State v. Bixby

997 N.W.2d 787

315 Neb. 549

315 Neb. 549

STATE of Nebraska, appellee,

v.Clay Y. BIXBY, appellant.

No. S-23-168.

Supreme Court of Nebraska.

Filed December 8, 2023

Syllabus by the Court

₅₄₉1. Prior Convictions: Appeal and Error. On a claim of insufficiency of the evidence, an appellate court, viewing and construing the evidence most favorably to the State, will not set aside a finding of a previous conviction for the purposes of sentence enhancement supported by relevant evidence.

2. Sentences: Prior Convictions: Proof. In order to prove a prior conviction for purposes of sentence enhancement, the State has the burden to prove the fact of the prior convictions by a preponderance of the evidence, and the trial court determines the fact of prior convictions based upon the preponderance of the evidence standard.

3. Trial: Evidence: Proof. Preponderance of the evidence requires proof which leads the fact finder to find that the existence of the contested fact is more probable than its nonexistence.

4. Sentences: Drunk Driving: Prior Convictions: Proof: Time. The plain and ordinary meaning of Neb. Rev. Stat. § 60-6,197.02 (Reissue 2021) does not require the State to prove the exact date of the prior offense for purposes of sentence enhancement.

5. Sentences: Prior Convictions: Evidence: Appeal and Error. On an appeal of a sentence enhancement hearing, an appellate court views and construes the evidence most favorably to the State.

6. Statutes: Appeal and Error. An appellate court will not resort to interpretation of statutory language to ascertain the meaning of words that are plain, direct, and unambiguous.

7. Convictions: Presumptions: Right to Counsel: Waiver: Proof. Any conviction record obtained after Gideon v, Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), is entitled to a presumption of regularity, such that once the government establishes the existence of a prior conviction, it becomes the defendant’s burden to prove that he or ₅₅₀she did not have counsel and did not waive the right to counsel at the time of conviction.

Appeal from the District Court for Grant County: Travis P. O’Gorman, Judge. Affirmed.

Bell Island, of Island Law Office, P.C., L.L.O., for appellant,

Michael T. Hilgers, Attorney General, and Melissa R. Vincent for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Funke, J.

INTRODUCTION

Clay Y. Bixby appeals his conviction for driving under the influence (DUI), third offense. He argues that the district court for Grant County, Nebraska, erred in using evidence offered by the State of two prior DUI convictions to enhance his sentence. Finding no error, we affirm his conviction and sentence.

BACKGROUND

This is Bixby’s third appeal arising from his arrest in March 2018 for DUI. That offense led to the State’s charging Bixby with DUI under Neb. Rev. Stat. § 60-6,196 (Reissue 2021), third offense, aggravated, among other charges.

After a mistrial and the denial of Bixby’s plea in bar,¹ we denied Bixby’s petition for further review. Before Bixby was to be retried by the State, Bixby moved for absolute discharge on speedy trial grounds. The district court granted that motion, but we reversed that decision and remanded the cause for further proceedings.² Bixby was retried and convicted by a jury of DUI, a Class W misdemeanor.

₅₅₁The district court heard Bixby’s subsequent sentence enhancement on January 18, 2023. At the hearing, the State offered two exhibits, exhibits 30 and 31, which the State indicated were records of Bixby’s two prior convictions for DUI offered for sentence enhancement purposes.

Exhibit 30 was a certified copy of a journal entry and order of Bixby’s conviction from Thomas County, Nebraska. The exhibit showed a "CR 10" case identification number. The exhibit also showed that at a hearing on March 1, 2011, Bixby pled guilty to "DUI-1st offense" under § 60-6,196, a Class W misdemeanor. He was sentenced on that same date to terms of probation, license impoundment, and a fine.

Exhibit 31 was a certified copy of a "Judgment of Conviction" from the Sixth Judicial Circuit Court in Bennett County, South Dakota. The exhibit showed a docket number beginning with "03C12." The exhibit also showed that Bixby was charged by information, was arraigned, and pled guilty on November 27, 2012, to "driving under influence-1st of[fense]" under a South Dakota statute, S.D. Codified Laws § 32-23-2 (2011). He was sentenced on February 6, 2013, to terms of imprisonment, license revocation, and a fine.

Neither exhibit contained a copy of the charging document, nor specifically identified the date of Bixby’s underlying DUI offenses. The State did not provide any further evidence regarding the prior DUI offenses.

Bixby objected to the admission of both exhibits, arguing that neither met the requirements of a valid prior conviction for purposes of sentence enhancement. Bixby articulated several different reasons why the prior convictions were invalid for sentence enhancement. These arguments are largely the same as those Bixby now raises on appeal and will be detailed in our analysis.

The district court entered its order on February 15, 2023, finding that both of Bixby’s prior convictions were valid for purposes of sentence enhancement. In relevant part, the order stated the following:

₅₅₂The [S]tate made a prima facie case with respect to both Exhibits 30 and 31. The offense at issue in this case occurred on March 9, 2018. The State can enhance with prior convictions dating back to March 9, 2003. The sentencing in Exhibit 30 occurred on March 1, 2011. The case has a CR 10 case number, meaning the case was filed in 2010. If this offense occurred prior to March 9, 2003, that would mean there was a delay in charging, convicting and sentencing of over seven years. This is unreasonable.

Likewise, the sentencing in Exhibit 31 occurred on February 6, 2013. That would require a delay of over 9 years. Again, this is unreasonable. Both exhibits are prima facie valid for enhancement purposes. The State proved by a preponderance of the evidence that both prior convictions occurred within 15 years of the offense at issue. The burden shifted to [Bixby] to show the court otherwise. [He] failed to do so.

….

[Bixby] also challenges Exhibit 31, a South Dakota conviction, on the ground that the State failed to show that the law[s] in South Dakota and Nebraska … have the same scope and application. This Court disagrees.

Although the statute cited in Exhibit 31 (32-12-2) is the sentencing statute, [Bixby] was obviously convicted under 32-23-1, the [DUI] statute. In South Dakota, one can be convicted of DUI if there is 0.08 percent or more [by] weight of alcohol in that person’s blood. The same is true in Nebraska. In addition, South Dakota defined "under the influence" as "to a degree which renders the person incapable of safely driving." This is similar to Nebraska’s definition as "sufficient to impair to any appreciable degree the ability to operate a motor vehicle in a prudent and cautious man- ner." The burden then shifted to [Bixby] to "bring mitigating facts to the attention of the court[ ]" to show otherwise.

₅₅₃Exhibits 30 and 31 are both valid and usable prior convictions. Both are admitted. [Bixby] will be sentenced on a third offense [DUI], a Class W Misdemeanor.

Having enhanced Bixby’s DUI conviction to a third offense, the district court consequently sentenced him to 18 months of probation, a $1,000 fine, and a 2-year license revocation.

Bixby timely filed the present appeal, and we moved the case to our docket.³

ASSIGNMENT OF ERROR

Bixby assigns, restated, that the district court erred in enhancing his DUI conviction to a third offense because the two prior DUI convictions were invalid for enhancement purposes.

STANDARD OF REVIEW

[1] On a claim of insufficiency of the evidence, an appellate court, viewing and construing the evidence most favorably to the State, will not set aside a finding of a previous conviction for the purposes of sentence enhancement supported by relevant evidence.⁴

ANALYSIS

Bixby’s sole argument on appeal is that the district court erred in enhancing his DUI conviction to a third offense because the two prior DUI convictions Were invalid for enhancement purposes. In support of this assigned error, Bixby argues that the prior convictions were invalid for three different reasons. Before addressing each of these arguments below, we briefly review the relevant law governing prior convictions and sentence enhancement.

[2–4] We declared some years ago that in order to prove a prior conviction for purposes of sentence enhancement, the ₅₅₄State has the burden to prove the fact of the prior conviction by a preponderance of the evidence, and that the trial court determines the fact of prior convictions based upon the preponderance of the evidence standard.⁵ A preponderance of the evidence requires proof which leads the fact finder to find that the existence of the contested fact is. more probable than its nonexistence.⁶ In other words, a preponderance of the evidence is the equivalent of the greater weight of the evidence.⁷ The greater weight of the evidence requires proof which leads the trier of fact to find that the existence of the contested fact is more likely true than not true.⁸

Neb. Rev. Stat. § 60-6,197.02 (Reissue 2021) details the process for determining what constitutes a valid prior DUI offense for purposes of sentence enhancement. It provides that for purposes of sentence enhancement, a "[p]rior conviction" is "a con- viction for a violation committed within the fifteen-year period prior to the offense for which the sentence is being imposed."⁹ This includes (1) any conviction for a violation of § 60-6,196—which is what Bixby was convicted of in both of his Nebraska DUI prosecutions—or for another Nebraska DUI statute,¹⁰ (2) any conviction for a violation of a Nebraska DUI ordinance enacted in conformance with a Nebraska DUI statut...