(dissenting).
I disagree with the reasoning in Division III of the majority opinion and result reached in this case, therefore respectfully dissent.
As stated by the majority, “Defendant’s .appeal is solely from judgment following his conviction in the recidivist [habitual criminal] proceedings.”
More specifically defendant challenged, inter alia, the admission in evidence of exhibit “B”. This consisted of an information, journal entry, and mittimus, Michigan Recorders Court of the City of Detroit, in People v. Charles Cameron, a/k/a Charles J. Long, based on a plea of guilty. Without question this exhibit was completely silent as to any representation of t.he named defendant by counsel. Furthermore, it is conceded there then existed no provision in the Michigan laws for appointment of counsel on entry of a guilty plea.
Leaning heavily on Losieau v. Sigler (8 Cir.), 406 F.2d 795, the majority holds, in effect, the offer in evidence of exhibit “B” served to impose on defendant the duty to go forward with the proof and make at least a prima facie showing he was not, at the time concerned, represented by an attorney. At the outset I submit Losieau v. Sigler, supra, is neither factually comparable to the case at bar nor here controlling.
There the court held, if prior sentences relied upon to support a habitual criminal *695sentencing disclose they, were imposed while the accused was without benefit of counsel, the recidivist sentence must fall. The case was remanded to trial court for further findings on that issue with this statement, loc. cit., 406 F.2d 802-803: “It appears that a question may arise on remand as to whether the burden of proving the absence of counsel at sentencing rests with the petitioner. We, therefore, feel that it is necessary to comment on this issue.
“Ordinarily, the burden of proof is on an accused to establish that he was denied the right to counsel. Wilson v. Wiman, 386 F.2d 968, 969 (6th Cir. 1967), cert. denied, 390 U.S. 1042, 88 S.Ct. 1634, 20 L.Ed.2d 303 (1968); Davis v. United States [8 Cir., 226 F.2d 834], supra. Burgett v. State of Texas, supra [389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319], raises serious questions, however, as to whether an accused has such a burden where the record is silent as to the presence of counsel at a critical stage.
“ * * *
“We are inclined to believe that Burgett must be read as holding that where the record is silent as to whether an accused was furnished counsel at a critical stage and zvhere the accused introduces evidence tending to show that he was not in fact so represented, the burden then shifts to the state to prove, by a fair preponderance of the evidence, that the accused was represented. See, United States ex rel. McCloud v. Rundle, 402 F.2d 853 (3d Cir., 1968).” (Emphasis supplied.)
But the question before us is not what the State must do if and when the accused offers evidence tending to show he was not represented by an attorney at time of prior sentencing. Rather, the basic issue to be resolved on this appeal is whether a prior record of conviction, totally silent as to representation by counsel, with no further showing by the State, affords a constitutionally adequate or fair basis upon which an increased recidivist sentence may be imposed.
At this point I again refer to Burgett v. State of Texas, loc. cit., 389 U.S. 114-115, 88 S.Ct. 261-262, where the court stated: “The recent right-to-counsel cases, starting with Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, are illustrative of the limitations which the Constitution places on state criminal procedures. Those limitations sometimes touch rules of evidence.
“The exclusion of coerced confessions is one example. Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716.
“The exclusion of evidence seized in violation of the Fourth and Fourteenth Amendments is another. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.
“Still another is illustrated by Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. In that case we held that a transcript of a preliminary hearing had to be excluded from a state criminal trial because the defendant had no lawyer at that hearing, and did not, therefore, have the opportunity to cross-examine the principal witness against him who since that time had left the State. The exclusionary rule that we fashioned was designed to protect the privilege of confrontation guaranteed by the Sixth Amendment and made applicable to the States by the Fourteenth.
“The same result must follow here. Gideon v. Wainwright established the rule that the right to counsel guaranteed by the Sixth Amendment was applicable to the States by virtue of the Fourteenth, making it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one. And that ruling was not limited to- prospective applications. See Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650; Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41. In this case the certified records of the Tennessee [prior] conviction on their face raise a presumption that petitioner was denied his right to *696counsel in the Tennessee proceeding, and therefore that his conviction was void. Presuming waiver of counsel from a silent record is impermissible. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. 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 (see Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477 [16 L.Ed.2d 526]) 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.” (Emphasis supplied.)
See also Arsenault v. Commonwealth of Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 36, 21 L.Ed.2d 5, and Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 256-257, 19 L. Ed.2d 336.
But the majority believes Burgett, supra, is factually different from the case at bar.
Assuming, arguendo, there is merit in that belief, I submit the principles clearly enunciated in Burgett, quoted above, are here applicable and controlling.
As aforesaid exhibit “B” does not reveal the named defendant, in the Michigan proceedings, was represented by counsel or knowingly waived that constitutionally mandated right. And any attempt to fasten upon this defendant the burden of going forward with the evidence must unavoidably be premised upon a presumption he was then represented by an attorney or knowingly waived that privilege. But, as stated in Burgett, supra, at pages 114 — 115, 389 U.S., page 262, 88 S.Ct.: “Presuming waiver of counsel from a silent record is impermissible.”
To the extent here relevant, this must mean that when, in a recidivist proceeding, the State offers in evidence the record of a prior conviction which is silent as to representation of the accused by legal counsel, t.he burden is upon the State to show the accused was in fact then represented by or waived counsel, not upon defendant to establish the contrary.
It is to me apparent the subject Michigan conviction record facially creates a presumption the named defendant was not there represented by counsel, and since that presumption was not here overcome by the State the aforesaid conviction must, for our purpose, be deemed void. Resultantly it could not be accorded any recognition in the case at bar. In support hereof see Burgett, supra, loc. cit., 389 U.S. 114, 88 S.Ct. 261-262.
Also, as stated in Burgett, supra, at page 115, 389 U.S., page 262, 88 S.Ct.: “The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright is inherently prejudicial * *
I respectfully submit, prejudicial error unavoidably resulted from admission in evidence of exhibit “B”, and on that basis would reverse and remand for proper sentence.
BECKER, T., joins in this dissent.