People v. Anderson , 2021 IL App (2d) 190128 ( 2021 )

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Appellate Court Date: 2022.08.15
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People v. Anderson, 2021 IL App (2d) 190128Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MICHAEL F. ANDERSON, Defendant-Appellant.
District & No. Second District
No. 2-19-0128
Filed June 3, 2021
Decision Under Appeal from the Circuit Court of Boone County, Nos. 96-DT-17, 14-
Review CF-189; the Hon. John H. Young, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Douglas R. Hoff, and Beverly M. Jones, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Tricia L. Smith, State’s Attorney, of Belvidere (Patrick Delfino,
Edward R. Psenicka, and Katrina M. Kuhn, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE HUTCHINSON delivered the judgment of the court, with
opinion.
Presiding Justice Bridges and Justice Hudson concurred in the
judgment and opinion.
OPINION
¶1 Defendant, Michael F. Anderson, was charged with two counts of aggravated driving while
under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(1), (a)(2), (d)(1)(A), (d)(2)(B)
(West 2014)). The offenses were elevated to Class 2 felonies because defendant had two prior
DUI convictions. Id. § 11-501(d)(2)(B). He pleaded guilty to one count and faced mandatory
sentencing as a Class X offender because he had two prior Class 2 felony convictions (730
ILCS 5/5-4.5-95(b) (West 2014)). He was sentenced to six years’ imprisonment. On appeal,
defendant claims that one of his prior DUI convictions, obtained in case No. 96-DT-17, cannot
be used to aggravate his current DUI offense because he neither was represented by counsel
nor had waived his right to counsel when he was convicted of DUI in case No. 96-DT-17. We
determine that defendant failed to meet his burden of rebutting the presumption that the DUI
conviction in case No. 96-DT-17 was validly obtained. Thus, we affirm the trial court’s
judgment.
¶2 I. BACKGROUND
¶3 The two counts charging defendant with aggravated DUI alleged, in relevant part, that
defendant was driving “while under the influence of alcohol” (count I) (see 625 ILCS 5/11-
501(a)(2) (West 2014)) and “when the alcohol concentration in his blood or breath was 0.08
or more” (count II) (see id. § 11-501(a)(1)). Each count indicated that the offense was charged
as aggravated DUI and elevated to a Class 2 felony because, at the time defendant committed
the offense, “[he] had two prior violations of 625 ILCS 5/11-501(a) or a similar provision.”
¶4 Defendant subsequently pleaded guilty to count II. Before accepting the guilty plea, the
trial court advised defendant about the nature of the charge. Specifically, the court stated:
“[T]he count that you’re pleading to is Count 2 of the bill of indictment of 14-CF-189
that alleges on or about May 3rd of 2014 here in Boone County you committed the
offense of aggravated driving with an alcohol concentration of 0.08 or more. ***
***
*** And that you drove a motor vehicle on Belvidere Road with an alcohol
concentration in your blood or breath that was .08 or more based on the definition of
blood and breath units in Section 11-501.2, and at the time you had two prior violations
of 625 ILCS 5/11-501(a)—that’s the DUI statute—or a similar provision in violation
of 625 ILCS 5/11-501(a)(1) and (d)(1)(A) and (d)(2)(B) of the Illinois statutes as
alleged. That is a Class 2 felony.”
The court asked defendant if he “understood the charge,” and defendant replied, “Yes, sir.”
When the trial court asked about the “two priors,” the State indicated that, at sentencing, it
“will prove up the two priors.”
¶5 When defendant pleaded guilty, he believed that he was subject to sentencing for a Class
2 felony because he had committed DUI twice previously (see id. § 11-501(d)(2)(B)). At
sentencing, however, it became clear that—because defendant had been previously convicted
of robbery, a Class 2 felony (see generally 720 ILCS 5/18-1(a), (c) (West 2018)), and
possession of a stolen motor vehicle, also a Class 2 felony (see generally 625 ILCS 5/4-
103(a)(1), (b) (West 2018))—he faced mandatory sentencing as a Class X offender (730 ILCS
5/5-4.5-95(b) (West 2014) (Class X sentencing applies when a defendant is facing sentencing
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for a Class 2 felony after having “twice been convicted *** of an offense *** classified *** as
a Class 2 or greater Class felony”). Defendant moved to withdraw his guilty plea on this basis,
and the trial court granted that motion.
¶6 Thereafter, defendant again pleaded guilty to count II of the indictment. Before the trial
court accepted defendant’s plea, the court advised him about the nature of the charge.
Specifically, the court stated:
“At this point the specific count is Count 2 of the bill of indictment that alleges on
or about May 3rd of 2014 here in Boone County, you committed the offense of
aggravated driving with an alcohol concentration of .08 or more in that you drove a
motor vehicle on Belvidere Road, which is a highway here in Boone County, when the
alcohol concentration in your blood or breath was .08 or more based upon the definition
of blood and breath units in Section 11-501.2, and at the time that you had two prior
violations of the DUI statute, 11-501(a), or a similar provision, and that’s what makes
it the Class 2 in violation of 5/11-501(a)(1) and (d)(1)[(]A) and (d)(2)(B).”
The court also advised defendant of the penalty range for a Class X offense. The court asked
defendant if he “[understood] the charge that’s involved,” and defendant replied, “Yes, sir.”
After giving a factual basis for the plea, the State advised the court that, if the case “were to
proceed to trial,” it would “prove at sentencing that defendant has twice been previously
convicted for [DUI].” Later, the State filed a “Statement by the State’s Attorney,” which noted
that defendant had two prior DUI convictions, one entered “on 8/1/97, in Boone County,
Illinois, Case Number 96DT17,” and another entered “on 6/25/98 in Winnebago County,
Illinois, Case Number 98DT22078.”
¶7 At the sentencing hearing, the State introduced certified copies of defendant’s prior Class
2 felony convictions. The trial court noted that, if defendant were not eligible for mandatory
Class X sentencing, the court would have sentenced defendant, based on the mitigating
evidence, to three years’ imprisonment, which was the minimum sentence for a Class 2 felony
(id. § 5-4.5-35(a)). The court instead sentenced defendant to six years’ imprisonment, which
was the minimum sentence for a Class X offense. Id. § 5-4.5-25(a).
¶8 Defendant moved the trial court to reconsider his sentence. Defendant claimed for the first
time that the DUI conviction obtained in case No. 96-DT-17 could not be used to elevate his
current DUI to a Class 2 felony because that prior conviction was obtained after defendant
waived a jury trial and proceeded to a bench trial without being represented by counsel or
having waived his right to counsel. Attached to defendant’s motion was, among other things,
his affidavit and the docket sheets and presentence investigation report (PSI) from case No. 96-
DT-17.
¶9 In his affidavit, defendant asserted:
“5. On October 15, 1996, I appeared in Court with the Alternate Public Defender,
and I told the Court I wished to hire my own counsel.
6. On January 31, 1997, the Alternate Public Defender was granted leave to
withdraw.
7. Without the benefit of counsel and without a Court Reporter present, I signed a
jury waiver. I do not remember what the Court told me at the time I signed the paper. I
probably was under the influence of alcohol.
***
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9. On May 23, 1997, I appeared without counsel for [a] bench trial. I was found
guilty. The Court ordered a PSI. The order indicates I did not have counsel.
10. On June 27, 1997, [counsel] entered his appearance to represent me for my
sentencing hearing.
11. On August 1, 1997, I appeared for sentencing with my attorney, and was
sentenced to two years of probation and 90 days in jail, *** with an additional 90 days
in jail stayed.
12. On June 11, 1998, I appeared with [counsel] and was sentenced to an additional
two years of probation plus 90 days stayed jail.
13. That the State was seeking jail [time,] and[ ] I did not understand I had the right
to continue the trial so I could hire an attorney[ ] or obtain the services of another
alternate public defender.”
¶ 10 The docket sheets attached to defendant’s motion revealed that a complaint in case No. 96-
DT-17 was filed on January 23, 1996. On February 2, 1996, defendant was advised that the
State was seeking jail time. On March 14, 1996, defendant moved for a continuance so that he
could hire counsel. The trial court granted the motion, and, at the next court date, defendant
again asked for a continuance so that he could hire an attorney. Although the court granted the
motion, it also appointed an assistant public defender to represent defendant. On the next
several court dates, an assistant public defender represented defendant. That attorney withdrew
his representation on October 7, 1996. On the next court date, defendant failed to appear on
time, and the court appointed an alternate public defender. When defendant appeared later that
day, he was told that an alternate public defender had been appointed to represent him. The
alternate public defender appeared with defendant on the next court date, and defendant again
advised the court that he wanted to hire private counsel. Defendant subsequently filed two
pro se motions. On January 31, 1997, defendant was present with the alternate public defender
and asked to proceed on the pro se motions he had filed. The State objected, as defendant was
represented by counsel. The alternate public defender was given leave to withdraw, and
defendant entered a plea of not guilty, executed a jury waiver, and advised the court that he
might file a motion for discovery. A bench trial was set for a future date, and defendant was
warned that, if he did not appear, a trial would take place in his absence. On the trial date,
defendant appeared late, and the court noted “that it appears the [defendant] has been drinking.”
Defendant was placed in custody, a new trial date was set, and defendant was again warned
about a trial taking place in his absence. On May 23, 1997, defendant was present for trial.
After sworn testimony was taken, the court found defendant guilty. Thereafter, defendant
retained private counsel. Following a sentencing hearing, defendant was sentenced to two years
of probation and 90 days in jail, with an additional 90 days in jail stayed, pending defendant’s
successful completion of probation. The State later filed a petition to revoke probation, and
defendant retained counsel. He pleaded guilty to violating the terms of probation, and the court
imposed another two years of probation and a 90-day jail term, with an additional 90 days
stayed pending defendant’s successful completion of probation. Although defendant failed to
pay various fines and fees, his probation was subsequently terminated.
¶ 11 The order for a PSI in case No. 96-DT-17 provided space for the name of the assistant
state’s attorney and defense counsel who were involved in the case. Although the name of the
assistant state’s attorney is listed in the space provided, the space provided for the name of
defense counsel is crossed out.
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¶ 12 In addition to providing the foregoing documents, defendant advised the trial court that no
reports of proceedings existed for the jury-waiver and trial proceedings in case No. 96-DT-17
and that the alternate public defendant who withdrew from defendant’s case before defendant
waived his jury right was deceased.
¶ 13 Following a hearing, the trial court issued a written decision denying defendant’s motion
to reconsider. In doing so, the court noted that defendant “had multiple and ample notice
concerning the ‘prior’ violations allegations” and yet he never challenged the prior conviction
until after he was sentenced. Moreover, citing People v. Laskowski, 287 Ill. App. 3d 539, 543
(1997), the court found that defendant must present “some evidence to affirmatively raise the
question” that he was denied his right to counsel. Although defendant submitted documents in
support of his claim that his right to counsel was violated in case No. 96-DT-17, the court
found those documents lacking. Specifically, the court observed that defendant’s affidavit was
silent on (1) the reason for the alternate public defender’s withdrawal on January 31, 1997,
(2) defendant’s position as to that withdrawal, and (3) whether defendant requested additional
counsel on that date or on the date of his trial. Rather, defendant’s affidavit “only states he did
not understand,” and this was inadequate to raise the issue of a constitutional violation. The
court believed that the “real question” was whether defendant waived counsel, and on that
issue the court said: “The permitted withdrawal of the alternate public defender on the same
court appearance [as] the jury waiver, when it was clear the State was seeking jail, belies
[defendant’s] allegation of a violation of his right to counsel.”
¶ 14 This timely appeal followed.
¶ 15 II. ANALYSIS
¶ 16 Defendant argues on appeal that the trial court wrongly placed the burden on him in his
collateral attack on the conviction obtained in case No. 96-DT-17. The issue is one of first
impression and is two-tiered. We must first decide whether a presumption of validity attaches
to a prior conviction when it is used to enhance the classification of a subsequent offense. If
we find that such a presumption attaches, we must then determine what amount of proof is
necessary to rebut that presumption. These are issues that we review de novo. See People v.
Artis, 232 Ill. 2d 156, 161 (2009) (pure questions of law reviewed de novo).
¶ 17 Before addressing the issues raised, we observe that defendant did not object in the pretrial
or trial proceedings, or in a written posttrial motion, that his conviction in case No. 96-DT-17
was obtained in violation of his right to counsel. Rather, defendant first challenged that
conviction in his motion to reconsider his sentence. “[B]oth a trial objection and a written post-
trial motion raising the issue are necessary to preserve an issue for review.” People v. Enoch,
122 Ill. 2d 176, 186 (1988). When a defendant neglects one or both of these steps, the issue is
forfeited. Id.¶ 18 Defendant recognizes that he forfeited any claim that his conviction in case No. 96-DT-17
was obtained in violation of his right to counsel. He asks this court to consider the issue
pursuant to the plain-error rule, which bypasses normal forfeiture principles and allows a
reviewing court to consider unpreserved claims of error in specific circumstances (People v.
Thompson, 238 Ill. 2d 598, 613 (2010)). We need not apply that rule, however, for the State
has not argued forfeiture and, thus, has itself forfeited such an objection. See People v. Lucas,
231 Ill. 2d 169, 175 (2008) (“The doctrine of forfeiture applies to the State as well as to the
defendant and the State may forfeit an argument that the defendant forfeited an issue by not
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properly preserving it for review.”); Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (“Points not
argued are forfeited ***.”). Consequently, we will address the merits of the issue defendant
raises.
¶ 19 We begin by delineating the portions of the Illinois Vehicle Code (Code) (625 ILCS 5/1-
100 et seq. (West 2014)) that are relevant in this case. Section 11-501(a)(1) of the Code, which
is the offense to which defendant pleaded guilty, provides that no person may drive or be in
actual physical control of a motor vehicle while his blood-alcohol concentration is 0.08 or
above. Id. § 11-501(a)(1). A violation of section 11-501(a)(1) of the Code is a Class A
misdemeanor. Id. § 11-501(c)(1). The class of crime is aggravated, however, where a
defendant has previously violated section 11-501(a)(1) of the Code or a similar provision. Id.
§ 11-501(d)(1)(A). In particular, when a defendant has violated section 11-501(a)(1) of the
Code or a similar provision twice before, his current DUI offense is elevated to a Class 2
felony. Id. § 11-501(d)(2)(B).
¶ 20 Here, defendant argues that his current DUI offense cannot be elevated to a Class 2 felony
because one of his two prior convictions, the conviction entered in case No. 96-DT-17, is
invalid. Thus, defendant contends that his current DUI conviction must be reduced to a Class
A misdemeanor, as his other prior DUI conviction cannot alone elevate his current DUI to a
Class 2 felony. Further, once his current DUI conviction is reduced to a Class A misdemeanor,
he is no longer subject to sentencing as a Class X offender. See 730 ILCS 5/5-4.5-95(b) (West
2014).
¶ 21 With this framework in mind, we now consider defendant’s claim that his conviction in
case No. 96-DT-17 is invalid because, when it was obtained, he neither was represented by
counsel nor had he waived his right to counsel. The sixth amendment to the United States
Constitution, which is made applicable to the States through the due process clause of the
fourteenth amendment, guarantees that, “[i]n all criminal prosecutions, the accused shall enjoy
the right *** to have the Assistance of Counsel for his defence.” U.S. Const., amends. VI, XIV.
The sixth amendment prohibits a sentence of imprisonment upon conviction unless the
defendant had an attorney or had waived the right to counsel. See Argersinger v. Hamlin, 407
U.S. 25, 37 (1972) (“[A]bsent a knowing and intelligent waiver, no person may be imprisoned
for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented
by counsel at his trial.”).
¶ 22 The right to counsel is also protected by the Illinois Constitution (Ill. Const. 1970, art. I,
§ 8). Our supreme court has the authority to interpret provisions of our state constitution to
provide broader protections than their federal counterparts. Relsolelo v. Fisk, 198 Ill. 2d 142,
149 (2001). The Illinois right is broader than its federal counterpart. See People v. McCauley,
163 Ill. 2d 414, 424 (1994) (expanding protection beyond the federal right to counsel and
holding that a suspect’s waiver of counsel during custodial interrogation is not valid where the
police refuse to inform him that his attorney is at the police station waiting to see him); People
v. Campbell, 224 Ill. 2d 80, 85 (2006) (“Illinois provides a right to counsel that is broader than
the sixth amendment right to counsel”). The Illinois right to counsel is codified in section 113-
3(b) of the Code of Criminal Procedure of 1963 (725 ILCS 5/113-3(b) (West 2018)), which
states that “[i]n all cases, except where the penalty is a fine only, if the court determines that
the defendant is indigent and desires counsel, the Public Defender shall be appointed as
counsel.” (Emphasis added.) Moreover, the trial court may not, without providing certain
admonitions, accept a waiver of counsel from a defendant charged with a crime “punishable
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by imprisonment.” Ill. S. Ct. R. 401(a) (eff. July 1, 1984). By contrast, the federal right bars a
sentence of imprisonment only if the defendant did not have counsel, or had not waived
counsel, when the conviction was obtained. See Argersinger, 407 U.S. at 37; Campbell, 224
Ill. 2d at 84-85 (comparing the rights). Just as with the federal right to counsel, the state right
to counsel attaches at any “critical stage” of the proceedings. People v. Vernón, 396 Ill. App.
3d 145, 153 (2009). “Critical stages” include when a defendant waives his right to a jury trial
(People v. Lindsey, 201 Ill. 2d 45, 56 (2002)) and when he is tried for the offense with which
he is charged (People v. Allen, 220 Ill. App. 3d 772, 781 (1991)).
¶ 23 The DUI charge in case No. 96-DT-17 was punishable by imprisonment, and in fact,
defendant was sentenced to a term in jail. Therefore, defendant’s federal and state rights to
counsel attached. Moreover, the record reveals that the alternate public defender withdrew on
the day that defendant entered his jury waiver and that defendant did not have counsel at his
trial. These were critical stages where defendant enjoyed both federal and state rights to
counsel. While, at first blush, this may suggest that defendant’s rights to counsel were violated,
we cannot simply conclude that they were, as both rights also include the right to waive counsel
and represent oneself. People v. Haynes, 174 Ill. 2d 204, 235 (1996); People v. Morgese, 94
Ill. App. 3d 638, 642 (1981). Thus, here, the question becomes whether defendant waived his
right(s) to counsel.
¶ 24 A waiver of counsel must be knowing and voluntary. People v. Pike, 2016 IL App (1st)
122626, ¶ 109. Illinois Supreme Court Rule 401(a) (eff. July 1, 1984) states:
“The court shall not permit a waiver of counsel by a person accused of an offense
punishable by imprisonment without first, by addressing the defendant personally in
open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when
applicable, the penalty to which the defendant may be subjected because of prior
convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed
for him by the court.”
¶ 25 To memorialize that a proper waiver was made, Illinois Supreme Court Rule 401(b) (eff.
July 1, 1984) mandates that “[t]he [open court] proceedings required by this rule *** shall be
taken verbatim, and upon order of the trial court transcribed, filed and made a part of the
common law record.”
¶ 26 Rule 401 implements a strong policy of safeguarding the right to counsel. Our supreme
court has held that a waiver of counsel must be “clear and unequivocal, not ambiguous” and
that “[c]ourts must ‘indulge in every reasonable presumption against waiver’ of the right to
counsel.” People v. Baez, 241 Ill. 2d 44, 116 (2011) (quoting Brewer v. Williams, 430 U.S.
387, 404 (1977)).
¶ 27 We applied Rule 401 in People v. Montgomery, 298 Ill. App. 3d 1096 (1998), where the
defendant challenged, on direct appeal, his conviction, following a jury trial, of unlawful
consumption of alcohol by a minor. He claimed that a bystander’s report, which stated simply
that he had waived his right to counsel, did not satisfy Rule 401(b). Id. at 1097-98. We agreed
and held that the burden of producing the verbatim transcript required by the rule rested entirely
with the State:
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“[W]e are compelled to comply strictly with Rule 401(b) as a result of the constitutional
requirements for all offenses punishable by imprisonment. The critical emphasis is
upon the record of a waiver hearing, not upon any allegations of nonwaiver. Moreover,
where the record fails to show that the defendant voluntarily and knowingly waived his
right to counsel, the State may not place the burden of showing nonwaiver on him.
[Citation.] Under the circumstances, the burden of providing a verbatim transcript
properly rested with the State. [Citation.]” Id. at 1099-1100.
¶ 28 Defendant argues that the record in case No. 96-DT-17 is “devoid of evidence that the trial
court gave [him] Rule 401 admonishments.” Noting that he was unable to get reports of
proceedings for the jury-waiver and trial proceedings, or ask the alternate public defender what
transpired when he withdrew from the case and defendant waived his jury right, defendant
argues that this court cannot presume that he validly waived his right to counsel. Thus, we
must decide which party bore the burden of proof on whether defendant validly waived his
right to counsel in case No. 96-DT-17. In Montgomery, the State bore the burden, but the
conviction there was challenged on direct appeal. Here, defendant raises a collateral challenge
to his prior conviction, and he relies on Burgett v. Texas, 389 U.S. 109, 114-15 (1967), where
the United States Supreme Court noted:
“Presuming waiver of counsel from a silent record is impermissible. [Citation]. To
permit a conviction obtained in violation of Gideon v. Wainwright[, 372 U.S. 335(1963),] to be used against a person either to support guilt or enhance punishment for
another offense [citation] is to erode the principle of that case.”
Burgett will figure in our analysis. However, we first discuss Laskowski, on which the trial
court relied. The defendant in Laskowski was charged with aggravated DUI, based on his prior
commissions of DUI. Laskowski, 287 Ill. App. 3d at 541. At sentencing, the State’s proof of
those prior commissions consisted of the defendant’s PSI and several documents from circuit
court clerks and the Illinois Secretary of State. Id. at 541-42. The defendant “objected to the
consideration of [the] prior offenses listed in the [PSI] and to the form of the State’s exhibits
offered to establish the prior commission of these offenses.” Id. at 542. On appeal, he argued
“that [the] exhibits [were] insufficient because they nowhere indicate[d] whether defendant
was afforded counsel or waived counsel in the prior cases.” Id. The appellate court held first
that the exhibits were sufficient to establish the prior offenses. Id. at 542. The court noted that
the enhancement of a DUI offense rests on the prior commission of a DUI offense and not a
prior conviction. Id. at 542-43. The court then considered what is the best evidence of a prior
commission. Id. at 543. The court determined that a prior commission could be established
with a variety of evidence, including certified copies of the prior conviction. Id. The court
concluded that the State’s documents were sufficient to establish the prior commissions of the
DUI. Id. at 542.
¶ 29 As for the defendant’s claim that the State’s documents did not show that he waived the
right to counsel, the court said:
“In this case, defendant has never asserted he was not represented by counsel or did
not waive counsel in the prior proceedings. Instead, defendant argues that the State
failed to prove representation by counsel or waiver. We agree with the State’s argument
that unless defendant offers some evidence to affirmatively raise the question of
whether he was not represented by counsel and did not waive counsel at the time of the
prior convictions, defendant cannot shift the burden to the State to prove representation
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or waiver. In essence, the State has presented its evidence in aggravation and the
defendant has done nothing to call its reliability into question except to argue its
insufficiency.” Id. at 543.
The court acknowledged, but distinguished, Burgett:
“Here, defendant did not collaterally attack the prior convictions. Instead,
defendant merely objected to the sufficiency of the State’s evidence. Defendant did not
testify at sentencing. Without some evidence to the contrary, we will presume the trial
courts in the prior convictions of defendant fulfilled their constitutional obligations to
defendant. [Citation.]” (Emphasis added.) Id. at 545.
¶ 30 In making the emphasized statement, the court cited the dissenting opinion in People v.
McCarty, 101 Ill. App. 3d 355, 361 (1981) (Heiple, J., dissenting), aff’d in part and rev’d in
part, 94 Ill. 2d 28 (1983). We, therefore, turn to McCarty. In McCarty, the defendant was
convicted of felony theft, which was aggravated because of a prior armed robbery conviction,
and he was given probation. McCarty, 94 Ill. 2d at 31. Thereafter, he committed attempted
retail theft. Id. Without the assistance of counsel, the defendant pleaded guilty to that offense.
Id. Thereafter, the State petitioned to revoke the defendant’s probation. Id. Following a
hearing, the trial court granted the petition and imposed a sentence of two years’ imprisonment.
Id. On appeal, the defendant contended that his prison sentence was void because (1) the prior
armed robbery was not a “ ‘type of theft’ ” that could enhance a misdemeanor theft to felony
theft, thus resulting in a void conviction of, and sentence for, felony theft, and (2) the
uncounseled guilty plea could not be used to revoke the defendant’s probation. Id. at 31-32.
When the case reached the supreme court, it resolved the appeal solely on the first issue. Id. at
40.
¶ 31 The appellate court, however, had addressed both issues. In discussing the validity of the
guilty plea, the court noted that the docket sheet—the only potential evidence of whether the
defendant waived his right to counsel before pleading guilty—was silent on whether the
defendant waived that right. McCarty, 101 Ill. App. 3d at 359-60. Specifically, the docket sheet
provided:
“ ‘Case called for arraignment. *** Defendant appears personally in the custody of the
Police Department of the City of Kankakee without counsel. Defendant given copy of
the complaint. Same is read to him. Explanation of rights given, including right to
counsel. Upon being duly arraigned, defendant pleads not guilty and waives jury.’ ” Id.
at 359.
The court noted that, “[u]nder Supreme Court Rule 401, the record must demonstrate that the
defendant understood his right to counsel.” Id. The court also cited case law holding that “ ‘[a]
finding of waiver [of the right to counsel] will not be made unless it appears from the record
that at each critical stage of the proceeding the trial judge specifically offered, and the accused
knowingly and understandingly rejected, the representation of appointed counsel.’ ” (Emphasis
omitted.) Id. at 360 (quoting People v. Hessenauer, 45 Ill. 2d 63, 68 (1970)). “[W]hen the
record is devoid of any affirmative indication that the accused has waived his right to counsel,
the burden is upon the State to demonstrate the knowing and intelligent waiver of that
constitutional right.” Id. The court concluded that “the docket entry d[id] not establish the
affirmative acquiescence that the United States Supreme Court or our State supreme court
requires for a finding of waiver of the right to counsel.” Id.-9-
¶ 32 The dissent took issue only with the majority’s position on whether the defendant waived
the right to counsel. Id. at 360-61 (Heiple, J., dissenting). In doing so, the dissent noted that
“[f]or over 30 years the United States Supreme Court has adhered to the view that a trial judge,
upon arraignment of a criminal defendant, is presumed to discharge his responsibility to advise
the accused of his constitutional rights.” Id. at 361. The dissent determined that that
“conclusion applie[d] with equal force to a trial judge’s statutory obligations which are founded
on such guarantees [delineated in Rule 401].” Id. While the dissent recognized that the
inference that trial courts discharge their duties is subject to challenge, it determined that such
a challenge cannot succeed “when its genesis is a silent record.” Id.
¶ 33 Under McCarty, defendant would succeed in his challenge to the use, in aggravation, of
his DUI conviction in case No. 96-DT-17. Even though the defendant in McCarty was making
a collateral challenge to a prior conviction, the court took the same approach as we did in
Montgomery, where the defendant was challenging his conviction on direct appeal. Thus, under
McCarty, before a prior conviction can be used against a defendant in a subsequent case, the
record from the previous case must affirmatively show that the defendant waived his right to
counsel, and the burden of making that showing rests initially with the State. Here, the parts of
the record produced from case No. 96-DT-17 do not affirmatively show that defendant validly
waived his right to counsel. Under Laskowski, however, the presumption would swing the other
way, with the burden falling on defendant to initially produce “some evidence” that the prior
conviction was obtained in violation of the right to counsel. See 287 Ill. App. 3d at 545.
Notably, after McCarty was decided, the United States Supreme Court issued Parke v. Raley,
506 U.S. 20 (1992), which abrogated Burgett.
¶ 34 In Parke, the defendant was charged with robbery and with being a “persistent felony
offender” in the first degree. Id. at 23. The latter charge was premised on the defendant’s two
prior burglary convictions entered upon guilty pleas. Id. The defendant did not file a direct
appeal in either of those two prior burglary cases. Id. Instead, after he was charged with being
a persistent felony offender in the first degree, the defendant claimed that he did not knowingly
and voluntarily plead guilty in either burglary case. Id. No transcript from either guilty plea
proceeding was ever presented. Id.
¶ 35 At issue before the United States Supreme Court was, essentially, whether the State bore
the entire burden of establishing that the prior convictions were valid—specifically, that the
guilty pleas were knowing and voluntarily. Id. at 22-23. The Court found that the State did not.
Id. at 34. The Court noted that, on direct review of a conviction based on a guilty plea, a
“presumption of invalidity” attaches to the plea. Id. at 29. However, the defendant never
appealed his burglary convictions, which thus became final. Id. Rather, he was bringing a
collateral challenge. In “this very different context,” a different presumption controls: the
“ ‘presumption of regularity’ ” that attaches to the final judgment entered in the prior case. Id.
(quoting Johnson v. Zerbst, 304 U.S. 458, 468 (1938)). The defendant bears the burden of
producing evidence rebutting that presumption. Id. at 31-32.
¶ 36 In reaching that result, the Court noted that, “[o]n collateral review, we think it defies logic
to presume from the mere unavailability of a transcript (assuming no allegation that the
unavailability is due to governmental misconduct) that the defendant was not advised of his
rights.” Id. at 30. The Court determined that Burgett did not necessitate a different result. Id.
at 31. The Court explained that, “[a]t the time the prior conviction at issue in Burgett was
entered, state criminal defendants’ federal constitutional right to counsel had not yet been
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recognized, and so it was reasonable to presume [in Burgett] that the defendant had not waived
a right he did not possess.” Id. The Court went on to note that, “[a]s we have already explained,
the same cannot be said about a record that, by virtue of its unavailability on collateral review,
fails to show compliance with the well-established [acceptance of guilty plea] requirements.”
Id.
¶ 37 After oral argument here, where this court asked the parties about Parke, the State filed an
unopposed motion to cite Parke as additional authority. We granted that motion, and defendant
filed a response. In that response, defendant argues, among other things, that Parke is
inapplicable, because Parke involved admonishments given before accepting a guilty plea
while this case concerns right-to-counsel admonishments. We disagree. State v. Probst, 124
P.3d 1237 (Or. 2005) (en banc), is instructive in addressing defendant’s argument.
¶ 38 In Probst, the defendant was charged with felony driving under the influence of intoxicants
(DUII) because she had been convicted of DUII on three previous occasions. Id. at 1238. She
collaterally challenged the constitutional validity of one of the prior DUII convictions, arguing
that, because she had not validly waived her right to counsel when she was convicted of that
prior DUII, the State could not use that prior conviction to aggravate the current DUII offense.
Id. at 1238, 1240. Although the defendant was represented by counsel at times in the prior case,
and the plea petition in the prior case indicated that the defendant waived her right to counsel,
the defendant claimed that there was no evidence that either her attorney or the trial court
discussed with her the benefits of proceeding with counsel or the risks she faced by proceeding
pro se. Id. at 1239-40.
¶ 39 Relying on Parke, the Oregon Supreme Court determined that “the Sixth Amendment
permits a [S]tate to apply a presumption of validity to prior convictions.” Id. at 1245. The court
continued that “[t]he burden is on the defendant to prove by a preponderance of the evidence
that [the prior conviction] was invalid.” Id. at 1246. The court did not specify what evidence a
defendant needed to submit to rebut the presumption of validity, but it did note that the burden
could be met with a variety of evidence. Id.
¶ 40 Applying these principles to the facts before it, the court determined:
“The [S]tate produced evidence of the contested predicate conviction. Defendant then
produced evidence that she did not have counsel when she pleaded guilty to that charge.
But lack of counsel, although relevant, is not dispositive. Defendant needed to be able
to point to some evidence—from her own testimony or otherwise—tending to show
that the absence of counsel resulted in an involuntary plea, whether because she was
unaware of the possible consequences of proceeding without a lawyer, or otherwise.
There is no such evidence in this record, either directly or by permissible inference.
Thus, under the rule that we announce today, the trial court would be entitled to deny
defendant’s motion to suppress the fact of her contested conviction, and defendant’s
resulting conviction for felony DUII would be valid.” (Emphasis omitted.) Id. at 1246.
¶ 41 We agree with the Probst court, which is one of
“many state and federal courts [to] have concluded that post-Gideon convictions are
entitled to a presumption of regularity, such that once the government establishes the
existence of a prior conviction, it becomes the defendant’s burden to prove that he or
she did not have counsel and did not waive the right to counsel at the time of
conviction.” State v. Vann, 944 N.W.2d 503, 511 (Neb. 2020) (collecting cases).
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See Gideon v. Wainwright, 372 U.S. 335 (1963). There is a longstanding principle in Illinois
courts that a presumption of validity applies in favor of a judgment when it is subjected to
collateral attack. See People v. Pring, 414 Ill. 63, 69-70 (1953); Cullen v. Stevens, 389 Ill. 35,
38 (1944); People ex rel. Baird & Warner, Inc. v. Lindheimer, 370 Ill. 424, 428 (1939); Muslim
Community Center v. Village of Morton Grove, 392 Ill. App. 3d 355, 358 (2009). While the
right to counsel that Illinois affords is broader than its sixth amendment counterpart, the interest
in the finality of judgments prevails here such that we will not presume the invalidity of a prior
conviction, as defendant would have us do. We recognize Rule 401(b)’s express requirement
that a waiver of counsel be recorded verbatim, but its language does not evince an intent to
upset the ingrained principle that judgments under collateral attack are presumed valid.
¶ 42 We align ourselves with Laskowski and Probst and with the dissent in McCarty. Defendant
needed to present some evidence to rebut the presumption that the conviction in case No. 96-
DT-17 was obtained with defendant having validly waived his right to counsel. Some evidence
includes, but is in no way limited to, transcripts from the prior proceedings, court documents
from the prior proceedings, or affidavits from parties present during the prior proceedings,
including the defendant, who can attest that no admonishments were given. See, e.g., United
States v. Martinez-Cruz, 736 F.3d 999, 1001 (D.C. Cir. 2013) (sufficient evidence constituted
pair of affidavits the defendant filed indicating that “he was illiterate, *** nobody explained to
him the waiver-of-counsel form, *** he did not recall appearing before a judge, and *** he
was absolutely certain that if he did appear before a judge, the judge did not conduct an
individualized plea colloquy of the sort that took place at the time of his [current guilty] plea”).
In his affidavit, defendant asserted that he signed the jury waiver and could not remember what
the trial court told him at that time. This assertion simply does not rebut the presumption that
the conviction obtained in case No. 96-DT-17 was valid. See Parke, 506 U.S. at 25, 37 (the
defendant’s “self-serving testimony that he simply could not remember whether the trial judge
advised him of *** rights [other than his right to a jury trial]” did not sustain the defendant’s
burden of proving the invalidity of the prior conviction).
¶ 43 At oral argument, and in his response to the State’s unopposed motion to cite additional
authority, defendant suggested that this court can infer from the docket sheets that he did not
waive his right to counsel. In light of Parke, we determine that no such inference can be made.
Instructive on our position is United States v. Gray, 177 F.3d 86 (1st Cir. 1999).
¶ 44 There, the defendant pleaded guilty to violating the federal anti-robbery statute. He was
given an enhanced sentence based on a prior conviction. Id. at 88. On appeal, he argued, among
other things, that the prior conviction could not be used to enhance his sentence because the
docket sheet indicated nothing about whether the defendant had counsel or had waived his
right to counsel when the prior conviction was obtained. Id. The appellate court refused to
infer, from the silent record, that the prior conviction was obtained in violation of the
defendant’s right to counsel, especially when the defendant never testified that he was denied
counsel or filed a sworn affidavit attesting to as much. Id. at 90. Relying on Parke, the court
concluded that the docket sheet was not sufficient evidence to shift the burden to the State to
establish that the defendant’s right to counsel was not violated. Id. at 91.
¶ 45 Here, as in Gray, the docket sheets do not indicate that the trial court admonished defendant
about his right to counsel and that defendant waived that right. That mere silence, however,
does not overcome the presumption that the conviction was validly obtained. Although
defendant here, unlike the defendant in Gray, filed an affidavit, the affidavit does little to
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suggest that defendant was denied his right to counsel. Rather, defendant’s affidavit indicates
that, on the day his alternate public defender withdrew, defendant signed a jury waiver and the
trial court told him things that he could not remember. As indicated, that is not enough. See
Parke, 506 U.S. at 25, 37.
¶ 46 Defendant claimed at oral argument, and in his response to the State’s unopposed motion
to cite additional authority, that the fact that the docket sheets reflect that he was admonished
about other things, such as a trial in absentia, warrants inferring that he was not admonished
about his right to counsel. We disagree. As we suggested at oral argument, it is just as
reasonable to infer that defendant was admonished about his right to counsel because he was
admonished about other things.
¶ 47 Given all of the above, we must conclude that defendant’s reliance on Burgett is unfounded
in light of Parke. We determine that, when a defendant seeks to collaterally challenge a
conviction that is used to aggravate the class of a subsequent offense, the presumption of
validity attaches, and the defendant bears the burden of producing some evidence that the prior
conviction was invalid. If the defendant fails to meet that burden, no error occurs when the
trial court uses that prior conviction to subject the defendant to an enhanced sentence.
However, if the defendant meets his burden, the burden shifts to the State to establish that the
prior conviction is valid.
¶ 48 We note that the above does not apply when a defendant directly appeals from a conviction
that he claims was obtained in violation of his right to counsel. In a direct-appeal challenge,
the record must affirmatively show that the defendant knowingly and voluntarily waived his
right to counsel. Because there is a difference between a direct challenge and a collateral one
in this context, we find misplaced the defendant’s reliance on People v. Herring, 327 Ill. App.
3d 259, 262 (2002), in which the defendant directly appealed his convictions and the appellate
court held that the defendant’s waiver of counsel was ineffective because of noncompliance
with Rule 401(b).
¶ 49 As a final matter, we would be remiss if we did not articulate some concerns that this case
highlights. Specifically, we find it troubling that the docket sheets in case No. 96-DT-17 do
not explicitly reflect that defendant, at any point, was admonished about his right to counsel.
Concomitantly, we are troubled by the fact that defendant never alleged a violation of his right
to counsel when he was convicted of DUI in case No. 96-DT-17, never alerted the court to this
alleged violation when he pleaded guilty to DUI either time here, and never advised the court
about the violation when he was sentenced in this case. We hope that, in the future, docket
sheets will better reflect when defendants are admonished about their right to counsel, and we
suggest that defendants more timely challenge convictions that they believe were obtained in
violation of their right to counsel.
¶ 50 III. CONCLUSION
¶ 51 For the above-stated reasons, the judgment of the circuit court of Boone County is affirmed.
¶ 52 Affirmed.
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