(dissenting):
I dissent because the majority opinion relieves the prosecution of its burden of proof. The majority places the burden of proof 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” at an earlier proceeding which resulted in a conviction. The majority further holds that it is “appropriate to presume that the right to counsel has been observed unless the defendant affirmatively contends to the contrary.” In my view, the Court misreads Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed. 2d 319 (1967), and Baldosar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980) (per curiam).
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), established a rule that the right to counsel in state criminal proceedings is guaranteed by the Sixth Amendment. It is therefore impermissible to try a person for a felony in a state court unless that person has an attorney or knowingly and intentionally waives *150the right to an attorney. Burgett v. Texas involved a Texas prosecution in which an indictment under the state recidivist statute alleged prior convictions of the defendant. One of the alleged convictions was a Tennessee conviction for forgery. Two records of the Tennessee conviction were offered in evidence by the prosecution. The first record showed that the defendant had not been represented by counsel and that there was no indication of waiver of counsel. The second record omitted any reference to counsel. 389 U.S. at 112, 88 S.Ct. at 260. In holding that the Tennessee conviction could not be used under the Texas recidivist statute, the Supreme Court stated:
In this case the certified records of the Tennessee conviction on their face raise a presumption that petitioner was denied his right to counsel in the Tennessee proceeding, and therefore that his conviction was void. Presuming waiver of counsel from a silent record is imper-missible_ 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.
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The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright is inherently prejudicial and we are unable to say that the instructions to disregard it made the constitutional error “harmless beyond a reasonable doubt” within the meaning of Chapman v. California [386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)]....
389 U.S. at 114-15, 88 S.Ct. at 261-62 (citations omitted, footnotes omitted, emphasis added).
Burgett states that for evidence of a prior conviction to be admissible, the evidence must demonstrate that the conviction was constitutionally valid. Thus, Burgett, by conditioning admission of such evidence on the validity of the conviction, impliedly places the burden on the prosecution to demonstrate that the conviction was valid. The prosecution, as proponent of such evidence, must show, through either the documentary evidence itself or other evidence, that the conviction was obtained with the benefit of counsel or that counsel was knowingly and voluntarily waived. Furthermore, as the above-quoted material demonstrates, a document showing a conviction but no indication that the defendant is represented by counsel is inadmissible because “presuming waiver of counsel from a silent record is impermissible.”
Thus, the documents evidencing a conviction of a felony should demonstrate on their face that defendant was represented by counsel or that counsel was properly waived, or that proof should be adduced by the prosecution pursuant to some other evidence, either oral or documentary, as a predicate to admission of evidence of the prior conviction.
In Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), a majority of the Supreme Court held that a previous, uncounseled misdemeanor conviction could not support increasing a subsequent offense to a felony. In his concurrence, Justice Marshall, joined by Justices Brennan and Stevens, elucidated the rationale for such a holding, and it is also applicable to the current case:
We should not lose sight of the underlying rationale of Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed. 2d 530 (1972)], that unless an accused has “the guiding hand of counsel at every step in the proceedings against him,” ... his conviction is not sufficiently reliable to support the severe sanction of imprisonment_ An uncounseled conviction does not become more reliable merely because the accused has been validly convicted of a subsequent offense. For this reason, a conviction which is invalid for purposes of imposing a sentence of imprisonment for the offense itself remains invalid for purposes of increasing a term of imprisonment for a subsequent conviction under a repeat-offender statute. It is therefore incorrect to say that our decision today creates a “new hybrid” of misdemeanor convictions .... To the contrary, a rule that *151held a conviction invalid for imposing a prison term directly, but valid for imposing a prison term collaterally, would be an illogical and unworkable deviation from our previous cases.
Id. 446 U.S. at 227-29, 100 S.Ct. at 1587-89 (citations omitted, footnotes omitted).
It is no great burden for the State to have to prove the validity of a prior conviction. That kind of evidence is routinely kept concerning felony convictions. Because of ready access to such documentation, the State should have no great difficulty in obtaining the necessary proof.
A fundamental flaw in the majority opinion stems from its reliance on cases that treat habitual criminal charges as a sentencing enhancement rather than a separate charge.1 However, this is technically not the case in Utah. Despite statements to the contrary in our previous cases, the habitual criminal statutes of this state treat the determination of being a habitual criminal as a separate crime. None of our previous cases which have characterized the offense as a sentence enhancement, rather than a separate crime, has reconciled Utah Code Ann. § 78-8-1002, which describes the procedure to be used in such cases, with § 76-8-1001, which describes the substantive elements of the offense. See, e.g., State v. Stilling, 770 P.2d 137 (Utah 1989); State v. Bailey, 712 P.2d 281, 286-87 (Utah 1985); State v. Carter, 578 P.2d 1275, 1276-77 (Utah 1978). Utah Code Ann. § 76-8-1001 (1978) describes the elements of being a habitual criminal:
Any person who has been twice convicted, sentenced, and committed for felony offenses at least one of which offenses having been at least a felony of the second degree or a crime which, if committed within this state would have been a capital felony, felony of the first degree *152or felony of second degree, and was committed to any prison may, upon conviction of at least a felony of the second degree committed in this state, other than murder in the first or second degree, be determined as a habitual criminal and be imprisoned in the state prison for from five years to life.
Utah Code Ann. § 76-8-1002 (1978), describing the procedure to be used in such cases, states in pertinent part:
(2) If the defendant is bound over to the district court for trial, the county attorney shall in the information or complaint set forth the felony committed within the state of Utah and the two or more previous felony convictions relied upon for the charge of being a habitual criminal. If a jury is impaneled, it shall not be told of the previous felony convictions or charge of being a habitual criminal. The trial on the felony committed within the state of Utah shall proceed as in other cases.
(3) If the court or jury finds the defendant guilty of the felony charged, then the defendant shall be tried immediately by the same judge and jury, if a jury was impaneled, on the charge of being a habitual criminal, unless the defendant has entered or enters a plea of guilty to the charge of being a habitual criminal.
(Emphasis added.)
Section 76-8-1002 clearly states that the crime of being a habitual criminal is a separate charge. The section also declares that in a separate proceeding from the trial on the substantive charge, the defendant shall be tried and shall be tried by the same jury or judge that tried the substantive charge. The trial must occur unless the defendant pleads guilty to the charge of being a habitual criminal. Obviously, the statute contemplates a trial on the charge of being a habitual criminal. However, this Court has never confronted the issue of whether there is a difference between a charge of being a habitual criminal and a crime of being a habitual criminal; rather, the Court has simply relied on § 76-8-1001 to characterize being a habitual criminal as a “sentence enhancement.” See, e.g., Stilling, Bailey, Carter. However, if the habitual criminal statute “does not create a new crime,” but rather “merely enhances the punishment,” then why is a jury impaneled to hear the habitual criminal charge? Carter, 578 P.2d at 1277. A jury has no function in the sentencing of criminal defendants in Utah except in capital cases, see Utah Code Ann. § 76-3-207 (Supp.1988); the only purpose of a jury in criminal cases in Utah is to try criminal defendants. Furthermore, why does § 76-8-1002 call for a trial on the charge of being a habitual criminal unless the defendant pleads guilty to the offense? “Charging,” “pleading,” and “trial” are not characteristics of sentencing.
The reality of the situation is that while this Court views habitual criminality as a sentence enhancement, the district courts of this state, following the procedure of § 76-8-1002, regularly hold trials on the charge of being a habitual criminal. Indeed, in this case, the defendant was separately charged, convicted, and sentenced for being a habitual criminal.2 This dichotomy needs to be remedied. If, as defined by statute, being a habitual criminal is a separate offense (which may be constitutionally questionable), then a defendant should have the whole range of trial rights available to him. Included in those basic rights are a presumption of innocence and a right to have the prosecution prove every element of the offense, including the fact that previous convictions are valid, beyond a reasonable doubt.
Even if, as the Court has previously concluded, being a habitual criminal results only in a sentence enhancement, a defendant is not stripped of his due process *153rights in the sentencing phase. See, e.g., State v. Sweat, 722 P.2d 746 (Utah 1986); State v. Casarez, 656 P.2d 1005, 1007 (Utah 1982); State v. Wood, 648 P.2d 71, 81 (Utah 1982). Indeed, this Court has stated, “Procedural fairness is as obligatory at the sentencing phase of a trial as at the guilt phase.” State v. Casarez, 656 P.2d at 1007. In my view, it is inherently unfair to “enhance” a sentence on the basis of a prior invalid conviction. Yet under the majority’s approach, that will happen unless a defendant offers an objection and presents “some evidence” concerning the prior conviction.3 If the prosecution has evidence that the prior conviction was valid, such evidence should be presented; if the prosecution cannot produce evidence of a valid conviction, it should not be allowed to rely on a conviction which may be invalid to support a subsequent “enhancement” or conviction on an allegation of being a habitual criminal.
. The majority opinion states three positions which it discerns from the case law regarding who bears the burden of proof on the issue of representation or waiver in prior proceedings. For each position, the majority cites three cases which it states espouses the position noted. In a footnote, the majority states that not all of the cases involve habitual offender determinations and some involve "raising a subsequent crime from a misdemeanor to a felony.” The majority "see[s] no need to distinguish between such cases....” However, such differentiation is critical, especially in cases where the prior conviction was for an uncounseled misdemeanor. In Scott v. Illinois, 440 U.S. 367, 373, 99 S.Ct. 1158, 1162, 59 L.Ed.2d 383 (1979), the Supreme Court adopted “actual imprisonment as the line defining the constitutional right to appointment of counsel.” Therefore, counsel need not be appointed in the case of a misdemeanor where the defendant is not subject to incarceration. A subsequent conviction in such a case is valid in contrast to an uncounseled conviction in a felony case, which is invalid unless there was a proper waiver of counsel. In fact, the three cases cited by the majority for the most stringent position, i.e., that prior convictions are entitled to a presumption of regularity which requires the defendant to prove otherwise by a preponderance of the evidence, are all cases which involve prior convictions for misdemeanors used as a subsequent enhancement. See Croft v. State, 513 So.2d 759, 760 (Fla.Dist.Ct. App.1987) (per curiam) (eleven prior misdemeanor convictions used to enhance sentence) (Croft relies on Allen v. State, 463 So.2d 351 (Fla.Dist.Ct.App.1985), which concerned elevation of theft charges to a felony because of prior misdemeanor theft convictions); State v. Lau-rick, 222 N.J.Super. 636, 537 A.2d 792 (1987) (enhancement of driving while intoxicated charge after prior conviction for the same offense); In re Kean, 520 A.2d 1271 (R.I.1987) (enhancement of sentence for driving while intoxicated after prior conviction for the same offense). Furthermore, the cases rely either on local rule, Croft and Allen, or the fact that the enhancement of the subsequent offense involves no incarceration, Laurick, or a total lack of evidence presented by the defendant, Kean, to reach their result and satisfy Baldosar. Indeed, none of the above cases, cited by the majority, discusses or even mentions Burgett, a case involving felonies.
The cases cited by the majority as supporting the position which it adopts, the "middle position,” do involve enhancement under habitual criminal statutes. Smith v. State, 477 N.E.2d 857 (Ind.1985); Middleton v. State, 67 Md.App. 159, 506 A.2d 1191, cert. denied, 308 Md. 146, 517 A.2d 771 (1986); State v. Smith, 66 N.C.App. 570, 312 S.E.2d 222, rev. denied, 310 N.C. 747, 315 S.E.2d 708 (1984). However, one of those cases, State v. Smith, does not even cite Burgett and one of the others, Smith v. State, does not explain why Burgett is inapplicable. The final case, Middleton v. State, does not fully support the majority position. In that case, the court concluded that the issue of the invalidity of a prior conviction may be "generated ... on the face of the documents offered to prove the con-viction_” 506 A.2d at 1200. Therefore, of the cases cited for the most stringent or the intermediate positions, none analyzes the problem in light of Burgett except Middleton, which is contrary to the majority's position.
. The information stated:
COUNT II HABITUAL CRIMINAL, a First Degree Felony, in Salt Lake County, State of Utah, on or about August 18, 1986, in violation of Title 76, Chapter 8, Section 1001, Utah Code Annotated 1953, as amended, in that the defendant, GARY CHARLES TRIPTOW, a party to the offense, committed the Second Degree Felony charged in Count I above, and was then and there a person who had been twice convicted, sentenced and committed for felony offenses at least one of which offenses having been at least a felony of the Second Deeree. and was committed to orison
. While all defendants are handicapped under such a system, the naive or mentally deficient offender will be particularly disadvantaged. Such an individual may be unable to comprehend or coherently articulate the problems with the prior conviction.