Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED APRIL 9, 2002
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 115184
ROBERT JAMES ROSEBERRY,
Defendant-Appellant.
____________________________________
BEFORE THE ENTIRE BENCH
TAYLOR, J.
Defendant pleaded guilty to OUIL-3d, as a third-felony
habitual offender. After being sentenced on the OUIL-3d
conviction, defendant moved to set aside the conviction on the
ground that his two earlier OUIL convictions were invalid
because he was not afforded counsel in connection with them.
The circuit court denied the motion, and the Court of Appeals
denied defendant’s application for leave to appeal. We
affirm, because such an untimely collateral attack on a prior
conviction cannot provide a basis for relief.
I
Pursuant to a plea agreement and while represented by
counsel, defendant pleaded guilty in the circuit court to the
felony of operating under the influence of intoxicating liquor
or a controlled substance, third offense, MCL 257.625(8)(c)1,
as well as being a third-felony habitual offender, MCL
769.11.2 Thereafter, the circuit court sentenced defendant to
80 to 120 months (six years, eight months to ten years) of
imprisonment on the OUIL-3d conviction (with the habitual
third enhancement).
Defendant’s conviction of OUIL-3d was predicated on two
prior OUIL convictions. After sentencing in the present case,
defendant, in a motion to vacate his OUIL-3d conviction and
sentence, challenged for the first time the validity of his
prior OUIL convictions on the basis of his claim that he was
not properly afforded his right to counsel in connection with
the prior convictions.3 The circuit court denied the motion.
1
Defendant admitted at the plea proceeding that he had
been driving on U.S. 23 while he was “way over the legal limit
of intoxication” from having consumed a large amount of beer
and that his consumption of alcohol had affected him to the
point that he could not properly drive a motor vehicle.
2
Defendant also pleaded guilty to two misdemeanors that
are immaterial for present purposes.
3
An indigent defendant is constitutionally entitled to
appointed counsel to defend against a misdemeanor charge if
the defendant is “actually imprisoned” as a result of being
2
The Court of Appeals denied defendant’s ensuing delayed
application for leave to appeal. Unpublished order, entered
June 9, 1999 (Docket No. 218032). We granted leave, limited
to whether defendant’s collateral challenge to his earlier
OUIL convictions “was timely where it was not made until after
he had pleaded guilty of OUIL, third offense.” 463 Mich 976
(2001).
II
A
The present case presents a straightforward question of
law, whether a defendant, after pleading guilty to a crime
such as OUIL-3d that depends on the defendant having one or
more prior convictions, may collaterally attack a prior
conviction on the ground that it was improperly obtained
because of a denial of the right to counsel. We hold that
such an untimely collateral attack on a prior conviction
should not be entertained by Michigan courts.
The present case involves a collateral, as opposed to a
direct, attack on defendant’s two prior OUIL convictions
because the attack is being made in the present OUIL-3d case
rather than having been made in a direct appeal from the prior
convictions. People v Ingram, 439 Mich 288, 291 n 1; 484 NW2d
241 (1992) (“Collateral attacks encompass those challenges
convicted of the charged misdemeanor. People v Reichenbach,
459 Mich 109, 120; 587 NW2d 1 (1998).
3
raised other than by initial appeal of the conviction in
question”).
In People v Crawford, 417 Mich 607; 339 NW2d 630 (1983),
the defendant, under a plea bargain, pleaded nolo contendere
to forgery and guilty to being an habitual second offender.
On appeal, the defendant in Crawford argued that the plea
bargain was illusory because the plea-based prior conviction
under the habitual offender charge was subject to attack
because it was obtained without the defendant being advised of
two of the constitutional rights required by People v
Jaworski, 387 Mich 21; 194 NW2d 868 (1972).4 In affirming the
defendant’s guilty plea to being an habitual offender, the
Crawford Court stated:
A conviction defective under Jaworski can be
challenged by a timely motion by the defendant to
quash the supplemental information or to strike
from the supplemental information the defective
conviction. To be timely, such a motion must be
made before a defendant’s plea of guilty or nolo
contendere is accepted. [Id. at 613-614.]
In light of the result in Crawford of affirming the
4
In Jaworski, this Court, applying Boykin v Alabama, 395
US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969), held that, in a
plea proceeding conducted after the June 2, 1969 date of the
Boykin opinion, a defendant must be informed by the trial
court of and specifically waive (1) the right to trial by
jury, (2) the right to confront one’s accusers, and (3) the
right against compelled self-incrimination. Accordingly, in
directly reviewing the plea-based conviction in Jaworski, in
which the trial court failed to inform the defendant of the
right against compelled self-incrimination, id. at 26, this
Court vacated the conviction and remanded the case for further
proceedings. Id. at 33.
4
defendant’s plea-based conviction, its actual holding is
implicit in the second of these sentences. While the first
sentence says collateral challenges are possible, the second
gives the deadline for when they must be presented to be
considered. Because the deadline was missed by the defendant
in Crawford, that fact is dispositive of the case.
Accordingly, the first sentence was mere dicta because the
merits or nature of the collateral attack in Crawford were of
no consequence to its resolution, given the untimeliness of
the collateral attack in that case. Thus, the dissent is
simply incorrect in asserting that the first sentence was
“part of the resolution of the case.” Post, p 8.
This Court also stated in Crawford:
Crawford not having moved to set aside the
prior conviction of which he now complains or to
quash the supplemental information, and it not
appearing that the prosecutor was on notice that
the prior conviction may have been deficient or
subject to challenge, Crawford cannot properly
complain that he might not or would not have pled
guilty or might have worked out a better plea
bargain if the facts had been developed and his
legal position had been sustained. [Id. At 613.]
While the dissent emphasizes the factual difference that
Crawford did not involve a challenge to a prior conviction
based on a violation of the right to counsel, the rationale of
Crawford nevertheless applies with equal force to the present
case. Because (1) defendant did not move in the trial court
to set aside either of his prior OUIL convictions before
5
pleading guilty to OUIL-3d and (2) nothing in the record
indicates that the prosecution in the present case should have
been on notice of any alleged deficiency in the prior OUIL
convictions, defendant was precluded from collaterally
attacking the prior convictions after pleading guilty to the
OUIL-3d charge.
B
Justice Brickley authored a concurrence in Crawford in
which, joined by Justice Ryan, he expressed disagreement with
the assertion in the Crawford majority’s dicta that a
conviction defective under Jaworski may be collaterally
attacked by a timely motion during an habitual offender
proceeding. Crawford, supra at 614-615. Rather, Justice
Brickley would have resolved Crawford by holding that only
guilty pleas taken in violation of the right to counsel
articulated in Gideon v Wainwright, 372 US 335; 83 S Ct 792;
9 L Ed 2d 799 (1963), would be subject to collateral attack.
Crawford, supra at 615. It follows that, under this view,
Jaworski violations would only be subject to direct attack.
Later, in Ingram, supra at 296-297, this Court adopted
Justice Brickley’s concurrence in Crawford. Therefore, after
Ingram, only Gideon violations could support a collateral
attack on a plea-based conviction. The remaining significance
6
of Crawford, after Ingram, was that Crawford had established
a timeliness factor in bringing a collateral attack on a
predicate conviction. We today make clear that any collateral
challenge to a prior conviction must be brought in a timely
fashion. Accordingly, to be understood is that the adoption
by this Court in Ingram of Justice Brickley’s concurrence in
Crawford does not negate the actual holding of this Court in
Crawford foreclosing an untimely collateral attack on a
conviction. Rather, the holding of Crawford barring
collateral attacks of whatever sort on a prior conviction that
are not advanced until after a defendant tenders a plea in the
present proceeding remains intact.
III
Contrary to the apparent view of the dissent, the present
case is distinguishable from Burgett v Texas, 389 US 109; 88
S Ct 258; 19 L Ed 2d 319 (1967), and United States v Tucker,
404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972). In Burgett,
the United States Supreme Court reversed a defendant’s
convictions following a jury trial on the basis of the use of
prior convictions that were from all appearances obtained
without the benefit of counsel in violation of Gideon, supra.
In Tucker, the defendant was also convicted of a crime by a
jury. Id. at 444-445. At sentencing, the federal district
court expressly considered three prior felony convictions of
7
the defendant. The Tucker Court held that the defendant was
entitled to resentencing because it subsequently was
determined that the prior felony convictions were
constitutionally invalid as they were obtained without the
defendant having been provided the right to counsel as
provided by Gideon, supra. Tucker, supra at 447.
In contrast to Burgett and Tucker, both of which involved
a defendant convicted after a jury trial, defendant in the
present case pleaded guilty to OUIL-3d and thereby
acknowledged the validity of his prior OUIL convictions. It
is this acknowledgment that distinguishes our case, where a
plea of guilty sanitized any earlier collateral error, and
Burgett and Tucker where no such acknowledgment took place.
The watershed importance of a plea of guilty in criminal
procedure law was made clear by the United States Supreme
Court in Tollett v Henderson, 411 US 258, 267; 93 S Ct 1602;
36 L Ed 2d 235 (1973), where the Court held in the context of
federal habeas corpus review of a state criminal conviction:
[A] guilty plea represents a break in the
chain of events which has preceded it in the
criminal process. When a criminal defendant has
solemnly admitted in open court that he is in fact
guilty of the offense with which he is charged, he
may not thereafter raise independent claims
relating to the deprivation of constitutional
rights that occurred prior to the entry of the
guilty plea.
The parties have not cited, and we have not discovered,
any precedent from the United States Supreme Court that carves
8
out an exception to this broad principle for possible Gideon
violations in connection with an antecedent conviction.
Therefore, contrary to the implication of the dissent, a
defendant does not have the unlimited right under controlling
precedent to raise at any time a claim that a prior conviction
is “void” under Gideon. Rather, the defendant is precluded
from this if the time he chooses to raise his Gideon claim is
after an intervening guilty plea to an offense such as OUIL
3d, which inherently includes an admission of the validity of
the prior conviction. Accordingly, it is appropriate—and
consistent with federal constitutional law as articulated by
the United States Supreme Court—to preclude defendant in this
case from collaterally attacking the prior OUIL convictions
underlying his guilty plea to OUIL-3d on the basis of his
claims of constitutional deprivations that occurred in
connection with the prior convictions.
We believe that the dissent’s reliance, post at 5, on
Menna v New York, 423 US 61; 96 S Ct 241; 46 L Ed 2d 195
(1975), to effectively reject the applicability of Tollett,
supra, is misplaced. In its brief per curiam opinion in
Menna, the United States Supreme Court held that a guilty plea
to a charge does not foreclose a claim that the charge is
barred by the federal Double Jeopardy Clause. In this
context, the Court included in a footnote the following
9
sentence which is relied on by the dissent:
A guilty plea, therefore, simply renders
irrelevant those constitutional violations not
logically inconsistent with the valid establishment
of factual guilt and which do not stand in the way
of conviction if factual guilt is validly
established. [Menna, supra at 62-63, n 2.]
This language, considered in context, refers to constitutional
violations in a case in which the guilty plea at hand is
taken, not to alleged constitutional violations related to
prior convictions.5 The point is that a double jeopardy
challenge is not waived by a guilty plea because even the
unquestionable establishment of factual guilt would not allow
a conviction to be validly entered if the conviction would
constitute a double jeopardy violation. Further, defendant’s
factual guilt in the present case was validly established by
his guilty plea to OUIL-3d. Thus, our reliance on Tollett is
in no way inconsistent with the language cited from Menna.6
5
This is especially so because Menna did not involve a
guilty plea to an “enhanced” crime such as OUIL-3d that
depends on the existence of prior convictions. Thus, no issue
involving the use or validity of an antecedent conviction was
before the Menna Court.
6
We also disagree with the dissent’s effort to
distinguish Tollett on the basis that it “involved a direct
challenge to a plea” and “did not involve a collateral
challenge.” Post at 5. While defendant is advancing a
collateral challenge to his prior OUIL convictions, he is
doing so in an effort to directly challenge his plea to OUIL
3d in the present case. Accordingly, Tollett is on point in
precluding defendant from raising claims of alleged
constitutional violations that occurred before his guilty plea
to OUIL-3d for the purpose of challenging his OUIL-3d
conviction.
10
Further, after setting forth the above quotation from
Menna, the dissent concludes:
In this case, defendant’s conviction of OUIL
3d depends on prior OUIL convictions, one or more
of which were obtained in violation of the right to
counsel. As further analysis reveals, no precedent
exists that sustains the majority’s implicit
decision that defendant’s factual guilt of his
prior counselless convictions was validly
established. [Post at 6.]
This confuses the issue that is properly before us because our
concern is whether defendant’s factual guilt of OUIL-3d was
validly established in the present case, not whether his
factual guilt of the antecedent OUIL convictions was validly
established in prior proceedings. Defendant, with the
assistance of counsel, pleaded guilty to OUIL-3d. This
constituted a valid establishment of his factual guilt of
OUIL-3d because, as stated in Menna, supra at 62-63, n 2, “a
counseled plea of guilty is an admission of factual guilt so
reliable that, where voluntary and intelligent, it quite
validly removes the issue of factual guilt from the case.”
Thus, the critical point is that, in pleading guilty to OUIL
3d (with the assistance of counsel), defendant acknowledged
his prior OUIL convictions. Accordingly, there is simply no
occasion for us to independently examine, as the dissent would
do, whether defendant’s factual guilt was validly established
in the proceedings that resulted in those prior convictions.
11
IV
Defendant’s argument that his two prior OUIL convictions
should be treated as invalid because he was not properly
afforded his right to counsel in connection with those
convictions comes too late. A collateral attack on a prior
conviction underlying a present charge may not be made after
a defendant’s plea of guilty to the present charge is
accepted. Thus, we affirm the judgment of the circuit court.
CORRIGAN , C.J., and CAVANAGH , WEAVER , YOUNG , and MARKMAN , JJ.,
concurred with TAYLOR , J.
12
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 115184
ROBERT ROSEBERRY,
Defendant-Appellant.
___________________________________
KELLY, J. (dissenting).
Defendant Roseberry's conviction for the felony OUIL-3d
is based on two earlier convictions for OUIL. In at least one
of them, defendant did not have counsel and did not validly
waive his right to counsel. To allow his conviction for OUIL
3d to stand is to deny him a basic constitutional right that
legal precedent guarantees him. The majority's circumvention
of it is tenuously based and troubling. The conviction should
be reversed.
The Right to Counsel
The Sixth Amendment right to counsel is unique in both
its importance and the protections afforded to it. People v
Carpentier, 446 Mich 19, 29; 521 NW2d 195 (1994); see also
Custis v United States, 511 US 485; 114 S Ct 1732; 128 L Ed 2d
517 (1994). For example, the United States Supreme Court has
limited the instances in which a judge may consider
convictions obtained in violation of this right.
In analyzing whether constitutionally infirm prior
convictions may be used to impeach a criminal defendant at
trial, the Court has noted that
[t]he starting point in considering this question
is, of course, Gideon v Wainwright, 372 US 335; 83
S Ct 792; 9 L Ed 2d 799 [1963]. In that case the
Court unanimously announced a clear and simple
constitutional rule: In the absence of waiver, a
felony conviction is invalid if it was obtained in
a court that denied the defendant the help of a
lawyer.[1] [Loper v Beto, 405 US 473, 481; 92 S Ct
1014; 31 L Ed 2d 374 (1972).]
The Court has held that a conviction obtained in
violation of a defendant's right to counsel is void. Burgett
v Texas, 389 US 109, 114; 88 S Ct 258; 19 L Ed 2d 319 (1967).
Such a conviction cannot be rendered valid by failure of the
person convicted to attack it on direct review. Life is not
breathed into it when, as here, a defendant pleads guilty to
a charge based on it. It is not voidable; it is void. The
underlying error of the majority is in assuming the contrary.
As Burgett explains:
1
This rule applies to misdemeanor convictions that result
in actual imprisonment. Nichols v United States, 511 US 738,
749; 114 S Ct 1921; 128 L Ed 2d 745 (1994).
2
To permit a conviction obtained in violation
of Gideon v Wainwright to be used against a person
either to support guilt or enhance punishment for
another offense is to erode the principle of that
case. Worse yet, since 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. [Id. at 115
(internal citation omitted).]
Burgett clearly prohibits using a conviction obtained in
violation of a defendant's Sixth Amendment right to counsel to
support another conviction.
United States v Tucker
The United States Supreme Court relied on Burgett in
United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d
592 (1972). Tucker held that a judge may not consider
convictions obtained in violation of Gideon when sentencing a
defendant for a later offense. At the time of sentencing, the
defendant in Tucker had not claimed that his earlier
convictions were constitutionally infirm. Instead, he
challenged the earlier convictions in a collateral proceeding
several years later. Id. at 445.
This precedent undercuts the majority's conclusion here
that defendants may not challenge the validity of convictions
that are used as a basis for later convictions unless they do
so "timely." The majority undertakes to distinguish Burgett
and Tucker on the facts. But the factual differences do not
render their holdings inapplicable to this case.
3
The majority misapprehends my reasoning. I do not
contend that the current case is indistinguishable from
Burgett and Tucker. The fact of defendant's prior guilty
pleas differentiates it from them. However, the majority is
incorrect in concluding that this factual distinction is so
significant that it prevails over constitutional principles.
Nor can I agree that defendant's acknowledgment that he
had twice before been convicted of OUIL was an acknowledgment
that these counselless convictions were constitutionally
valid. The transcript of the plea proceedings reveals that
defendant admitted two convictions of similar offenses in 1994
and 1996. He was not asked about and he did not admit his
guilt of those offenses. There was no attempt to determine if
he had counsel in 1994 and in 1996 or had waived the right to
counsel. Instead, like the defendant in Tucker, defendant
merely acknowledged the fact of the prior convictions. To
characterize this as somehow correcting the underlying
constitutional error ignores the significance of the right to
counsel and contradicts federal precedent establishing that
right.
Tollett v Henderson
The majority's reliance on Tollett v Henderson2 to
fortify its position is misplaced. Tollett, which held that
2
411 US 258; 93 S Ct 1602; 36 L Ed 2d 235 (1973).
4
a defendant may not assert a constitutional error that
occurred before his counseled guilty plea, involved a direct
challenge to a plea. It did not involve a collateral
challenge. More importantly, its discussion of the
significance of guilty pleas is unmistakedly limited to pleas
entered with the advice of counsel. Tollett does not stand
for the proposition that a guilty plea waives a challenge to
the validity of an earlier conviction when the challenge is
based on denial of the right to counsel. See Menna v New
York, 423 US 61, 62-63, n 2; 96 S Ct 241; 46 L Ed 2d 195
(1975).
Here the conviction was based in part on a void
conviction or convictions. Tollett does not address that
situation. It certainly does not hold that a void conviction
can be resuscitated by a counseled guilty plea in a later
case.
As we discussed in People v New,3 the United States
Supreme Court clarified the holding of Tollett, saying that a
counseled guilty plea
"renders irrelevant those constitutional violations
not logically inconsistent with the valid
establishment of guilt and which do not stand in
the way of conviction, if factual guilt is validly
established." [New, supra at 488, quoting Menna,
supra (emphasis added).]
3
427 Mich 482; 398 NW2d 358 (1986).
5
In this case, defendant's conviction of OUIL-3d depends
on prior OUIL convictions, one or more of which were obtained
in violation of the right to counsel. As further analysis
reveals, no precedent exists that sustains the majority's
implicit decision that defendant's factual guilt of his prior
counselless convictions was validly established. Tollett does
not extend to collateral challenges of underlying void
convictions and is inapplicable.
People v Crawford
The majority justifies its disposition by relying on this
Court's decision in People v Crawford, 417 Mich 607; 339 NW2d
630 (1983). However, it misquotes and misapplies that
decision. There, the defendant moved to set aside his guilty
plea. He asserted that he had not been advised of his rights
to confront his accusers and not to be compelled to
incriminate himself.4 This Court held that a
conviction defective under Jaworski can be
challenged by a timely motion by the defendant to
quash the supplemental information or to strike
from the supplemental information the defective
conviction. To be timely, such a motion must be
made before a defendant's plea of guilty or nolo
4
These rights are known as Boykin-Jaworski rights. Boykin
v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969);
People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972). Boykin
and Jaworski held that a defendant entering a guilty plea must
be advised by the trial judge of (1) the privilege against
self incrimination, (2) the right to trial by jury, and (3)
the right to confront one's accusers. The record must show
that the defendant was so informed.
6
contendere is accepted. [Id. at 613-614.]
Crawford did not hold that collateral attacks on
convictions obtained in violation of Sixth Amendment rights
are foreclosed if not raised before a plea of guilty on a
subsequent conviction. Crawford involved Jaworski rights. It
held that challenges to convictions obtained in violation of
those rights must be raised before a plea of guilty to a later
offense is accepted.
Contrary to the majority's interpretation, Crawford drew
a careful distinction between convictions obtained in
violation of a defendant's right to counsel and other defects
in guilty plea proceedings. It made a narrow ruling that
explicitly noted limits on the use of convictions obtained
without the advice of counsel, citing Burgett and Tucker. Id.
at 614, n 14. The majority misses the distinction.
The majority dismisses Crawford's reference to Jaworski
rights as dicta. But on closer examination, it becomes
apparent that the holding cannot accurately be read to include
Sixth Amendment violations. The Court of Appeals ruling in
the case affirmed Crawford's plea. It rejected his claim that
the underlying guilty plea was defective because Crawford had
not been advised of his rights to confront witnesses and avoid
self-incrimination. Significantly, the Court of Appeals
stated that "only those prior guilty-plea convictions where
7
the defendant was not represented by counsel should be excised
from one's prior conviction record for purposes of the
habitual offender statute." See id. at 611.
Rather than affirming because no right exists to
collaterally challenge the plea, Crawford expressly
acknowledged the viability of a timely collateral challenge to
pleas obtained in violation of Jaworski rights. It then
concluded that "such a motion" was timely if made before the
trial court accepted the plea. Id. at 613-614. This
conclusion is relevant only if a collateral challenge can be
made. Reading these sentences in context, it becomes clear
that the first, which regards challenges to defective
convictions under Jaworski, is part of the resolution of the
case.
This conclusion is supported by Justice Brickley's
accompanying opinion in which he stated:
I concur in the result of the majority
opinion, but cannot concur in the assertion that a
conviction, although defective under Boykin v
Alabama and People v Jaworski, but never directly
attacked, may be challenged by a timely motion
during an habitual offender proceeding. I would
hold that only those guilty pleas taken in
violation of Gideon v Wainwright are subject to
collateral attack in later habitual offender
proceedings. [Id. at 614-615 (internal citations
omitted).]
Reading the sentences regarding Jaworski rights and
timeliness in the context of this concurrence confirms that
8
the language regarding challenging Jaworski violations was an
integral limitation built into Crawford. Thus, I cannot agree
that Crawford's holding is so broad as to apply to all
collateral challenges. Instead, given the importance of the
right to counsel, considerations of timeliness must yield when
a conviction has been obtained in violation of that
fundamental safeguard.
Conclusion
Given the clarity and simplicity of the constitutional
rule involved in this case, the majority should not be shy
about applying it. The majority has found no United States
Supreme Court opinion that qualifies or diminishes the Court's
holding in Gideon. The instant case should not be used to
plant precedent in Michigan law that may later be cited to
justify watering down the constitutional rule enunciated by
Gideon, reaffirmed by Burgett, Loper, and Tucker, among
others, and adopted by this Court in People v Moore, 391 Mich
426; 216 NW2d 770 (1974).
In deciding the matter before us, the majority carves
serious inroads into the Sixth Amendment constitutional right
to counsel in Michigan. It relies erroneously on Crawford to
circumvent the well-established principle that convictions
obtained where a defendant was without counsel and did not
waive his right to counsel are void. Yet, as demonstrated
9
above, Crawford does not apply to convictions obtained in
violation of the Sixth Amendment.
I would remand this case to the trial court with
instructions to reverse defendant's conviction. Because at
least one of his two earlier OUIL convictions is
constitutionally infirm, hence void, he cannot be convicted of
OUIL-3d.
10