(DISSENTING OPINION)
ACOBA, Judge.I disagree not only with the majority’s basic proposition that Defendant be assigned the burden of raising a “good faith challenge” to the validity of a prior criminal conviction, Majority opinion at 50, but also with the underlying assumptions and methodology the majority employs.
Not every case justifies a sentence greater than would ordinarily be imposed, nor does every case require consideration of prior convictions in order to impose an enhanced sentence. Obviously, the State is usually the party which would seek consecutive term sentencing, or when the State does not request it, the court may impose such sentences in its discretion. However, the majority would require, presumably, at the risk of a claim of ineffective assistance of counsel, that defense counsel ascertain whether any “reported criminal conviction” in a pre-sen-tence report was uncounseled, by placing the burden on the defendant to make a “good faith challenge” on the record in anticipation of the possibility of the use of a prior criminal conviction in sentencing. Majority opinion at 445, 918 P.2d at 252. The majority does not explain how a “good faith challenge” could be made without requiring the defense to bear what the majority characterizes as “the enormity of the practical problem faced by the State in some cases.” Majority opinion at 441, 918 P.2d at 248. Indeed, the “good faith challenge” burden hoisted onto the defendant merely shifts the supposed “enormity of the practical problem” from the State to the defendant. Since it is ordinarily the State which seeks to subject the defendant to an enhanced sentence, then it is the State which would know in advance of sentencing, whether it will rely on prior convictions at the sentencing hearing, and if so, which ones. I see no gain achieved in first requiring a defendant to make a “good faith challenge” before the State is put to the task that it would have to undertake anyway. The State is obviously the only party which can define that part of a defendant’s criminal record it will use to support its request for consecutive sentencing. Where the court does not agree with the plea bargain arrived at between the parties, as in the instant case, the court may refer the matter to the State or the probation department. The court may take it upon itself to establish the proper record through the department preparing the pre-sentence report. See State v. Drozdowski, 9 Haw.App. 583, 588, 854 P.2d 238, 241 (1993) (court may establish the basis for a mandatory minimum sentence).
On the other hand, I foresee a great deal of unnecessary time and expense engendered for both the State and the defense by the majority’s proposal, since the effort the defense expends in satisfying its “good faith challenge” will ultimately have to be duplicated by the State in verifying the prior convictions it relies on, as it must because of our holding prohibiting reliance on uncounseled convictions. This means that, in the great majority of cases, the public will pay twice— first for the defense challenge, because the great majority of appeals are taken from the state-supported public defender’s office, and second, for the prosecution’s verification. It appears rational, logical, and efficient, to require the proponent of any evidence of a prior conviction to ascertain its validity and to carry the burden of going forward with proof in that regard. The administrative procedure for accomplishing this should be left in the first instance to the sentencing courts and the parties, since they are best able to ascertain the extent to which compliance with our holding is necessary in any *436particular ease. The majority’s approach ignores the expertise, experience, and ingenuity of the bar, the trial courts, and probation officers, which can easily be brought to bear on any “problem.”
Of course, I cannot agree with the majority’s specter of “the enormity of the practical problem” which, with all due respect, appears to be simply a creation of its own making. As evidence of the “enormity of the problem,” the majority refers to Defendant’s criminal record. A focused view of any criminal record would reveal that not everything in the record can be considered (i.e., “no disposition,” “dismissed,” and “nolle prose-quied” entries) and not every offense would be relevant and material to the consideration of whether consecutive, as opposed to concurrent prison sentences should be imposed. In its fear of the “enormity of the practical problem,” the majority refers to the entire criminal record when our holding pertains only to the evaluation of prior convictions singled out as relevant. The majority also ignores the reality that the State and the court, through its probation office, as opposed to an individual defendant, have greater and easier access to law enforcement and court records. Ultimately, the administrative burden on the State of proving that the prior convictions relied on were counseled is minimal compared to the consequential effect on the prison sentence of a defendant — in this case, an additional ten years over the typical concurrent sentence of imprisonment.
More importantly, however, I question the fairness of requiring a defendant, in effect, to disprove the State’s sentencing case. In the framework of HRS chapter 706, the burden is placed on the State to produce proof of the relevant prior convictions whenever prior convictions are used as a basis for an increased sentence. Ordinarily, the State would have the responsibility of presenting certified evidence that a prior conviction was a counseled one.15 See State v. Freitas, 61 Haw. 262, 277, 602 P.2d 914, 926 (1979).
Placing the burden on the State is logically consistent with the fact that it is the State which seeks to enlarge an ordinary sentence, and thus, for the reasons of economy and fairness, it is the State which should come forward with proof of the validity of the relevant prior convictions.16 To require otherwise shifts the burden of going forward with the proof onto the defendant, contrary to the Hawaii Penal Code’s procedural approach to the enlargement of ordinary sentences.17
*437The majority’s faulty premise that “the defendant, more than anyone else, knows whether or not his or her prior criminal conviction was uncounseled, otherwise invalid, or irrelevant” has no support in the record. Majority opinion at 445, 918 P.2d at 252. Time and time again, the cases indicate that lay persons are typically unaware of the nature and import of court procedures. It is ironic that the majority adopts its premise in the face of the human experiences which belie it, embodied in the uncounseled conviction eases cited in the main opinion.
The procedure adopted by the majority raises serious questions about our holding. Our holding prohibits the use of uncounseled convictions under the Hawai'i Constitution’s guarantee of the right to counsel. Under the presumptive approach adopted by the majority, a defendant’s failure to raise an uncoun-seled conviction constitutes, in effect, a waiver of his state constitutional right to effective assistance of counsel, without provision for the required procedures for the knowing, voluntary and intelligent waiver of the right to counsel and permits the State to use such a conviction, even if uncounseled, in the sentencing process.
Finally, I also disagree with the methodology employed by the majority. The detailed sentencing procedure it adopts tracks a federal statute, 21 U.S.C.S. § 851 (1984). That statute was not raised in the record by any party. In my view, the procedure not only conflicts with the design of the sentencing provisions in the Hawai'i Penal Code but is a naked attempt to legislate. While the instant case involves only the imposition of consecutive sentences under HRS § 706-668.5, the majority, without any notice to the parties or warrant in the record, expands its holding to impose new sentencing procedures under HRS § 706-606.5, HRS § 706-660.1, and HRS § 706-620(3), provisions not at all involved in this case. We are not vested with our State’s legislative power to create a new sentencing procedure in the Hawai'i Penal Code or with the rúlemaking power of the Hawai'i Supreme Court. We have no basis in the record for adopting such a procedure, nor for arrogating to ourselves the power to do so. Proof of a prior conviction is simple and straightforward and can be done sensibly. The majority’s procedure unnecessarily complicates these matters, raising in its wake serious constitutional and statutory issues.
I would remand the ease with instructions that Judge Spencer’s sentence be affirmed if the convictions he referred to at Defendant’s sentencing hearing are shown to be counseled ones. If this showing is not made, then I would require that Defendant be resen-tenced.
Opinion of the court by
BURNS, Chief Judge,with respect to Part IV.B.4
For the foregoing reasons, we must remand the case. We will now discuss the situation where ordinary sentencing procedures and Hawai'i Revised Statutes (HRS) § 706-601 are applicable.
HRS § 701-107 (1993) states as follows:
Grades and classes of offenses. (1) An offense defined by this Code or by any other statute of this State for which a sentence of imprisonment is authorized constitutes a crime. Crimes are of three grades: felonies, misdemeanors, and petty misdemeanors. Felonies include murder in the first and second degrees, attempted murder in the first and second degrees, and the following three classes: class A, class B, and class C.
(2) A crime is a felony if it is so designated in this Code or if persons convicted thereof may be sentenced to imprisonment for a term which is in excess of one year.
(3) A crime is a misdemeanor if it is so designated in this Code or in a statute other than this Code which provides for a term of imprisonment the maximum of which is one year.
(4) A crime is a petty misdemeanor if it is so designated in this Code or in a statute *438other than this Code enacted subsequent thereto, or if it is defined by a statute other than this Code which provides that persons convicted thereof may be sentenced to imprisonment for a term of which the maximum is less than one year.
(5) An offense defined by this Code or by any other statute of this State constitutes a violation if it is so designated in this Code or in the law defining the offense or if no other sentence than a fine, or fine and forfeiture or other civil penalty, is authorized upon conviction or if it is defined by a statute other than this Code which provides that the offense shall not constitute a crime. A violation does not constitute a crime, and conviction of a violation shall not give rise to any civil disability based on conviction of a criminal offense.
(6) Any offense declared by law to constitute a crime, without specification of the grade thereof or of the sentence authorized upon conviction, is a misdemeanor.
(7) An offense defined by any statute of this State other than this Code shall be classified as provided in this section and the sentence that may be imposed upon conviction thereof shall hereafter be governed by this Code.
HRS § 706-663 (1993) states as follows:
Sentence of imprisonment for misdemeanor and petty misdemeanor. After consideration of the factors set forth in sections 706-606 [factors to be considered in imposing a sentence] and 706-621 [factors to be considered in imposing a term of probation], the court may sentence a person who has been convicted of a misdemeanor or a petty misdemeanor to imprisonment for a definite term to be fixed by the court and not to exceed one year in the case of a misdemeanor or thirty days in the case of a petty misdemeanor.
In the United States and in some states other than Hawaii, an indigent charged with a crime for which imprisonment is authorized but not imposed has no right to appointed counsel. Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). Hawaii is different. Article I, section 14 of the Hawaii Constitution states in relevant part that “[t]he State shall provide counsel for an indigent defendant charged with an offense punishable by imprisonment.”
HRS § 802-1 (1993) states in relevant part that
[a]ny indigent person who is (1) arrested for, charged with or convicted of an offense or offenses punishable by confinement in jail or prison ... shall be entitled to be represented by a public defender. If, however, conflicting interests exist, or if the public defender for any other reason is unable to act, or if the interests of justice require, the court may appoint other counsel.
A criminal conviction of an indigent defendant is an uncounseled criminal conviction where the defendant was not provided with the services of the public defender or appointed counsel, the requirements of State v. Dickson, 4 Haw.App. 614, 619-20, 673 P.2d 1036, 1041 (1983), were not satisfied, and the defendant did not (i) waive, or (ii) waive by conduct, his or her right to the services of the public defender or appointed counsel, or the defendant did not forfeit his or her right to the services of the public defender or appointed counsel. United States v. Goldberg, 67 F.3d 1092 (CA 3,1995); State v. Dickson, supra.
A “waiver” is the defendant’s intentional and voluntary relinquishment of a known right. A “waiver by conduct” or “implied waiver” occurs when, after defendant has been warned that he or she will lose the right in the event of subsequent neglect or misconduct, the subsequent neglect or misconduct occurs. A “waiver” or a “waiver by conduct” cannot occur before the Dickson requirements have been satisfied. A “forfeiture” is the defendant’s loss of a right by extremely serious misconduct, regardless of the defendant’s knowledge of the right and irrespective of whether the Dickson requirements have been satisfied or defendant intended to relinquish the right. United States v. Goldberg, supra.
A criminal conviction of a non-indigent defendant is an uncounseled conviction where the defendant was not represented by counsel, the requirements of State v. Dick*439son, id., were not satisfied, and the defendant did not (i) waive, or (ii) waive by conduct, his or her right to the assistance of counsel, or the defendant did not forfeit his or her right to the assistance of counsel.
In Defendant’s case, the situation is as follows. Defendant was being sentenced in Hawaii for three felonies.18 His extensive record of prior convictions entered in Hawaii and states other than Hawaii were relevant to his sentencing. In this case, Defendant is indigent. However, he may or may not have been indigent when each of his prior criminal convictions occurred. The record does not indicate that Defendant’s prior criminal convictions were not uncounseled convictions. Defendant contends that because the State failed to prove that the prior criminal convictions relied on by the trial judge in sentencing him to consecutive terms of imprisonment were not uncounseled and otherwise valid, his sentence must be set aside. However, Defendant did not in the circuit court, and does not in this appeal, challenge the validity of any of the prior convictions listed in the presentence report.
In Hawaii, prior criminal convictions are relevant in no less than the following situations: (1) under HRS § 706-662(1) pertaining to extended terms of imprisonment; (2) under HRS § 706-606.5 pertaining to mandatory minimum terms of imprisonment; (3) under HRS § 706-660.1 pertaining to mandatory minimum terms of imprisonment in cases involving firearms; (4) under HRS § 706-620(3) pertaining to eligibility for probation; and (5) under HRS § 706-668.5 pertaining to consecutive sentences of imprisonment.
There is a substantial difference between situation (1) (extended terms) and situation (2) (mandatory mínimums). With respect to situation (1) (extended terms), HRS § 706-664 (1993) states as follows:
Procedure for imposing extended terms of imprisonment. Hearings to determine the grounds for imposing extended terms of imprisonment may be initiated by the prosecutor or by the court on its own motion. The court shall not impose an extended term unless the ground therefor has been established at a hearing after the conviction of the defendant and on written notice to the defendant of the ground proposed. Subject to the provisions of section 706-604, the defendant shall have the right to hear and controvert the evidence against the defendant and to offer evidence upon the issue.
In State v. Kamae, 56 Haw. 628, 548 P.2d 632 (1976), the Hawaii Supreme Court “held that the extended term sentence hearing was a separate criminal proceeding apart from the trial of the underlying substantive offense; the ordinary rules of evidence apply; and all issues relevant to the determination of whether an extended term should be imposed must be established by the State beyond a reasonable doubt.” State v. Drozdowski, 9 Haw.App. 583, 585, 854 P.2d 238, 239-40 (1993). The court further held that “the [circuit] court erred when it admitted into evidence the presentence report over the objection of the appellant.” Kamae, 56 Haw. at 638, 548 P.2d at 639 (citations omitted).
*440In contrast, in the situation (2) (mandatory mínimums) context, the Hawai‘i Supreme Court held in State v. Freitas, 61 Haw. 262, 276, 602 P.2d 914, 925 (1979), that proof of a prior conviction may consist of any evidence that reasonably satisfies the sentencing court that the defendant was convicted. In other words, it “held that ordinary sentencing procedures apply to the mandatory minimum sentence hearing.” State v. Drozdowski supra.
In the absence of a legislative mandate similar to HRS §§ 706-662 and -664 establishing the criteria and procedure for imposing extended terms and in light of the other statutes establishing ordinary sentencing procedures applicable in contexts other than extended terms, we hold that ordinary sentencing procedures apply to situation (5) hearings to decide whether to impose a concurrent or a consecutive sentence.
What are ordinary sentencing procedures? State v. Drozdowski supra, and the following HRS (1993) sections are relevant.
§ 706-600 Sentence in accordance with this chapter. No sentence shall be imposed otherwise than in accordance with this chapter.
§ 706-601 Pre-sentence diagnosis and report. (1) The court shall order a pre-sentence correctional diagnosis of the defendant and accord due consideration to a written report of the diagnosis before imposing sentence where:
(a) The defendant has been convicted of a felony; or
(b) The defendant is less than twenty-two years of age and has been convicted of a crime.
(2) The court may order a pre-sentence diagnosis in any other case.
(3) With the consent of the court, the requirement of a pre-sentence diagnosis may be waived by agreement of both the defendant and the prosecuting attorney.
§ 706-602 Pre-sentence diagnosis, notice to victims, and report. (1) The pre-sentence diagnosis and report shall be made by personnel assigned to the court, intake service center or other agency designated by the court and shall include:
(a) An analysis of the circumstances attending the commission of the crime;
(b) The defendant’s history of delinquency or criminality, physical and mental condition, family situation and background, economic status and capacity to make restitution or to make reparation to the victim or victims of the defendant’s crimes for loss or damage caused thereby, education, occupation, and personal habits;
(c) Information made available by the victim or other source concerning the effect that the crime committed by the defendant has had upon said victim, including but not limited to, any physical or psychological harm or financial loss suffered;
(d) Information concerning defendant’s compliance or non-compliance with any order issued under section 806-11; and
(e) Any other matters that the reporting person or agency deems relevant or the court directs to be included.
(2) The court personnel, service center, or agency shall give notice of the Criminal Injuries Compensation Act, the application for compensation procedure, and the possibility of restitution by the defendant to all victims of the convicted defendant’s criminal acts.
******
§ 706-604 Opportunity to be heard with respect to sentence; notice of pre-sentence report; opportunity to controvert or supplement; transmission of report to department. (1) Before imposing sentence, the court shall afford a fair opportunity to the defendant to be heard on the issue of the defendant’s disposition.
(2) The court shall furnish to the defendant or the defendant’s counsel and to the prosecuting attorney a copy of the report of any pre-sentence diagnosis or psychological, psychiatric, or other medical examination and afford fair opportunity, if the defendant or the prosecuting attorney so requests, to controvert or supplement them.
*441(3) In all circuit court cases, the court shall afford a fair opportunity to the victim to be heard on the issue of the defendant’s disposition, before imposing sentence.... In the case of a homicide or where the victim is otherwise unable to appear at the sentencing hearing, the victim’s family shall be afforded the fair opportunity to be heard.
⅜ ⅜ ⅜ ⅜ ⅜ if;
§ 706-665 Former conviction in another jurisdiction. For purposes of sections 706-606.5 [mandatory mínimums], 706-620 [eligibility for probation], and 706-662(1) [extended terms], a conviction of the commission of a crime in another jurisdiction shall constitute a previous conviction. Such conviction shall be deemed to have been of a felony if sentence of death or of imprisonment in excess of one year was authorized under the law of such other jurisdiction. Such a conviction shall be graded, for purposes of section 706-620 by comparing the maximum imprisonment authorized under the law of such other jurisdiction with the maximum imprisonment authorized for the relevant grade of felony.
§ 706-666 Definition of proof of conviction. (1) An adjudication by a court of competent jurisdiction that the defendant committed a crime constitutes a conviction for purposes of sections 706-606.5 [mandatory mínimums], 706-662 [extended terms], and 706-665 [conviction in another jurisdiction], although sentence or the execution thereof was suspended, provided that the defendant was not pardoned on the ground of innocence.
(2) Prior conviction may be proved by any evidence, including fingerprint records made in connection with arrest, conviction, or imprisonment, that reasonably satisfies the court that the defendant was convicted.
In State v. Kamae, 56 Haw. at 637, 548 P.2d at-638 (citations omitted), the Hawai'i Supreme Court stated in relevant part as follows:
In an ordinary term sentencing proceeding, a sentencing judge customarily relies upon information furnished to him in a presentence diagnosis and report. State v. Nobriga, 56 Haw. 75, 527 P.2d 1269 (1974); Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). In State v. Nobriga, supra, we were faced with whether a sentencing judge may consider an adult offender’s juvenile record contained in a presentence diagnosis and report. We there held that in a sentencing process, where the judge is no longer concerned with determining factual issues on guilt or innocence, he may consider such relevant information, including juvenile court record which is contained in a pre-sentence report. Likewise, in Williams v. New York, supra, the court held that a sentencing court may acquire information about a defendant from any source, including any data contained in a presentence report, and utilize the same in the sentencing of a defendant without violating due process.
In State v. Afong, 61 Haw. 281, 282-83, 602 P.2d 927, 929 (1979) (citations omitted), the Hawai'i Supreme Court held, in the situation (2) (mandatory mínimums) context, that “[u]nless conceded by the defendant, the state is required to show, by evidence satisfactory to the court, ..., the fact of the defendant’s prior conviction as well as the fact of his representation by counsel, or the waiver thereof, at the time of his prior conviction.”
Subsequently, in State v. Morishige, 65 Haw. 354, 369, 652 P.2d 1119, 1130 (1982), the Hawai'i Supreme Court held that, in situations where the State seeks to prove a defendant’s prior counseled criminal conviction, the trial court errs when it denies the defendant the opportunity to prove that his or her counsel was ineffective.
Both Afong and Morishige dealt solely with prior criminal convictions entered in Hawai'i and did not involve prior criminal convictions entered in other jurisdictions. Moreover, Afong dealt with the burden of proof, not with the burden of challenging.
Defendant’s case is an example of the enormity of the practical problem faced by the State in some eases. The Presentence Diagnosis and Report (Presentence Report) given to the circuit court by its Adult Probation Division alleges in relevant part as follows:
*442Adult Record:
Record: X
Sources of information: OBTS, NCIC, Monroe County, Florida Probation records
Farmington Hill, Michigan
08/17/74 Burglary
09/06/74 Convicted (No further disposition listed)
12/07/74 Weapons Offense (No disposition listed)
04/12/75 Damage to Property (No disposition listed)
Racine, Wisconsin
04/18/77 Theft From Building
05/02/77 30 days County Jail; fined $75
07/03/77 Possession of Marijuana
07/05/77 One year probation
Aurora, Colorado
01/01/78 Resisting Officer (No disposition listed)
Wheatridge, Colorado
01/14/78 Harassment (No disposition listed)
Farmington Hill, Michigan
02/07/79 Obstructing Police (No disposition listed)
Hollywood, Florida
01/04/82 Aggravated Assault
01/27/82 Three years probation
01/21/92 Probation revoked; sentenced to six months County Jail
East Lansing, Michigan
10/25/83 Stolen Property Assault (No disposition listed)
Virginia Beach, Virginia
04/24/86 Possession of Marijuana
04/24/86 Convicted
Teller County, Colorado
08/03/86 Driving Under the Influence Driving With Excessive Alcohol
10/15/87 Bench warrant issued
08/19/86 Assault in the Second Degree NP
Assault in the Third Degree 08/19/86
10/15/87 Bench warrant issued
Woodland Park, Colorado
12/21/86 Disorderly Conduct Obstructing Justice by Witness Intimidation Resisting Officer Menacing (Felony) (No disposition listed)
01/25/87 Trespass Drunk/Disorderly
07/21/87 Summons issued
Teller County, Colorado
02/06/87 Assault in the Second Degree
02/06/87 Five days County Jail
03/11/87 DWLS
10/15/87 Bench warrant issued
Manitou Springs, Colorado
08/09/87 Possession of an Unlicensed Firearm Possession of Unlicensed Brass Knuckles Attempt Sale of Unlicensed Firearm Attempt Sale of Unlicensed Brass Knuckles (No disposition listed)
Phoenix, Arizona
01/08/88 Shoplifting
01/09/88 One day County Jail
03/27/88 Shoplifting (No disposition listed)
Isle of Palms, South Carolina
07/12/88 Open Container Possession of Paraphernalia
07/12/88 Five days County Jail
Phoenix, Arizona
08/28/88 Assault
Unk. Date Three days jail
08/28/88 Disorderly Conduct
Unk. Date One day jail
Monroe County, Florida
10/27/89 Possession of Cocaine
01/07/92 Convicted as charged and sentenced to five years probation; 60 days public service; $1,297.50 restitution; $200 court costs; $25 Bureau of Crimes Compensation costs; $100 drug surcharge
*44310/27/89 Solicitation to Sell Cocaine
01/07/92 Nolle prosequi
Tybee Island, Georgia
05/12/90 Possession of Marijuana Carrying Concealed Weapon
Unk. Date 30 days County Jail
Coweta County, Georgia
07/18/90 Theft by Taking
09/17/90 Convicted of Theft by Taking and Sentenced to five years Georgia State Prison followed by 48 months probation
10/29/90 Released to Conditional Supervision
07/17/91 Released to probation
07/18/90 Possession of Firearm by Convicted Felon Carrying Concealed Weapon
09/17/90 Nolle Prosequi
12/1/90 Battery
Unk. Date Convicted; CTS
12/20/90 Battery
Unk. Date Convicted; CTS; defendant to transfer conditional supervision to Texas
Hilo, HI
11/25/92 Shoplifting (D-99317)
02/22/93 Dismissed without prejudice
Honolulu, HI
02/12/93 Criminal Contempt of Court (93-059651)
02/14/93 Released, no charge
02/12/93 Terroristic Threatening in the First Degree (93-048802)
02/24/93 Complaint filed for Count I: Terroristic Threatening in the First Degree
08/09/93 Pleaded guilty as charged (Present Matter — Criminal Number 93-0421)
02/12/93 Terroristic Threatening in the First Degree (93-049677)
02/24/93 Complaint filed for Count II: Terroristic Threatening in the First Degree
08/09/93 Pleaded Nolo Contendere as charged (Present Matter— Criminal Number 93-0421)
02/12/93 Terroristic Threatening in the First Degree (93-061692)
02/24/93 Complaint filed for Count III: Terroristic Threatening in the First Degree
08/09/93 Pleaded Nolo Contendere as charged (Present Matter— Criminal Number 93-0421)
Presentence Diagnosis and Report at 5-8.
A sentencing judge may not use as a basis for the imposition or enhancement of a prison sentence a prior criminal conviction that was (1) uncounseled,19 (2) otherwise invalidly entered, or (3) not against the defendant.
Although the Presentence Report alleges that Defendant had an extensive history of criminal convictions, it is silent on the question of whether Defendant’s alleged prior criminal convictions (convictions of offenses punishable by a sentence of imprisonment) were not uncounseled. We do not know whether the data sources expressly relied upon contain the relevant information. If such information is not readily available, a great deal of work by either the prosecutor’s office or probation office would be required to obtain such information.
At sentencing, although Defendant’s counsel made corrections to the September 27, 1993 Presentence Report, he did not contend that any of the listed prior criminal convic*444tions were uncounseled, were otherwise invalidly entered, or were not against Defendant. That fact leads to the question of whether a defendant has any burden to challenge the prior criminal conviction or convictions listed on the presentence report which the defendant contends is or are invalid. Our answer is yes.
On the question of the burdens imposed on each of the parties, the Utah Supreme Court’s research in State v. Triptow, 770 P.2d 146 (Utah 1989) revealed the following:
Our own research has shown that a number of state courts have considered the question ... who bears the burden of proof on the issue of representation or waiver of counsel in prior proceedings leading to a conviction that is used to increase the penalty in a subsequent prosecution[.] Among those states, we have identified at least three divergent views on the question. A significant factor is the degree to which the courts focus on the presumption of regularity that attends any judgment which has not been appealed from. Some courts are of the view that after the state proves the fact of a defendant’s prior conviction, this presumption of regularity requires that the defendant prove, by a preponderance of the evidence, that there was an actual lack of representation without a knowing waiver of counsel in the earlier proceeding. A second group of courts takes the position advocated by Triptow, which is to effectively disregard the presumption of regularity and require as an initial matter that the state affirmatively prove by at least a preponderance of the evidence either that the defendant was represented by counsel or that he or she knowingly waived counsel. A third group of courts takes a middle position. They acknowledge the presumption of regularity but allow the defendant to rebut that presumption by merely raising the issue and producing some evidence that counsel was not present and was not waived. This is enough to shift the burden to the state to affirmatively prove either representation or waiver by at least a preponderance of the evidence.
Id. at 148 (citations and footnote omitted).
As noted above, State v. Kamae, supra, imposes a heavy burden on the State in situation (1) (extended terms) hearings.
With respect to ordinary sentencing situations such as (2) (mandatory mínimums), (3) (mandatory minimums/firearms), (4) (eligibility for probation), and (5) (consecutive sentences), we approve of the essence of the middle position taken by Triptow ⅛ third group of courts.20 After the sentencing judge has been informed pursuant to HRS § 706-601, -602 (1993) or otherwise of defendant’s prior criminal conviction or convie-*445tions, each conviction listed may be used against defendant except those as to which the defendant timely responds with a good faith challenge on the record that the prior criminal conviction was (1) uncounseled, (2) otherwise invalidly entered, and/or (3) not against the defendant. We emphasize, however, that the defendant has no burden to produce any evidence.
As we have noted above, the rationale for not allowing the consideration of an uncoun-seled criminal conviction as a basis for the imposition or enhancement of a prison sentence is its lack of reliability. In our view, if the presentence report states that the defendant has a prior criminal conviction and the defendant does not respond to that report with a good faith challenge on the record that the reported criminal conviction was (1) un-counseled, (2) otherwise invalidly entered, or (3) not against the defendant, that prior criminal conviction is reliable for all sentencing purposes. We agree with Triptow that the defendant, more than anyone else, knows whether or not his or her prior criminal conviction was uncounseled, otherwise invalid, or irrelevant.
The Commentary on HRS § 706-602 supports our decision. It states in relevant part as follows:
This section sets forth the topics required to be covered in the pre-sentence investigation and report. The Code recognizes that these topics constitute a minimum of the information which should be before the sentencing judge. Additional matters may be included by the pre-sen-tence investigator. A defendant is protected against the inclusion of unfounded facts, derogatory information, statements and conclusions by the provision of § 706-604 providing for notice and opportunity to controvert.
Our position is also supported by the federal law pertaining to Drug Abuse Prevention and Control, 21 U.S.C.S. § 851 (1984),21 which relates to non-discretionary increased punishment for prior offenses under that specific law. 21 U.S.C.S. § 851 states in relevant part as follows:
Proceedings to establish previous convictions
(a) Information filed by United States Attorney.
(1) No person who stands convicted of an offense under this part [21 U.S.C.S. §§ 841 et seq.] shall be sentenced to increased punishment by reason of one or more prior convictions, unless ... the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.... Clerical mistakes in the information may be amended at any *446time prior to the pronouncement of sentence.
⅜ * # * * * •
(b) Affirmation or denial of previous conviction. If the United States attorney files an information under this section, the court shall ... inquire of the person with respect to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information, and shall inform him that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.
(c) Denial; written response; hearing. (1) If the person denies any allegation of the information of prior conviction, or claims that any conviction alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the United States attorney. ...
(2) A person claiming that a conviction alleged in the information was obtained in violation of [his or her constitutional rights] shall set forth his claim, and the factual basis therefore, with particularity in his response to the information.... Any challenge to a prior conviction, not raised by response to the informatidn before an increased sentence is imposed in reliance thereon, shall be waived unless good cause be shown for failure to make a timely challenge.
(d) Imposition of sentence. (1) If the person files no response to the information, or if the court determines, after hearing, that the person is subject to increased punishment by reason of prior convictions, the court shall proceed to impose sentence upon him as provided by this part.
When the defendant responds to a presentenee report of the defendant’s prior criminal conviction with a good faith challenge on the record that the prior criminal conviction was (1) uncounseled, (2) otherwise invalidly entered, and/or (3) not against the defendant, that prior criminal conviction may not be considered by the court as a basis for the imposition or enhancement of a prison sentence unless and until the State satisfies its burden of proving to the reasonable satisfaction of the court that the opposite of the challenge is true.
As we noted in State v. Drozdowski, 9 Haw.App. at 588, 854 P.2d at 241, Rule 1101, Hawai'i Rules of Evidence (HRE), chapter 626, HRS, specifies that the HRE do not apply to sentencing proceedings. On the other hand, the Supreme Court in United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), clearly distinguished between a sentencing judge’s misinformation about other matters and a sentencing judge’s misinformation about constitutionally invalid prior criminal convictions. As we have noted above, it described the latter as “misinformation of constitutional magnitude.” Id. at 447, 92 S.Ct. at 592. This distinction leads us to conclude that, after the defendant validly challenges the validity of a reported prior conviction and the State attempts to prove that the opposite of the challenge is true, the sentencing court is not permitted to consider evidence that is not admissible under the HRE.
Under the HRE, records of prior criminal convictions contained in public records and reports that qualify under the HRE Rule 803(b)(8) public records and reports exception to the hearsay rule and satisfy the authentication and identification requirements of HRE Rule 901(7) or (8) or 28 U.S.C.S. § 1738 (1989) are prima facie evidence of valid prior criminal convictions.
28 U.S.C.S. § 1738 provides in relevant part as follows:
State and Territorial statutes and judicial proceedings; full faith and credit
* * ⅜ * * *
The records and judicial proceedings of any court of any ... State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.
Such ... judicial proceedings or copies thereof, so authenticated, shall have the *447same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.
Therefore, we conclude that, henceforth, the following are the steps to be taken by Hawai'i courts in cases where ordinary sentencing procedures are applicable and there is a possibility that the court may use the defendant’s prior conviction(s) as a basis for the imposition or enhancement of a prison sentence. Step one, the court shall furnish to the defendant or defendant’s counsel and to the prosecuting attorney a copy of the presentence report, HRS § 706-604, and any other report of defendant’s prior criminal eonviction(s). Step two, if the defendant contends that one or more of the reported prior criminal convictions was (1) uncounseled, (2) otherwise invalidly entered, and/or (3) not against the defendant, the defendant shall, prior to the sentencing, respond with a good faith challenge on the record stating, as to each challenged conviction, the basis or bases for the challenge. Step three, prior to imposing the sentence, the court shall inform the defendant that (a) each reported criminal conviction that is not validly challenged by the defendant is defendant’s prior, counseled, validly entered, criminal conviction, and (b) a challenge to any reported prior criminal conviction not made by defendant before sentence is imposed may not thereafter, absent good cause, be raised to attack the court’s sentence. Step four, with respect to each reported prior criminal conviction that the defendant challenges, the HRE shall apply, and the court shall expressly decide before the sentencing whether the State satisfied its burden of proving to the reasonable satisfaction of the court that the opposite of the defendant’s challenge is true. Step five, if the court is aware of the defendant’s prior uncounseled or otherwise invalid criminal conviction(s), it shall not impose or enhance a prison sentence prior to expressly stating on the record that it did not consider it or them as a basis for the imposition or enhancement of a prison sentence.
CONCLUSION
Accordingly, we remand the case. Step one has been taken. If Defendant does not validly challenge, in accordance with step two, the validity of any of the prior criminal convictions reported in the Presentence Report, the sentence is affirmed. If, in accordance with step two, Defendant validly challenges the validity of any of the reported prior criminal convictions, the sentence is vacated, and the circuit court and the parties shall proceed on to steps three, four, and five.
.I do not perceive of any difficulty in the sentencing court evaluating convictions rendered in other states. As Justice Brennan’s dissent in Scott v. Illinois, 440 U.S. 367, 386 n. 18, 99 S.Ct. 1158, 1168 n. 18, 59 L.Ed.2d 383 (1979) long ago indicated, most states would require that counsel be made available where the defendant is subject to potential imprisonment. Twenty-two states agree with our jurisdiction that a defendant is entitled to counsel if imprisonment is authorized. Id. Eight other states’ laws would provide counsel if imprisonment is authorized or, at the least, the offense is not "trivial.” Id. Additionally, eight other states would provide counsel if the defendant is accused of a crime which is punishable with imprisonment between thirly days and six months. Id. at 387-88 nn. 19-21, 99 S.Ct. at 1169 nn. 19-21. The other states vest discretion to appoint counsel in various authorities or utilize a " 'likelihood of imprisonment' standard” in determining the issue of appointed counsel. Id. at 387 n. 18, 388 n. 22, 99 S.Ct. at 1168 n. 18, 1169 n. 22. As recently as 1994, the United States Supreme Court noted that "many if not a majority of States guarantee the right to counsel whenever imprisonment is authorized by statute, rather than actually imposed." Nichols v. United States, 511 U.S. 738, - n. 12, 114 S.Ct. 1921, 1928 n. 12, 128 L.Ed.2d 745 (1994).
. HRS § 706-668.5 implicitly recognizes that concurrent terms would suffice to satisfy the objective of punishment. Thus, while consecutive term sentencing is not specifically placed in the enhanced sentencing framework, we have today acknowledged that consecutive terms will obviously subject a defendant to a longer and thus harsher term of imprisonment than if the terms were to run concurrently.
. The majority’s contention that the "defendant has no burden to produce any evidence” is inconsistent with the case law the majority relies on. See State v. Triptow, 770 P.2d 146, 148 (Utah 1989) (to rebut presumption of regularity afforded to convictions, defendant must produce "some evidence that counsel was not present and was not waived”) (emphasis added). Inexplicably, the majority also relies on Parke v. Raley, 506 U.S. 20, 34, 113 S.Ct. 517, 525-26, 121 L.Ed.2d 391 (1992), which upheld Kentucky’s "burden-shifting rule” procedure requiring the defendant to produce evidence that his or her rights were infringed under the federal constitution. Aside *437from the fact that the burden-shifting rule in Parke's "persistent felony offender statute" is apparently directly contrary to the recidivist sentencing procedures in our jurisdiction, see State v. Morishige, 65 Haw. 354, 652 P.2d 1119 (1982); State v. Kamae, 56 Haw. 628, 548 P.2d 632 (1976), we have in this opinion expressly parted company with the United States Supreme Court’s position on the treatment to be given uncounseled convictions.
. The Opening Brief describes the offenses as follows:
Defendant expressed his remorse for the offenses and explained that the present offenses arose from a domestic dispute between Defendant and his then-girlfriend, Rosemarie Petelo (Petelo). After he was laid off from his job, he and Petelo moved to her mother's house on Oahu [O'ahu]. After living with Petelo's mother for awhile, Defendant and Petelo began arguing and, on one occasion, he hit her and threatened her with a knife. (Count I). He had been drinking at the time. After they both calmed down, they went home and Petelo called the police. The police questioned Defendant outside of the home and told him to leave but did not arrest him. Petelo refused to return all of Defendant's belongings to him left, [sic] Defendant left but continued drinking and kept calling Petelo on the telephone. They were very angry at each other, argued and threatened each other on the phone. (Count II). When Petelo went out several days later, she had her phone calls transferred to her landlord's phone (Ms. Kaaiawaawa). When Defendant called Petelo's home, the landlord answered and Defendant argued with her about Petelo and threatened her. (Count III). (Transcript citations omitted.)
The Presentence Diagnosis and Report describes the offenses as being more serious and aggravated than described in the Opening Brief.
. This rule that a sentencing judge may not use a prior uncounseled criminal conviction as a basis for the imposition or enhancement of a prison sentence is a rule that a sentencing judge may use a prior uncounseled criminal conviction as a basis for the imposition or enhancement of other sentences.
In State v. Dowler, 80 Hawai'i 246, 909 P.2d 574 (App.1995), we held that
[t]he right to counsel, guaranteed by the Sixth Amendment of the United States Constitution and article I, section 14 of the Hawaii Constitution, encompasses two rights: (1) the right of a defendant, in "all criminal prosecutions," to be represented by privately retained counsel; and (2) the right of an indigent criminal defendant to the assistance of counsel appointed to represent him or her.
Thus, in Hawaii, all uncounseled criminal convictions are invalid.
We recognize the historical reasons for the rule that a sentencing judge may not use a prior uncounseled criminal conviction as a basis for the imposition or enhancement of a prison sentence. However, in light of the fact that all uncounseled criminal convictions are invalid, we conclude that it is time for a rule that a sentencing judge may not use a prior uncounseled criminal conviction as a basis for the imposition or enhancement of any sentence.
. Under Kentucky law, a defendant charged as a persistent felony offender may challenge prior convictions that form the basis of the charge on the ground that they are invalid. When a defendant challenges a previous conviction through a suppression motion, Kentucky must prove the existence of the judgment on which it intends to rely. Once this is done, a presumption of regularity attaches, and the burden shifts to the defendant to produce evidence that his rights were infringed or some procedural irregularity occurred in the earlier proceeding. If the defendant refutes the presumption of regularity, the burden shifts back to the government affirmatively to show that the underlying judgment was entered in a manner that did, in fact, protect the defendant’s rights. Raley moved to suppress evidence of two convictions on the ground that the records did not contain transcripts of the plea proceedings and hence did not affirmatively show that his guilty pleas were knowing and voluntary. In Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992), Raley filed a federal habeas petition, arguing that the Kentucky courts had erred in requiring him to adduce evidence, rather than requiring Kentucky affirmatively to prove the prior convictions’ validity. The United States Supreme Court affirmed Kentucky’s procedure and stated in relevant part as follows:
In sum, neither our precedents nor historical or contemporary practice compel the conclusion that Kentucky’s burden-shifting rule violates due process, and we cannot say that the rule is fundamentally unfair in its operation. Accordingly, we hold that the Due Process Clause permits a State to impose a burden of production on a recidivism defendant who challenges the validity of a prior conviction under [Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (reversible error occurs when a trial judge accepted a defendant’s guilty plea without creating a record affirmatively showing that the plea was knowing and voluntary) ].
Parke v. Raley, 506 U.S. at 34, 113 S.Ct. at 525-26, 121 L.Ed.2d at 406.
. At the federal level, sentencing for offenses other than those under 21 U.S.C.S. § 851 is generally governed by the Sentencing Guidelines for the United States Courts, 18 U.S.C.S. Appx. (1995 Cum.Supp.). These guidelines specify the sentence to be imposed for a particular offense but permit a court to depart from the guidelines if it finds "an aggravating or mitigating circumstance ... that should result in a sentence different from that prescribed." 18 U.S.C.S. Appx.
§ 1A 4(b) (1995 Cum.Supp.).
Aggravating circumstances resulting in an upward departure of a sentence include a defendant’s prior criminal history, and 18 U.S.C.S. Appx. § 4 sets forth the formula for calculating the points to be added to a defendant’s prescribed sentence. As a result of a defendant's prior criminal history, for example, three points are added to a defendant’s current sentence category for each sentence of imprisonment previously imposed on defendant which exceeded one year and one month. 18 U.S.C.S. Appx. § 4A1.1 (1995 Cum.Supp.).
The Commentary to 18 U.S.C.S. Appx. § 4A1.2, which provides definitions and instructions for computing a defendant’s criminal history, notes that sentences resulting from reversed, vacated, or invalidated convictions are not to be counted in determining a defendant's prior criminal history. However, the Commentary also notes:
With respect to the current sentencing proceeding, this guideline or commentary does not confer upon the defendant any right to attack collaterally a prior conviction or sentence beyond any such rights otherwise recognized in law (e.g. 21 U.S.C. § 851 expressly provides that a defendant may collaterally attack certain prior convictions).
As a general rule, then, a defendant in federal court may not use a sentencing hearing to collaterally attack the constitutionality of a prior conviction or sentence which appears on a presen-tence report. The conviction and sentence are presumed valid.