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State v. Hamann

Supreme Court of Oregon

July 5, 2018

STATE OF OREGON, Respondent on Review,
v.
RYAN JAMES HAMANN, Petitioner on Review.

          Argued and submitted October 17, 2017, at Baker City High School.

          On review from the Court of Appeals. [*] (CC C142425CR) (CA A159248)

          Emily P. Seltzer, Deputy Public Defender, Offce of Public Defense Services, Salem, argued the cause and fled the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.

          Paul L. Smith, Deputy Solicitor General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Walters, Chief Justice, and Balmer, Kistler, Nakamoto, Flynn, Duncan, and Nelson, Justices. [**]

          [363 Or. 265] Case Summary: Defendant was convicted of driving under the influence of intoxicants (DUII) for the third time in a 10-year period. Based on that third conviction, the circuit court permanently revoked defendant's driving privileges as required by ORS 809.235(1)(b), and the Court of Appeals affirmed. However, defendant had proved that one of the prior convictions had been obtained in violation of his right to counsel under the Sixth Amendment of the United States Constitution and Article I, section 11, of the Oregon Constitution. Held: The circuit court correctly relied on the uncounseled DUII conviction to permanently revoke defendant's driving privileges. The revocation of driving privileges is consistent with defendant's right to counsel under Sixth Amendment jurisprudence because the revocation constitutes a civil disability, not a criminal punishment. Defendant's argument under Article I, section 11, of the Oregon Constitution was not sufficiently developed, so the Court does not address it.

         The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

          [363 Or. 266] NAKAMOTO, J.

         When a defendant has been convicted of driving under the influence of intoxicants (DUII) three times in a 10-year period, the third DUII offense becomes a felony. ORS 813.010(5). In this case, defendant was charged with felony DUII based on his two prior convictions in the preceding ten years, but he successfully asserted a statutory challenge to one of them, a Georgia conviction, because it had been obtained in violation of his right to legal counsel. See ORS 813.328(1) (a defendant may challenge "the validity of prior convictions alleged by the state" as an element of felony DUII). As a result, defendant was convicted of misdemeanor rather than felony DUII. However, the trial court counted the Georgia conviction when it permanently revoked defendant's driving privileges. See ORS 809.235(1)(b) (court shall permanently revoke a defendant's driving privileges when convicted for a third time of DUII).[1] The Court of Appeals affirmed without opinion. State v. Hamann, 282 Or.App. 369, 385 P.3d 103 (2016).

         On review, defendant reasserts that, once he proved that the Georgia conviction was constitutionally invalid, the trial court's imposition of any additional consequence on him based on that conviction was inconsistent with his right to counsel, as articulated in City of Pendleton v. Standerfer, 297 Or. 725, 688 P.2d 68 (1984) (applying Sixth Amendment right to counsel). We conclude that the trial court correctly relied on the Georgia conviction to revoke defendant's driving privileges as a civil disability-not a criminal punishment-and that the revocation was consistent with defendant's right to counsel under the Sixth Amendment to the United States Constitution. Therefore, we affirm the judgment of the trial court and the decision of the Court of Appeals.

         FACTS

         The relevant facts are undisputed. Defendant drove while under the influence of alcohol and was arrested. The [363 Or. 267] state charged him with felony DUII because defendant had two previous DUII convictions. See ORS 813.010(5) (a person's third DUII within a 10-year period is a Class C felony). Defendant had been convicted of DUII in Georgia in 2007, and then again in Clackamas County, Oregon in 2010.

         Before trial, defendant moved to prohibit the use of the 2007 Georgia DUII conviction to aggravate the DUII from a misdemeanor to a felony. During the hearing on that motion, defendant testified that he had pleaded guilty to the Georgia DUII, but that he did not have an attorney at the time of his plea and was not advised about the benefits of having an attorney or the risks of proceeding without one. He also testified that, at the time of his arraignment in Georgia, he did not know that he had a right to counsel.

         After hearing evidence about the Georgia proceeding, the trial court in this case determined that the Georgia conviction could not be used against defendant to aggravate the DUII from a misdemeanor to a felony, noting that the record from the Georgia case did not contain any indication that there had been a valid waiver of the right to counsel. The court proceeded with a stipulated facts trial and found defendant guilty. Accordingly, the trial court convicted defendant of misdemeanor DUII as a lesser-included offense.

         At sentencing, defendant moved to prohibit the use of the 2007 Georgia DUII conviction to permanently revoke his driving privileges under ORS 809.235(1)(b). Defendant argued that the court's determination that the Georgia conviction was obtained in violation of Article I, section 11, of the Oregon Constitution and the Sixth Amendment of the United States Constitution meant that the Georgia conviction was invalid as a matter of Oregon law and could not be used for any purpose. The trial court disagreed and imposed a permanent revocation of defendant's driving privileges.

         Defendant appealed, arguing that Article I, section 11, and the Sixth Amendment both prohibited the use of uncounseled prior convictions to impose a less favorable disposition in a later proceeding. The Court of Appeals affirmed without issuing a written opinion.

          [363 Or. 268] ANALYSIS

         On review, defendant argues that the trial court's use of the prior uncounseled DUII conviction to permanently revoke his driving privileges as part of his criminal sentence violated his right to counsel under Article I, section 11, and the Sixth Amendment. For the reasons stated below, we decide only the Sixth Amendment issue, and we begin with that analysis.

         The Sixth Amendment provides that," [i] n all criminal prosecutions, the accused shall * * * have the Assistance of Counsel for his [defense]." The Sixth Amendment requires that a defendant in a criminal prosecution have the benefit of counsel or that the defendant validly waive counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The right to counsel also extends to plea proceedings. Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). The parties have assumed, as do we, that defendant's Georgia DUII conviction was obtained in violation of defendant's Sixth Amendment right to counsel.

         Over 50 years ago, the United States Supreme Court stated that the Sixth Amendment prohibits the use of an uncounseled prior conviction obtained in violation of the right to counsel to "support guilt or enhance punishment for another offense." Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); accord United States v. Bryant, ___ US ___, 136 S.Ct. 1954, 1962, 195 L.Ed.2d 317 (2016) (quoting Burgett with approval). Burgett involved an uncounseled state felony conviction, which the Court held could not be used to prove a prior-felony element of a state recidivist statute. 389 U.S. at 115.

         But since Burgett, the Supreme Court has held that uncounseled convictions are not invalid for all purposes. In Lewis v. United States, 445 U.S. 55, 65-67, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), the Court explained that use of an uncounseled prior conviction to impose a later consequence violates the Sixth Amendment if that later consequence is a punishment enhancement, but the Sixth Amendment is not violated if that later consequence is only a civil disability. The Court held that an uncounseled prior felony conviction [363 Or. 269] could be used to support the defendant's misdemeanor conviction for violating the prohibition on felons possessing firearms, when he was not sentenced to any incarceration. Id. at 65-67. The Court determined that an uncounseled prior conviction could be used to enforce an "essentially civil disability through a criminal sanction," because such a use would not "'support guilt or enhance punishment.'" Id. at 67 (quoting Burgett, 389 U.S. at 115). Thus, whether the Sixth Amendment prohibits the use of defendant's uncounseled Georgia conviction to support the permanent revocation of defendant's driving privileges under ORS 809.235 boils down to whether the revocation of driving privileges is essentially a "civil disability" as in Lewis, which the state urges, or a punishment enhancement as in Burgett, which defendant urges.

         The Supreme Court, however, has not stated a test to draw the line between civil disability and punishment enhancement for purposes of determining whether an uncounseled conviction can be used to impose a particular consequence. The Court's opinion in Lewis set out the distinction between civil disabilities and criminal penalties, but gave little indication as to how to differentiate between the two, aside from the conclusory statement that enforcement of a civil disability does not "support guilt or enhance punishment." Lewis, 445 U.S. at 67 (quoting Burgett, 389 U.S. at 115).

         Therefore, to make that determination in this case, we look beyond Sixth Amendment right-to-counsel jurisprudence to see how that distinction plays out in other contexts. The Double Jeopardy Clause and Ex Post Facto Clause are particularly useful because they require the same fundamental inquiry as the Sixth Amendment issue at hand: whether a particular consequence is a punishment. The Double Jeopardy Clause requires a determination as to whether a particular consequence is a criminal punishment because it prohibits punishing a person twice for the same offense; however, imposing a punitive sanction and a civil sanction for the same offense is permitted. See Helvering v. Mitchell,303 U.S. 391, 399-400, 58 S.Ct. 630, 82 L.Ed. 917 (1938) (stating rule). Thus, some cases involving the [363 Or. 270] Double Jeopardy Clause analyze whether a particular consequence is a criminal punishment or merely a civil sanction. See id. at 399 (stating the issue as "whether [a statute] imposes a criminal sanction"). Likewise, the Ex Post Facto Clause prohibits retroactive punishment, so cases applying it may include consideration of whether the consequence to be imposed is a criminal punishment. See, e.g., ...


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