NE Code § 29-2221 (2021)
2021 Nebraska Revised Statutes|Chapter 29 - Criminal Procedure|29-2221 - Habitual criminal, defined; procedure for determination; hearing; penalties; effect of pardon.

29-2221.  Habitual criminal, defined; procedure for determination; hearing; penalties; effect of pardon.(1) Whoever has been twice convicted of a crime, sentenced, and committed to prison, in this or any other state or by the United States or once in this state and once at least in any other state or by the United States, for terms of not less than one year each shall, upon conviction of a felony committed in this state, be deemed to be a habitual criminal and shall be punished by imprisonment in a Department of Correctional Services adult correctional facility for a mandatory minimum term of ten years and a maximum term of not more than sixty years, except that:(a) If the felony committed is in violation of section 28-303, 28-304, 28-308, 28-313, 28-319, 28-319.01, 28-502, 28-929, or 28-1222, and at least one of the habitual criminal's prior felony convictions was for a violation of one of the sections listed in this subdivision or of a similar statute in another state or of the United States, the mandatory minimum term shall be twenty-five years and the maximum term not more than sixty years;(b) If the felony committed is in violation of subsection (3) of section 28-306 and at least one of the prior convictions is in violation of subsection (3) of section 28-306 and the other is in violation of one of the sections set forth in subdivision (a) of this subsection or if the felony committed is in violation of one of the sections set forth in subdivision (a) of this subsection and both of the prior convictions are in violation of subsection (3) of section 28-306, the mandatory minimum term shall be twenty-five years and the maximum term not more than sixty years; and(c) If a greater punishment is otherwise provided by statute, the law creating the greater punishment shall govern.(2) When punishment of an accused as a habitual criminal is sought, the facts with reference thereto shall be charged in the indictment or information which contains the charge of the felony upon which the accused is prosecuted, but the fact that the accused is charged with being a habitual criminal shall not be an issue upon the trial of the felony charge and shall not in any manner be disclosed to the jury. If the accused is convicted of a felony, before sentence is imposed a hearing shall be had before the court alone as to whether such person has been previously convicted of prior felonies. The court shall fix a time for the hearing and notice thereof shall be given to the accused at least three days prior thereto. At the hearing, if the court finds from the evidence submitted that the accused has been convicted two or more times of felonies and sentences imposed therefor by the courts of this or any other state or by the United States, the court shall sentence such person so convicted as a habitual criminal.(3) If the person so convicted shows to the satisfaction of the court before which the conviction was had that he or she was released from imprisonment upon either of such sentences upon a pardon granted for the reason that he or she was innocent, such conviction and sentence shall not be considered as such under this section and section 29-2222.Source   Laws 1921, c. 131, § 1, p. 543;   C.S.1922, § 10177;   C.S.1929, § 29-2217;   Laws 1937, c. 68, § 1, p. 252;   C.S.Supp.,1941, § 29-2217;   R.S.1943, § 29-2221;   Laws 1947, c. 105, § 1, p. 294;   Laws 1967, c. 179, § 1, p. 497;   Laws 1993, LB 31, § 10;   Laws 1995, LB 371, § 13;  Laws 2006, LB 1199, § 14. Annotations  1. Constitutionality 2. Nature of charge 3. Prior convictions 4. Habeas corpus 5. Miscellaneous 1. Constitutionality A sentence of 10 to 15 years' imprisonment to be served consecutively to any sentence currently served, with a mandatory 10-year term, is not a cruel and unusual punishment of one who has been adjudged to be a habitual criminal under this section. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003). A sentence of 10 to 15 years' imprisonment to be served consecutively to any sentence currently served, with a mandatory 10-year term, is not an excessive sentence of one who has been adjudged to be a habitual criminal under this section. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003). Neither the state nor the federal Constitution requires the State to prove the fact of prior convictions beyond a reasonable doubt for purposes of sentence enhancement under this section. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003). This section does not deprive one of fundamental fairness, equal protection, or federal due process of law. Kerns v. Grammer, 227 Neb. 165, 416 N.W.2d 253 (1987). The habitual criminal statute is not unconstitutional as applied. State v. White, 209 Neb. 218, 306 N.W.2d 906 (1981). Only errors which would make a conviction void or voidable under either the state or federal constitutions are cognizable in a post conviction relief action. Therefore, defendant could raise neither prejudice from remarks by a prosecution witness nor the sufficiency of evidence offered to establish his identity at the habitual criminal hearing on post conviction review. Nor could he challenge the voluntariness of a guilty plea which led to one of the prior convictions offered at the habitual criminal hearing where he failed to challenge it at the trial level. State v. Cole, 207 Neb. 318, 298 N.W.2d 776 (1980). Habitual criminal statute does not violate constitutional guarantees prohibiting cruel and unusual punishment nor does sentencing defendant hereunder subject him to double jeopardy. State v. Goodloe, 197 Neb. 632, 250 N.W.2d 606 (1977). In construing habitual criminal act, court sustains a sensible interpretation, within constitutional requirements, effectuating the object of the Legislature rather than literal interpretation rendering absurd or unjust results. State v. Nance, 197 Neb. 257, 248 N.W.2d 339 (1976). This act has been held valid on numerous occasions under Constitutions of the United States and this state. State v. Fowler, 193 Neb. 420, 227 N.W.2d 589 (1975). This act does not contravene constitutional prohibition against cruel and unusual punishment, nor provide for punishment of a status. State v. Martin, 190 Neb. 212, 206 N.W.2d 856 (1973). This section does not violate constitutional guarantees of due process and equal protection; habitual criminality is not a crime, but increases the punishment because of defendant's past conduct. State v. Losieau, 184 Neb. 178, 166 N.W.2d 406 (1969). Habitual Criminal Act is constitutional. State v. Hoffman, 181 Neb. 356, 148 N.W.2d 321 (1967). Habitual Criminal Act is constitutional, as it does not set out a distinct crime, but provides that repetition of criminal conduct justifies heavier penalties. Davis v. O'Grady, 137 Neb. 708, 291 N.W. 82 (1940). Where state seeks to have defendant punished under Habitual Criminal Act, it is proper to allege and prove prior convictions. Section is not ex post facto even though prior conviction occurred before its enactment. Taylor v. State, 114 Neb. 257, 207 N.W. 207 (1926). Evidence held sufficient to support sentence received under Nebraska's habitual criminal statute, and not violative of the eighth amendment protection against cruel and unusual punishment on grounds of disproportionality, under the facts of this case. Fowler v. Parratt, 682 F.2d 746 (8th Cir. 1982). The Nebraska statute is not an unconstitutional separation of powers. Pierce v. Parratt, 666 F.2d 1205 (8th Cir. 1981). Habitual criminal statute held not unconstitutional under Eighth Amendment prohibition of cruel and unusual punishment merely because infrequently applied. Brown v. Parratt, 560 F.2d 303 (8th Cir. 1977). The doctrine of stare decisis precludes the U.S. District Court from overruling two decisions of the 8th Circuit Court of Appeals holding that the Nebraska habitual criminal statute is not unconstitutional on the theory that it vests unreviewable sentencing authority in the prosecuting attorney. Goodloe v. Parratt, 453 F.Supp. 1380 (D. Neb. 1978). The imposition of concurrent terms of ten years imposed upon a defendant who was convicted of willful reckless driving and operating a motor vehicle to avoid arrest, and who had been adjudged to be an habitual criminal, does not constitute cruel and unusual punishment. Goodloe v. Parratt, 453 F.Supp. 1380 (D. Neb. 1978). Fact that only fourteen out of one hundred four of those eligible in county were charged as habitual criminals and only three determined to be such did not demonstrate application of statute was arbitrary and thus cruel and unusual punishment. Brown v. Parratt, 419 F.Supp. 44 (D. Neb. 1976). Habitual criminal statute is not unconstitutional on grounds it gives county attorney selectivity in applying it, nor because it punishes a status rather than an act. Martin v. Parratt, 412 F.Supp. 544 (D. Neb. 1976). 2. Nature of charge By its terms, subsection (1) of this section requires the triggering offense to be "a felony" before the habitual criminal statute will apply to the sentencing of the triggering offense. But in order to be one of the prior convictions that establishes habitual criminal status, this section does not require that the prior conviction was a "felony" per se; instead, it requires that the prior conviction resulted in a sentence of imprisonment for a term "of not less than one year." State v. Abejide, 293 Neb. 687, 879 N.W.2d 684 (2016). In a habitual criminal proceeding, the State's evidence must establish with requisite trustworthiness, based upon a preponderance of the evidence, that (1) the defendant has been twice convicted of a crime, for which he or she was sentenced and committed to prison for not less than 1 year, (2) the trial court rendered a judgment of conviction for each crime, and (3) at the time of the prior conviction and sentencing, the defendant was represented by counsel. State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005). A habitual criminal who is convicted of several felonies as the result of a multicount information must be sentenced on each conviction as a habitual criminal, even though the allegation with respect to his status as a habitual criminal is made with respect to only one charge. State v. Van Ackeren, 234 Neb. 535, 451 N.W.2d 707 (1990). The rule announced in State v. Ellis, 214 Neb. 172, 333 N.W.2d 391 (1983), is not to be applied retroactively. Kerns v. Grammer, 227 Neb. 165, 416 N.W.2d 253 (1987). The Nebraska habitual criminal statute is not a separate offense but, rather, provides an enhancement of the penalty for the crime committed, with a minimum sentence of 10 years and a maximum sentence of 60 years for each conviction committed by one found to be a habitual criminal, even though, absent a conviction as a habitual criminal, the minimum or maximum sentence might be less. State v. Rolling, 218 Neb. 51, 352 N.W.2d 175 (1984). An offense which is a felony solely because of repetition cannot be counted as a felony for purposes of this statute. State v. Chapman, 205 Neb. 368, 287 N.W.2d 697 (1980). In order for habitual criminal enhancement provisions to apply to an offense, it makes no difference whether the two prior sentences were to be served consecutively or concurrently, nor is it required that there be a time interval between conviction and commitment for the first offense and commission of the second offense. State v. Pierce, 204 Neb. 433, 283 N.W.2d 6 (1979). Sentences should be in proportion to seriousness of offenses and offenders who offer greatest menace deserve greater punishment. State v. King, 196 Neb. 821, 246 N.W.2d 477 (1976). This section makes no distinctions between malum in se and malum prohibitum offenses and no exceptions based on age of defendant at time of prior conviction. State v. Howard, 194 Neb. 521, 233 N.W.2d 573 (1975). Sentence of twelve to fifteen years being well within statutory terms of ten to sixty years was not erroneous as excessive. State v. Silvacarvalho, 193 Neb. 447, 227 N.W.2d 602 (1975). In view of defendant's past record, sentence of twenty to thirty years was not excessive. State v. Gaston, 193 Neb. 259, 226 N.W.2d 355 (1975). The essential allegations in informations under this act are that defendant has been (1) twice previously convicted of crime, (2) sentenced, and (3) committed to prison for terms not less than one year each. State v. Harig, 192 Neb. 49, 218 N.W.2d 884 (1974). Subsequent habitual criminal sentence invalid where valid sentence for particular crime had been imposed. State v. Brewer, 190 Neb. 667, 212 N.W.2d 90 (1973). Separate penalty may not be imposed upon finding the defendant is an habitual criminal. State v. Tyndall, 187 Neb. 48, 187 N.W.2d 298 (1971). Where act committed prior to amendment of statute increasing maximum penalty from twenty to sixty years it was not prejudicial error to advise defendant that he was subject to imprisonment for sixty years since defendant received a ten-year sentence which was minimum under both old and new acts. State v. McGhee, 184 Neb. 352, 167 N.W.2d 765 (1969). Habitual Criminal Act does not create a new offense but provides a greater penalty for repetition of criminal conduct. State v. Sheldon, 179 Neb. 377, 138 N.W.2d 428 (1965); Rains v. State, 142 Neb. 284, 5 N.W.2d 887 (1942). The charge of being a habitual criminal may be set out in a separate count in the information. Kennedy v. State, 171 Neb. 160, 105 N.W.2d 710 (1960). Habitual Criminal Act does not create a new and separate criminal offense for which a person may be separately convicted. Gamron v. Jones, 148 Neb. 645, 28 N.W.2d 403 (1947). Habitual Criminal Act does not set out a distinct crime, but provides that repetition of criminal conduct aggravates the offense and justifies heavier penalties. Jones v. State, 147 Neb. 219, 22 N.W.2d 710 (1946); Kuwitzsky v. O'Grady, 135 Neb. 466, 282 N.W. 396 (1938). The State must prove all of the essential elements of the offense charged beyond any reasonable doubt. State v. Gray, 8 Neb. App. 973, 606 N.W.2d 478 (2000). Primary and significant factor under this statute is a felony conviction rather than the sentence, and age of defendant at time of his prior conviction under Nebraska law has no relevance. Kennedy v. Sigler, 397 F.2d 556 (8th Cir. 1968). 3. Prior convictions Enhancement under the habitual criminal statute did not constitute an impermissible double enhancement where the trigger offense of flight to avoid arrest was enhanced from a misdemeanor to a felony based on the defendant's willful, reckless operation of a motor vehicle, rather than prior criminal conduct. State v. Kinser, 283 Neb. 560, 811 N.W.2d 227 (2012). The use of a prior conviction to establish status as a felon and then enhance a sentence does not constitute impermissible double enhancement. State v. Ramirez, 274 Neb. 873, 745 N.W.2d 214 (2008). A Nebraska court may use a prior conviction from another state for sentence enhancement under this section even though the conviction may not be used for enhancement in that other state. State v. Wabashaw, 274 Neb. 394, 740 N.W.2d 583 (2007). To prove a prior conviction for enhancement purposes, the State's evidence must establish with requisite trustworthiness, based upon a preponderance of the evidence, that (1) the defendant has been twice convicted of a crime, for which he or she was sentenced and committed to prison for not less than 1 year; (2) the trial court rendered a judgment of conviction for each crime; and (3) at the time of the prior conviction and sentencing, the defendant was represented by counsel or had knowingly and voluntarily waived representation for those proceedings. State v. King, 272 Neb. 638, 724 N.W.2d 80 (2006); State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006). The existence of a prior conviction and the identity of the accused as the person convicted may be shown by any competent evidence, including the oral testimony of the accused and duly authenticated records maintained by the courts or penal and custodial authorities. Specifically, in a proceeding for an enhanced penalty, the State has the burden to show that the records of a defendant's prior felony convictions, based on pleas of guilty, affirmatively demonstrate that the defendant was represented by counsel or that the defendant, having been informed of the right to counsel, voluntarily, intelligently, and knowingly waived that right. State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006). Self-authenticated judicial records from another state showing that a defendant was represented by counsel during various stages of his or her jury trial and at sentencing on a felony charge are sufficient to establish that the defendant was represented by counsel at the time of the prior conviction by jury in that state. State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005). The determination of whether a defendant has prior convictions that may increase the penalty for a crime beyond the prescribed statutory maximum is not a determination that must be made by the jury. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003). The State has the burden to prove the fact of prior convictions by a preponderance of the evidence. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003). The trial court determines the fact of prior convictions based upon the preponderance of the evidence standard. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003). Subsection (1)(a) of this section provides the specific enhancement mechanism where the current conviction is for a first degree sexual assault and the defendant has two or more prior felony convictions, at least one of which is for first degree sexual assault. State v. Burdette, 259 Neb. 679, 611 N.W.2d 615 (2000). Prior convictions sought to be used for penalty enhancement under the habitual criminal statute cannot be attacked in a separate proceeding. State v. Kuehn, 258 Neb. 558, 604 N.W.2d 420 (2000). To prove a prior conviction for enhancement purposes, the State need only show that at the time of the prior conviction defendant had, or waived, counsel. State v. Green, 240 Neb. 639, 483 N.W.2d 748 (1992); State v. Johns, 233 Neb. 477, 445 N.W.2d 914 (1989). This section requires that the prior convictions relied upon by the State, except for the first conviction, be for offenses committed after each preceding conviction, and all such prior convictions must precede the commission of the principal offense. State v. Wyatt, 234 Neb. 349, 451 N.W.2d 84 (1990); State v. Lieberman, 222 Neb. 95, 382 N.W.2d 330 (1986). A challenge to a prior conviction may only be raised in a direct appeal or in a separate proceeding commenced for the express purpose of setting aside the judgment alleged to be invalid, and not in habitual criminal proceedings. State v. Johns, 233 Neb. 477, 445 N.W.2d 914 (1989). Two or more prior convictions arising out of the same set of circumstances may not be used to impose an enhanced penalty. State v. Lopez, 215 Neb. 65, 337 N.W.2d 130 (1983). In order to warrant an enhanced penalty under this section, the prior convictions, except the first, must be for offenses committed after each preceding conviction, and all such prior convictions must precede the commission of the principal offense. State v. Ellis, 214 Neb. 172, 333 N.W.2d 391 (1983), overruling State v. Pierce, 204 Neb. 433, 283 N.W.2d 6 (1979). This section does not require that convictions and commitments considered in determining whether or not an individual is a habitual criminal necessarily must set a specific minimum incarceration of at least one year; rather, it only mandates exclusion of convictions and commitments where there occurred a pardon based upon innocence and the original commitment therein was for at least one year. Only in situations where such a pardon has occurred is the conviction and commitment disqualified from consideration in determining whether a defendant is a habitual criminal. State v. Luna, 211 Neb. 630, 319 N.W.2d 737 (1982). The validity of a prior conviction offered to enhance punishment must be challenged at the habitual criminal hearing and failure to challenge it at that time waives the issue. Thus, the prior conviction may not be attacked in a petition under the Post Conviction Act. State v. Cole, 207 Neb. 318, 298 N.W.2d 776 (1980). Sentence as habitual criminal set aside where information failed to charge the requisite two prior convictions and sentences. State v. Davis, 199 Neb. 165, 256 N.W.2d 678 (1977). Prior offenses are not limited to first conviction under Habitual Criminal Act. State v. Losieau, 182 Neb. 367, 154 N.W.2d 762 (1967). Information which charges two prior convictions and prison sentences for terms of not less than one year each, and charges a felony, meets requirements of this act. Rains v. State, 142 Neb. 284, 5 N.W.2d 887 (1942). Generally, one deemed to be a habitual criminal shall be punished by imprisonment for a mandatory minimum term of 10 years and a maximum term of not more than 60 years upon each conviction for a felony committed subsequent to the prior convictions used as the basis for the habitual criminal charge. State v. Taylor, 12 Neb. App. 58, 666 N.W.2d 753 (2003). Under subsection (1) of this section, a defendant convicted of a felony may be deemed a habitual criminal if the defendant has been (1) twice previously convicted of a crime, (2) sentenced, and (3) committed to prison for terms of not less than 1 year each. State v. Taylor, 12 Neb. App. 58, 666 N.W.2d 753 (2003). 4. Habeas corpus One found to be a habitual criminal may not be placed on probation. State v. Flye, 245 Neb. 495, 513 N.W.2d 526 (1994). Prisoner cannot attack by habeas corpus increased punishment imposed under Habitual Criminal Act upon ground that he was mentally incompetent at time of former conviction. McAvoy v. Jones, 149 Neb. 613, 31 N.W.2d 740 (1948). Party pleading guilty under this section is not entitled to release on habeas corpus where court imposing sentence had jurisdiction of the offense and of the person of the party sentenced hereunder. Alexander v. O'Grady, 137 Neb. 645, 290 N.W. 718 (1940). A prima facie case of a prior, counseled conviction for enhancement purposes is established by producing appropriate record evidence which discloses that at a critical point in the proceedings—arraignment, trial, conviction, or sentencing—the defendant had either intelligently and voluntarily waived counsel or in fact was represented by counsel at one of those times. State v. Britt, 1 Neb. App. 245, 493 N.W.2d 631 (1992). 5. Miscellaneous The language of subsection (1) of this section does not require that all convictions enhanced pursuant to this section be served consecutively to each other. Unless the offense for which the defendant was convicted requires the sentence to run consecutively to other convictions, the court retains its discretion to impose a concurrent sentence. State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015). This section does not require an enhanced penalty to be served consecutively to any other sentence imposed. State v. Berney, 288 Neb. 377, 847 N.W.2d 732 (2014). Where section 28-507 did not require a mandatory minimum sentence, the fact that the punishments for crimes of burglary were enhanced under this section did not require the enhanced mandatory minimum penalties to be served consecutively. State v. Berney, 288 Neb. 377, 847 N.W.2d 732 (2014). Good time credit under subsection (1) of section 83-1,107 does not apply to mandatory minimum sentences imposed on habitual criminals pursuant to subsection (1) of this section. Johnson v. Kenney, 265 Neb. 47, 654 N.W.2d 191 (2002). Double jeopardy principles do not apply to habitual criminal enhancement proceedings under this section. State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002); State v. Nelson, 262 Neb. 896, 636 N.W.2d 620 (2001). A hearing is required to ascertain whether a defendant qualifies as a habitual criminal. State v. Myers, 258 Neb. 300, 603 N.W.2d 378 (1999). This statute does not prescribe a separate offense but, rather, provides an enhancement of penalty for each conviction committed by one found to be a habitual criminal. State v. Rolling, 209 Neb. 243, 307 N.W.2d 123 (1981). When a person found guilty of a substantive crime as well as being a habitual criminal is improperly sentenced, both sentences must be set aside and the case remanded for proper sentencing. State v. Rolling, 209 Neb. 243, 307 N.W.2d 123 (1981). An enhanced sentence imposed under the provisions of the habitual criminal laws is not a new jeopardy or additional penalty for the same crime. It is simply a stiffened penalty for the latest crime which is considered to be an aggravated offense because it is a repetitive one. Addison v. Parratt, 208 Neb. 459, 303 N.W.2d 785 (1981). A court is authorized to order a presentence investigation in any case, and it is proper to consider defendant's criminal record in passing sentence. State v. Bruns, 200 Neb. 612, 265 N.W.2d 210 (1978). Where defendant resentenced to consecutive terms of imprisonment following vacation of prior concurrent sentences, held not an abuse of judge's discretion. State v. Davis, 200 Neb. 557, 264 N.W.2d 198 (1978). Post conviction relief denied defendant sentenced to twenty to thirty years on a drug charge as an habitual criminal. State v. Bartlett, 199 Neb. 471, 259 N.W.2d 917 (1977). Newspaper item citing the charges, including an habitual criminal action, pending against defendant prior to trial held not prejudicial to defendant in the absence of any evidence that the jurors knew of the article. State v. Addison, 198 Neb. 166, 251 N.W.2d 895 (1977). Participation in a hearing on an habitual criminal charge without objection is a waiver of the notice required by this section, and a plea of nolo contendere or of guilty admits former convictions charged in information. State v. Graham, 192 Neb. 196, 219 N.W.2d 723 (1974). On direct appeal from void sentence hereunder, Supreme Court has power to remand for a lawful sentence where the accused invoked appellate jurisdiction for correction of errors. State v. Gaston, 191 Neb. 121, 214 N.W.2d 376 (1974). Plea of guilty or nolo contendere to information charging former convictions confesses them and no hearing for proof thereof is required hereunder. State v. Youngstrom, 191 Neb. 112, 214 N.W.2d 27 (1974). Participation in hearing without objection was waiver of notice of hearing required by this section. State v. Huffman, 185 Neb. 417, 176 N.W.2d 506 (1970). Definition of who is an habitual criminal stated. Huffman v. Sigler, 182 Neb. 290, 154 N.W.2d 459 (1967). Evidence was sufficient to show that defendant was an habitual criminal. State v. Bundy, 181 Neb. 160, 147 N.W.2d 500 (1966). Imposition of sentence as an habitual criminal was sustained. State v. Sedlacek, 178 Neb. 322, 133 N.W.2d 380 (1965). During the trial the fact that the defendant is charged with being a habitual criminal shall not be disclosed to the jury. State v. Losieau, 174 Neb. 320, 117 N.W.2d 775 (1962). Time in which to institute error proceedings in Supreme Court does not run pending hearing on status of defendant as a habitual criminal. Kennedy v. State, 170 Neb. 193, 101 N.W.2d 853 (1960). Defendant was properly convicted as an habitual criminal. Kitts v. State, 153 Neb. 784, 46 N.W.2d 158 (1951). Imposition of increased penalty for subsequent offense is for court and not for jury. Haffke v. State, 149 Neb. 83, 30 N.W.2d 462 (1948). "Good time" under section 83-1,108 should not be applied against a mandatory minimum sentence imposed under subsection (1) of this section. Hurbenca v. Nebraska Dept. of Corr. Servs., 16 Neb. App. 222, 742 N.W.2d 773 (2007). A defendant sentenced as a habitual criminal to the mandatory 10-year sentence under this section is not entitled to good time credit pursuant to section 83-1,110 on his or her mandatory minimum sentence. Ebert v. Nebraska Dept. of Corr. Servs., 11 Neb. App. 553, 656 N.W.2d 634 (2003). The phrase "mandatory minimum term of ten years" as used in this section means that a sentence served by a habitual criminal is not to be less than 10 years' imprisonment. Ebert v. Nebraska Dept. of Corr. Servs., 11 Neb. App. 553, 656 N.W.2d 634 (2003). The challenge to a prior plea-based conviction that a defendant can raise in a habitual criminal allegation is limited to whether the defendant had or waived counsel. All other challenges constitute an impermissible collateral attack on the judgment, which must be raised by a direct appeal from the prior conviction. An uncounseled conviction by plea is not admissible to enhance a defendant's sentence absent a showing on the face of the conviction that the defendant knowingly, intelligently, and voluntarily waived counsel. Absent proof that the defendant knowingly, intelligently, and voluntarily waived counsel during a plea-based conviction, it is plain error to use such a conviction to enhance a defendant's sentence. State v. Gray, 8 Neb. App. 973, 606 N.W.2d 478 (2000). While being a habitual criminal is not a separate offense, the State nonetheless bears the burden of proving that enhancement is proper. In a proceeding for an enhanced penalty, the State has the burden to show that the record of a defendant's prior conviction, based on a plea of guilty, affirmatively demonstrates that the defendant was represented by counsel, or that the defendant, having been informed of the right to counsel, voluntarily, intelligently, and knowingly waived that right. State v. Gray, 8 Neb. App. 973, 606 N.W.2d 478 (2000). Failure of counsel at habitual offender proceedings, at which relator was allowed to plead guilty, to discover that relator had not been represented by counsel at previous criminal proceedings at which relator received underlying felony convictions constituted ineffective assistance of counsel. Tinlin v. Parratt, 680 F.2d 48 (8th Cir. 1982). Defendant's voluntary plea of guilty to forgery, count under this section having been dismissed under plea bargaining, indicated actual knowing waiver of speedy trial. Becker v. State, 435 F.2d 157 (8th Cir. 1971). Validity of prior sentence not irrelevant in determining whether sentence was properly imposed under this section, even though failure to have counsel present at time of sentencing can normally be remedied by resentencing. Losieau v. Sigler, 406 F.2d 795 (8th Cir. 1969).