State v. Sazama ( 2016 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. SAZAMA
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
NATHAN SAZAMA, APPELLANT.
Filed August 30, 2016. No. A-15-919.
Appeal from the District Court for Lancaster County: JODI NELSON, Judge. Affirmed.
Justin Kuntz, of Hanson, Hroch, & Kuntz, for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.
MOORE, Chief Judge, and INBODY and RIEDMANN, Judges.
INBODY, Judge.
I. INTRODUCTION
Nathan Sazama pled guilty to the underlying offense of driving under the influence (DUI)
with an alcohol concentration of over .15 of 1 gram per 210 liters of his breath. The trial court
found Sazama had two prior convictions for enhancement purposes and found him guilty of DUI,
third offense, aggravated. Sazama timely appealed to this court. We reject Sazama’s argument that
the trial court erred in overruling his objections to certain exhibits used to show a prior 2004
conviction and that the record was insufficient to establish this as a valid, prior offense. Moreover,
we reject Sazama’s claim that his 2004 conviction was obtained in violation of his Sixth
Amendment right to counsel.
II. STATEMENT OF FACTS
Pursuant to a plea agreement, Sazama, who was represented by counsel, pled guilty to the
underlying offense of DUI with an alcohol concentration of over .15 of 1 gram per 210 liters of
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his breath. The trial court held a separate hearing regarding sentencing and enhancement. At the
sentencing and enhancement hearing, the State offered four exhibits as proof of two prior
convictions from 2004 and 2012, and Sazama objected to exhibits 3 and 4 regarding his 2004
conviction. Sazama objected to exhibit 3 on the basis of relevance and best evidence, and objected
to exhibit 4 on the basis of hearsay, best evidence, and foundation. Exhibit 3 contained certified
copies of multiple JUSTICE journal entries regarding the 2004 conviction and exhibit 4 contained
certified copies of the bill of exceptions of the plea and sentencing proceedings for the 2004
conviction. The trial court overruled Sazama’s objections and received the exhibits into evidence.
The trial court determined Sazama had two prior convictions for enhancement purposes, and found
him guilty of DUI, third offense, aggravated. Sazama was sentenced to 180 days’ imprisonment,
and a 15-year license revocation, with interlock device privileges after 2 years. Additional facts
will be discussed in the analysis section below as necessary.
III. ASSIGNMENTS OF ERROR
On appeal, Sazama’s assignments of error, consolidated and restated, are that the trial court
erred in receiving exhibits 3 and 4 at the sentencing and enhancement hearing and that the record
was insufficient to establish the 2004 conviction as a valid, prior offense. Sazama also contends
that his 2004 conviction was obtained in violation of his Sixth Amendment right to counsel.
IV. STANDARD OF REVIEW
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. Mitchell,
285 Neb. 88, 825 N.W.2d 429 (2013); State v. Garcia, 281 Neb. 1, 792 N.W.2d 882 (2011).
V. ANALYSIS
1. ADMISSIBILITY OF EXHIBITS 3 AND 4
Sazama contends the trial court erred in determining exhibits 3 and 4 were admissible at
the sentencing and enhancement hearing.
(a) Exhibit 4
Sazama challenged the trial court’s admission of exhibit 4 on a variety of grounds. Exhibit
4 consists of the bill of exceptions of the plea and sentencing proceedings in Lancaster County
Court in the 2004 conviction. Sazama claims exhibit 4 should have been excluded on the basis of
hearsay, best evidence, and foundation. We find no merit to this assertion.
(i) Hearsay
Sazama claims the 2004 trial court made statements regarding a waiver of counsel form in
the bill of exceptions, and that the State is offering these statements from the 2004 proceedings as
proof that Sazama waived counsel at that time rather than providing the signed waiver of counsel
form. Sazama argues that it is impossible for this court to determine whether he made a valid
waiver of his rights without the examination of the actual waiver form.
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Hearsay is defined by Neb. Evid. R. 801(3) (Reissue 2008) as a “statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted”; in other words, an out-of-court statement. The bill of exceptions at issue
was a word-for-word transcription of all the statements made by Sazama, the trial court, and the
prosecutor in court. The bill of exceptions quite plainly falls outside the definition of hearsay. State
v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012).
(ii) Foundation
Sazama argues the use of the bill of exceptions, rather than the waiver form, creates
foundational problems.
An objection based upon insufficient foundation is a general objection. State v. Thompson,
278 Neb. 320, 770 N.W.2d 598 (2009). If such an objection is overruled, the objecting party may
not complain on appeal unless (1) the ground for exclusion was obvious without stating it or (2)
the evidence was not admissible for any purpose. Id.
Authentication and identification of evidence is governed by Neb. Evid. R. 901 (Reissue
2008) and Neb. Evid. R. 902 (Reissue 2008). Rule 901 provides the requirements of authentication
or identification as a condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what the proponent claims. State v. King, 272 Neb.
638, 724 N.W.2d 80 (2006). Rule 902 further provides that certain documents are
self-authenticating; that is, no extrinsic evidence of authenticity as a condition precedent to
admissibility is required. King, supra.
The Nebraska Supreme Court has held that a transcription of proceedings bearing the
certification of a court reporter in compliance with court rules pertaining to the preparation of bills
of exceptions is self-authenticating pursuant to Neb. Evid. R. 902(4). State v. Benzel, 220 Neb.
466, 370 N.W.2d 501 (1985), overruled on other grounds, State v. Kuehn, 258 Neb. 558, 604
N.W.2d 420 (2000); King, supra. Although the certificate in this case contained no seal, the
certificate was signed by the court reporter and complied with Neb. Ct. R. App. P. § 2-105 (rev.
2010), which requires a certificate by the court reporter but does not specify that a seal is required.
We determine that the certification of the transcriber of the 2004 proceedings contained at
the beginning of exhibit 4 was adequate to authenticate the exhibit, wherein no additional
foundation was necessary.
(iii) Best Evidence
Sazama argues the best evidence of whether he made an informed waiver of counsel would
be the actual waiver form itself, not the bill of exceptions of the discussions regarding waiver.
The best evidence rule, also known as the original documents rule, as expressed in Neb.
Evid. R. 1002 (Reissue 2008), states that the original writing, recording, or photograph is required
to prove the content of that writing, recording, or photograph. The purpose of the rule is to prevent
fraud, inaccuracy, mistake, or mistransmission of critical facts contained in a writing, recording,
or photograph when its contents are an issue in a proceeding. See Equitable Life Assur. Soc. of
U.S. v. Starr, 241 Neb. 609, 489 N.W.2d 857 (1992).
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In this instance, the contents of the waiver form are not at issue. Rather the issue is whether
Sazama had a previous DUI conviction and whether he waived his right to counsel, which is
adequately shown by the bill of exceptions. A properly authenticated record for the county court
establishes that in 2004 Sazama was convicted of a DUI and that he waived his right to counsel.
The bill of exceptions includes a verbatim transcription of the proceedings, including his
conviction and his waiver of representation by counsel. Therefore, the bill of exceptions provides
sufficient evidence of the waiver of counsel and this argument is without merit.
(b) Exhibit 3
Sazama challenged the trial court’s admission of exhibit 3 on a variety of grounds. Exhibit
3 consists of certified copies of the JUSTICE judicial journal entries involving Sazama’s 2004
conviction in Lancaster County Court. Sazama claims exhibit 3 should have been excluded on the
basis of best evidence, relevance, foundation, and hearsay. We find no merit to this assertion.
(i) Best Evidence
Sazama argues the JUSTICE journal entries are not the best evidence because there is no
certified copy of the trial court’s order or the probation order from the 2004 conviction. Again, as
discussed above, the contents of the waiver are not at issue. The JUSTICE journal entries are
properly authenticated records for the county court regarding the 2004 conviction. Therefore, the
best evidence rule does not apply and the certified copies of the JUSTICE journal entries provide
sufficient evidence of the 2004 conviction.
(ii) Relevance
Sazama contends exhibit 3 is not relevant because it does not show whether he waived
counsel at the 2004 conviction proceedings.
Under Neb. Evid. R. 402 (Reissue 2008), irrelevant evidence is not admissible. State v.
Merchant, 285 Neb. 456, 827 N.W.2d 473 (2013). Under Neb. Evid. R. 401 (Reissue 2008),
relevant evidence means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence. State v. Ely, 287 Neb. 147, 841 N.W.2d 216 (2014).
Here, the State offered exhibit 3 for a broader reason than whether Sazama waived counsel
at the 2004 proceedings. The relevance in offering exhibit 3 was to show and meet the necessary
burden of proof to show a prior conviction for DUI enhancement purposes. Therefore, exhibit 3
contained relevant evidence in proving whether Sazama had any previous DUI convictions for
enhancement.
(iii) Hearsay and Foundation
In his appellate brief, Sazama argues the trial court should have excluded exhibit 3 on
hearsay and foundation issues. However, Sazama did not object to exhibit 3 on these grounds at
the sentencing and enhancement hearing.
On appeal, a defendant may not assert a different ground for his objection to the admission
of evidence than was offered at trial. State v. Russell, 292 Neb. 501, 874 N.W.2d 8 (2016). An
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objection, based on a specific ground and properly overruled, does not preserve a question for
appellate review on any other ground. Id.
Here, because Sazama objected to the admission of exhibit 3 at trial only on the grounds
of best evidence and relevance, appellate review of his arguments that the exhibit should have been
excluded based on foundation and hearsay have been waived.
2. SENTENCE ENHANCEMENT
Sazama contends the trial court erred in determining the record was insufficient to establish
the 2004 conviction as a valid, prior offense.
Under Neb. Rev. Stat. § 60-6,197.02 (Cum. Supp. 2014), a court is required to make a
finding on the record as to the convicted person’s prior DUI convictions. State v. Scheffert, 279
Neb. 479, 778 N.W.2d 733 (2010). Pursuant to Neb. Rev. Stat. § 60-6,197.02, “[t]he convicted
person shall be given the opportunity to review the record of his or her prior convictions, bring
mitigating facts to the attention of the court prior to sentencing, and make objections on the record
regarding the validity of such prior convictions.”
In a proceeding to enhance a punishment because of prior convictions, the State has the
burden of proving such convictions by a preponderance of the evidence. State v. Taylor, 286 Neb.
966, 840 N.W.2d 526 (2013). Preponderance of the evidence requires proof that the existence of
the contested fact is more probable than its nonexistence. Id. On an appeal of a sentence
enhancement hearing, we view and construe the evidence most favorable to the State. Id.
“The existence of a prior conviction and the identity of the accused as the person convicted
may be shown by any competent evidence, including the oral testimony of the accused and duly
authenticated records maintained by the courts or penal and custodial authorities.” State v. Bol,
288 Neb. 144, 154-55, 846 N.W.2d 241, 252 (2014) (emphasis added). However, “a transcript of
a judgment which fails to contain an affirmative showing that the defendant had or waived counsel
is not admissible and cannot be used to prove a prior conviction, because the State cannot meet its
burden of proof with a judgment that would have been invalid to support a sentence in the first
instance.” State v. Garcia, 281 Neb. 1, 14, 792 N.W.2d 882, 892 (2011) (emphasis added).
In the instant case, the State introduced into evidence certified copies of Sazama’s 2012
conviction, in addition to a certified copy of the relevant Lincoln Municipal Code effective at the
time of the 2003 offense, certified copies of multiple JUSTICE journal entries regarding the 2004
conviction, and certified copies of the bill of exceptions of the 2004 conviction plea and sentencing
proceedings. Sazama claims the copies of the bill of exceptions and JUSTICE journal entries
should not have been admitted to show the prior conviction by the trial court and that proof of the
2004 conviction was insufficient because the State did not provide copies of the waiver of counsel
or waiver of rights forms, or a certified copy of the trial court judge’s order or the probation order.
We reject this claim.
At the sentencing and enhancement hearing, the State provided certified copies of multiple
JUSTICE journal entries regarding the 2004 conviction and certified copies of the bill of
exceptions of the 2004 conviction plea and sentencing proceedings, which provided sufficient
evidence of the prior 2004 conviction.
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As discussed further below, the certified copies of the bill of exceptions of the 2004
proceedings provided an affirmative showing that Sazama waived counsel at the time of his plea
hearing, and that the bill of exceptions can therefore be used to prove the 2004 conviction. Thus,
we conclude that the district court did not err in receiving exhibits 3 and 4 at the sentencing and
enhancement hearing and in finding that the record was insufficient to establish a valid, prior
offense.
3. SIXTH AMENDMENT RIGHT TO COUNSEL
Sazama contends the 2004 prior conviction based on a guilty plea was obtained in violation
of his Sixth Amendment right to counsel. Specifically, Sazama claims he was asked by the trial
court in the 2004 conviction proceedings how he intended to plead without being advised of his
constitutional rights, including his right to counsel. Sazama further argues that at the 2004
arraignment, the trial court incorrectly informed him of being charged with a first offense “DWI”
and that the trial court improperly asked him how he wished to plead without being advised of his
constitutional rights. Sazama additionally claims that after he was asked by the trial court judge
how he intended to plead and he responded “guilty,” that he was then advised to go read a waiver
of the right to counsel form and a waiver of rights form.
“[T]he due process requirements of both the state and federal Constitutions are satisfied by
the right of direct appeal from a plea-based DUI conviction and the procedure set forth in [Neb.
Rev. Stat.] § 60-6,196(3), which permits a defendant to challenge the validity of a prior DUI
conviction offered for purposes of enhancement on the ground that it was obtained in violation of
the defendant’s Sixth Amendment right to counsel.” State v. Louthan, 257 Neb. 174, 188, 595
N.W.2d 917, 926 (1999). In order to use a prior DUI conviction, the State must prove “at the time
of the prior conviction and sentencing, the defendant was represented by counsel or had knowingly
and voluntarily waived representation for those proceedings.” State v. Robinson, 272 Neb. 582,
633, 724 N.W.2d 35, 77 (2006), abrogated on other grounds by State v. Thorpe, 280 Neb. 11, 783
N.W.2d 749 (2010). The State establishes a prima facie case for proving a prior, counseled
conviction by producing appropriate record evidence of a conviction which discloses at a critical
point in the proceedings--arraignment, trial, conviction, or sentencing--the defendant had either
intelligently and voluntarily waived counsel or in fact was represented by counsel at one of those
times. State v. Green, 238 Neb. 328, 470 N.W.2d 736 (1991). The defendant then has the burden
of coming forward with evidence that the prior conviction was uncounseled. Id. If the State fails
to show the constitutional validity of the prior conviction and it was based on the defendant’s guilty
plea obtained in violation of the defendant’s right to counsel, then such conviction is
unconstitutional, void, and cannot be used to enhance the sentence for the defendant’s subsequent
conviction. State v. Reimers, 242 Neb. 704, 496 N.W.2d 518 (1993).
In this instance, the bill of exceptions for the 2004 conviction plea proceedings indicates
Sazama knowingly and voluntarily waived representation for those proceedings. At the 2004 plea
proceedings, the trial court judge asked Sazama if he had read the right to counsel waiver form
and Sazama answered in the affirmative. The trial court judge then asked Sazama, “And you
understand that, by signing this form, you’re telling me that you want to do without the services
of a lawyer . . .?” to which Sazama again answered in the affirmative. The trial court judge then
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asked Sazama, “And is that what you want to do?” and Sazama replied with “Yes, Your Honor.”
Further, the court asked certain questions regarding whether Sazama had read the waiver of rights
form and whether Sazama wished to waive those rights, and Sazama responded with “Yes, Your
Honor” to those questions. Finally, when Sazama was asked if he was entering the plea freely,
voluntarily, knowingly, and intelligently, Sazama responded with “Yes, Your Honor.” This
dialogue, as illustrated in the certified copies of the bill of exceptions provided by the State,
indicates Sazama knowingly, intelligently, and voluntarily waived counsel representation for the
proceedings, and that it was not obtained in violation of Sazama’s Sixth Amendment right to
counsel. Therefore, we conclude the prior 2004 DUI conviction offered for purposes of
enhancement was not obtained in violation of Sazama’s Sixth Amendment right to counsel.
4. INCONSISTENCY OF OPINIONS
Finally, Sazama also argues an inconsistency in opinion exists between our court and the
Nebraska Supreme Court regarding plea-based convictions and enhancement. Based on our
holdings above, we need not address what is required before a plea-based conviction can be used
for enhancement purposes. See Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015)
(appellate court is not obligated to engage in analysis that is not necessary to adjudicate case and
controversy before it).
VI. CONCLUSION
We reject Sazama’s claim that the trial court erred in receiving exhibits 3 and 4 at the
sentencing and enhancement hearing and that the record was insufficient to establish a valid, prior
offense. Further, we reject Sazama’s contention that his 2004 conviction was obtained in violation
of his Sixth Amendment right to counsel. Therefore, we affirm his conviction and the enhanced
sentence.
AFFIRMED.
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