State v. Ferguson

1 See Utah Code Ann. § 77-36-1.1 (2003).
2 State v. Ferguson, 2005 UT App 144, ¶ 1, 111 P.3d 820.
2007 UT 1
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, No. 20050376
Plaintiff, Petitioner,
and Cross-Respondent,
v.
Michael Von Ferguson, F I L E D
Defendant, Respondent,
and Cross-Petitioner. January 9, 2007
---
Third District, Salt Lake
The Honorable Robin W. Reese
No. 031902097
Attorneys: Mark L. Shurtleff, Att’y Gen., J. Frederic Voros,
Jr., Asst. Att’y Gen., B. Kent Morgan, Alicia H.
Cook, Salt Lake City, for plaintiff
Joan C. Watt, Debra Meek Nelson, Vernice S. Trease,
Salt Lake City, for defendant
---
On Certiorari to the Utah Court of Appeals
PARRISH, Justice:
¶1 The State charged Michael Von Ferguson with violating a
protective order, attempted murder, and related offenses. The
protective order charge was enhanced to a felony because Ferguson
had previously been convicted of that same charge.1 A magistrate
bound Ferguson over for trial, but the district court reduced the
protective order charge to a misdemeanor after concluding that
Ferguson’s prior conviction had been entered in violation of his
Sixth Amendment right to counsel. In doing so, the district
court held that the State bore the burden of establishing the
validity of Ferguson’s prior conviction. On interlocutory
appeal, the court of appeals affirmed in part and reversed in
part.2 It agreed that Ferguson’s prior conviction could not be
used to enhance the subsequent charge if it was obtained in

3 Id. ¶ 19.
4 Id. ¶ 32.
5 535 U.S. 654 (2002).
No. 20050376 2
violation of his constitutional right to counsel.3 It
recognized, however, that the prior conviction enjoyed a
presumption of regularity and concluded that Ferguson had the
burden of producing at least some affirmative evidence that the
conviction was constitutionally infirm.4
¶2 We granted the State’s petition for certiorari to
determine whether an uncounseled misdemeanor conviction that
imposes a suspended sentence in violation of a defendant’s right
to counsel under Alabama v. Shelton5 can be used to enhance a
subsequent criminal charge. We also granted Ferguson’s cross-
petition, which asks us to determine who bears the burden of
establishing the constitutional validity of the prior conviction.
For the reasons detailed below, we affirm the court of appeals on
both issues, but clarify the type of evidence on which Ferguson
may rely in challenging the validity of his prior conviction.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Michael Von Ferguson lived with Julia Jepson for twenty
years. Jepson alleged that Ferguson abused her and her daughter
during that time. On January 8, 2003, Jepson obtained a
protective order that prohibited Ferguson from going near,
contacting, or harassing her. It also specifically required
Ferguson to stay away from Brickyard Kennel, Jepson’s place of
employment. Ferguson violated the protective order by calling
and threatening Jepson multiple times.
¶4 On March 18, 2003, Ferguson pled guilty to violating
the protective order and was sentenced to one year in jail. The
sentence was suspended, and Ferguson was placed on probation.
Ferguson was not represented by counsel during these proceedings.
¶5 Six days later, police officer R. K. Sullivan
investigated a report of a man with a rifle on the roof of a
Media Play building located behind Brickyard Kennel. When
Sullivan confronted the man, he claimed to be repairing the rain
gutter. After speaking with the Media Play manager and learning
that no such repair had been scheduled, Sullivan went to the
roof. The man was gone, but he had left behind the rifle wrapped
in a jacket.
¶6 At noon that day, after noticing a significant amount
of police and media traffic near the Brickyard Kennel, Jepson
turned on the news and learned of a “sniper” on the Media Play

6 Ferguson, 2005 UT App 144, ¶ 19.
7 Id. ¶ 20.
3 No. 20050376
roof. She recognized the description as one that matched
Ferguson’s and immediately called police. She later identified
the jacket found on the roof as belonging to Ferguson.
¶7 Police apprehended Ferguson, who admitted to being on
the roof on the day in question. Ferguson acknowledged that he
should not have been in the area but explained that he was on the
roof looking for “tools and things people might leave [there].”
He explained that it was necessary for him to carry the rifle to
the roof because he had been transporting it on his bike and had
no way to lock it up while conducting his rooftop activities.
¶8 The State charged Ferguson with, inter alia, violating
a protective order and sought to enhance that charge from a class
A misdemeanor to a third degree felony based on Ferguson’s prior
conviction for the same charge. At the preliminary hearing, the
State introduced a certified copy of Ferguson’s March 18, 2003
conviction for violating the protective order. Ferguson
objected, alleging that the conviction had been obtained in
violation of his constitutional rights because, on its face, it
showed that he had not been represented by counsel. The
magistrate denied Ferguson’s objection and bound him over on
charges of felony violation of a protective order and attempted
homicide. Ferguson moved to quash the bindover, arguing that
“his prior uncounseled misdemeanor conviction could not be used
to enhance the protective order charge to a third degree felony.”
The State opposed the motion, contending that the prior
conviction was valid because Ferguson had no right to counsel for
a misdemeanor charge for which he served no jail time.
¶9 The district court reduced the protective order charge
to a misdemeanor, reasoning that Alabama v. Shelton did not
permit the State to use Ferguson’s prior uncounseled conviction
to enhance the subsequent charge unless Ferguson had knowingly
and voluntarily waived his right to counsel. It further held
that the State had the burden of establishing such a waiver.
¶10 On interlocutory appeal, the court of appeals agreed
with the district court that the State could not enhance the
protective order charge on the basis of a prior conviction
obtained in violation of a defendant’s right to counsel.6 But it
reversed the district court’s holding that the State bore the
burden of establishing the constitutional validity of the
uncounseled conviction.7 Recognizing the presumption of
regularity that attached to the conviction, it held that Ferguson
had the burden of producing at least some affirmative evidence to

8 Id. ¶ 31.
9 State v. Warren, 2003 UT 36, ¶ 12, 78 P.3d 590.
10 State v. Brake, 2004 UT 95, ¶ 11, 103 P.3d 699 (citation
omitted).
11 U.S. Const. amend. VI.
No. 20050376 4
rebut that presumption.8 It therefore remanded the case for a
factual determination as to whether Ferguson had waived his right
to counsel on the prior conviction.
¶11 We granted certiorari on both issues and have
jurisdiction pursuant to Utah Code section 78-2-2(3)(a). On
certiorari, we review the decision of the court of appeals, not
that of the district court.9 “We conduct that review for
correctness, ceding no deference to the court of appeals.”10
ANALYSIS
¶12 We begin by considering whether Ferguson’s uncounseled
misdemeanor conviction, for which Ferguson received a suspended
jail sentence, may be used to enhance his subsequent criminal
charge. We affirm the court of appeals and conclude that it may
not be used unless Ferguson knowingly waived his right to
counsel.
¶13 We also agree with the court of appeals that Ferguson
has the burden of producing at least some evidence to rebut the
presumption of regularity attaching to his prior conviction, but
we clarify the type of evidence that satisfies this burden. The
State produced a certified copy of the prior conviction, which is
entitled to a presumption of regularity. Ferguson may rebut this
presumption, however, by offering minimal evidence that the
conviction was obtained in violation of his right to counsel. If
he does so, the burden of establishing the validity of the
conviction shifts back to the State. Accordingly, we remand this
matter for a factual determination regarding the validity of the
prior conviction.
I. A MISDEMEANOR CONVICTION OBTAINED IN VIOLATION
OF THE SIXTH AMENDMENT IS INVALID
¶14 The Sixth Amendment to the United States Constitution
provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the assistance of counsel for his
defense.”11 The United States Supreme Court has construed the
Sixth Amendment to require that counsel be “provided for
defendants unable to employ counsel unless the right is

12 Gideon v. Wainwright, 372 U.S. 335, 340 (1963) (citing
Johnson v. Zerbst, 304 U.S. 458 (1938)).
13 Gideon, 372 U.S. at 340-45.
14 407 U.S. 25 (1972).
15 440 U.S. 367 (1979).
16 535 U.S. 654 (2002).
17 407 U.S. at 26, 30-31.
18 Id. at 37.
19 440 U.S. at 368.
20 Id. at 374.
5 No. 20050376
competently and intelligently waived.”12 In Gideon v.
Wainwright, the Court specifically held that the right to counsel
is a fundamental right that applies to state criminal proceedings
through the Due Process Clause of the Fourteenth Amendment.13
¶15 It is a bedrock principle of American jurisprudence
that the Sixth Amendment right to appointed counsel attaches when
an indigent defendant is charged with a felony. But unlike those
charged with a felony, indigent defendants in misdemeanor cases
do not necessarily enjoy the right to appointed counsel. Three
United States Supreme court cases, Argersinger v. Hamlin,14 Scott
v. Illinois,15 and Alabama v. Shelton,16 have explained that the
right to appointed counsel attaches in misdemeanor cases only if
the defendant actually has been imprisoned or received a
suspended sentence. We examine each of these cases in turn.
¶16 In Argersinger, the Court held that indigent defendants
were entitled to counsel in misdemeanor cases that resulted in
less than six months’ imprisonment.17 It reasoned that “absent a
knowing and intelligent waiver, no person may be imprisoned for
any offense, whether classified as petty, misdemeanor, or felony,
unless he was represented by counsel at his trial.”18
¶17 The Court clarified the Argersinger rule a few years
later in Scott,19 explaining that the Sixth Amendment “require[s]
only that no indigent criminal defendant be sentenced to a term
of imprisonment unless the State has afforded him the right to
assistance of appointed counsel in his defense.”20 It reasoned
that the right to counsel in misdemeanor cases is implicated only
when the trial leads to “actual imprisonment” of the defendant
because “actual imprisonment is a penalty different in kind from

21 Id. at 373.
22 Id. at 373-74.
23 See id.
24 535 U.S. 654, 658 (2002).
25 Id.
26 Id. at 658.
27 Id. at 659-60.
28 Id. at 658.
29 Id. (quoting Argersinger, 407 U.S. at 40).
30 Shelton, 535 U.S. at 662.
No. 20050376 6
fines or the mere threat of imprisonment.”21 Under Scott,
sentences of fines or other punishments for uncounseled
misdemeanor convictions are constitutionally permissible so long
as no actual imprisonment is imposed.22 If a defendant is
actually imprisoned, then the Sixth Amendment attaches, and the
defendant must have either received or intelligently waived his
right to counsel.23
¶18 More than two decades later, in Shelton, the Court
expanded the scope of the actual imprisonment standard, holding
that the Sixth Amendment also attaches when a defendant receives
a suspended sentence of imprisonment.24 In Shelton, an Alabama
district court levied a suspended jail sentence in addition to a
fine for a misdemeanor violation.25 The defendant appealed,
claiming a violation of his Sixth Amendment right to counsel.26
The Alabama Supreme Court agreed with the defendant and
invalidated the portion of the sentence imposing jail time.27 On
certiorari, the United States Supreme Court addressed “whether
the Sixth Amendment right to appointed counsel . . . applies to a
defendant” who receives a suspended jail sentence.28 The Court
answered the question in the affirmative, reasoning that the
defendant was entitled to counsel because even a suspended
sentence could potentially “‘end up in the actual deprivation of
a person’s liberty.’”29 Accordingly, the suspended sentence fell
within the “actual imprisonment” standard articulated by Scott
and was infirm for failing to comply with the Sixth Amendment.30
¶19 While the Shelton opinion affirmed the decision of the
Alabama Supreme Court, which had invalidated the incarceration
portion of Shelton’s sentence, the Court did not explicitly
address the validity of Shelton’s underlying conviction. In the

31 State v. Ferguson, 2005 UT App 144, ¶ 13, 111 P.3d 820.
32 See Shelton, 535 U.S. at 673-74.
33 Id. at 662 (“A suspended sentence is a prison term
imposed for the offense of conviction. Once the prison term is
triggered, the defendant is incarcerated not for the probation
violation, but for the underlying offense.”).
34 Id. at 665 (emphasis added).
35 Id. at 664 (emphasis added).
7 No. 20050376
present case, the State latches onto this ambiguity, arguing that
the underlying conviction remained valid and could be used to
enhance subsequent charges. We therefore examine Shelton and
other United States Supreme Court precedent further. We agree
with the court of appeals that “the State reads too much into
Shelton’s result.”31 Both the procedural history and the plain
language of the Shelton opinion suggest that a conviction
obtained in violation of the Sixth Amendment is invalid for all
purposes and therefore cannot be used to enhance a subsequent
criminal charge.
¶20 The Supreme Court’s affirmance in Shelton is an
indication of its agreement with the Alabama court’s ruling that
the suspended sentence gave rise to a Sixth Amendment violation.
Because the issue was not before it, however, the Supreme Court
did not address the validity of the underlying conviction and the
nonincarceration components of Shelton’s sentence.32
¶21 While the Supreme Court did not explicitly address the
constitutionality of the specific remedy ordered by the Alabama
court, it nevertheless implied that a conviction obtained in
violation of the Sixth Amendment, not merely the offending
sentence, would be constitutionally infirm. It repeatedly
described the Sixth Amendment as protecting against invalid
convictions, not merely invalid sentences.33 The Court
reiterated that the Sixth Amendment protects against invalid
convictions by stressing that a defendant cannot be “jailed
absent a conviction credited as reliable.”34 It also indicated
that a “defendant ha[s] a recognized right to counsel when
adjudicated guilty,”35 emphasizing that the Sixth Amendment right
applies to the conviction itself, not only to the sentence.
Nowhere did the Court indicate that an offending sentence could
be severed from an invalid conviction, somehow resurrecting the
conviction’s validity as the State suggests here.
¶22 Other United States Supreme Court precedent similarly
implies that a conviction obtained in violation of the Sixth
Amendment is invalid and therefore cannot be used to enhance a

36 511 U.S. 738, 740-41 (1994).
37 Id.
38 Id. at 749.
39 Id. at 746-47.
40 372 U.S. 335, 336, 344-45 (1963).
41 389 U.S. 109, 115 (1967).
42 404 U.S. 443, 449 (1972) (citation omitted), superseded
on other grounds by statute; see also Loper v. Beto, 405 U.S.
473, 483 (1972) (“[T]he use of convictions constitutionally
(continued...)
No. 20050376 8
subsequent sentence. For example, in Nichols v. United States,
which was decided before Shelton, a defendant’s sentence was
enhanced from 210 to 235 months as a result of a prior
uncounseled misdemeanor conviction.36 As punishment for this
misdemeanor conviction, the defendant was fined but not
incarcerated.37 The Court upheld the sentencing enhancement,
holding that “an uncounseled misdemeanor conviction, valid under
Scott because no prison term was imposed, is also valid when used
to enhance punishment at a subsequent conviction.”38 It reasoned
that such enhancements were permissible because the Sixth
Amendment did not attach to nonincarceration convictions.39
¶23 The State reads Nichols as holding that any valid
misdemeanor conviction can be used to enhance a subsequent
sentence. While we do not disagree with this proposition, we
emphasize that it is the underlying conviction that must be
valid. An uncounseled misdemeanor conviction imposing a sentence
of incarceration, either actual or suspended, is not valid.
Therefore, a conviction obtained in violation of Scott or Shelton
cannot be used for enhancement purposes.
¶24 This result is consistent with the reasoning and
language of Supreme Court precedent regarding the right to
counsel generally. In Gideon v. Wainwright, the Court reasoned
that because the right to counsel is so “fundamental and
essential to fair trials,” it was required to reverse the
indigent defendant’s uncounseled conviction.40 Similarly, in
Burgett v. Texas, the Court held that it would be impermissible
for courts “[t]o permit a conviction obtained in violation of
Gideon v. Wainwright to be used against a person either to
support guilt or enhance punishment.”41 And in United States v.
Tucker, the Court held that a sentencing court could not consider
a defendant’s previous uncounseled conviction because doing so
would “erode the principle of [Gideon v. Wainwright].”42

42 (...continued)
invalid under Gideon v. Wainwright to impeach a defendant’s
credibility deprives him of due process of law.”); Johnson v.
Zerbst, 304 U.S. 458, 468 (1938) (“If the accused, however, is
not represented by counsel and has not competently and
intelligently waived his constitutional right, the Sixth
Amendment stands as a jurisdictional bar to a valid conviction
and sentence depriving him of his life or his liberty.”).
43 Argersinger, 407 U.S. at 32.
44 Id. at 32-33.
45 Cf. Lewis v. United States, 445 U.S. 55, 66-67 (1980)
(holding that an uncounseled felony conviction may form the basis
for imposing a civil firearms disability under federal firearms
statute because Congress could rationally conclude that any
felony conviction, even an allegedly invalid one, is a sufficient
basis on which to prohibit the possession of a firearm).
9 No. 20050376
¶25 The State attempts to distinguish these cases by
pointing out that they all involve felonies. It acknowledges
that a violation of a defendant’s right to counsel in a felony
proceeding invalidates the underlying conviction. Nevertheless,
the State maintains that “[b]ecause the right to counsel in
misdemeanor prosecutions depends on the imposition of jail time,
violation of that right requires invalidating only the jail
time.”
¶26 We fail to see the basis for the alleged distinction.
Although these cases involved felonies, the United States Supreme
Court has specifically held that “their rationale has relevance
to any criminal trial . . . where an accused is deprived of his
right to liberty.”43 The ideas about the fundamental right to
counsel articulated in these cases are applicable to all criminal
prosecutions involving the deprivation of liberty.44 We are
therefore convinced that the validity of an uncounseled criminal
conviction is not contingent on whether the offense is classified
as a misdemeanor or a felony, but rather on whether the Sixth
Amendment attaches. If a conviction is obtained in violation of
a defendant’s Sixth Amendment right to counsel, then the
conviction, not merely the offending sentence, is invalid and may
not provide the basis for enhancing a subsequent criminal
charge.45
¶27 In sum, under Shelton, the Sixth Amendment attached to
Ferguson’s prior conviction when he received a one-year suspended
sentence. He consequently had the right to be represented by
counsel. Because he was not, Ferguson’s conviction is invalid

46 See discussion infra Part II.
No. 20050376 10
and cannot be used to enhance the subsequent criminal charge
unless he waived his right to counsel.46
¶28 Before moving to the second issue presented for our
review, we pause to clarify the practical result of our ruling.
The Supreme Court’s analytic approach to the right to counsel, as
reflected in the Scott and Shelton opinions, often creates a
practical dilemma. This is so because a defendant’s right to
counsel in a misdemeanor case is dependent upon the sentence he
receives. Before sentencing, the court does not know whether an
uncounseled conviction will be valid under Scott because no
prison time will be imposed or whether it will be invalid under
Shelton because the defendant will receive jail time or a
suspended sentence. It is therefore difficult for courts to
determine when to appoint counsel for an indigent defendant
charged with a misdemeanor.
¶29 To avoid the risk of invalidating a conviction in
misdemeanor cases, we emphasize that the courts of this state may
not impose incarceration-based sentences in cases where an
indigent defendant has neither received nor intelligently waived
the right to counsel. As a result, in those misdemeanor cases
where the court elects not to appoint counsel, it restricts its
sentencing options accordingly.
II. WAIVER OF THE RIGHT TO COUNSEL
¶30 Having concluded that Ferguson’s prior conviction
cannot be used to enhance his subsequent charge unless he waived
his right to counsel, we must now determine whether Ferguson did
so. This requires us to assess which party bears the burden of
establishing the validity of the underlying conviction.
¶31 Ferguson contends that the State had the burden of
establishing a constitutionally adequate waiver of counsel
because the judgment of the prior conviction reflects that he was
not represented by counsel. Although Utah courts generally
recognize a presumption of regularity when the State introduces a
prior conviction for enhancement purposes, Ferguson argues that
this presumption does not attach to a judgment that shows on its
face that the defendant was not represented by counsel. In
contrast, the State contends that even judgments based on
uncounseled convictions enjoy a presumption of regularity,
thereby shifting to Ferguson the burden of coming forward with
evidence to establish that he did not knowingly waive his right
to counsel.
¶32 We agree with the State. Even those judgments based on
uncounseled convictions are entitled to a presumption of

47 770 P.2d 146 (Utah 1989).
48 Id. at 146.
49 Id. at 149.
50 389 U.S. 109 (1967).
11 No. 20050376
regularity. In such cases, however, the presumption may be
rebutted by the defendant’s own testimony. The burden then
shifts to the State to establish the validity of the conviction.
A. Previous Convictions Are Entitled
to a Presumption of Regularity
¶33 In State v. Triptow, we articulated a framework for
analyzing the validity of an underlying conviction in the context
of a charging enhancement.47 In Triptow, a defendant whose
sentence had been enhanced under a habitual criminal statute
appealed the enhancement, arguing that the state had the burden
of proving that he was represented by counsel on the charge
giving rise to the enhancement.48 We disagreed, reasoning:
A previous judgment of conviction so proven
is entitled to a presumption of regularity,
including a presumption that the defendant
was represented by counsel. This presumption
satisfies any initial burden the State may
have of proving that the defendant had or
knowingly waived counsel. After proof of the
previous conviction is introduced, the burden
is on the defendant to raise the issue and
produce some evidence that he or she was not
represented by counsel and did not knowingly
waive counsel. Once the defendant has
presented some evidence, the presumption of
regularity is rebutted and the burden shifts
to the State to prove by a preponderance of
the evidence that the defendant was in fact
represented or knowingly waived
representation.49
¶34 Under this test, the State may satisfy its initial
burden of establishing the validity of the conviction by
producing a certified copy of the conviction. But Ferguson
contends that the Triptow presumption of regularity does not
attach to the underlying conviction in this case because that
conviction reflects that he was not represented by counsel. In
so arguing, Ferguson relies on the United States Supreme Court
case of Burgett v. Texas.50 In Burgett, the Court held that
because “the judgment on its face showed that petitioner was not

51 Id. at 112, 115.
52 506 U.S. 20 (1992).
53 State v. Ferguson, 2005 UT App 144, ¶ 23, 111 P.3d 820.
54 Parke, 506 U.S. at 33-34.
55 Id. at 31.
56 Id. at 33.
57 Id. at 31.
58 Id.
59 See Parke, 506 U.S. at 31 (referring to the requirement
that a defendant’s guilty plea be knowing and voluntary).
No. 20050376 12
represented by counsel,” it was “constitutionally infirm under
the standards of Gideon v. Wainwright” and could not “be used
against a person either to support guilt or enhance punishment
for another offense.”51
¶35 In Parke v. Raley,52 however, the United States Supreme
Court “distinguished Burgett in a way that directly responds to
Ferguson’s arguments.”53 In Parke, the Court upheld the
constitutionality of a Kentucky burden-shifting scheme similar to
that adjudicated by this court in Triptow. The Kentucky scheme
accorded judgments a presumption of regularity but allowed
defendants to rebut that presumption.54 The Court reasoned that
Kentucky’s burden-shifting rule did not violate due process
because “even when a collateral attack on a final conviction
rests on constitutional grounds, the presumption of regularity
that attaches to final judgments makes it appropriate to assign a
proof burden to the defendant.”55 Parke specifically cites
Triptow in support of the proposition that “allocating some
burden to the defendant is [not] fundamentally unfair.”56
¶36 Parke also limited Burgett, reasoning that Burgett was
premised on outdated assumptions.57 When Burgett’s prior
conviction was entered, “state criminal defendants’ federal
constitutional right to counsel had not yet been recognized,
. . . so it was reasonable to presume that [Burgett] had not
waived a right he did not possess.”58 Such a presumption is no
longer accurate because courts are assumed to have complied with
well-established requirements ensuring that any waiver of the
right to counsel is made knowingly and intelligently.59
Accordingly, Burgett can no longer be read to “stand[] for the
proposition that every previous conviction used to enhance
punishment is ‘presumptively void’ if waiver of a claimed

60 Id.
61 2005 UT 79, 125 P.3d 917.
62 Id. ¶ 25.
63 369 U.S. 506, 516-17 (1962).
64 1987 Utah LEXIS 638, at *5.
65 Id.; see also Carnley, 369 U.S. at 516-17.
66 See Carnley, 369 U.S. at 516-17; Hamilton, 1987 Utah
LEXIS 638, paras. 5-6.
67 Lucero, 2005 UT 79, ¶ 25.
13 No. 20050376
constitutional right does not appear from the face of the
record.”60
¶37 In arguing that his prior conviction is not entitled to
a presumption of regularity, Ferguson also relies on language
from our decision in Lucero v. Kennard.61 There, we indicated
that because of the “special status” of right-to-counsel claims,
“[a] court may not presume waiver of the right to counsel unless
there is some evidence that the defendant affirmatively
acquiesced to the waiver.”62 Relying on this language, Ferguson
argues that even if a judgment generally enjoys a presumption of
regularity, waiver of counsel cannot be presumed. But neither
Lucero nor the cases that it cites stand for such a proposition.
Lucero cites Carnley v. Cochran63 and State v. Hamilton,64 but
neither of these cases states that a waiver of counsel cannot be
presumed. Rather, they hold only that it is impermissible to
presume a waiver of counsel where a trial record is silent on the
issue of waiver.65 Neither addresses whether the presumption of
regularity applies to judgments reflecting an uncounseled
conviction.66
¶38 When read with Triptow, Lucero stands only for the
proposition that deprivation of counsel claims enjoy a “special
status” in our jurisprudence because of the constitutional
importance of counsel.67 We said nothing in Lucero to eliminate
the Triptow presumption of regularity that we afford to
judgments, even those judgments reflecting an uncounseled
conviction.
¶39 In this case, the State presented a certified copy of
Ferguson’s conviction on the misdemeanor protective order charge.
Under Triptow, we presume that this conviction was validly
entered, even though it reflects that Ferguson was not
represented by counsel. The burden then shifted to Ferguson to

68 Triptow, 770 P.2d at 149.
69 Id.
70 2003 UT App 95, ¶ 11, 68 P.3d 1035.
71 See State v. Heaton, 958 P.2d 911, 917 (Utah 1998).
72 Parke, 506 U.S. at 30-31.
73 Triptow, 770 P.2d at 149.
74 Lucero v. Kennard, 2005 UT 79, ¶ 25, 125 P.3d 917; see
also Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 404
(2001) (indicating that deprivation of counsel claims “warrant[]
special treatment among alleged constitutional violations”).
No. 20050376 14
rebut this presumption by offering evidence that he “did not
knowingly waive counsel.”68
B. Minimal Evidence Is Required to
Rebut the Presumption of Regularity
¶40 To rebut the presumption of regularity, Ferguson must
present “some evidence that he . . . was not represented by
counsel and did not knowingly waive counsel.”69 Relying on the
court of appeals’ statement in State v. Gutierrez,70 the State
asserts that more than a self-serving affidavit, or similar
evidence, is required to rebut the presumption of regularity. We
are troubled, however, that requiring defendants to produce more
than a minimal amount of rebuttal evidence could undermine their
constitutional rights.71 Although a defendant bears some burden
of proof in a collateral challenge to an unappealed prior
conviction, the State bears the ultimate burden.72 Requiring
that defendants produce evidence in addition to their own
testimony would shift to the defendants the ultimate burden of
proof–-the very result we sought to avoid in Triptow by adopting
the burden-shifting framework.73 It would also undermine the
“special status” that we afforded to deprivation of counsel
claims in Lucero.74 We consequently overrule Guiterrez to the
extent that it is inconsistent with this opinion and emphasize
that our reference in Triptow to “some evidence” may be satisfied
by a defendant’s own testimony.
¶41 In summary, although Ferguson must do more than merely
produce a copy of the conviction reflecting that he was not
represented by counsel, he need only come forward with some
evidence to rebut the presumption of regularity. His own
testimony that he did not waive his right to counsel is
sufficient for this purpose. If Ferguson produces such evidence,
the burden then shifts to the State to demonstrate by a

75 See, e.g., State v. Baker, 485 N.W.2d 237, 248 (Wis.
1992) (holding that the defendant overcame the presumption of
regularity when he produced both a self-serving affidavit stating
that he had not waived his right to counsel and an affidavit from
his attorney indicating that he had made a good faith effort to
find records from the prior proceeding).
15 No. 20050376
preponderance of the evidence that Ferguson knowingly waived his
right to counsel.75
CONCLUSION
¶42 We affirm the court of appeals’ holding that a previous
uncounseled conviction imposing a suspended sentence cannot be
used to enhance a subsequent criminal charge unless the defendant
knowingly and intelligently waived his right to counsel. In
determining whether a defendant did so, a previous conviction is
presumed valid unless the defendant can rebut that presumption by
offering evidence that he did not validly waive his right to
counsel. This burden is minimal, however, and can be satisfied
by the defendant’s own testimony. The burden then shifts to the
State to establish the validity of the waiver. We therefore
affirm the court of appeals and remand this case for further
proceedings in accordance with this opinion.
---
¶43 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish’s
opinion.