inform the Court on the instant enhancement question.
1. The 1966 Burglary Conviction
On February 21, 1990, the defendant testified in open court regarding the 1966 conviction from the State of Texas. The defendant's testimony recounted that on or about February 18, 1966, defendant was brought before a state court judge in Wichita Falls, Wichita County, Texas, on charges of burglary. (Def. Transcript at 5). Defendant testified that the judge asked whether defendant had an attorney and he responded that he did not have one. Defendant further testified that the judge appointed defendant an attorney. The attorney then conferred with the District Attorney and informed the defendant that he could receive a three-year probation term if he pled guilty and defendant then pled guilty. (Def. Transcript at 5). Defendant testifies that he was not show the information that the State of Texas had against him, told of the consequences of his plea either by his attorney or the judge, told that he had a right to trial by jury, told that he had a right to confront witnesses, or told that he had a right to remain silent. (Def. Transcript at 5-6). Defendant further testified that he was not allowed an opportunity to attempt to contact his family or to arrange for private counsel. (Def. Transcript at 7).
Finally, defendant testified that prior to or at the hearing, he did not have an understanding of the rights which he now alleges were not explained to him and that as a black man in Texas in 1966, he did whatever his attorney told him to do. (Def. Transcript at 14, 15, 16, 18).
B. The 1967 Burglary Conviction
Defendant also testified on February 21, 1990 regarding the second felony conviction for burglary which occurred on April 28, 1967. The defendant's testimony recounted that on or about April 28, 1967, defendant was brought before a state court judge in Plano, Collin County, Texas, on charges of burglary. (Def. Transcript at 9). Again, defendant's testimony suggests that defense counsel was appointed on the day of defendant's appearance before the state court. Evidently pursuant to some discussion with the prosecution, defendant's counsel told him if he pled guilty, he would receive a three year sentence which would run concurrent with his previously entered probationary period in the Wichita County conviction. He was also told that if he did not plead guilty, he would go before the "hanging judge and probably get 12 years." (Def. Transcript at 10). Defendant further testified that he was not read certain rights, specifically his right to trial by jury, his right to confront witnesses, his right to remain silent or his right to subpoena witnesses on his behalf. In addition, defendant testified that the consequences of his plea were not discussed nor explained to him. (Def. Transcript at 11-12).
The necessary inquiry for the district court in circumstances involving collateral attack of the constitutionality of prior convictions in a sentence enhancement setting appears to be as follows. First, the court must determine whether the conduct alleged actually rises to the level of a constitutional violation. Second, the district court must determine whether the constitutional principle upon which the violation has occurred should be applied retroactively.
The United States Supreme Court has consistently held that where a presumptively unconstitutional conviction is obtained, that conviction cannot be used to enhance a subsequent criminal sanction pursuant to an habitual criminal statute. For example, in Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, (1963), the rule was established that the sixth amendment, as applicable to the states through the fourteenth amendment, provides an absolute right to counsel in all felony cases in state court absent a valid waiver.
Any conviction obtained in the absence of counsel and absent a valid waiver is presumptively unconstitutional and invalid.
Subsequently, in Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319, (1967), the Supreme Court stated that "to permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense. . . is to erode the principle of that case." Id. at 115, 88 S. Ct. at 262 (emphasis added and citation omitted).
Two years after the decision in Burgett, the Supreme Court, in Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), stated that
the requirement that the prosecution spread on the record the prerequisites of a valid waiver is no constitutional innovation. In Carnley v. Cochran, 369 U.S. 506, 516, 82 S. Ct. 884, 890, 8 L. Ed. 2d 70, we dealt with a problem of waiver of the right to counsel, a Sixth Amendment right. We held: "Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver."