No- vember 1988. July 15, 53803-4. En Banc.
[No. 1988.] In the Matter the Personal Restraint Ray Williams, Allen Petitioner. wry person give 6 OSB's remark that Rourke was "the one who was certain to wrong answer" has no basis in the record. *2 Engelhard se, Scott J. Williams, pro Ray
Allen Association, peti- Washington Appellate Defender tioner. Chris Prosecuting Attorney, Ladenburg,
John W. H. Eben Deputy, Appellate Senior Quinn-Brintnall, Deputy, respondent. Gorbaty, J.— Andersen, of Case Facts Ray Allen Williams petition restraint personal the use of relating to
(defendant) number of issues raises a the Sen- a defendant (SRA).1 Reform Act of 1981 tencing defendant, long who had a July On vehicle infractions, into another drove a truck of driving driver. The defendant of the other and caused the death reаding alcohol and had a blood drinking had been time. excess of .10 at the to the pleaded guilty 1986 the defendant February
On 46.61.520). (RCW Four of vehicular homicide crime *3 the listed on convictions were under the influence while he signed which plea guilty statement on defendant's that time. was held. sentencing hearing 1986 the
On March to the crimi- were added driving additional offenses Three sentence form. and judgment section of the nal and the sentence pronounced was Thereupon judgment sentence, 77-month received a The defendant entered. serving. he is now which per- this later filed appeal but did defendant By his Appeals. in the Court of petition restraint
sonal constitutionality of his convic- the challenged he petition, its unсonstitu- consequence of that as a alleged and tion liberty. of his unlawfully deprived being he is tionality 9.94A. 1 RCW Appeals of the dis-
Chief of Division Two Court Judge order dated December we petition. By missed the discretionary granted review. presented.
Four issues are
Issues offenses added to prior driving Issue One. Were the three history" by sentencing the the court defendant's "criminal used to his offender at the calculate sentencing hearing, score, they had been "washed out" improperly used because 5-year under the SRA's "wash-out" statute? convic- pre-SRA Two. Was use of defendant's
Issue tions score the SRA vio- to determine his offender federal and post prohibitions lation ex facto of our statе constitutions? to the defendant's four With reference Three.
Issue influence, while under driving plea guilty which he to in his statement on admitted were also used charge, vehicular homicide which his score under sentencing calculating court in offender restraint SRA, personal peti- his did constitutional showing prima tion make a threshold facie error attack on those convic- justify sufficient collateral tions? process his due
Issue Four. Was the defendant denied rights sentencing hearing? at the SRA
Decision Issue One. abstract of appears It from face of the
Conclusion. used at his record (which brought in at three his traffic offenses were his offen- determining and used hearing time of the standаrd sentence presumptive der's score and hence the previously had range) improperly used because were *4 out" the terms of the "wash-out" been "washed under in effect. statute then
357 any sentencing is point the SRA beginning And is convicted.2 the defendant for which offense course, guilty was, plea that offense defendant's equivalent guilt, of which the result confession acknowledged guilty, by pleading full he conviction; guilt.3 consequences legal His responsibility his guilty.4 plea guilty as a verdict of same effect had the which offense for SRA, than the other Under the major of the determinative convicted, the presumptive score";5 is the "offender sentence "criminal the defendаnt's is based on turn and that history".6 sentencing judges SRA, were
Prior to enactment any permitted just concern- information to consider about criminality ing to, this chose the defendant's or not.7 resulted a conviction was true whether it had Sentencing however, Commission, was of Guidelines principles under- view that it was inconsistent with the lying system person justice basis our to sentence not or chose not to crimes that the State either could proposed prove.8 Accordingly, solution, the Commission's adopted by Legislature was when it enacted which provide score SRA, was to that a defendant's offender (1985). Boerner, 5.2, Sentencing Washington at 5-1 2 D. § (1979). 104, Schimmelpfennig, 95, State v. 3 92 Wn.2d 601, 601, denied, Rhay, cert. U.S. 905 v. 68 Wn.2d 414 P.2d 385 4 Woods (1966). 9.94A.360. 5 RCW 9.94A.030(8)(b). 5.4, Sеe D. Boerner at 5-6.
6 RCW § (1977); Russell, 38, 41, Blight, v. P.2d 1129 7 See State 89 Wn.2d 569 5.2, (1982); P.2d D. Boerner at 5-2. Wn. § 5.2, McAlpin, at 5-2. See also State 8 D.Boerner § P.2d 824 *5 by the defend- be determined the offenses for which would his- convicted and the defendant's "criminal ant was tory" in as that term is defined the SRA.9 cases, it
In cases other than vehicular homicide all only felony appears in that convictions are considered determining logical the offender score.10 It seemed to the Sentencing Legislature, Guidelines Commission and to the one, however, such as this vehicular homicide cases specified "seri of traffic offenses deemed ous traffic offenses" were a more logical measure of operating culpability motоr than felonies unrelated to many misde Since serious traffic offenses are vehicles.12 misde felonies, rather than certain vehicular meanors felony convictions, convictions, as well as vehicular meanor vehicular homicide case are considered sentencings.13 pleaded guilty crime of time the defendant to the At the case, homicide this his Statement vehicular (which Guilty he and his former Defendant on Plea of attorney both acknowledged four convictions of he signed),14 driving statement, In under the influence. while acknowledged: defendant also history fully understand that criminal in addition
I if [above] discovered, both the standard listed 5.2, 9 SeeD. Boerner at 5-3. § 9.94A.360; 5.6(a),
10 See D. Bоerner at 5-7. § 11"'Serious traffic offense' means: (RCW "(a) 46.61.502), physical Driving control while intoxicated actual (RCW (RCW 46.61.504), 46.61.500), driving hit-and- reckless or
while intoxicated (RCW 46.52.020(5)); attended vehicle or run an "(b) federal, out-of-state, county, municipal Any for an conviction as a serious traffic of this state would be classified offense that under the laws 9.94A.030(20). (a) subsection." RCW offense under this (Jan. Legislature Commission, Report 12 Sentencing to the Guidelines 5.6(a), 1983); 5-8. D. at 5-7 to Boerner § 5.14, at 5-25. 13 SeeD. Boerner § 4.2(g).
14 CrR range Prosecuting Attorney's and the recommendation may fully my plea so, increase. Even I understand that guilty charge binding upon accepted to this me if change my court, and I cannot mind if additional range criminal is discovered аnd the standard Prosecuting Attorney's increases...[15] recommendation subsequent sentencing hearing, At a certified apparently court had before it what was also Licensing the defend- copy Department abstract driving record. The abstract listed numerous driving ant's influ- than four while offenses other admitted to at the ence offenses which the defendant had In the defendant's guilty plea. determining time of his *6 in the defend- computing criminal convictions to be used score, a fact court found as sentencing ant's offender the "seri- the committed three earlier defendant had also seven of con- ous traffic offenses".16 It then listed all these history" the victions under "criminal face sеntence, required.17 The judgment and as addition the additional increased both these three convictions standard presumptive defendant's offender score and his range sentence under the SRA. pleaded guilty,
At the time the defendant his standard computed had at 36 to presumptive range sentence been to recom attorney agreed months had prosecuting and in the three factoring mend a 42-month sentence. After hearing, sentencing additional serious traffic offenses at the however, presumptive the offender score increased and to 89 also increased-to range standard sentence does reflect record before us not months. abbreviated rec attorney sentencing the prosecuting changed whether event, In the court sentenced any ommendations. language Plea of 15 This is as in the of Defendant on contained Statement however, Guilty emphasis, prescribed in prescribed 4.2(g). form CrR not signed by plea but the defendant. the rule is contained form 9.94A.030(20). 16 SeeROW
17 RCW9.94A.110. months, to serve a term of confinement which computed the earlier presumptive exceeded standard sen but tencing range which was within that as recom range puted.
On date, the sentencing the SRA "wash-out" statute read follows: A felony
Class are always included the offender score. Class B prior felony convictions are if spent included the offеnder ten years has and community since the last date any has not been convicted of felonies pursuant of release confinement from felony to a (including conviction full-time residential treatment), if any, entry and sentence. judgment Class C victions as felony serious con- convictions and traffic in RCW 9.94A.330 are not included defined if has spent years community in the offender five has not been convicted the last any since felonies date release to a pursuant felony from confinement treatment), conviction if (including full-time residential entry of any, or judgment and sentence. This subsection applies to both adult juvenile prior convictions. ours.) (Italics See 9.94A.360(12); former Laws of 209, 19(12), сh. p. 1069. § The three additional serious traffic convictions added to defendant's history" sentencing "criminal judge the sentencing hearing should not have been considered determining offender score. The abstract of the record, which the court had *7 sentencing at the before shows that the defend- hearing, felony-free had a years prior ant record the 5 to date he committed crime of vehicular homicide. is no There claim that has any felony other Thus, the sentencing record. court should not have consid- the three traffic convictions before ered which occurred felony-free 5-year period. sentenced,
After Legislature the defendant was changed the require only "wash-out" statute to felony must defendant be free from convictions for 5 years, but a defendant in a vehicular homicide case must for 5 convictions traffic offense also be free from serious This wash out.18 will not years or the convictions 1, July however, effective until did not become change, 1986, was sentenced.19 3 months after the defendant that a attorney vigorously argues prosecuting SRA20 should be considered former section of the different by pros relied on this issue. The section controlling about wash ecutor, however, whatsoever nothing contained quoted offenses, the SRA section ing out whereas and specifically with that precise subject аbove deals has "serious traffic offenses" where a defendant washes out felony The statute years. been free of for 5 face, applicable set out is thus clear on its was to this above the construction permit case its terms and does not attorney.21 "'Where there is no urged prosecuting statute, nothing in a there is for this court ambiguity interpret."'22 where a defend- presented
We are thus with a situation of the state provision was sentenced in violation of a ant personal in a may law. Such an error be raised 25(2), 9.94A.360(2); 1986, 257, p. 932. 18 RCW Laws of ch. § 38, 257, p. 19 Lawsof ch. 948. § Homicide, only present count the follow 20 "Ifthe conviction is for Vehicular Homicide, Assault, ing part Vehicular of thе offender score: Vehicular crimes as (RCW 46.52.020(5)), (RCW 46.52.020(4)),
Felony
Driv
Run
Hit and Run
Hit and
(RCW
(RCW 46.61.502),
Physical
ing
46.61-
Actual
Control
While Intoxicated
(RCW 46.61.500),
.504),
Attempting
Driving
Elude a Police Officer
Reckless
(RCW 46.61.500).
points
juvenile Vehicular Homicide
two
for each adult or
Count
conviction,
felony
point
adult
traffic or serious traffic convic
one
for each other
tion,
felony
point
juvenile
traffic convic
each
traffic or serious
other
1/2
19(4),
9.94A.360(4);
p. 1069.
Former RCW
Laws of
ch.
§
tion."
Comm'n,
114, 118,
Empl.
P.2d
1 v. Public
Relations
Wn.2d
21 PUD
(1988).
(1979),
McIntyre,
quoting
22 State
92 Wn.2d
Roth,
711, 714,
Issue Two.
of 1981 does
Reform Act
Sentencing
Conclusion.
vio
so does not
offenses
punishment
not increase
See U.S.
post
provisions.
federal ex
facto
late either state or
9, 10; Const. art.
23.
Const. art.
§
§§
facto
post
the ex
held that a law violates
This court has
(1)
greater
makes it
if
a crime or
aggravates
it:
prohibition
(2)
of a
committed;
imposition
permits
when
than
was
permissible
was
punishment
than
or more severe
different
(3)
committed;
legal
changes
was
the crime
when
testimony
to convict
less or different
permit
rules
com-
when the crime was
required
than was
the offender
Ex
arise when
post
genеrally
facto concerns
mitted.25
performed
when
legal
criminalizes actions
were
statute
(1980).
Carle,
33-34,
16.4(c)(2);
In re
The analysis applies same SRA does offenses; punishment prior increase for the defendant's rather, post-SRA his his convic- it calculates sentence for only. Use of the SRA in such a manner does not violate tion post ex facto state provisions either federal or constitution. Randle, App. 232, State v. 47 Wn. 734 P.2d
27 Henderson, at 160.
28 Randle, 240. at
29 Randle, 241.
30 Randle, at 243.
Issue Three.
Conclusion. When a petitioner personal files a restraint petition collaterally attacking his convictions unconstitutional, more required petitioner than merely claim broad terms general convic- tions were upon peti- unconstitutional. facts which the tioner's claim of unlawful restraint is based and the evidence reasonably to support allega- available the factual tions must stated. be noted,
As the defendant claims that his were unconstitutional and hence should not have been con- he sidered when was sentenced for homicide. He vehicular not, however, provide any does with us facts evidence on which to decide that his personal issue. essence of petition restraint is no than a conclu- regard this more sory to the allegation pleas guilty serious "[t]he traffic judgment violations enumerated sentence are invalid because were uncounseled and not volun- *10 tarily or intelligently made and violated 6th Amend- [his] ment Thе silent as to he Rights." record is whether waived counsel Judge or not. Chief of Division Two of the Court Appeals given of ruled that "neither the reasons nor adequate a provided record are for such challenge."31 agree. We It is in evaluating personal fundamental a restraint "
petition, petitioner fails to meet threshold [i]f showing prejudice burden of actual from constitu arising error, petition Here, tional be quite must dismissed".32 aside matter from the of there has been no "prejudice", threshold of adequate showing any constitutional error not, the first We do an place. example, have affidavit particulars claims of providing unconstitutional offenses, ity any transcript or a certified cases, any the record or the docket for in-state these (Mar. 1987). Two, Appeals Dismissing 31 Division Court of Order Petition Hews, 80, 88, 32 Inre Wn.2d P.2d 263 all of ordinarily readily example, which are available. For (CrR) Superior both the Court Criminal Rules and the (CrRLJ) Criminal Rules Courts of Limited Jurisdiction require that of conviction set forth judgments whether a represented by lawyer defendant is or has repre- waived lawyer.33 aby sentation Our recent statement in a similar " apropos context is here: 'naked castings into the constitu- tional judicial sea are sufficient to command considera- tion and discussion."'34
As personal our restraint petition clear, rules also make personal petition required restraint is to include grounds as requested for the relief . . statement of . "[a] facts upon which the claim of unlawful restraint of petitioner evidence available based and support the factual (Italics ours.) allegations". 16.7(a)(2)(i). RAP What suffices such constitute a showing must of necessity be decided a case-by-case basis, but is clear to us that the rule complied was not with this case.
Accordingly, based on the insufficiency the defendant's showing with regard to the claimed constitutional infirmi- convictions, ties in his we decline to their decide validity or superior to order a court hearing reference with regard thereto.35
Issue Four. process was not denied due Conсlusion. in any of the various respects claimed. Where, here, the defendant enters a guilty plea, he required to disclose his convictions.36 The section of the SRA so provides which reads as follows: 7.3;
33 SeeCrR
CrRLJ 7.3.
Rozier,
34 Inre
(1986), quoting
*11
United
denied,
479 U.S.
93 L. Ed. 2d
Additional are outlined sentencing purposes of convictions for record The first states: subsequent sectiоns of the SRA. in two defendant, a the upon a sentence imposing Before sentencing hearing. sentencing shall conduct a court days following forty within court shall be held hearing conviction. party for good of either Upon the motion motion, may the court extend shown, or on its own cause hearing. sentencing the period conducting the time any, if presentence reports, the court shall consider his- and criminal impact victim statement including any the prosecutor, the from arguments and allow tory, defense the and sentence offender, victim, counsel, the survivor survivor, or victim, of the victim representative or a to investigative law enforcement officer as аn by pre- imposed. to If the court satisfied be the defendant has of the evidence that ponderance specify the convictions history, the court shall criminal part shall All of this information be found to exist. has to reports presented Copies presentence record. all of facts and findings and all written sentencing court by the court to entered sentencing conclusions of law as to the clerk the court department be sent shall at the conclusion accompany shall of the custody if committed to the offender the offender is without department. provide, Court clerks shall criminal copies relating charge, certified documents attornеys. requested by prosecuting other section reads: RCW 9.94A.110. The Former may rely sentence, the trial court determining any In plea is admitted no than more information admitted, proved or acknowledged, agreement, Acknowledgement sentencing. or at the time trial pre- stated information objecting includes not disputes material Where the defendant reports. sentence
367 facts, the court must either not the fact or grant consider evidentiary an shall be hearing point. on facts proved deemed at the a hearing by preponderance evidence. 9.94A.370(2)
RCW (part). in Nothing suggests forego- the record before us statutory ing procedures SRA were not followed or thаt deprived any defendant was in rights of his connection therewith. Had he challenged any the fact of of his prior convictions, person or denied that he was in the named any prior convictions, record of of his he would have been evidentiary entitled to an hearing But thereon.37 sentencing event the required court could also have him to any make such denials under oath.38 emphasize
We
holding
Ammons,
our
State
105
175, 188,
719,
Wn.2d
713 P.2d
denied,
718 P.2d
cert.
U.S.
L.
(1986),
479
93
Ed. 2d
D. Boerner § 93 Wn.2d (1980) (State prove validity must constitutional conviction Swindell, proceeding); State v. in habitual criminal 607 P.2d distinction, with the Court disagree of this we
Bеcause Marsh, 291, in State v. 47 Wn. analysis Appeals Marsh, In (1987), P.2d cited defendant's brief. sentence judgment that when a Appeals Court of held waiver, the con- counsel or representation reflect do not be invalid and cannot used establish facially viction establishes criminal unless or waiver of counsel. To presence documents the other must the State suggests that Marsh holds or extent *13 at a validity prior convictions the constitutional of prove in holding our sentencing hearing, previous it contravenes prior validity The constitutional of convictions Ammons. an SRA affirmatively by the State at proved need not be Rather, defendant who sentencing proceeding. of unconstitutionality of establishing the burden bears proceeding.40 her such a prior his or convictions at his object to the use of position the best to defendant they her that were prior grounds convictions on the are unconstitutionally obtained. Unless convictions silence facially invalid, presumed it is that defendant's means that his or her convictions are introduced when purposes.41 proper are to use Department Licensing of ab- agree While we left much to be desired of defendant's record stract misdemeanor convic- establishing prior as a means of his tions, in the reasons stated above it did not result of constitu- deprived any rights, of his being tional or otherwise. оut nothing
We also note that
in the record bears
of
of
allegation
ineffective assistance
counsel.
(State
(1980)
pro-
prove
validity
must
of
conviction
constitutional
firearm).
possession
ceeding
of
establish crime
felon
Davis,
(1987);
Vahey,
v.
767, 777,
State
App.
40 State
49 Wn.
(1987).
denied,
91, 94,
review
App.
Pearson, C.J., Utter, Brachtenbach, Dolliver, Callow, Goodloe, JJ., Durham, concur.
Dore, J. (dissenting) part. agree dissent I with the —I majority's conclusions the "wash-out" regarding the inapplicability convictions and ex post prohibi- facto I agree tions. cannot with its proof conclusion that a Department abstract Licensing meets the State's burden of proof under RCW 9.94A.110. Legislature given has of proof burden the issue of prior convictions because the State has resources and records to obtain that information. While task should not be made more burdensome than nec- essary, majority's attempt lighten the State's load impermissible has consequences for the defendant. The Department infallible, Licensing is not nor are the municipal and district courts which handle most traffic is entirely possible It offenses. that an abstract of this kind might list offenses of which the defendant is not guilty, and to correct record would be an expensive and con- time suming process. If such an abstract is considered sufficient *14 9.94A.110, proof under RCW it falls defendant, pur- to the opinion, to the majority suant to discover and prove that he is not driver listed that an offense has been ascribed him which to he did not By commit. permitting proof of prior convictions a abstract, licensing majority shifts the proof effect burden of to the defendant. That is statute, only contrary to unnecessary it practiced is as a matter. Given that the abstract lists the courts which appeared listed, Williams on each of the offenses it is not too much to ask the State proper to obtain records of those convictions use at sentencing.
I would hold that the State has not met its burden under alone, on 9.94A.110 those is an grounds but there why additional reason the licensing abstract is not sufficient constitutionally It is proof. defective.
370
process argu
due
misconstrues Williams'
majority
prior
ways. It stresses the fact that
ment in a number of
that,
charged,
of the crime
are not an element
offenses
Ammons,
175,
719,
v.
713 P.2d
718
denied,
930,
(1986),
cert.
796,
Williams'
facial
Ammons
In Bur
in
cases
illustrate that
concept.
cited
to
gett
Texas,
v.
109,
319,
19 L.
2d
S.
389 U.S.
Ed.
88 Ct. 258
(1967)
record
Supreme
Court held
a
of conviction
which
be
to
facially
invalid cannot
used
establish recidi
mandatory
justify
vism
to
a
minimum
One
sentence.
Burgett
in
proof
convictions offered
did not state on
represented
its face
the defendant was or was
whether
counsel.
Court wrote:
In this case the certified records
con-
Tennessee
viction on their face raise a presumption
petitioner
right
was denied his
to counsel
in the
pro-
Tennessee
and therefore
that his conviction was void. Pre-
ceeding,
suming waiver
counsel
a silent
record is
from
impermissible, Carnley
Cochran,
506,
U.S.
8 L.
[369
permit
70,
Ed. 2d
(Italics mine.) Burgett, at 114-15.
Burgett arguably from the distinguishable present case because prior use to an conviction raise offender score SRA differs from use in prosecu- its a reсidivism tion; in the latter the conviction is an element crime. The punish- Court's reference to enhancement Burgett ment However, is properly dicta. the Court did Burgett extend the logic of enhancement of punishment Tucker. years There, later given the defendant was robbery maximum sentence for bank in part armed based on the trial court's his inquiry into convictions. Those convictions were invalid because had been obtained right violation to counsel. Ninth Circuit for resentencing remanded case because there was: "a probability reasonable the defective convic- may tions have led the impose trial court heavier imposed." prison sentence than it otherwise would have *16 443, 445-46, L. Tucker, U.S. Ed. 2d 404 30 United States Supreme Court held: 595, 92 Ct. S. . . if Appeals of . For the with the Court agree We of had aware the constitutional been judge trial infirmity convictions, factual the previous two of of background of the would respondent's circumstances dramatically different at light in a appeared have proceeding. Burgett from Tucker, slightly 448. Tucker differed conclusively shown to be prior convictions were that Carnley's rule invalid, apply no need to so there was a silent record. inferred from waiver of counsel cannot be Cochran, 506, 8 L. Ed. 2d 82 S. Ct. Carnley v. 369 U.S. (1962). However, Tucker and the difference between an element of recidi- Burgett proof оne concerns of —that no of a sentence —has vism and the other enhancement is Carnley rule. That rule logic on behind the bearing of con- concerning proof prior in a equally applicable case one, case, concerning like this element and a victions an Therefore, Carnley, of enhancement. proof purposes Burgett proof where the State's Tucker and establish that enhance- purposes sentence prior conviction for of of counsel, silent on the assistance subject ment is constitutionally deficient, because court cannot is proof right a silent record. a waiver infer from Tucker, One of Carnley, Burgеtt Division Relying judgment has of a Appeals held that records Court by counsel representation which do not reflect and sentence burden of proof do not meet the State's or waiver clearly is Proof RCW 9.94A.110. This correct. Ammons and constitutionally is no at all. proof defective which Marsh, 47 Wn. majority evades State (1987) it: by purporting to limit a judg- held that when Marsh, Appeals In the Court representation do reflect coun- and sentence ment waiver, facially cannot the conviction invalid and sel or unless criminal to establish be used or presence documents the establishes other the State To the extent that Marsh holds of counsel. waiver suggests that the State provе must the constitutional validity convictions at a sentencing hearing, contravenes our previous in Ammons. holding at 368. Majority, This confuses the proof burdens of on two different issues. Ammons holds that the State does not have the burden of proving validity of the prior convic- However, tion. clearly does have the burden of proving the existence of conviction. RCW 9.94A- .110. Marsh does not at all suggest the State has the burden of proving validity, it holds that the State's burden of proving the existence conviction cannot be bymet the use of constitutionally defective proof. which, face,
Proof on its does not indicate the assistance of counsel does not represent a valid conviction pur- *17 poses of sentence enhancement under Carnley, Burgett and Tucker. Department abstract Licensing offered by the State in this case does not indicate whether defendant had the assistance of Therefore, counsel. while the State does not have the burden of proving validity of Williams' prior convictions, the State fails even carry statutory its burden of proving the existence of those con- victions. carry To burden, it was necessary for the State to introduce proof of those convictions which at least presence indicated the justifiable absence of counsel. Because the State has not met its burden of proof under 9.94A.110, I would remand for sentencing on the basis of copies certified of the prior In Bush, convictions. re