State v. Oliver , 230 Neb. 864 ( 1989 )

Boslaugh, J.

Upon a plea of guilty to driving while under the influence of alcoholic liquor, third offense, the defendant, Norman Bruce Oliver, was sentenced to 90 days in the county j ail with credit for 30 days’ time spent in inpatient treatment; he was fined $500; and his operator’s license was suspended for 15 years. Upon appeal to the district court, the credit for 30 days’ inpatient treatment was sel aside, but the judgment in all other respects was affirmed.

The defendant has now appealed to this court and contends that the trial court erred in sentencing the defendant for a third offense because (1) the records of his previous convictions failed to show that his guilty pleas had been entered voluntarily and intelligently, and (2) the evidence as to one prior conviction failed to conform to the date of the prior conviction alleged in the complaint; and, also, that the district court erred (3) in modifying the sentence.by eliminating the credit for inpatient treatment.

The complaints in thi§ case alleged that the defendant had been convicted previously of the same offense occurring on October 17, 1980, and June 22, 1978. At the enhancement hearing on March 3, 1987, the State introduced certified copies of the records of previous convictions for offenses committed on June 22, 1978, and October 15, 1977. The defendant objected to the evidence offered on the grounds of foundation and a bill then pending in the Legislature that would prevent convictions more than 10 years old from being used to enhance the penalty in such cases. These objections were overruled and the exhibits received in evidence. In the district court, the defendant argued that the records were not properly received because neither disclosed “full compliance with the Boykin Rights in Boykin versus Alabama.”

With respect to the discrepancy between the date of one of the previous offenses as alleged in the complaint and the record offered at the enhancement hearing, in State v. Silvacarvalho, 193 Neb. 447, 227 N.W.2d 602 (1975), we held, “The exact time of the commission of an alleged prior felony is not of the essence of a charge under the Habitual Criminal Act and the failure of the information to accurately state the time of a prior felony does not render the information insufficient.” (Syllabus of the court.)

In State v. Jameson, 224 Neb. 38, 395 N.W.2d 744 (1986), the complaint for driving while intoxicated, third offense, listed five previous convictions. At the enhancement hearing, evidence of five previous convictions was received, but the date of one offense differed from the date alleged in the complaint.

In affirming the judgment, we said at 43-46, 395 N.W.2d at 747-48:

Jameson’s third assignment of error is, likewise, without merit. He maintains that the previous convictions should not have been received in evidence, principally because the dates set out in the complaint. did not correspond with the dates of the previous convictions. Unfortunately, the complaint alleged that prior convictions occurred on May. 1, 1982, June 1, 1980, December 18, 1978, March 27, 1976, and July 17, 1974. While it is true that the convictions were entered on dates other than those listed in the complaint, the dates listed, other than the July 17,1974, date, were in fact the dates on. which each of the offenses was committed. The July 17, 1974, date was in error. However, in view of the fact that there were more than two prior convictions without the July 17,1974, event, it may be disregarded. Jameson was fully advised of the previous convictions the State intended to rely upon in proving that this was at least a third offense. Not only did the State seek to offer into evidence the prior convictions but in each instance introduced what appear to be the entire proceedings, including the complaint, any requests for continuances, and the judgment. In each instance the record reflects that Jameson was represented by counsel when he entered his plea to charges as set out in the complaint.

A reading of § 39-669.07 makes it clear that the substantive offense is driving while under the influence of alcohol or with more than .10 percent of alcohol in one’s body fluid. The number of times a person has previously been convicted of such a charge is not itself a crime but, rather, is a factor which the trial court is to consider in imposing sentence. To that extent it is similar to our habitual criminal act, Neb. Rev. Stat. § 29-2221 (Reissue 1985). One is not sentenced for the crime of being a habitual criminal. Instead, the sentence imposed for violating some law of this state is enhanced because the defendant has previously been convicted. State v. Rolling, 209 Neb. 243, 307 N.W.2d 123 (1981). The same is true with regard to driving while under the influence of alcohol. See, also, State v. Helgeson, 235 Kan. 534, 680 P.2d 910 (1984); State v. Nelson, 178 Mont. 280, 583 P.2d 435 (1978); State v. Carpenter, 29 Or. App. 879, 565 P.2d 768 (1977).

And just as a wrong date in an information will not preclude a defendant from being sentenced as a habitual criminal if the record discloses the defendant could not have been misled or confused, so, too, a wrong date in a complaint will not preclude a defendant from being sentenced as one who has previously been convicted of driving while under the influence of alcohol if the record discloses that the defendant could not have been misled or confused.

In State v. Harig, 192 Neb. 49, 55-57, 218 N.W.2d 884, 889-90 (1974), we said: “ [T]he Habitual Criminal Act does not create a new and separate criminal offense . . . but provides merely that the repetition ... aggravates the guilt and justifies greater punishment .... Under this act, the inaccurate allegation of the date or time of a prior felony would have no effect with respect to the sufficiency of the information as to its allegation of the principal or underlying felony or felonies. As to such felonies the time of a prior conviction is only a historical fact....

. . . While it is undoubtedly desirable and helpful to have the dates of the prior felonies alleged in the information charging a defendant with being an habitual criminal, we do not find that the absence of such allegation would necessarily render the information invalid. . . . [I]t is necessary to read the provisions of the Habitual Criminal Act . . . with the provision of section 29-1501 . . .: ‘No indictment shall be deemed invalid, nor shall the trial, judgment or other proceedings be stayed, arrested or in any manner affected ... for omitting to state the time at which the offense was committed in any case where time is not the essence of the offense; nor for stating the time imperfectly . . . .’ [U]nder Nebraska law, informations are generally subject to the same requirements as are indictments. ... It is clear that the exact time of the commission of an alleged prior felony is not of the essence of a charge . . . and the failure of the information in this case to state accurately the time of a prior felony does not render that information insufficient

. . . This is not to say that evidence need not be presented to establish the exact time or date of the prior felony or felonies generally alleged. But we see no constitutional problems in this regard so long as means are and were provided for the defendant to obtain the information relative to the specific dates of the offenses relied upon as prior felonies....”

In the instant case the record is clear that Jameson could not have been misled or confused. If anything, he was probably better informed by being told the date the offense was committed rather than the date of the conviction, which was delayed by Jameson’s requests for continuances. The claim of error is without merit.

In this case the defendant did not claim surprise or request a continuance, and we find there was no prejudice to any substantial right of the defendant.

With respect to the defendant’s contention based upon Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), it has been the rule in this State that to prove a prior conviction for enhancement purposes, the State need only show that at the time of the prior conviction the defendant had, or waived, counsel. State v. Slezak, 226 Neb. 404, 411 N.W.2d 632 (1987). The records of the defendant’s two previous convictions show that in each case the defendant was represented by counsel.

It has also been the rule in this State that a defendant cannot collaterally attack a prior conviction in an enhancement proceeding. State v. Smith, 213 Neb. 446, 329 N.W.2d 564 (1983). Objections to the validity of a prior conviction offered for the purpose of sentence enhancement, beyond the issue of whether the defendant had counsel or waived the right to counsel, constitute a collateral attack on the judgment, and must be raised either by a direct appeal from the prior conviction or in separate proceedings commenced expressly for the purpose of setting aside the prior conviction. State v. Davis, 224 Neb. 518, 398 N.W.2d 729 (1987). See, also, State v. Foster, 224 Neb. 267, 398 N.W.2d 101 (1986); State v. Hamblin, 223 Neb. 469, 390 N.W.2d 533 (1986); State v. Benzel, 220 Neb. 466, 370 N.W.2d 501 (1985); State v. Soe, 219 Neb. 797, 366 N.W.2d 439 (1985); State v. Jones, 219 Neb. 184, 362 N.W.2d 58 (1985); State v. Baxter, 218 Neb. 414, 355 N.W.2d 514 (1984); State v. Ziemba, 216 Neb. 612, 346 N.W.2d 208 (1984).

In State v. Gonzales, 218 Neb. 43, 352 N.W.2d 571 (1984), the defendant was allowed at the enhancement hearing to introduce verbatim transcripts of the arraignment proceedings at which the defendant had entered guilty pleas resulting in convictions which the State used to establish that the defendant was a habitual criminal. The transcripts of the arraignment proceedings showed that the defendant had not been advised of his constitutional rights as set out in the Boykin case and in State v. Tweedy, 209 Neb. 649, 309 N.W.2d 94 (1981). In the Gonzales opinion, although the judgment was affirmed, we stated at 49, 352 N.W.2d at 575: “In this habitual criminal hearing, defendant had raised the constitutional invalidity of two of his prior convictions, and we hold he may raise these issues in this manner.”

Then, in Gonzales v. Grammer, 655 F. Supp. 1147 (D. Neb. 1987), the U.S. District Court held that the defendant’s prior pleas were not voluntary. Upon appeal, that judgment was affirmed. Gonzales v. Grammer, 848 F.2d 894 (8th Cir. 1988).

The court of appeals noted that in our opinion in the Gonzales case, we had held that Gonzales had “properly” raised the issue of the validity of his earlier convictions at the hearing to determine his habitual criminal status.

The court of appeals, however, also held, “A state is at liberty to set up whatever procedural requirements it deems necessary for processing challenges to prior convictions in a habitual criminal proceeding.” 848 F.2d at 896 n.8.

Upon further consideration of the matter, we now expressly disapprove our holding in the Gonzales case that a defendant may raise the constitutional invalidity of a prior conviction in an enhancement proceeding, and now hold that such an issue may only be raised in a direct appeal or in a separate proceeding commenced for the express purpose of setting aside the judgment alleged to be invalid.

With respect to the defendant’s last assignment of error, the minimum sentence under Neb. Rev. Stat. § 39-669.07 (Cum. Supp. 1986) for driving while under the influence of alcoholic liquor, third offense, if the defendant is not placed on probation, is imprisonment in the county jail for not less than 3 nor more than 6 months, and a fine of $500.

The credit against the statutory minimum sentence granted by the county court for inpatient treatment was erroneous, and it was within the power of the district court to modify the judgment by striking the illegal credit. When part of a sentence is illegal, an appellate court may, if the sentence is divisible, modify it by striking out the illegal part. Kroger v. State, 158 Neb. 73, 62 N.W.2d 312 (1954).

The judgment is affirmed.

Affirmed.