Must show waiver of right to counsel to use for enhancement

Matthew Edge won in State v. Hughes, No. 98,716 (Kan. Feb. 12, 2010), reversing a sentence in a Sedgwick County agg escape prosecution. The main issue was whether certain Dodge City municipal convictions should be included in criminal history. Mr. Hughes had signed a waiver form, but it did not include a certification by the judge, like one included in a sample waiver form previously included in a previous KSC case, that the defendant was "fully informed of the charges against him or her and of the accused's right to have counsel . . . and that the accused has executed the above waiver in my presence, after its meaning and effect have been fully explained to the accused."

Ultimately, however, we find that [In re Gilchrist, 238 Kan. 202, 708 P.2d 977 (1985)] does not require that municipal courts use forms identical to the sample included in the opinion. At the heart of Gilchrist was finding a way to assure that a defendant's right to counsel was adequately protected without unduly burdening the municipal courts. What is clear after Gilchrist is that because municipal courts are not courts of record, a written document should be obtained so that there is evidence that the defendant was fully infomrd of his or her rights to counsel and that any waiver thereof was knowingly and intelligently made.

What is apparent from Gilchrist is that the evidence in the record must answer two critical questions in order to establish knowing and voluntary waiver of counsel: first, whether the defendant has been fully advised and properly informed of his or her right to counsel and, second, whether, upon having been fully advised and properly informed, the defendant made a clear determination not to have counsel represent him or her before the court.

Applying this law, the KSC reviewed the waiver in Mr. Hughes' case:

The waiver form utilized by the Dodge City Municipal Court is sufficient in establishing what Hughes may have believed his rights to be and a voluntary waiver of those perceived rights. Absent however, is any verification or validation of what he was told, a function that the Gilchrist certification satisfies. It is not up to the defendant to know what "fully advise" means. It is the judge who is burdened with assuiring that Hughes' rights have been adequately protected. Recently, we clarified that when a defendant exercises his or her statutory right to challenge the accuracy of the convictions contained in his or her criminal history worksheet, the State must carry the burden of producing further evidence proving the truth of the convictions by a preponderance of the evicence. The State may not shift the burden onto the defendant to disprove the convictions.

Because the form was insufficient, the KSC reversed and remanded to the district court with a recalculated criminal history.

This is probably an important case with reference to a lot of municipal convictions used in criminal history every day around Kansas.