IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent, Respondent on Review,

v.

RYAN JAMES HAMANN,

Defendant-Appellant, Petitioner on Review.

Washington County Circuit Court Case No. C142425CR Court of Appeals No. A159248 Supreme Court No. S064546

PETITIONER’S BRIEF ON THE MERITS

Review of the decision of the Court of Appeals

on an appeal from a judgment of the Circuit Court for Washington County Honorable Kirsten E. Thompson, Judge

Affirmed Without Opinion: November 16, 2016

Before: Armstrong, Presiding Judge, Tookey, Judge, and Shorr, Judge

ERNEST G. LANNET #013248 Chief Defender Criminal Appellate Section EMILY P. SELTZER #124513 Deputy Public Defender Office of Public Defense Services 1175 Court Street NE Salem, OR 97301

emily.seltzer@opds.state.or.us Phone: (503) 378-3349

Attorneys for Petitioner on Review

ELLEN F. ROSENBLUM #753239 Attorney General BENJAMIN GUTMAN #160599 Solicitor General PAUL L. SMITH #001870 Deputy Solicitor General 400 Justice Building 1162 Court Street NE Salem, OR 97301

paul.l.smith@doj.state.or.us Phone: (503) 378-4402 Attorneys for Respondent on Review

63991 05/17

May 15, 2017 03:53 PM

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TABLE OF CONTENTS

STATEMENT OF THE CASE ............................................................................ 1  QUESTION PRESENTED AND PROPOSED RULE OF LAW ........................ 2  STATEMENT OF FACTS ................................................................................... 2  SUMMARY OF ARGUMENT ............................................................................ 4 

ARGUMENT ................................................................................................. 5 

I.  When a court finds that a prior conviction was obtained in violation of the defendant’s right to counsel, Article I, section 11, prohibits the use of that conviction to impose additional consequences of a criminal conviction. .................................................................................................. 5  II.  Additionally, the permanent driver’s license revocation, standing alone, constitutes a punitive sanction, so Article I, section 11, prohibits the use of an uncounseled prior conviction to impose it. ......................... 14 

A.    The permanent revocation of a driver’s license is of a criminal nature and has a punitive effect. ........................................................... 16  B.  Any remedial purpose of ORS 809.235 does not render the permanent driver’s license revocation non-punitive. ............................ 23 

III.  Cases from this court that have faulted the defendant for not challenging a prior conviction until sentencing in a new case do not compel a different conclusion. ................................................................. 25  IV.  The Sixth Amendment prohibits the use of an uncounseled prior conviction to permanently revoke a defendant’s driver’s license. ........... 29 

CONCLUSION ................................................................................................... 34 

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TABLE OF AUTHORITIES

Cases 

Bailey v. Lampert, 342 Or 321, 153 P3d 95 (2007) ................................................................ 25, 29 Baldasar v. Illinois, 446 US 222, 100 S Ct 1585, 64 L Ed 2d 169 (1980), overruled by Nichols v. United States, 511 US 738, 114 S Ct 1921, 128 L Ed 2d 745 (1994) ...................................... 6 Bell v. Burson, 402 US 535, 91 S Ct 1586, 29 L Ed 2d 90 (1971) .......................................... 20 Brady v. Maryland, 373 US 83, 83 S Ct 1194, 10 L Ed 2d 215 (1963) .......................................... 25 Brown v. Multnomah County District Court, 280 Or 95, 570 P2d 52 (1977) .......................... 8, 15, 17, 18, 19, 20, 22, 23, 24 Burbage v. Dept. of Motor Vehicles, 252 Or 486, 450 P2d 775 (1969) ..................................................................... 23 Burgett v. Texas¸ 389 US 109, 88 S Ct 258, 19 L Ed 2d 261(1967) .................... 9, 29, 30, 31, 33 Carnley v. Cochran, 369 US 506, 82 S Ct 884, 8 L Ed 2d 70 (1962) .............................................. 10 City of Pendleton v. Standerfer, 297 Or 725, 688 P 2d 68 (1984) ....................................................... 6, 7, 12, 18 Custis v. United States, 511 US 485, 114 S Ct 1732, 128 L Ed 2d 517 (1994) ............................. 11, 29 Daniels v. United States, 532 US 374, 121 S Ct 1578, 149 L Ed 2d 590 (2001) .................................... 29 El-Nobani v. United States, 287 F3d 417 (6th Cir 2002) ............................................................................. 13

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Gideon v. Wainwright, 372 US 335, 83 S Ct 792, L Ed 2d 799 (1963) .......................................... 7, 29 Hall v. Gainsheimer, 137 Fed Appx 866 (6th Cir 2005) (unpublished) ............................................ 13 Kennedy v. Mendoza-Martinez, 372 US 144, 83 S Ct 554, 9 L Ed 2d 644 (1963) ............................................ 16 Lackawanna County District Attorney v. Coss, 532 US 394, 121 S Ct 1567, 149 L Ed 2d 608 (2001) .................................... 29 Lewis v. United States, 445 US 55, 100 S Ct 915, 63 L Ed 2d 198 (1980) ................. 11, 28, 31, 32, 33 Loper v. Beto, 405 US 473, 92 S Ct 1014, 31 L Ed 2d 374 (1972) ............................. 5, 24, 30 Padilla v. Kentucky, 559 US 356, 130 S Ct 1473, 176 L Ed 2d 284 (2010) ............................... 6, 14 Powell v. Alabama, 287 US 45, 53 S Ct 55, 77 L Ed 158 (1932) .............................................. 6, 11 Scott v. Illinois, 440 US 367, 99 S Ct 1158, 59 L Ed 2d 383 (1979) .......................................... 8 State ex rel. Oregonian Pub. Co. v. Deiz, 289 Or 277, 613 P2d 23 (1980) ......................................................................... 9 State v. Benoit, 354 Or 302, 311 P3d 874 (2013) ..................................................................... 15 State v. Bouse, 199 Or 676, 264 P2d 800 (1953) ..................................................................... 10 State v. Davis, 350 Or 440, 256 P3d 1075 (2011) ..................................................................... 7 State v. Dawson, 277 Or App 187, 369 P3d 1244, rev den, 359 Or 847 (2016) ......................... 23

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State v. Hamann, 282 Or App 369, 385 P3d 103 (2016), rev allowed, 361 Or

100 (2017) ...................................................................................................1, 34 State v. Jacob, 344 Or 181, 180 P3d 6 (2008) ...................................................... 25, 26, 27, 29 State v. Probst, 339 Or 612, 124 P3d 1237 (2005) ...............................................................8, 12 State v. Robinson, 235 Or 524, 385 P2d 754 (1963) .....................................................................23 State v. Sparklin, 296 Or 85, 672 P2d 1182 (1983) ....................................................................... 5 State v. Steen, 346 Or 143, 206 P3d 614 (2009) .....................................................................10 State v. Unger, 56 Or 59, 333 P3d 1009 (2014) ......................................................................... 9 State v. Wedge, 293 Or 598, 652 P2d 773 (1982) .....................................................................26 United State v. Tucker, 404 US 443, 92 S Ct 589, 30 L Ed 2d 592 (1972) ..........................................30 United States v. Gonzalez, 202 F3d 20 (1st Cir 2000) ...............................................................................13

Constitutional Provisions and Statutes

US Const, Amend V ...........................................................................................16 US Const, Amend VI ................................. 1, 2, 5, 7, 8, 10, 16, 23, 29, 30, 33, 34 18 U.S.C. App. § 1202 ........................................................................................31

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Or Const, Art I, § 11 ............................................................................................... .................... 1, 2, 4, 5, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 22, 23, 26, 27, 29, 34 Or Const, Art I, § 15 ........................................................................................... 23 House Bill 2885 .................................................................................................. 19 ORS 137.545 ....................................................................................................... 20 ORS 138.540 ................................................................................................ 27, 28 ORS 801.020 ................................................................................................ 18, 19 ORS 807.240 ....................................................................................................... 20 ORS 809.235 .............. 1, 2, 4, 5, 13, 14, 16, 17, 18, 19, 20, 22, 23, 24, 25, 32, 33 ORS 809.409 ................................................................................................ 17, 20 ORS 809.421 ....................................................................................................... 17 ORS 811.175 ....................................................................................................... 18 ORS 811.182 ....................................................................................................... 17 ORS 813.010 ............................................................................................ 1, 12, 13 ORS 813.011 .................................................................................................. 1, 12 ORS 813.328 ...................................................................................... 4, 11, 12, 27 ORS 813.400 ....................................................................................................... 14 Senate Bill 942 .................................................................................................... 21

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Other Authorities 

American Civil Liberties Union, Driven to Fail: The High Cost of Washington’s Most Ineffective Crime ....... 21 Lawyer’s Committee for Civil Rights et al, Not Just a Ferguson Problem: How Traffic Courts Drive Inequality in

California ........................................................................................................ 21 Exhibit E, House Committee on Judiciary, HB 2885, Apr 3, 2003 ................... 19 Oregon Vehicle Code .......................................................................................... 18 U.S. Sentencing Guidelines Manual § 4A1.1 ..................................................... 18 Tape Recording, Senate Judiciary Committee, HB 2885, May 15, 2003, Tape 132, Side A ........................................................ 19, 22, 24 Tape Recording, Senate Judiciary Committee, SB 492, May 15, 2001, Tape 140, Side B ..................................................................... 21

PETITIONER ON REVIEW’S BRIEF ON THE MERITS

STATEMENT OF THE CASE

This court allowed defendant’s petition for review of the decision of the

Court of Appeals, which affirmed defendant’s judgment of conviction for

misdemeanor driving under the influence of intoxicants (DUII), ORS 813.010,

without opinion. State v. Hamann, 282 Or App 369, 385 P3d 103 (2016), rev

allowed, 361 Or 100 (2017). Defendant was convicted of DUII in 2007 and

2010, and again in the instant case. The existence of two prior DUII

convictions or equivalent out-of-state convictions elevates DUII to a felony

offense, ORS 813.011(1), and requires the permanent revocation of driving

privileges. ORS 809.235(1)(b)(A). The trial court found that the 2007

conviction was obtained without counsel or a valid waiver of counsel, and so

acquitted defendant of felony DUII, but nonetheless used the 2007 conviction to

permanently revoke his driver’s license under ORS 809.235. Defendant argues

that the use of that prior uncounseled DUII conviction to permanently revoke

his driver’s license violated his right to counsel under Article I, section 11, of

the Oregon Constitution, and the Sixth Amendment to the United States

Constitution.

QUESTION PRESENTED AND PROPOSED RULE OF LAW

Question Presented

When a trial court finds that a defendant's prior conviction was

uncounseled, may the court use that conviction to permanently revoke the

defendant's driver's license under ORS 809.235?

Proposed Rule of Law

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No. When Oregon law provides for additional consequences of a

criminal offense based on a prior conviction, Article I, section 11 , and the Sixth

Amendment preclude reliance on a prior conviction that the trial court

concludes was obtained in violation of a defendant's right to counsel. When a

trial court finds that a defendant's prior DUii conviction or an equivalent out­

of-state conviction was uncounseled, the court may not rely on that prior

conviction to permanently revoke the defendant 's driver's license under ORS

809.235.

STATEMENT OF FACTS

On October 11, 2014, defendant drove while under the influence of

alcohol. Tr 25. Defendant's blood-alcohol content measured 0.22 percent. Tr

26. The state charged defendant with felony DUii. Indictment, App Br ER-1.

Defendant did not contest the evidence that he drove while under the influence

of intoxicants in 2014, nor did he contest a prior DUii conviction in Clackamas

County from 2010. Tr 7, 45-47. Defendant contested the use of a 2007

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conviction to elevate the current offense to a felony and, later, to support a

permanent revocation of driving privileges. Tr 12-14, 55-67.

In 2007, when defendant was 22 years old, he faced a driving-while-

intoxicated charge in Georgia. Tr 7, 12, 21. Defendant had never been charged

with a crime before, he was in the military at that time, and his superior officer

told him that he should resolve the case as quickly as possible so that he could

be deployed. Tr 16, 20. He pleaded guilty without advice about the risks of

proceeding without an attorney. Tr 17. At the plea hearing, the Georgia court

asked defendant if he understood the punishment he was facing, but did not

engage in any colloquy about the right to counsel, and defendant did not waive

his right to counsel on the record. Tr 13, Ex 1.

After hearing evidence of the Georgia proceeding, the court found that

defendant did not make a knowing and intelligent waiver of counsel in 2007.

Tr 31. The court found that the 2007 conviction could not be used to convict

defendant of felony DUII. Tr 31. The court convicted defendant of

misdemeanor DUII as a lesser-included offense. Judgment, App Br ER-14.

The court sentenced defendant to two years of probation and, over defendant’s

objection, permanently revoked defendant’s driver’s license. Id; Tr 55-67.

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SUMMARY OF ARGUMENT

When a court finds that a defendant was convicted of a crime without the

assistance of counsel or a valid waiver of counsel, Article I, section 11,

precludes the court from using that conviction as a predicate offense to impose

additional consequences of a later criminal conviction. The lack of counsel

renders the prior conviction unreliable and invalid to support the imposition of

additional consequences at sentencing in future criminal case, as such use

would exacerbate and perpetuate the violation of the defendant’s right to

counsel.

By statute, when a court finds that a defendant’s prior conviction is

invalid because of a right-to-counsel violation, it may not use that conviction as

an element of the offense of felony DUII. ORS 813.328(1). Once making that

finding, the court may not use the invalid prior conviction to impose any

additional consequence when imposing sentence for a lesser-included

misdemeanor DUII conviction. The court-ordered permanent driver’s license

revocation required by ORS 809.235 upon a defendant’s third DUII conviction,

is a direct, additional consequence of a criminal conviction. Thus, Article I,

section 11, prohibits using an uncounseled prior conviction to impose it.

Even considered independently of the fact that it is a consequence of a

criminal conviction, the permanent revocation of a person’s driver’s license is a

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punitive sanction. Therefore, Article I, section 11, prohibits using an

uncounseled prior conviction to impose it.

Similarly, under the Sixth Amendment, an uncounseled prior conviction

may not be used to increase the sentence in a new criminal case. Because the

permanent driver’s license revocation is imposed as part of a criminal sentence

when ordered by the court as required by ORS 809.235, using an uncounseled

prior conviction to impose it violates the Sixth Amendment. Therefore, the trial

court erred in using defendant’s uncounseled prior driving-while-intoxicated

conviction to permanently revoke his driver’s license.

ARGUMENT

I. When a court finds that a prior conviction was obtained in violation of the defendant’s right to counsel, Article I, section 11, prohibits the use of that conviction to impose additional consequences of a criminal conviction.

Article I, section 11, of the Oregon Constitution protects an individual’s

right to defend against a criminal charge. It provides, “In all criminal

prosecutions, the accused shall have the right * * * to be heard by himself and

counsel* * *.” The Article I, section 11, right to counsel ensures the fairness of

a criminal prosecution. State v. Sparklin, 296 Or 85, 95, 672 P2d 1182 (1983).

Without counsel, the fundamental fairness of a criminal prosecution cannot be

ensured; the resulting conviction is unreliable. See Loper v. Beto, 405 US 473,

484, 92 S Ct 1014, 31 L Ed 2d 374 (1972) (The right to counsel “goes to the

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very integrity of the fact-finding process in criminal trials,” so that “a

conviction obtained after a trial in which the defendant was denied the

assistance of a lawyer lack[s] reliability.” (internal citations and quotation

marks omitted)); Powell v. Alabama, 287 US 45, 69, 53 S Ct 55, 77 L Ed 158

(1932) (“Without [counsel], though he be not guilty, [a criminal defendant]

faces the danger of conviction because he does not know how to establish his

innocence.”).1

Once a defendant establishes that his prior conviction was obtained

without the assistance of counsel, and the trial court agrees, the court may not

use that conviction to impose additional consequences of conviction in a later

case. See City of Pendleton v. Standerfer, 297 Or 725, 730, 688 P 2d 68 (1984)

(“The proper analysis was expressed by Justice Powell * * *. He reasoned that

if a prior uncounseled conviction is invalid, it is void and ‘could not be put to

other uses in court.’” (citing Baldasar v. Illinois, 446 US 222, 232, 100 S Ct

1585, 64 L Ed 2d 169 (1980), overruled by Nichols v. United States, 511 US

738, 114 S Ct 1921, 128 L Ed 2d 745 (1994)) (Powell, J., dissenting))). The

conviction cannot justify imposing additional consequences of a subsequent

1 The same principle applies equally to a guilty plea entered without the assistance of counsel. See Padilla v. Kentucky, 559 US 356, 364, 130 S Ct 1473, 176 L Ed 2d 284 (2010) (“Before deciding whether to plead guilty, a defendant is entitled to the effective assistance of competent counsel.” (internal citation and quotation marks omitted)).

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criminal conviction. See State v. Davis, 350 Or 440, 463, 256 P3d 1075 (2011)

(explaining that Article I, section 11, rights “arise in the course of criminal

‘prosecutions’”).

This court has recognized that principle under the Sixth Amendment to

the United States Constitution.2 Standerfer, 297 Or at 731 (explaining that

under the Sixth Amendment, “an invalid prior conviction may not be used to

support guilt or enhance punishment in a subsequent criminal proceeding”).

And in Standerfer, this court indicated that Article I, section 11, provides for a

similar but broader prohibition on the use of a prior uncounseled conviction to

impose a greater consequence of a criminal conviction.

Standerfer holds that a prior DUII conviction in violation of the

defendant’s Article I, section 11, right to counsel cannot be used to deny him

entry into DUII diversion under the Sixth Amendment. 297 Or at 730-32. This

court noted that if it were to consider the issue under Article I, section 11, the

analysis would extend beyond the Sixth Amendment question of whether the

prior offense was used to enhance the offense or the term of imprisonment to,

2 The Sixth Amendment to the United States Constitution provides in part:

“In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence [sic].”

The Sixth Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Gideon v. Wainwright, 372 US 335, 342-45, 83 S Ct 792, L Ed 2d 799 (1963).

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for example, “whether the prior conviction causes the second offense to be

treated in a punitive manner reflective of criminal rather than civil penalties.”

297 Or at 729. That is, this court recognized that Article I, section 11, would

likely prohibit the use of uncounseled prior convictions even more broadly than

the Sixth Amendment.3

And with good reason, as Article I, section 11, protects a broader right to

counsel than the Sixth Amendment: It applies to any prosecution of a criminal

character, while the Sixth Amendment applies solely when a defendant is

sentenced to a term of imprisonment. Compare Brown v. Multnomah County

District Court, 280 Or 95, 98, 570 P2d 52 (1977) (Article I, section 11, extends

“to all offenses if they have the character of criminal prosecutions”) with Scott

v. Illinois, 440 US 367, 374, 99 S Ct 1158, 59 L Ed 2d 383 (1979) (the Sixth

Amendment requires counsel only when the defendant is sentenced to a term of

imprisonment).

3 Additionally, in State v. Probst, 339 Or 612, 627, 124 P3d 1237

(2005), this court indicated that Article I, section 11, provides a right to challenge the use of an uncounseled prior conviction to increase the offense level of a new charge: “[W]e believe that it is clear that, with respect to the prior convictions that the state wishes to use as predicate offenses in the present case, the court may deny the state the right to use the conviction in that way if the state obtained them through a denial of defendant’s constitutional rights.” Indeed, the state “so concede[d].” Id. In Probst, a statute provided the defendant the ability to contest the application of an uncounseled prior conviction to enhance the offense level of a DUII charge, so this court did not directly address an Article I, section 11, right to do so. Id.

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Further, in providing that the accused retains a right to counsel, Article I,

section 11, “is a guarantee of individual rights.” State ex rel. Oregonian Pub.

Co. v. Deiz, 289 Or 277, 283, 613 P2d 23 (1980). To use an uncounseled prior

conviction to enhance sentencing consequences in a later case would violate a

citizen’s individual right to protect against the prosecutorial power of the state.

As Justice Linde put it, Article I, section 11, protects “personal freedom against

oppressive governmental power.” Id. at 288 (Linde, J., concurring). That

accords with the Oregon Constitution’s focus on protecting individual rights.

Cf. State v. Unger, 356 Or 59, 67, 333 P3d 1009 (2014) (the Oregon

exclusionary rule “serves to vindicate a defendant’s personal right to be free

from unreasonable searches and seizures” (citation omitted)).

To fulfill that protection of the individual’s right to counsel, once a trial

court determines that a defendant’s prior conviction was, in fact, obtained

without counsel or a valid waiver of counsel, the conviction cannot be used to

impose additional consequences at sentencing. The defendant is returned to the

position he occupied before the rights violation occurred. Cf. Unger, 356 Or at

67 (the goal of the Oregon exclusionary rule “is to restore a defendant to the

same position as if the government’s officers had stayed within the law”

(citations and quotations omitted)). Otherwise, the use of an uncounseled prior

conviction at sentencing in a second criminal prosecution would violate the

defendant’s right to counsel a second time. Burgett v. Texas¸ 389 US 109, 115,

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88 S Ct 258, 19 L Ed 2d 261(1967) (in that circumstance, “the accused in effect

suffers anew from the deprivation” of his right to counsel).

As noted, here, defendant had proven the 2007 conviction invalid in the

course of contesting the felony DUII prosecution. Consequently, this case does

not require this court to decide whether a defendant has an independent right at

sentencing to contest the validity of a prior conviction before it is used to

impose additional consequences. But there is a strong argument that a

defendant need not challenge the validity of the prior conviction before a

sentencing court acts in reliance on the prior conviction, because the Article I,

section 11, right to counsel is self-executing.

For instance, no objection at trial is required to permit an appellate court

to recognize its violation and reverse a conviction. See State v. Bouse, 199 Or

676, 686, 264 P2d 800 (1953) (explaining that when the right to counsel, and

therefore to a fair trial, is violated, “the verdict cannot stand as a matter of

law”); State v. Steen, 346 Or 143, 151, 206 P3d 614 (2009) (in the absence of a

valid waiver of counsel, a criminal defendant can assert the violation of his

right to counsel for the first time on appeal).4

4 Similarly, to be afforded the right to counsel under the Sixth

Amendment, a defendant need not make a request for counsel. Carnley v. Cochran, 369 US 506, 513, 82 S Ct 884, 8 L Ed 2d 70 (1962) (“[I]t is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request.”).

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Further, because a violation of the right to counsel is unique among

constitutional violations, infringing on a defendant’s right to be heard, it can be

remedied after the fact. See Custis v. United States, 511 US 485, 494-95, 114 S

Ct 1732, 128 L Ed 2d 517 (1994) (“There is thus a historical basis in our

jurisprudence of collateral attacks for treating the right to have counsel

appointed as unique, perhaps because of our oft-stated view that ‘[t]he right to

be heard would be, in many cases, of little avail if it did not comprehend the

right to be heard by counsel.’” (quoting Powell, 287 US at 68-69))). To

conclude otherwise would unreasonably require that, after a defendant’s right to

counsel is violated, he must retain counsel to defend that right. See Lewis v.

United States, 445 US 55, 72-73, 100 S Ct 915, 63 L Ed 2d 198 (1980)

(Brennan, J., dissenting) (when a prior conviction is uncounseled, “it simply

defies reason and sensibility” to conclude that the defendant waived his right to

challenge its use in a future proceeding by failing to “retain counsel” to pursue

a collateral attack).

But even if this court concludes that Article I, section 11, does not

provide an independent basis for contesting prior convictions at sentencing, that

is not what happened here. Defendant challenged his prior conviction under

ORS 813.328(1), which prevents the state from using invalid prior convictions

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to support a conviction for felony DUII.5 Thus, state law, without question,

already provided defendant the right and opportunity to demonstrate the

invalidity of the 2007 conviction. Probst, 339 Or at 627. The trial court found

that defendant met his burden of proving that his prior conviction was

uncounseled. Id. at 628 (when challenging a conviction used as a predicate

offense under ORS 813.328(1), the defendant bears the burden of proving that a

prior conviction was obtained in violation of his right to counsel). Once the

trial court ruled that the prior conviction was uncounseled and invalid, Article I,

section 11, prohibited the court from using that conviction to impose any

additional consequences of the misdemeanor DUII conviction.

The misdemeanor DUII charge at issue here is clearly of a criminal

nature, so this court need not determine whether the prior conviction caused it

to be treated as a criminal offense. See Standerfer, 297 Or at 729 (under Article

I, section 11, the analysis includes whether “the prior conviction causes the

5 DUII is a Class C felony if the defendant has been convicted of DUII or a similar out-of-state offense at least two times in the ten years preceding the current offense. ORS 813.011(1); ORS 813.010(5)(a). ORS 813.328(1) provides,

“A defendant who challenges the validity of prior convictions alleged by the state as an element of felony driving while under the influence of intoxicants must give notice of the intent to challenge the validity of the prior convictions at least seven days prior to the first date set for trial on the felony charge. The validity of the prior convictions shall be determined prior to trial by the court.”

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second offense to be treated in a punitive manner reflective of criminal rather

than civil penalties”). Instead, in this case, Article I, section 11, prohibits the

use of the prior uncounseled conviction to impose additional consequences that

flow directly from the new criminal conviction. The lifetime driver’s license

revocation under ORS 809.235(1)(b)6 is a direct, additional consequence of a

criminal conviction. Cf. El-Nobani v. United States, 287 F3d 417, 421 (6th Cir

2002) (a consequence is collateral when it “remains beyond the control and

responsibility” of the court (quoting United States v. Gonzalez, 202 F3d 20, 27

(1st Cir 2000))); Hall v. Gainsheimer, 137 Fed Appx 866, 869 (6th Cir 2005)

(unpublished) (when a driver’s license suspension is imposed by the court,

rather than an administrative agency, it is a direct consequence of conviction,

requiring counsel’s advice that it is a consequence of a guilty plea). The

permanent revocation is imposed by the court as part of the judgment for a

6 ORS 809.235(1)(b) provides,

“(b) The court shall order that a person’s driving privileges be permanently revoked if the person is convicted of felony driving while under the influence of intoxicants in violation of ORS 813.010 or if the person is convicted for a third or subsequent time of any of the following offenses in any combination:

“(A) Driving while under the influence of intoxicants in violation of:

“(i) ORS 813.010; or

“(ii) The statutory counterpart to ORS 813.010 in another jurisdiction.”

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criminal conviction for DUII, rather than by an administrative agency. ORS

809.235(1)(b) (“The court shall order that a person’s driving privileges be

permanently revoked * * * .” (emphasis added)); ORS 813.400.7

That is, the permanent revocation is inseparable from the criminal

conviction, regardless of any non-criminal purpose or effect. Cf. Padilla, 559

US at 364 (holding that because deportation it is a direct and severe

consequence of a criminal conviction, it is difficult “to divorce the penalty from

the conviction” even though it is “civil in nature”). Therefore, Article I, section

11, prohibited the use of defendant’s prior uncounseled conviction to impose

the permanent driver’s license revocation.

II. Additionally, the permanent driver’s license revocation, standing alone, constitutes a punitive sanction, so Article I, section 11, prohibits the use of an uncounseled prior conviction to impose it.

Even if this court considers the permanent revocation of a person’s

driver’s license independently of the fact that it is imposed as a consequence of

a criminal conviction, the permanent revocation of a driver’s license under ORS

809.235, alone, constitutes a criminal, punitive sanction. Therefore, Article I,

section 11, prohibits the use of an uncounseled prior conviction to impose it.

7 ORS 813.400(1) provides that upon receipt of a judgment of

conviction for a misdemeanor DUII, “the Department of Transportation shall suspend the driving privileges of the person convicted.” By contrast, under ORS 813.400(2), a person convicted of felony DUII or a third misdemeanor DUII “is subject to revocation of driving privileges as provided in ORS 809.235,” meaning by order of the court.

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Determining whether a particular sanction is punitive depends on various,

nonexclusive factors. See Brown, 280 Or at 101-02 (“There is no easy test for

when the imposition of a sanction is a ‘criminal prosecution’ within the

meaning of the constitutional guarantees.”). In Brown, this court identified

several factors that tend to make a prosecution criminal in nature. Id. at 102-08;

see State v. Benoit, 354 Or 302, 308, 311 P3d 874 (2013) (applying the Brown

factors to determine whether a misdemeanor offense prosecuted as a violation

constituted a “criminal prosecution” under Article I, section 11).

In this case, three of the Brown factors are relevant to whether the

permanent driver’s license revocation is a punitive sanction. First, the type of

penalty imposed, whether fine, imprisonment, or otherwise, may indicate that

the prosecution is criminal. 280 Or at 103-04. This court explained that non-

incarcerative sanctions can be criminal in nature; conversely, even detention

can be a civil sanction, as in the civil commitment context. Id. The question is

whether the penalty is imposed with a punitive purpose. Id. at 103.

Second, a court must determine whether the sanction has a punitive

effect: Brown discussed the “punitive significance” of a sanction, noting that

retributive and deterrent purposes, alone, do not make a sanction criminal rather

than civil. Id. at 105-06. This court explained that a “judgment of community

condemnation” can accompany a variety of types of charges and sanctions. Id.

at 106. Importantly, the presence of the sanction “in a judgment of conviction,

16

as much as the potential sanction itself,” implicates Article I, section 11. Id. at

106. And this court noted the difficulty of defining a punitive sanction, “since

the significance of a law may differ in the eyes of legislators, of defendants, and

of the general public.” Id.

Third, a court must weigh the legislature’s remedial or public-safety

purpose against the punitive effect of a given collateral consequence. This

court explained that the loss of a driver’s license does not necessarily make an

offense “criminal” rather than “civil,” “so long as the suspension or revocation

reflects a legislative, judicial, or administrative judgment that a traffic offender

should not continue to drive.” Id. at 105. That balancing of remedial purpose

and punitive effect mirrors the federal test for determining whether a sanction is

punitive under the Fifth and Sixth Amendments. See Kennedy v. Mendoza-

Martinez, 372 US 144, 168-69, 83 S Ct 554, 9 L Ed 2d 644 (1963)) (when there

is an alternative, nonpunitive purpose for a sanction, the court will ask whether

the sanction “appears excessive in relation to the alternative purpose assigned”).

A. The permanent revocation of a driver’s license is of a criminal nature and has a punitive effect.

Several aspects of ORS 809.235 give it the character of a punitive,

criminal sanction. First, as noted, the permanent revocation of a driver’s license

under ORS 809.235 is ordered by the court, rather than the Department

Transportation, and appears on the face of the criminal judgment. That alone

17

indicates that it is part of the criminal punishment imposed for the offense of

DUII. See Brown, 280 Or at 106 (the presence of a sanction “in a judgment of

conviction, as much as the potential sanction itself,” renders a sanction punitive

so as to implicate Article I, section 11, rights). In requiring the court, rather

than the Department of Transportation, to revoke a person’s driver’s license, the

legislature acknowledged the heightened severity and punitive nature of the

permanent revocation of driving privileges.

Second, the permanent revocation of driving privileges can only be

imposed by the court as a consequence of a new criminal conviction for an

offense listed in ORS 809.235(1). Compare ORS 809.235(1)(a) (providing that

the court shall permanently revoke the driver’s license of a person convicted of

of aggravated vehicular homicide, among other crimes) with ORS 809.409

(providing that the Department of Transportation shall revoke, but not

permanently, the driver’s license of a person convicted of certain crimes); ORS

809.421(1)(a), (b) (providing that the Department of Transportation may

indefinitely suspend the driver’s license of a habitually incompetent or reckless

driver).

Further, if a person drives despite the fact that his license is suspended

under ORS 809.235, he is subject to a charge for the crime of driving while

revoked, rather than a traffic-violation charge for that conduct. See ORS

811.182(4)(L) (providing that the crime of driving while suspended or revoked

18

is a Class A misdemeanor if the revocation is the result of a misdemeanor DUII

conviction); ORS 811.175 (providing for the Class A traffic violation of driving

while suspended or revoked). Thus, the license revocation in ORS 809.235 is a

criminal sanction, and failure to abide by that sanction leads to additional

criminal penalties. Cf. Standerfer, 297 Or at 731 (“Punishment is certainly

enhanced as much when one faces a criminal sanction rather than a noncriminal

resolution of the offense[.]”).

Third, ORS 809.235 is a recidivist statute and serves retributive and

deterrent purposes. See ORS 809.428 (providing for one- and three-year

driver’s license suspensions for first- and second-time DUII offenders).

Recidivist statutes serve retributive purposes, a traditional aim of criminal

sentencing. See, e.g., Brown, 280 Or at 105; U.S. Sentencing Guidelines

Manual § 4A1.1, introductory comment (“A defendant with a record of prior

criminal behavior is more culpable than a first offender and thus deserving of

greater punishment.”). And one of the stated purposes of the Oregon Vehicle

Code is retributive, to deny offenders the privilege of driving:

“To deny the privilege of operating motor vehicles on the public highways to persons who by their conduct and record have demonstrated their indifference for the safety and welfare of others and their disrespect for the laws of the state, the orders of its courts and the statutorily required acts of its administrative agencies[.]”

ORS 801.020(11)(b) (stating the general purposes of the Oregon Vehicle Code)

(emphasis added).

19

Another stated purpose of the Code is deterrence, also a traditional aim of

criminal sentencing:

“To discourage repetition of criminal acts by individuals against the peace and dignity of the state and its political subdivisions and to impose increased and added deprivation of the privilege to operate motor vehicles upon habitual offenders who have been convicted repeatedly of violations of traffic laws.”

ORS 801.020(11)(c) (emphasis added); see Brown, 280 Or at 105 (deterrence,

of both the individual and the public as a whole, is a purpose of criminal

sentencing).8 In providing for an exponentially greater period of revocation

than that imposed for first- and second-time DUII offenders, the statute fulfills

retributive and deterrent purposes.

The fact that a person can petition for restoration of driving privileges

after ten years does not serve to render the revocation non-criminal. See ORS

809.235(2)-(4) (providing for petition for relief from driver’s license revocation

after 10 years). For instance, incarceration is a criminal punishment, but an

incarcerated person can obtain relief from imprisonment through the Board of

Parole and Post-Prison Supervision; similarly, a court can discharge a person

8 Several of the supporters of HB 2885, the bill that preceded the

current permanent revocation statute, recognized the statute’s deterrent potential. See Exhibit E, House Committee on Judiciary, HB 2885, Apr 3, 2003 (statement of Seth Karpinski, City of Eugene) (stating that the bill “has the potential to be an additional deterrent to prevent people from driving under the influence of intoxicants”); Tape Recording, Senate Judiciary Committee, HB 2885, May 15, 2003, Tape 132, Side A (comments of Stephanie Tuttle, Oregon District Attorneys Association) (noting the bill’s potential as a deterrent).

20

from probation at any time. See ORS Chapter 144 (governing parole and post-

prison supervision); ORS 137.545 (1)(b) (“The court may at any time discharge

a person from probation.”).

And the fact that an offender must seek the court’s order for relief from

the revocation required by ORS 809.235 demonstrates that the permanent

revocation is a criminal sanction. Compare ORS 809.235(2)(a) (a person may

seek restoration of the permanent revocation of driving privileges by filing a

petition in circuit court) with ORS 809.409(2) (providing for a reinstatement

process through the Department of Transportation for non-permanent

revocation cases). The district attorney is served with the petition for relief,

indicating that the proceeding is of an adversary, criminal nature. ORS

809.235(2)(c) (“The district attorney of the county in which the person’s

driving privileges were revoked shall be named and served as the respondent in

the petition.”). And a person subject to the permanent revocation is not eligible

for a hardship permit. ORS 807.240(1) (the Department of Transportation will

only issue a hardship permit to a person with a suspended license).

Finally, the effect of the permanent loss of driving privileges is

significantly punitive: It goes beyond “inconvenience.” Brown, 280 Or at 105.

The lack of a driver’s license inhibits a person’s ability to make a living. Bell v.

Burson, 402 US 535, 539, 91 S Ct 1586, 29 L Ed 2d 90 (1971) (“Once licenses

are issued, as in petitioner’s case, their continued possession may become

21

essential in the pursuit of a livelihood.”); American Civil Liberties Union,

Driven to Fail: The High Cost of Washington’s Most Ineffective Crime,

available at https://www.aclu-wa.org/docs/driven-fail-high-cost-washingtons-

most-ineffective-crime (accessed Apr 20, 2017) (“A car and the ability to drive

it legally is often critical to getting and keeping a job.”); Lawyer’s Committee

for Civil Rights et al, Not Just a Ferguson Problem: How Traffic Courts Drive

Inequality in California, available at http://www.lccr.com/ wp-content/

uploads/Not-Just-a-Ferguson-Problem-How-Traffic-Courts-Drive-Inequality-

in-California-4.20.15.pdf (accessed Apr 20, 2017) (“There is a substantial

empirical literature on transportation’s relationship to poverty and employment.

* * * Most studies find that transportation is a barrier to employment for the

poor in general.”).

Indeed, the legislature recognized that permanent revocation of a driver’s

license would adversely impact a person’s ability to work. In discussing Senate

Bill 492, which created the permanent license revocation imposed upon

conviction for felony DUII, a senator advocated for an exception provided for

travel to and from work because he worried that the bill would negatively

impact families when a working member could not travel by car to work. Tape

Recording, Senate Judiciary Committee, SB 492, May 15, 2001, Tape 140, Side

B (comments of Senator Verne Duncan). Despite that punitive effect, the

legislature passed the bill without an exception for travel to work.

22

In evaluating the punitive effect of the permanent revocation of driving

privileges, this court cannot ignore its practical effect—to deprive citizens,

often already poor, of transportation and the ability to work. That the

legislature may have believed that ORS 809.235 would provide public-safety

protections does not change the substantial detrimental effect of permanent

license revocation. See Brown, 280 Or at 101 (noting that “the significance of a

law may differ in the eyes of legislators, of defendants, and of the general

public”). And in fact, at least one supporter of the passage of the current

permanent-revocation provision recognized that criminal defendants view a

permanent license revocation as more severe than a short jail stay. Tape

Recording, Senate Judiciary Committee, HB 2885, May 15, 2003, Tape 132,

Side A (comments of Stephanie Tuttle, Oregon District Attorneys Association)

(noting that some defendants are “more afraid” of license revocation than a jail

sentence).

Thus, the permanent revocation of driving privileges is a punitive

sanction. It has attributes of criminal punishment and a significantly punitive

effect.9 Therefore, Article I, section 11, prohibits a court from using a prior

uncounseled conviction to impose it.

9 This court’s prior statements that a license suspension is not a

criminal sanction do not control this case. In State v. Robinson, 235 Or 524, 532, 385 P2d 754 (1963), in considering a DUII license suspension of up to footnote continued….

23

B. Any remedial purpose of ORS 809.235 does not render the permanent driver’s license revocation non-punitive.

Given the criminal nature and punitive purposes and effect of the

permanent revocation of a driver’s license, any additional remedial purpose or

effect does not render it non-punitive. The Brown court noted that license

revocation is not a “criminal” sanction if the legislature has a valid remedial

purpose in requiring it. 280 Or at 105. However, the fact that one of the

legislature’s aims is to protect public safety does not require a conclusion that a

license revocation is non-punitive. In fact, protection of the public is a

constitutionally ordained aim of criminal punishment. Under Article I, section

three years imposed by the Department of Motor Vehicles, this court stated that it did not “believe that the revocation of a driver’s license is punishment or is intended to be punishment.” Citing Robinson, in Burbage v. Dept. of Motor Vehicles, 252 Or 486, 488, 450 P2d 775 (1969), this court addressed the 90-day suspension of a driver’s license pursuant to the implied consent statutes and held that it was not a criminal penalty for purposes of determining the burden of proof. Robinson and Burbage addressed administrative, rather than court-ordered license suspensions. Further, neither case addressed the permanent revocation of driving privileges, and neither considered whether a driver’s license revocation is a criminal sanction under Article I, section 11.

In State v. Dawson, 277 Or App 187, 188, 369 P3d 1244, rev den, 359 Or

847 (2016), the Court of Appeals considered the same question presented by this case and concluded that the Sixth Amendment does not prohibit using an uncounseled prior conviction to permanently revoke a driver’s license. The court cited, inter alia, Burbage and Robinson for the proposition that a license revocation does not constitute punishment. But as explained, those cases do not control this court’s analysis of the license revocation when imposed based on a prior conviction obtained in violation of the right to counsel, especially given that they addressed only administrative license suspensions, rather than the court-ordered license revocation under ORS 809.235.

24

15, of the Oregon Constitution, a law providing for criminal punishment must

be founded on principles of “protection of society, personal responsibility,

accountability for one’s actions and reformation.” (emphasis added).

Further, the Brown court did not address the situation at issue in this case:

whether the legislature has a valid remedial purpose in permanently revoking a

person’s driver’s license based on an uncounseled prior conviction. One of the

legislature’s primary purposes in passing the permanent-revocation provision in

ORS 809.235 was to prevent the dangerous consequences of drunk driving. See

e.g., Tape Recording, Senate Judiciary Committee, HB 2885, May 15, 2003,

Tape 132, Side A (explaining that HB 2885 was aimed at “the dangers of

driving while intoxicated” (statement of Representative Jeff Barker, bill

sponsor)). But the legislature’s stated remedial purpose did not extend to using

uncounseled prior convictions to permanently revoke a person’s driver’s

license.

That makes sense, given that an uncounseled prior conviction is

unreliable, and therefore a weaker indication that the offender is the type of

repeat offender who poses the requisite degree of threat to public safety. Loper,

405 US at 484 (an uncounseled prior conviction “lack[s] reliability” (quotation

marks omitted)). Thus, the legislature’s remedial aims do not apply equally to

the use of an uncounseled conviction, because the prior conviction does not

represent a reliable indicator of future dangerousness. See id. at 482-83

25

(holding that uncounseled prior convictions may not be used to impeach a

defendant’s credibility at trial because they are unreliable). In light of that

unreliability, the remedial effect of ORS 809.235 is minimal when imposed

based on an uncounseled prior conviction. And as argued above, the minimal

remedial effect of ORS 809.235 is substantially outweighed by its criminal

nature and punitive effect. The court erred in relying on the 2007 conviction to

impose the permanent revocation of driving privileges.

III. Cases from this court that have faulted the defendant for not challenging a prior conviction until sentencing in a new case do not compel a different conclusion.

Once a trial court finds that a prior conviction, was, in fact, uncounseled,

the court is prohibited from using that conviction to impose additional

sentencing consequences. That is true even if the defendant has not previously

challenged the validity of the prior conviction.

This court’s decisions in Bailey v. Lampert, 342 Or 321, 153 P3d 95

(2007), and State v. Jacob, 344 Or 181, 180 P3d 6 (2008), do not compel a

contrary conclusion. In Bailey, the petitioner argued, inter alia, that because his

prior felony convictions were overturned by the Ninth Circuit in 2003 because

of a Brady violation,10 Article I, section 11, prohibited their use to convict him

of being a felon in possession of a firearm in 2000. 342 Or at 323-24, 330.

10 Brady v. Maryland, 373 US 83, 83 S Ct 1194, 10 L Ed 2d 215

(1963).

26

This court rejected that argument because the petitioner did not raise it when he

was sentenced in 2000, but only after his prior convictions were overturned in

2003. Id. at 330. Here, by contrast, defendant argues that when an Article I,

section 11, challenge to a prior conviction is successful prior to sentencing, the

court may not use that conviction to impose additional consequences of a new

criminal conviction.

In Jacob, the defendant was convicted of robbery and sentenced to a gun

minimum sentence in 1983, after the judge, rather than the jury, found that he

used a firearm in committing the offense. 344 Or at 183-84. When he was

convicted of robbery in 2002, the defendant argued that the court could not use

the 1983 conviction to impose a 30-year gun minimum sentence under ORS

161.610(4)(c), which applies when the defendant has previously served other

gun minimum sentences. Id. at 184. In this court, the defendant correctly

observed that allowing a judge to make the firearm finding violates Article I,

section 11. Id. at 183-84 (citing State v. Wedge, 293 Or 598, 607-08, 652 P2d

773 (1982)). He argued, inter alia, that the Article I, section 11, violation

prohibited the use of his 1983 conviction to impose the 30-year sentence. Id. at

190-91. This court rejected that argument, in part because it could not

determine from the record whether the 1983 conviction was obtained in

violation of the defendant’s constitutional rights. Id. at 192. In addition, the

statute in Jacob required the imposition of the 30-year sentence upon prior

27

“imprisonment,” rather than based on a prior conviction, so even a successful

challenge to the conviction itself would have been directed at the wrong issue.

Id. at 192-93.

Here, by contrast, defendant is not asking this court to make a

determination, now, of whether his prior conviction was obtained in violation of

his right to counsel. The question is whether, after a trial court finds that a

defendant’s prior conviction was, in fact, uncounseled in violation of Article I,

section 11, that conviction can be used to impose greater criminal

consequences. Unlike in Jacob, this court need not make a determination

regarding the constitutional violation. Further, the statute at issue here applies

to a prior conviction rather than prior imprisonment, so a challenge to the use of

the conviction itself is appropriate.

The Jacob court also noted that ORS 138.540(1) provides that post-

conviction relief is the “exclusive means” for challenging the lawfulness of a

judgment of conviction, so the defendant’s argument constituted an

impermissible collateral attack. Id. This court need not address the application

of ORS 138.540(1) in this case, because, not only did defendant challenge the

use of an out-of-state prior conviction not subject to post-conviction relief, ORS

813.328(1) expressly allowed the challenge to the validity of the 2007

28

conviction. Because the 2007 conviction was an element of felony DUII,

defendant’s attack was anything but collateral.11

And, finally, it is important to note again that the violation of the right to

counsel is unique among constitutional defects. When the right to counsel is

violated, a defendant is not ordinarily expected to successfully attack his

conviction, as he is already without the assistance of counsel. Cf. Lewis, 445

US at 72-73. The exception for allowing challenges on the basis of the

11 In addition, ORS 138.540(1) does not restrict a defendant’s

constitutional right to contest the use of uncounseled prior convictions at sentencing. The statute’s reference to post-conviction relief as the “exclusive means” of challenging the lawfulness of a prior judgment is simply a reference to the other common-law post-conviction remedies that it sought to abolish. It provides,

“With the exception of habeas corpus, all common law post-conviction remedies, including the motion to correct the record, coram nobis, the motion for relief in the nature of coram nobis and the motion to vacate the judgment, are abolished in criminal cases.”

Further, in this case, defendant does not contend that an uncounseled prior conviction is invalid for all purposes, as it would be if reversed upon a successful petition for post-conviction relief. Instead, defendant challenges the use of that prior conviction when its use violates a defendant’s constitutional right to counsel.

29

complete deprivation of counsel, but not for other reasons, is well-established.12

Thus, cases like Bailey and Jacob, which involve violations of other Article I,

section 11, rights, do not control this court’s decision.

IV. The Sixth Amendment prohibits the use of an uncounseled prior conviction to permanently revoke a defendant’s driver’s license.

Under Burgett, the Sixth Amendment prohibits using an uncounseled

prior conviction to “support guilt or enhance punishment for another offense.”

389 US at 115. In Burgett, in a Texas prosecution for assault, the state alleged

the defendant’s uncounseled prior conviction in the indictment to increase his

potential term of imprisonment under a Texas recidivist statute. Id. at 111, 114.

The Supreme Court held that under Gideon, 372 US 335, the uncounseled

conviction was “void.” Id. at 114. Thus, as when constitutional violations

require exclusion of coerced confessions or unlawfully seized evidence, the

prior conviction could not be used to enhance the defendant’s term of

imprisonment. Id. at 114-15.

12 In Custis, the Supreme Court rejected a claim that a conviction

obtained with the ineffective assistance of counsel could not be used to enhance a criminal sentence. 511 US at 487. But the court recognized the lack of counsel as a “unique constitutional defect” allowing for a challenge to the use of an uncounseled conviction at trial or sentencing in a later prosecution. Id. at 495-96. The Court has reaffirmed that exception. See Lackawanna County Dist. Attorney v. Coss, 532 US 394, 404, 121 S Ct 1567, 149 L Ed 2d 608 (2001) (continuing to adhere to the Custis exception for convictions obtained in violation of right to counsel); Daniels v. United States, 532 US 374, 382, 121 S Ct 1578, 149 L Ed 2d 590 (2001) (same).

30

The Burgett principle extends beyond the situation in which the state

alleges the prior conviction in the indictment or as an element of the offense.

For instance, in Loper v. Beto, the court held that uncounseled convictions may

not be used for impeachment when “their use might well have influenced the

outcome of the case[.]” 405 US at 480. In United State v. Tucker, 404 US 443,

447, 92 S Ct 589, 30 L Ed 2d 592 (1972), the court acknowledged that in

sentencing, a trial court is “largely unlimited” in the type of information it may

consider. Nonetheless, the court held that if the trial court is not aware that a

prior conviction was obtained without counsel, it sentences the defendant “upon

misinformation of a constitutional magnitude,” requiring resentencing if the

sentence “might have been different” had the court known of the constitutional

infirmity of the prior conviction. Id. at 447-48.

Under the Sixth Amendment, therefore, an uncounseled prior conviction

may not be used to support guilt or enhance punishment in a variety of ways—

not merely when alleged as an element of a crime or as a predicate offense for

the purposes of recidivist sentencing statute. Whenever the prior conviction

contributes to the enhancement of a later criminal sentence, the Sixth

Amendment prohibits its use.

31

Somewhat incongruously,13 in Lewis v. United States, 445 US 55, 65-67,

100 S Ct 915, 63 L Ed 2d 198 (1980), the United States Supreme Court held

that an uncounseled prior felony conviction could be used to support a

conviction being a felon in possession of a firearm under 18 U.S.C. App. §

1202. The court explained that the while Burgett provides that an uncounseled

prior conviction cannot be used for certain purposes, such a conviction can be

used to enforce an “essentially civil disability through a criminal sanction”

especially given the broad remedial purpose of the statute, which did not

distinguish between valid and invalid prior felony convictions. Id. at 66-67.

Lewis is distinguishable from the situation presented by this case. First,

Lewis relied heavily on the fact that § 1202 permitted prosecution of any person

“convicted” of a felony, without qualification; other federal laws provided

exceptions for those with a “qualifying pardon or a consent from the Secretary

of the Treasury,” but made no mention of an exception for constitutional

invalidity. 445 US at 60-61, 64. The court concluded that its reading of the

statutory text was supported by legislative history indicating a broad purpose of

limiting felons’ ability to obtain firearms. Id. at 64-65.

13 In dissent, Justice Brennan found it “simply inexplicable” that the

majority did not conclude the Burgett controlled the outcome of Lewis. 445 US at 72 (Brennan, J., dissenting).

32

Here, the text of the statute does not provide for similar exceptions.

Further, as discussed above, the legislature’s dual punitive and remedial

purposes did not include using uncounseled, unreliable prior convictions to

permanently revoke a person’s driver’s license. Thus, unlike in Lewis, this

court cannot look to a broad remedial purpose to justify using a prior

uncounseled conviction to impose the permanent revocation under ORS

809.235.

Second, the federal felon-in-possession statute criminalizes possession of

a firearm by a convicted felon as soon as the conviction is entered. Lewis, 445

US at 67. The permanent license revocation under ORS 809.235, by contrast, is

only imposed at a subsequent criminal sentencing proceeding—a new hearing

at which a defendant can challenge the validity of his prior conviction. That is,

the firearms restriction at issue in Lewis applies as a result of the defendant’s

status at the moment of his conviction. To impose the permanent revocation,

by contrast, the court must examine and count the defendant’s valid prior

convictions, rather than simply rely on a status that has followed him since the

moment of his first conviction.

To further illustrate that point, the Lewis court explained that the

defendant could have “clear[ed] his status before obtaining a firearm,” and that

Congress intended defendants to take advantage of the ability to do so. Id. at 64

(emphasis in original). Here, by contrast, defendant did not acquire any

33

relevant “status” at the time of his prior conviction. He could not have foreseen

that he would become subject to the permanent driver’s license revocation until

the most recent DUII conviction, so he lacked reason to challenge his prior

conviction until that DUII prosecution commenced.

Third, the Lewis court distinguished Burgett, explaining that the

reliability of the prior felony was not at issue because a person could violate

§ 1202 upon possessing a firearm at the moment the conviction was entered.

Id. at 67. Here, by contrast, as in Burgett, the use of a prior conviction to

impose the lifetime driver’s license revocation requires the reliability of the

prior conviction: As argued, any remedial purpose of the revocation depends on

that reliability. Thus, an uncounseled, unreliable prior conviction may not be

used to impose the lifetime revocation under ORS 809.235

In sum, Lewis is inapposite. Under Burgett, an uncounseled prior

conviction is void for the purposes of imposing a criminal sentence. The

lifetime revocation of a driver’s license, imposed by the court under ORS

809.235, is an increase in the sentence in a criminal case. Therefore, the Sixth

Amendment prohibits using an uncounseled prior conviction to impose the

lifetime driver’s license revocation.

34

CONCLUSION

Once a court finds that a prior conviction was obtained without counsel

and without a valid waiver of counsel, Article I, section 11, and the Sixth

Amendment prohibit its use to impose additional consequences of a criminal

conviction. Here, the trial court found that defendant’s 2007 DUII conviction

was obtained without counsel and without a valid waiver of counsel.

Nonetheless, the court used the 2007 conviction to permanently revoke

defendant’s driver’s license. Once the court found that the 2007 conviction was

obtained in violation of defendant’s right to counsel, Article I, section 11, and

the Sixth Amendment prohibited its use to permanently revoke his driving

privileges. Therefore, defendant respectfully requests that this court reverse

State v. Hamann, 282 Or App 369, 385 P3d 103 (2016), and remand for

resentencing.

Respectfully submitted, ERNEST G. LANNET CHIEF DEFENDER CRIMINAL APPELLATE SECTION OFFICE OF PUBLIC DEFENSE SERVICES ESigned ________________________________ EMILY P. SELTZER OSB #124513 DEPUTY PUBLIC DEFENDER Emily.Seltzer@opds.state.or.us Attorneys for Defendant-Appellant Ryan James Hamann

Office of Public Defense Services • Appellate Division 1175 Court St. NE • Salem, Oregon 97301-4030

Telephone: (503) 378-3349 • Fax: (503) 378-2163

CERTIFICATE OF COMPLIANCE WITH ORAP 5.05(2)(d)

Brief length I certify that (1) this brief complies with the word-count limitation in ORAP 5.05(2)(b) and (2) the word-count of this brief (as described in ORAP 5.05(2)(a)) is 8,210 words.

Type size I certify that the size of the type in this brief is not smaller than 14 point for both the text of the brief and footnotes as required by ORAP 5.05(4)(f).

NOTICE OF FILING AND PROOF OF SERVICE

I certify that I directed the original Petitioner’s Brief on the Merits to be filed with the Appellate Court Administrator, Appellate Courts Records Section, 1163 State Street, Salem, Oregon 97301, on May 15, 2017.

I further certify that, upon receipt of the confirmation email stating that the document has been accepted by the eFiling system, this Petitioner’s Brief on the Merits will be eServed pursuant to ORAP 16.45 (regarding electronic service on registered eFilers) on Benjamin Gutman #160599, Solicitor General, attorney for Plaintiff-Respondent.

Respectfully submitted,

ERNEST G. LANNET CHIEF DEFENDER CRIMINAL APPELLATE SECTION OFFICE OF PUBLIC DEFENSE SERVICES

ESigned ________________________________ EMILY P. SELTZER OSB #124513 DEPUTY PUBLIC DEFENDER Emily.Seltzer@opds.state.or.us

Attorneys for Petitioner Ryan James Hamann