NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
_____________ COUNTY SUPERIOR COURT DIVISION
FILE NO. _____________________
STATE OF NORTH CAROLINA
MEMORANDUM IN SUPPORT OF
vs. DEFENDANT'S MOTION TO
SUPPRESS PRIOR CONVICTION
______________________________,
Defendant.
FACTS: On 13 January 2002, the Defendant was charged with driving while impaired, pursuant to G.S. 20-138.1 in Pitt County. Defendant was subsequently indicted for driving while impaired and habitual driving while impaired in the Superior Court Division. This matter is currently pending in Pitt County Superior Court for jury trial. Upon information and belief, the District Attorney or one of his Assistants for the Three-A Judicial District will attempt to elicit from the Defendant, in the event that he takes the stand, his prior conviction in 1995 for driving while impaired in order to impeach said Defendant, to enhance sentencing in the event that the Defendant is convicted of the current charge of driving while impaired, and to prove the crime of habitual driving while impaired.
Counsel for Defendant examined the record in Pitt County File No. which were provided to him by the Office of the Clerk of Superior Court for Pitt County, Criminal Division, pursuant to Defendant's request and determined that Defendant entered a plea of guilty to driving while impaired and was found guilty of the same by the trial court based upon that plea. Further, counsel's examination revealed that there is no documentation or notation to reflect that the trial court advised the Defendant of his vital constitutional rights as set forth in Boykin v. Alabama, 395 U.S. 228 (1969), nor that the trial court examined the Defendant to determine whether he voluntarily and understandingly waived those rights and understood the connotations and consequences of his plea. Based upon these findings and/or the lack thereof, counsel filed a Motion To Suppress upon which this Memorandum is offered in support.
ISSUE:
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WHETHER DEFENDANT'S PRIOR CONVICTION OF DRIVING WHILE IMPAIRED SHOULD BE SET ASIDE WHEN IT WAS OBTAINED IN VIOLATION OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS.
I. BEFORE ENTERING A PLEA OF GUILTY, EVERY DEFENDANT MUST BE ADVISED OF THE RIGHT AGAINST SELF-INCRIMINATION, THE RIGHT TO TRIAL BY JURY, AND THE RIGHT TO CONFRONT ONE’S ACCUSERS. (I.E. MUST BE “BOYKINIZED”)
Before accepting any guilty plea, the trial court must converse with the Defendant to insure that he has a full understanding of the consequences and connotations of his guilty plea. See, Boykin v. Alabama, 395 U.S. 238 (1969); State v. Radcliffe, 14 N.C. App. 275, 188 S.E.2d 14 (1972). In 1969, the United State Supreme Court held in Boykin v. Alabama, 395 U.S. 238 (1969) that:
[s]everal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the states by reason of the Fourteenth.Mallory v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed. 2d 653. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444 20 L.Ed. 2d 491.Third is the right to confront one's accusers Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923.
The trial court cannot presume a waiver of these three important Federal and State constitutional rights from a silent record. Boykin at 243-244; State v. Harris, 10 N.C. App. 553 180 S.E.2d 29 (1971).
In State v. Harris, 10 N.C. App. 553 190 S.E.2d 29 (1971), the Court of Appeals vacated defendant's convictions for driving while under the influence and driving while license permanently revoked based upon the failure of the record in that case to affirmatively show that the defendant was aware of the consequences of his plea of guilty and that his pleas were voluntarily and understandably entered. The Supreme Court in State v. Ford, 281 N.C. 62, 187 S.E.2d 697 (1972) stated that "notwithstanding a defendant who is represented by counsel enters a plea of guilty ... it must appear affirmatively in the record that he did so voluntarily and understandably." Ford at 65; See, Harris supra; State v. Treadway, 12 N.C. App. 167, 182 S.E.2d 638 (1971); and State v. Atkins, 12 N.C. App. 169 182 S.E.2d 595 (1971).
In State v. Radcliffe, 14 N.C. App. 275, 188 S.E.2d 14 (1972), the defendant's conviction for driving while license permanently revoked was vacated based upon the failure of the record before the court to show that there was an examination of the defendant by the trial court regarding whether he understood the connotations and consequences of his plea. The Court of Appeals noted that the record showed that the defendant's attorney entered the plea for him, but failed to show there was any examination of the Defendant for his understanding of the consequences and connotations of his guilty plea, and thus, vacated the plea back to the trial court (emphasis added). In stating these principles, the Court of Appeals in Radcliffe relied upon the principles delineated by the United States Supreme Court in Boykin v. Alabama, supra.
At the time of Defendant's entry of plea of guilty in Pitt County File No. 95 CR 29218, the principles set forth above were applicable to the trial court. Hence, the file/shuck/record in this case must reflect that the trial court advised the Defendant of the Federal and State constitutional rights outlined above, the consequences and connotations of his guilty plea, and that he intelligently and voluntarily waived those rights. See, Boykin, Harris, Radcliffe, and Ford, supra. If the contents of this file/shuck/record fail to reflect any documentation or notations of these advisements and inquiries, this prior conviction is ripe for the Defendant's Motion To Suppress the conviction for the purposes required.
II. EVERY DEFENDANT MUST BE “BOYKINIZED” REGARDLESS OF WHETHER OR NOT HE IS REPRESENTED BY COUNSEL.
In this prior conviction for driving while impaired, it is anticipated that the State will contend that the Defendant need not be "Boykinized" because he may have been represented by counsel. However, it should be noted that in Boykin, Ford, Harris, and Radcliffe, supra, all Defendants were represented by counsel (emphasis added). The inherent purpose in being "Boykinized" is to insure the reliability of pleas and verdicts of guilty and not blindly rely upon guilty pleas to be entered upon the Defendant based solely upon the consent of his/her counsel. Id.
III. A CONVICTION BASED UPON A DEFENDANT’S PLEA OF GUILTY WHERE HE IS NOT “BOYKINIZED” CANNOT BE USED FOR IMPEACHMENT PURPOSES.
For the reasons indicated supra, the conviction of Defendant for driving while impaired based upon his plea in Pitt County File No. 95 CR 29218, was in violation of his State and Federal Constitutional Rights. The United States Supreme Court and the North Carolina Court Appeals have held that contitutionally invalid convictions may not be used for impeachment purposes. See, Loper v. Beto, 405 U.S. 473 (1973); State v. Benson, 35 N.C.App. 369, 241 S.E. 2nd 390 (1970). In State v. Benson, the trial court, over objection of the defendant, permitted the State to cross examine the defendant regarding a prior conviction of a crime against nature when he was on trial for first degree rape and assault with intent to commit rape. Cross examination on this prior conviction reflected that the defendant did not employ an attorney nor was one appointed for him and he plead guilty and received an active sentence. The Court of Appeals held that the trial court committed error in allowing cross examination of the defendant in reference to this prior conviction when it was based upon a prior conviction which violated constitutional standards, and remanded the case for a new trial. Benson at page 373.
IV. A CONVICTION BASED UPON A DEFENDANT’S PLEA OF GUILTY WHERE HE WAS NOT “BOYKINIZED” CANNOT BE USED TO AGGRAVATE OR ENHANCE IMPRISONMENT.
In Baldasar v. Illinois, 446 U.S. 222 (1980), the United State Supreme Court held that an uncounseled conviction cannot be used to increase imprisonment at a sentencing hearing in a subsequent conviction. As Boykin commands, the protection afforded a defendant by the right to counsel applies to the waiver of rights pursuant to guilty pleas. Thus, prior convictions cannot be used as aggravating factors to subject a defendant to enhanced imprisonment in violation of the standards for Federal and State constitutional rights set forth in Boykin, and subsequent cases applying its standards.
CONCLUSION
Applying these principles to the case sub judice results in the following conclusions. First, that in Pitt County File No. 95 CR 29218, the trial court did not comply with the Federal and State constitutional requirements set forth in Boykin and therefore, the conviction contained in Pitt County File No. 95 CR 29218 cannot be allowed to stand as a prior conviction. Second, that as a result of this conviction being obtained in violation of Boykin, it cannot be used for impeachment purposes. Third, that as a result of this conviction being obtained in violation of Boykin, it cannot be used to enhance or aggravate any sentencing, pursuant to Baldasar. Accordingly, it is respectfully submitted that Defendant's Motion To Suppress be granted.
Respectfully submitted, this the _____ day of ________________, 20_______.
________________________
Attorney for Defendant
By: ___________________________
CERTIFICATE OF SERVICE
I, , Counsel for Defendant, do hereby certify that a copy of the foregoing List of Pending Motions was duly served upon the District Attorney of County, , by hand-delivering a copy of the same directly to said District Attorney’s Office at the following address:
This the ____ day of _____________, 20______.
Attorney for Defendant
By: ________________________