The Colorado Supreme Court announced on Tuesday it will determine whether an alleged violation of a man’s constitutional right to counsel more than 30 years ago has any bearing on his 2021 drunk driving conviction.
At least three of the court’s seven members must agree to hear an appeal.
Under Colorado law, driving under the influence is typically a misdemeanor. However, if the prosecution proves a defendant has at least three prior convictions, the fourth offense becomes a felony.
Arapahoe County jurors convicted William Scott Burdette of DUI in 2021. He had one prior impaired driving conviction from 1995 and two from 1990, rendering his latest offense a felony.
Burdette told the trial judge he did not recall having counsel represent him in his prior cases. His lawyer alleged it was “common practice” that public defenders were not appointed for misdemeanors until the defendant had tried to negotiate a plea with the district attorney’s office for Arapahoe County. Only in 2013 did the legislature rescind that practice in state law.
On appeal, Burdette relied on a 1938 case from the U.S. Supreme Court, Johnson v. Zerbst, which recognized the right to counsel for indigent defendants in federal criminal prosecutions — decades before Gideon v. Wainwright would extend that guarantee to state cases. Burdette quoted the Zerbst decision in arguing that compliance with the Sixth Amendment’s right to counsel is a “jurisdictional prerequisite” for a court to convict someone.
A three-judge panel for the Court of Appeals noted no appellate ruling in Colorado had ever clarified whether the Supreme Court’s 86-year-old statement meant state courts lack jurisdiction to hear cases if a defendant is denied the right to counsel. The panel concluded the answer was no.
Turning to the state Supreme Court, Burdette noted the Court of Appeals neglected to address his separate, but related, claim involving his lack of counsel in the 1990s. Four years after the U.S. Supreme Court recognized the right to counsel in state cases in Gideon, it prohibited the use of prior convictions as evidence if they were obtained in violation of that right.
Because “the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right,” wrote Justice William O. Douglas.
Burdette asked the state Supreme Court to address whether the use of his convictions from the 1990s, in which he lacked appointed counsel, violated “anew” his constitutional rights in his felony DUI case.
“This is a matter of great public importance because prior to 2013, many pleas to drinking-and-driving offenses were unconstitutionally obtained. Relying on those pleas today in felony DUI prosecutions risks violating the constitutional rights of countless defendants,” wrote public defender Jessica A. Pitts.
The Supreme Court will decide the issue.
The case is Burdette v. People.