State v. MitchellState v. Mitchell
Sentences: Prior Convictions: Appeal and Error. A sentencing court‘s determination concerning the constitutional validity of a prior plea-based conviction, used for enhancement of a penalty for a subsequent conviction, will be upheld on appeal unless the sentencing court‘s determination is clearly erroneous.
Petition for further review from the Court of Appeals, INBODY, Chief Judge, and MOORE and PIRTLE, Judges, on appeal thereto from the District Court for Lancaster County, STEVEN D. BURNS, Judge. Judgment of Court of Appeals reversed, and cause remanded with directions.
Dennis R. Keefe, Lancaster County Public Defender, and Robert G. Hays for appellant.
Jon Bruning, Attorney General, and George R. Love for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.
WRIGHT, J.
NATURE OF CASE
Travis T. Mitchell was charged with driving under the influence (DUI), fourth offense; no valid registration; and no proof of insurance. A jury found him guilty of DUI but acquitted him of the other two charges. The Lancaster County District Court determined that a conviction for driving while ability impaired (DWAI) in Colorado could be used to enhance Mitchell‘s
Mitchell appealed to the Nebraska Court of Appeals, alleging his DWAI conviction could not be used to enhance the penalty in this case. The Court of Appeals affirmed the judgment of the district court in State v. Mitchell, 19 Neb. App. 801, 820 N.W.2d 75 (2012). We granted Mitchell‘s petition for further review.
SCOPE OF REVIEW
[1] A sentencing court‘s determination concerning the constitutional validity of a prior plea-based conviction, used for enhancement of a penalty for a subsequent conviction, will be upheld on appeal unless the sentencing court‘s determination is clearly erroneous. State v. Garcia, 281 Neb. 1, 792 N.W.2d 882 (2011).
FACTS
On May 2, 2010, Mitchell was involved in a traffic accident near 70th and Dudley Streets in Lincoln, Nebraska. Sgt. Grant Richards of the Lincoln Police Department testified that he was traveling north on 70th Street and observed a vehicle on the west side of the street that was suspended on the guide wire that supported a utility pole. Richards observed Mitchell jump out of the driver‘s door of the vehicle. While talking with Mitchell, Richards smelled the odor of alcohol on Mitchell‘s breath. Richards suspected that Mitchell was under the influence of alcohol. Richards turned Mitchell over to the investigating police officer who had arrived at the scene a few minutes after Richards.
The police officer administered a horizontal gaze nystagmus test and a preliminary breath test. Mitchell was arrested and transported to the detoxification center, where his blood alcohol content was determined to be .103 grams of alcohol per 210 liters of breath.
On August 4, 2010, an information was filed in Lancaster County District Court charging Mitchell with DUI, fourth offense, a Class IIIA felony, in violation of
An enhancement hearing was held on April 18, 2011. At the hearing, the State offered three exhibits as evidence of prior convictions. One of the exhibits involved a Colorado conviction. Mitchell objected to this exhibit, and the district court continued the hearing. On April 27, the court issued an order finding that Mitchell had three prior convictions for enhancement purposes under
In addition to its DWAI statute, Colorado also has a DUI statute. See
Under Colorado‘s statutory scheme, blood alcohol content raises various permissible inferences. A blood alcohol content between .05 and .08 raises a permissible inference of DWAI.
In the case at bar, the district court considered the offense of DWAI in Colorado to determine if it could establish a DUI in Nebraska. The court reasoned that because there was an upper blood alcohol limit of .08 for the offense of DWAI, a conviction for DWAI based on blood alcohol content would not be a DUI conviction in Nebraska. However, because DWAI may also be proved by evidence that the person was affected by alcohol to the slightest degree and there is no upper limit on the degree to which a person may be affected, the court concluded that a defendant could be more than slightly affected by alcohol and still be convicted of DWAI in Colorado. It reasoned that if the defendant was affected to an appreciable degree, the defendant could be convicted of DUI in Nebraska.
The district court determined that the exhibit regarding Mitchell‘s conviction in Colorado indicated he was more than slightly affected by alcohol. (His vehicle drifted and jerked on the road, his eyes were bloodshot, his speech was slurred, and he was unable to satisfactorily perform field sobriety tests.) The court concluded the record could be viewed as establishing that Mitchell was affected to an appreciable degree. Therefore, the State had established a prima facie case that the conviction under Colorado‘s DWAI law could also be a conviction under Nebraska‘s DUI law.
On appeal, Mitchell claimed that the district court erred in finding that his prior Colorado conviction for DWAI could be used to enhance the penalty for DUI. The Court of Appeals agreed with the district court‘s analysis that a conviction for DWAI based on blood alcohol content would not satisfy the requirements of a Nebraska DUI. We point out that the record did not contain Mitchell‘s blood alcohol content related to the DWAI conviction because he had successfully suppressed that evidence.
The Court of Appeals next considered whether a showing that a defendant was affected to more than the “‘slightest degree’” could qualify as a DUI in Nebraska. State v. Mitchell, 19 Neb. App. 801, 806, 820 N.W.2d 75, 80 (2012). It found that a defendant could be more than “slightly affected” by alcohol and be convicted of DWAI in Colorado and that if the impairment rose to an “appreciable degree,” the defendant
Mitchell had two prior DUI convictions in Nebraska that were undisputed for purposes of enhancement. The Court of Appeals found that Mitchell‘s conviction for DWAI in Colorado qualified as a prior conviction under Nebraska statutes and that, therefore, Mitchell had three prior convictions for enhancement purposes. It affirmed the judgment of the district court.
ASSIGNMENT OF ERROR
Mitchell assigns, restated, that the Court of Appeals erred in concluding that his Colorado DWAI conviction could be used to enhance the penalty for DUI.
ANALYSIS
At the time of Mitchell‘s enhancement hearing, a conviction under a law of another state for a violation committed within a 12-year period prior to the offense for which the sentence was being imposed could be used to enhance the penalty for DUI if, at the time of the conviction under the law of such other state, the offense for which the person was convicted would have been a violation of
In his argument against enhancement, Mitchell relies upon Garcia, in which an officer stopped Leopoldo J. Garcia after observing him driving erratically in a car dealership parking lot after business hours and then colliding with a light pole. Garcia was convicted of DUI following a bench trial on stipulated facts.
An enhancement hearing was held to determine whether Garcia‘s sentence would reflect the DUI as his third offense. Garcia objected to the admission of two prior California DUI convictions. He claimed that the State had not shown the prior convictions would have been violations of
On appeal, Garcia argued that the State was required to establish that his convictions in California occurred on public property. The record of the California convictions did not reflect that particular fact.
The State claimed that by presenting certified copies of the prior convictions and establishing that those convictions were counseled, it made a prima facie case for enhancement and that the burden then shifted to Garcia to show why the prior offenses would not qualify as a prior offense under Nebraska law. We stated that under
We expressly pointed out in Garcia that in order to use the out-of-state conviction for enhancement, the prior conviction must be for the offense of DUI. We did not read
Mitchell argues that the State has never satisfied its burden to provide prima facie evidence of a prior conviction in Colorado because “[i]t is understood that the prior conviction must be for the offense of DUI.” See id. We agree.
Both the district court and the Court of Appeals recognized that Nebraska‘s “any appreciable degree” requirement for DUI was higher than Colorado‘s “slightest degree” requirement for DWAI. See State v. Mitchell, 19 Neb. App. 801, 820 N.W.2d 75 (2012). However, because an individual impaired to an appreciable degree was also impaired to the slightest degree, both courts concluded that it was possible for a person to receive a DUI in Nebraska for acts that constituted a DWAI in Colorado. In their analysis, both courts looked at the facts incident to Mitchell‘s arrest and conviction in Colorado.
This analysis is incorrect. Mitchell pled guilty to the charge of DWAI. The theoretical possibility that a defendant‘s conviction for DWAI could have satisfied the Nebraska elements for DUI is not enough. The prior out-of-state conviction must be for the offense of DUI. State v. Garcia, 281 Neb. 1, 792 N.W.2d 882 (2011).
Mitchell‘s conviction of DWAI was a determination that his conduct met the minimum requirement for violation of the DWAI statute. His conviction meant that he was impaired to the slightest degree. The conviction made no other determination of Mitchell‘s impairment. To enhance Mitchell‘s penalty for DUI because the facts of his arrest and conviction in Colorado could support the higher requirement for a Nebraska DUI is to enhance Mitchell‘s penalty based on a crime for which he was never convicted. Hence, it is the conviction for DWAI, not the record of a defendant‘s conduct at the time of the arrest, that is relevant to our analysis. Arguably, if
Colorado‘s statutes make a distinction between DWAI and DUI. The minimum threshold for proving a DWAI based on impairment in Colorado is impairment to the slightest degree.
Mitchell pled guilty to DWAI in Colorado. While the evidence surrounding his arrest might show that Mitchell was more than slightly impaired, an enhancement is not proper simply because Mitchell‘s behavior could have resulted in a DUI conviction in Nebraska. For enhancement, the court examines the authenticated or certified copy of the prior conviction and whether the conviction was counseled. See Garcia, supra.
In the case at bar, the State did not present a prima facie case for enhancement because Mitchell was convicted of DWAI in Colorado and “the prior conviction must be for the offense of DUI.” See Garcia, 281 Neb. at 9, 792 N.W.2d at 889. Neither the fact that Colorado‘s DWAI statute has no upper threshold regarding the level of impairment nor the facts surrounding the arrest are relevant to the enhancement.
CONCLUSION
Mitchell was convicted of DWAI in Colorado. This conviction could not be used to enhance the penalty for a conviction
REVERSED AND REMANDED WITH DIRECTIONS.