State v. Nowicki
474 N.W.2d 478
Neb.
1991
Check Treatment

*1 Nowicki, appellee, Nebraska, S. Michael State of appellant. September 1991. Filed No. 90-680.

Brent M. Bloom appellant. for Spire, General,

Robert M. Attorney Gary Bucchino, R City Prosecutor, Omaha appellee. J. Michael Tesar for Hastings, Boslaugh, White, C.J., Caporale, Shanahan, Grant, Fahrnbruch, J J.

Hastings, C.J.

Defendant, Nowicki, Michael appeals S. from the district Douglas County, court county which affirmed a court driving while third-offense Nowicki conviction of remand with Wereverse and intoxicated. directions. defendant, dismissed, charges’ being exchange In for other county 16, 1990, court for May pleaded no contest vehicle while under Douglas County operating to a motor county liquor. The court found influence of alcoholic hearing at which two guilty and held an enhancement were driving while intoxicated introduced. convictions objected dating to a from counsel Defendant’s no checkmark on the docket grounds that there was 1987on actually guilty. entry indicating that defendant was found represented that Nowicki had been counsel at court noted sentencing time of the and concluded that the conviction was valid. conviction, dating

A from was also introduced second hearing. objected the enhancement Defendant’s counsel that there no on the the conviction on basis was indication entry docket that defendant waived his that an held, indigency hearing public or that defender was was appointed. *3 expressly containing

The court did not state that an exhibit the and convictions was received into evidence. counsel, however, request ruling did not Nowicki’s a on either objection. prior It is clear from the record that the two county convictions were considered the in imposing court operating sentence for a motor vehicle under the influence of liquor, county imposed alcoholic third offense. The court fine, days jail, $500 15-year suspension sentence of 90 in and a of Nowicki’s driver’s license. subsequently appealed findings county

Defendant the of the Douglas County Court, court to the District which affirmed the county judgment. court’s appeals, assigning

Defendant as error the action of the (1) finding county district court in that the court had received copies evidence; certified of both convictions into (2) affirming ruling county the of the court that Nowicki had intelligently waived during stages critical of prosecution the 1985 of driving; Nowicki for drunk (3) affirming ruling county the of the court that Nowicki had charge knowingly, voluntarily, pleaded no contest to the 1985 intelligently. finding Defendant contends that the district court erred in county copies that the court had received certified of both result, convictions into evidence. Defendant claims that as a by the convictions should not have been considered those driving county of third-offense court to convict defendant However, been properly while intoxicated. this issue has not preserved appeal, assign the defendant failed to it as since error to district court: adopted following practice

This court rule of in State Erlewine, 855, 857, 452 (1990): N.W.2d Court, Supreme reviewing

The decisions of affirmed, reversed, or modified district court which court, county only will consider those decisions specifically assigned appeal to the errors district again assigned appeal court and as error in the Supreme apply Court. This rule shall be effective so as to county appealed all to the district court court decisions filing opinion. after the date of this Erlewine was filed on March 1990. Nowicki filed his 16, 1990, appeal May and is notice of district court 27, 1990, subject ruling therefore to our in Erlewine. On June notice, appeal. filed a notice of errors on In the Nowicki assigned only following “Specifically, error: previous Defendant convictions was avers one of prior offense for enhancement insufficient to constitute a valid assign purposes.” Since'Nowicki did not as error the failure of evidence, county court to admit the exhibits into this court finding plain will not review this issue absent a error. always Supreme Court reserves the to correct error plainly evident unassigned uncomplained or of but which is litigant’s prejudicially from the record and affects a substantial in a right, and which if left uncorrected would result miscarriage justice damage integrity, reputation, or *4 judicial process, regardless of whether the error fairness of the Thomas, appeal. State v. 229 Neb. was raised at trial or on plain error has 428 N.W.2d 221 We conclude that no in this case. been committed upon a fails to insist party that a who has held

This court objection. State v. objection waives ruling proffered to a (1991); State Fellman, 464 N.W.2d 236 Neb. In re McClanahan, (1975); N.W.2d 351 Kaiser, (1948). We held 34 N.W.2d 366 150 Neb. Estate of ruling, to a although defendant was entitled in Fellman By failing to do so the request for such. have made a he should of the trial preference allow the elected instead to defendant Fellman, In In unchallenged. re stand not to rule to court Kaiser, 374-75, we stated: supra at N.W.2d at Estate of against party is offered the when inadmissible evidence “If to its evidence is offered consents whom such introduction, object, upon ruling insist or fails to or to evidence, the introduction objection on an to of admissibility, question as to to raise the its otherwise fails objection may he waived whatever he is considered to have thereto, is in the record and the evidence have had other evidenceI’ the same as consideration supplied.) (Emphasis rulings objections. entitled to on both of

Nowicki was rulings, Nowicki waived his request was made for the Since no containing the two objections. result the exhibits As a received into evidence. convictions were judge “the county court to utter words The failure of the miscarriage justice result in a of are received” does not exhibits duty plain to error. It is the therefore does not amount received in evidence. lawyer to see that the exhibits are Next, assigns as error the use of the 1985 challenge purposes. There is no for enhancement validity of the conviction. appeal this In State v. relitigate permitted not be held that a defendant should court proceeding, and to that in an enhancement a former conviction collaterally extent, attacked. conviction cannot be such validity conviction offered challenging of a Objections enhancement, beyond the issue purpose of sentence waived the had counsel or whether the defendant judgment. State v. a collateral attack on constitute McSwine, (1989);

135 Davis, 864, v. Oliver, (1989); N.W.2d 293 State 230 Neb. 434 518, objections Such must be (1987). 224 Neb. 398 or in a appeal prior the conviction either direct from raised purpose the of expressly commenced separate proceeding McSwine, alleged be invalid. setting judgment aside the Davis, Oliver, supra; supra; entered his in the 1985 whether Nowicki issue of voluntarily, intelligently constitutes knowingly, prior the conviction and is therefore not

a collateral attack on Davis, Slezak, See, supra; State v. properly before this court. 404, limit our (1987). 226 Neb. 411 N.W.2d 632 We therefore error, namely, assignment examination to Nowicki’s second of affirmatively the does not that the record of 1985 conviction waived to counsel. establish 566, supra In N.W.2d at this court stated:

[Tjhe prove burden remains with the State to by proving judgment convictions. This cannot be done a support which would have been invalid to a sentence of Illinois, imprisonment in the first instance. Baldasar v. 222, 1585, (1980)]. 64 L. Ed. 2d 169 U.S. 100 S. Ct. [446 opportunity defendant’s Where a record is silent as to a rights respected. may presume not such were we 109, Texas, L. Ed. 2d 88 S. Ct. Burgett v. U.S. [389 649, Tweedy, Neb. 309 N.W.2d (1967)]; State v. 319 [209 objection to the introduction of (1981)]. 94 A defendant’s transcript of conviction which fails to show on its face not that counsel was afforded or waived does judgment. constitute a collateral attack on the former prove prior purposes, To conviction for enhancement conviction, only State need show that at the time of the voluntarily, knowingly, or defendant had counsel Green, intelligently waived the to counsel. State v. 238 Vanderkuur, 328, State v. 235 (1991); Neb. 470 N.W.2d 736 Anderson, 566, (1990); State v. 232 Neb. Neb. 456 N.W.2d 473 Trammell, 137, 349, (1989); 440 N.W.2d 257 State v. Neb. Oliver, Slezak, supra; v. (1989); State v. State 435 N.W.2d 197 Alabama, Boykin (1987). See 411 N.W.2d 632 (1969). A Ct. 23 L. Ed. 2d U.S. 89 S. record of the may object to the admission of the prior conviction on basis the record does not affirmatively represented by that the defendant establish was Sherrod, or waived his to counsel. State v. counsel Ziemba, (1988); 425 N.W.2d 616 transcript judgment 346 N.W.2d 208 A of which showing does not contain such an affirmative is not admissible Sherrod, prove prior be supra; cannot used to conviction. Ziemba, supra.

Although admissibility transcript judgment has been waived under the rule of In re Estate of Kaiser, 1500Neb. we must consider *6 sufficiency support of the evidence to the 1985 conviction purposes.

The exhibit for Nowicki’s 1985 conviction consists of a entries, complaint, checklist-type four docket and an order of probation. previously This court has held that a checklist entry docket is sufficient to establish that a defendant has been rights advised of his and has waived them. transcript guilty verbatim plea rendition of a is

[A] constitutionally not required, nor does absence of such a transcript require finding plea that the was invalid. A entry sufficiently checklist or other docket which is complete comply with the requirements of State v. Tweedy, 649, 209 Neb. 309 N.W.2d 94 State v. (1981), 446, (1983), and the requirements previously opinion set out in this can a valid establish waiver. A checklist or other such docket entry which is made one authorized to make it imports verity, and unless contradicted it stands as a true record of the event.

Ziemba, 628, Green, supra See, 346 N.W.2d at 218. supra; Blue, State v. 223 Neb. N.W.2d 102(1986). complaint 4, 1985, January was made on and contains allegation operated an that defendant a motor vehicle while under the entry influence of alcohol. The first docket shows arraigned January that the defendant was on municipal city court of the entry Omaha. The docket indicates appeared that the defendant without counsel and guilty. pleaded adjudged not The court defendant to be not indigent. entry The checklist docket demonstrates further that charge against penalties was advised of the him and the charge. privilege against such He was also advised of his self-incrimination, accusers, his to confront his jury trial, and his to counsel. This checklist was of the Ziemba, approved However, kind in supra, as to form. it did comply Tweedy, not with State v. 209 Neb. N.W.2d (1981), Walker, State v. (1990), or Irish, State v. N.W.2d since the space provided in the checklist for waiver of counsel is left blank. With acceptance guilty reference to the aof or no contest plea, the court must inform the concerning Walker, Irish, to assistance of counsel. supra; State v. The second hearing checklist shows a trial February held on 22, 1985, at appeared, again which the defendant without counsel. The second checklist is almost identical to the first checklist. The defendant rights, was advised of the same Furthermore, box front of waiver of counsel is left blank. entry the docket indicates that the defendant entered a no contest.

The third checklist demonstrates that the defendant failed to appear sentencing at the hearing April 1985. Defendant apparently arrived late because the fourth checklist shows that sentencing hearing April was held on 1985. Defendant again did appear According checklist, not with counsel. *7 counsel, the right defendant was advised of time his to and this there is a checkmark that indicates that defendant waived his right to judge counsel. The also added entry to the docket handwriting that previously right “defendant was advised of his to counsel.” original entry

This court has held that an docket can be by amended supplemental transcript original a to show that the arraignment complied with requirements the constitutional set by Blue, Blue, out this court. See State v. In this court original found entry satisfy the docket did not the requirements Tweedy,supra, Predmore, of State v. Ziemba, N.W.2d (1985), and State v. entry 346 N.W.2d originally The docket in Blue “ knowingly, voluntarily, freely,

stated, ‘[Defendant NOLO understanding^ her entered intelligently, and AMENDED charge contained the CONTENDERE by the adjudged found and thereupon was Information ” Blue, N. W.2d supra at charged.’ guilty be as Court to that the entry failed to show the docket We noted that at 105. charges against the nature of was informed against right witnesses to confront her, right to against trial, privilege and the her, right jury entry not mention also did The docket self-incrimination. might which penalties advised of the defendant was whether Blue, supra. upon conviction. imposed be transcript which supplemental in Blue submitted The State pro tunc order entered a nunc the trial court later showed that entry to show that original docket amending expanding complied with all constitutional original arraignment Tweedy, forth in the standards set requirements and satisfied Predmore, and Ziemba. bar, entries do not two checklist docket at the first

In the case court in State v. set out this requirements meet the Predmore, and Ziemba. indicating that a checkmark only lacking element is entry right The fourth docket waived his to counsel. Nowicki entry indicates supplement. That docket cannot be used as and waived this of his to counsel was advised However, sentencing hearing. it does not at his waived his that Nowicki demonstrate entry could have been arraignment trial. The fourth docket judge had added to his an amendment if used as previously waived that “defendant also handwritten statement done indicates The fact that this was not to counsel.” entry not be considered an fourth docket should that the we docket entries. As a result have preceding amendment inadequate exhibit is to conclude that this purposes. from a silent record is

Presuming waiver of counsel Texas, Ct. Burgett 389 U.S. 88 S. impermissible. which used as a substitute (1967). A checklist is L. Ed. 2d 319 formal, entry prepared with as journal written must be for a

139 certainty any of a court in order to much care and as record 267, Foster, verity. 398 impart absolute N.W.2d 101 may knowing intelligent generally not be

A waiver merely appears pro se at trial after inferred because a defendant her to counsel. See State v. having been informed of his or minimum, Green, (1991). At a N.W.2d 736 entry may be sufficiently complete checklist or other docket prior as to valid waiver of counsel used to establish a Green, supra. When purposes. convictions for evidence, form, is offered prior in of a conviction whatever by representation of the which is silent as to the lay its admission first a foundation for State must was, fact, in tending that defendant by evidence to show knowingly and by or that he had represented counsel State, Ark. v. 259 intelligently right. waived that Klimas S. Ct. cert. denied 429 U.S. 534 S.W.2d proof burden of 2d 117. the State has not met its 50 L. Ed. Since during the establishing representation or a waiver of counsel conviction, this conviction arraignment and trial of Accordingly, Nowicki’s sentence. cannot be used to enhance may enhance the sentence. only 1987 conviction be used to Green, we held that 470 N.W.2d at where supra See at enhancement, could not be used for sentence prior conviction entry for waiver spaces provided for on the docket since “[t]he Anderson, See, also, of counsel were left blank.” State that a (1989), where we decided enhancement because conviction could not be used for sentence waiver of the journal entry stated that the ” “ intelligently made.’ knowingly, voluntarily, and ‘(not) was judge in that case Apparently, 440N.W.2dat 258. Id. entry. It journal on the to cross out the word “not” failed establish, judge when required practice for the trial should be defendant either had taking plea, a factual basis for a that a right to or waived his previously when convicted counsel he was only frequently entries are Since checklist docket counsel. conviction, judges trial reviewable documents marking them. care when should exercise extra failed to copy Because the certified at the voluntary counsel the defendant waiver of show the conviction, finding support it was insufficient time of his *9 driving drunk offense is a third-offense present conviction. of the sentence cannot be court’s affirmance

The district reversed, the cause remanded judgment is is sustained. vacate and aside with directions that it set to the district court county and remand the matter to that court court’s sentence pursuant to law. proceedings for further and remanded with directions. Reversed Boslaugh, J., concurring. judgment the court. I concur in the opinion The rule stated in the of the court that the record of a purposes conviction offered must show that by represented right the defendant was counsel or waived that necessarily express does not refer to an waiver. A waiver can be inferred from Tharp, conduct. See State v.

The defendant in this case was advised of his to counsel arraignment, at the and he indigent was determined not to be an person appointed hearing entitled to counsel. At the next again appeared defendant without changed counsel but guilty from not to no contest. At the hearing, third which was sentencing hearing, again appeared defendant without expressly counsel and waived his to counsel. Under these I circumstances believe it could be inferred that the defendant

waived his conduct. deficiency If there case, is a in the record in this it is because the trial court used a checklist-type record which failed to show all of the circumstances concerning the defendant’s attitude obtaining toward represent counsel to him. In future cases it might be well to supplement checklist, or use a different order, form of so that question there can be no proceed elected to in the absence of counsel after having been advised of his to obtain counsel at his own expense.