You’re representing a client in a felony domestic violence case, which means that he had a prior misdemeanor for the same crime.  You learn that he didn’t have a lawyer when he pled to the misdemeanor.  Can the prior conviction still be used to enhance the felony charge?

As in most everything else in the law, it depends, but there’s a nice recent case out of the 5th District — [1] State v. Mack – which tackles that issue.  In Mack, the state introduced the journal entry from the municipal court, as well as a transcript of the plea hearing there.  The transcript indicated that the court explained the defendant’s rights to him, then asked him to sign a form.  The form was not in the record, though, and the appellate court held that the record failed ”to affirmatively demonstrate that appellant waived his right to counsel,” and thus ”the plea was uncounseled and the right to counsel was not waived.”  The court dismissed the specification and remanded the case for resentencing on a misdemeanor.

It’s a good result for defense attorneys, and there are some good cases out of the 8th District, including [2] this one, where the court held that the municipal court’s solitary inquiry — “is it your intention today to proceed without a lawyer?” — wasn’t sufficient to show that defendant “fully understood and relinquished that right.” 

There are some pitfalls to beware of.  The burden is on the defendant to show that the misdemeanor conviction was uncounseled, but that’s just a burden of production; once he meets that, which can be done simply by introducing an affidavit stating that he didn’t knowingly waive counsel, the burden of proof shifts to the state to prove that there was a knowing and voluntary waiver of the right.  Also, even if the misdemeanor defendant didn’t validly waive counsel, there’s no constitutional violation if he wasn’t incarcerated, as the 8th District notes [3] here. 

Finally, keep in mind that strict compliance with the rules requiring waivers to be recorded isn’t necessary, as this 8th District decision [4] indicates.  The bottom line is that if there’s a signed waiver in the municipal court file, that’s probably going to be enough.