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Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE v. TEPPERT

Cite as 307 Neb. 695

State of Nebraska, appellee, v. 

Aaron Teppert, appellant.

___ N.W.2d ___

Filed November 6, 2020. No. S-19-688.

1. Sentences: Prior Convictions: Appeal and Error. A sentencing court’s 

determination concerning the constitutional validity of a prior plea-based 

conviction, used for enhancement of a penalty for a subsequent conviction, will be upheld on appeal unless the sentencing court’s determination is clearly erroneous.

2. Convictions: Presumptions: Right to Counsel: Waiver: Proof.

Convictions obtained after Gideon v. Wainwright, 372 U.S. 335, 83 S. 

Ct. 792, 9 L. Ed. 2d 799 (1963), are entitled to a presumption of regularity such that records of conviction are admissible unless the defendant 

can show that he or she did not have or waive counsel at the time 

of conviction.

3. Sentences: Prior Convictions: Proof. In a proceeding to enhance a 

punishment because of prior convictions, the State has the burden to 

prove the fact of 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.

Appeal from the District Court for Scotts Bluff County: 

Andrea D. Miller, Judge. Affirmed.

Paul Payne and Darin J. Knepper, Deputy Scotts Bluff 

Public Defenders, for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

01/15/2021 08:07 AM CST
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Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE v. TEPPERT

Cite as 307 Neb. 695

Papik, J.

Aaron Teppert appeals his conviction for driving under the 

influence (DUI), fourth offense. He argues that the district 

court erred by receiving evidence of a prior conviction offered 

by the State in support of sentence enhancement. We find that 

the district court did not err and therefore affirm.

BACKGROUND

Teppert was charged with and pleaded guilty to DUI and 

driving under suspension. At the subsequent sentence enhancement proceeding, the State sought to introduce evidence of 

three prior DUI convictions. Teppert did not object to the district court’s receipt of two of the prior DUI convictions, and 

those convictions are not at issue in this appeal.

Teppert did object to the admission of court records showing 

that he was convicted of DUI in 2010 in Red Willow County 

Court. He argued that those records were inadmissible because 

they did not affirmatively show that he had counsel or had 

knowingly, intelligently, and voluntarily waived the right to 

counsel before entering his guilty plea in that case. We will 

discuss the content of the court records at issue in more detail 

in the analysis section below.

The district court overruled Teppert’s objection, found that 

the current conviction was his fourth offense, and sentenced 

Teppert accordingly. Teppert appeals.

ASSIGNMENT OF ERROR

Teppert assigns one error on appeal. He contends the district 

court erred by receiving the records of his 2010 DUI conviction for purposes of sentence enhancement.

STANDARD OF REVIEW

[1] A sentencing court’s determination concerning the constitutional validity of a prior plea-based conviction, used for 

enhancement of a penalty for a subsequent conviction, will 

be upheld on appeal unless the sentencing court’s determination is clearly erroneous. State v. Orduna, 250 Neb. 602, 550 
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Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE v. TEPPERT

Cite as 307 Neb. 695

N.W.2d 356 (1996), overruled on other grounds, State v. Vann, 

306 Neb. 91, 944 N.W.2d 503 (2020).

ANALYSIS

Law Governing Admissibility of Records of Prior 

Convictions in Enhancement Proceedings.

As both parties recognized at oral argument, the legal landscape on the issue raised in this appeal changed after the district court proceedings and the filing of briefs in this case. For 

many years, this court held that evidence of a prior conviction 

was inadmissible unless the State proved that, at the time of the 

prior conviction, the defendant either had counsel or knowingly, 

intelligently, and voluntarily waived the right to counsel. See, 

e.g., State v. Nowicki, 239 Neb. 130, 474 N.W.2d 478 (1991), 

overruled, Vann, supra. See, also, Orduna, supra. Under this 

rule, if a record was silent as to whether the defendant had or 

validly waived counsel in the prior proceeding, evidence of 

that conviction was not admissible; affirmative evidence that 

the defendant’s Sixth Amendment right to counsel was honored 

in the prior proceeding was required. See, e.g., State v. Garcia, 

281 Neb. 1, 792 N.W.2d 882 (2011), overruled, Vann, supra. 

At the enhancement proceeding in this case, Teppert relied 

on this line of cases to argue that the district court should not 

receive evidence of the 2010 DUI conviction.

[2] Earlier this year in Vann, supra, we overruled this line 

of cases. In Vann, we concluded that the rule prohibiting courts 

from presuming that prior convictions were obtained in compliance with the Sixth Amendment was based on a reading of a 

U.S. Supreme Court case, Burgett v. Texas, 389 U.S. 109, 88 S. 

Ct. 258, 19 L. Ed. 2d 319 (1967), that the U.S. Supreme Court 

later rejected in Parke v. Raley, 506 U.S. 20, 113 S. Ct. 517, 

121 L. Ed. 2d 391 (1992). In light of Parke, we concluded that 

convictions obtained after the recognition of a federal constitutional right to counsel in state court in Gideon v. Wainwright, 

372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), are 

“entitled to a presumption of regularity such that records of 

conviction are admissible unless the defendant can show that 
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307 Nebraska Reports

STATE v. TEPPERT

Cite as 307 Neb. 695

he or she did not have or waive counsel at the time of conviction.” Vann, 306 Neb. at 102, 944 N.W.2d at 512. Additionally, 

we noted that many other state and federal courts apply the 

same rule, including some courts that once applied the rule we 

followed prior to Vann. While the fact of a prior conviction was 

an element of the underlying offense in Vann, we made clear 

that the same rule would apply to the use of prior convictions 

in sentence enhancement proceedings.

At oral argument, counsel for Teppert acknowledged that if 

Vann applied, the records of the 2010 DUI conviction would 

be entitled to a presumption of regularity and Teppert would 

have the burden to show he did not have or validly waive 

counsel at the time of that conviction. He argued, however, 

that because the enhancement proceeding occurred prior to the 

release of our opinion in Vann, we should reverse, and remand 

to the district court so that Teppert would have the opportunity 

to present evidence to carry his burden. Counsel for the State 

argued that no remand was necessary because the records were 

admissible whether the case is governed by Vann or the line of 

cases Vann overruled.

We do not believe remand is required. As we will explain, 

even under the pre-Vann law, the district court did not err by 

receiving evidence of the convictions.

Records Admissible Under Pre-Vann Law.

[3] In a proceeding to enhance a punishment because of 

prior convictions, the State has the burden to prove the fact of 

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. See, State v. Hall, 

270 Neb. 669, 708 N.W.2d 209 (2005); State v. Hurbenca, 266 

Neb. 853, 669 N.W.2d 668 (2003). Prior to our decision in 

Vann, in order for evidence of a prior conviction to be admitted for enhancement purposes, the State also had the burden to 

show by a preponderance of the evidence that the defendant 

had or waived counsel at the time of the prior conviction. See, 

e.g., Hall, supra.
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Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE v. TEPPERT

Cite as 307 Neb. 695

At the enhancement proceeding, the State offered various 

authenticated court records from a 2010 criminal case. Those 

records show that Teppert was charged with DUI, pleaded 

guilty, and was sentenced accordingly. The State argues that 

a September 30, 2010, journal entry and order from that case 

also shows that Teppert validly waived counsel before entering 

his guilty plea.

The journal entry and order states that Teppert pleaded 

guilty and was found guilty, followed by sections summarizing 

the advisements given and the arraignment:

A P P E A R A N C E S A N D A D V I S E M E N T

. . . .

Defendant advised of the nature of the above charges, 

all possible penalties, effect of conviction on non-citizens, 

and each of the following rights: Counsel; Appointed 

Counsel; Trial; Jury Trial; Confront Accusers; Subpoena 

Witnesses; Remain Silent; Request Transfer to Juvenile 

Court; Defendant’s Presumption of Innocence; State’s 

Burden of Proof . . . ; Right to Appeal.

Indigency inquiry held[:]

Defendant adjudged indigent, public defender appointed.

A R R A I G N M E N T

Defendant advised of and waived rights.

Defendant waives jury trial.

Defendant enters above pleas.

Pleas entered knowingly, intelligently, voluntarily, and 

a factual basis for plea(s) found.

Teppert argues that the district court could not have found 

that he validly waived his right to counsel at the plea hearing for his 2010 DUI conviction based on the journal entry 

and order. Teppert maintains that the journal entry and order 

is silent as to whether he validly waived his right to counsel 

before entering his guilty plea. We disagree.

Teppert points out that the journal entry and order does not 

directly state that Teppert knowingly, intelligently, and voluntarily waived the right to counsel. Nonetheless, we find that 
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Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE v. TEPPERT

Cite as 307 Neb. 695

one could reasonably conclude from the information included 

in the journal entry and order that Teppert validly waived the 

right to counsel. After stating that Teppert was advised of a 

number of rights, including the right to counsel, the journal 

entry and order states that Teppert was “advised of and waived 

rights.” Read together, we believe it fair to infer that Teppert 

waived the specific rights referred to earlier, including the right 

to counsel.

The journal entry and order also contain several indications 

that Teppert waived his right to counsel knowingly, intelligently, and voluntarily. First, the fact that Teppert was advised 

about his rights before waiving them suggests a knowing, 

intelligent, and voluntary waiver. Second, the journal entry and 

order shows that after entering his guilty plea, Teppert invoked 

his right to counsel and was appointed counsel for sentencing. 

Teppert’s exercise of his right to counsel for the sentencing 

phase of the case also suggests he understood the right.

Finally, the notation that Teppert entered his plea knowingly, intelligently, and voluntarily shows that his waiver 

of counsel was also done knowingly, intelligently, and voluntarily. We explored the relationship between a valid plea 

and a valid waiver of the right to counsel in State v. Orduna, 

250 Neb. 602, 550 N.W.2d 356 (1996), overruled on other 

grounds, State v. Vann, 306 Neb. 91, 944 N.W.2d 503 (2020). 

In Orduna, like this case, a record of the defendant’s prior 

conviction expressly stated that he had made a knowing, 

intelligent, and voluntary guilty plea, but did not expressly 

state that he had knowingly, intelligently, and voluntarily 

waived the right to counsel. We nonetheless found that the 

records affirmatively demonstrated a valid waiver of the right 

to counsel. We reasoned that if a trial court finds that a plea 

was entered knowingly, intelligently, and voluntarily, and the 

record reflects that the defendant also waived the right to 

counsel, the right to counsel must also have been waived 

knowingly, intelligently, and voluntarily. As we explained, 

“a plea cannot be legally sufficient unless those elements 
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Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE v. TEPPERT

Cite as 307 Neb. 695

underlying the plea are also legally sufficient.” Id. at 611, 550 

N.W.2d at 362-63.

As noted above, a sentencing court’s determination concerning the constitutional validity of a prior plea-based conviction, 

used for enhancement of a penalty for a subsequent conviction, 

will be upheld on appeal unless the sentencing court’s determination is clearly erroneous. Orduna, supra. Given all that the 

district court could fairly conclude from the journal entry and 

order, we cannot say the district court clearly erred by finding 

that Teppert knowingly, intelligently, and voluntarily waived 

his right to counsel prior to entering his guilty plea for his 2010 

DUI conviction.

Because Teppert failed to demonstrate that the district court 

erred even if this case is reviewed under the more restrictive rule governing the admissibility of prior convictions that 

applied prior to Vann, we see no basis to reverse the decision 

of the district court.

CONCLUSION

The district court did not err by receiving records of Teppert’s 

2010 DUI conviction and finding that his conviction in this 

case was his fourth offense. We affirm.

Affirmed.