                   IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 42868

STATE OF IDAHO,                                )    2016 Unpublished Opinion No. 445
                                               )
       Plaintiff-Respondent,                   )    Filed: March 22, 2016
                                               )
v.                                             )    Stephen W. Kenyon, Clerk
                                               )
EDGAR FARFAN-GALVAN, aka                       )    THIS IS AN UNPUBLISHED
EDGAR FARFAN, aka EDGAR G.                     )    OPINION AND SHALL NOT
FARFAN GALVAN, aka EDGAR                       )    BE CITED AS AUTHORITY
GALVAN FARFAN, aka EDGAR                       )
GALVAN,                                        )
                                               )
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. G. Richard Bevan, District Judge.

       Judgment of conviction and sentence for driving under the influence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Erik R. Lehtinen, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GRATTON, Judge
       Edgar Farfan-Galvan appeals from the district court’s order denying his motion to
dismiss or reduce his conviction for felony driving under the influence (DUI). We affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       The State charged Farfan-Galvan with felony driving under the influence (DUI). The
enhancement to the felony was based on two prior misdemeanor DUI convictions. Farfan-
Galvan filed a motion to dismiss or reduce the charge to a misdemeanor, collaterally attacking
one of his previous DUI convictions on the basis that his Sixth Amendment right to counsel was
violated in that underlying conviction. In the underlying misdemeanor DUI case (2010 case),


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Farfan-Galvan applied for a public defender and the magistrate denied his application. In this
case, the district court found that the magistrate in the prior case had denied the application for a
public defender because Farfan-Galvan was not indigent and, therefore, did not deny the right to
counsel under the Sixth Amendment. Therefore, the district court denied the motion to dismiss
or reduce the charge. Farfan-Galvan then entered a guilty plea to felony DUI, preserving his
right to appeal the district court’s decision. Farfan-Galvan timely appealed.
                                                 II.
                                           ANALYSIS
       Farfan-Galvan asserts that the district court erred by denying his motion to dismiss or
reduce his felony DUI charge to a misdemeanor, because the underlying misdemeanor
conviction used to enhance his DUI conviction to a felony was obtained through violation of his
Sixth Amendment right to counsel.
       In State v. Schwab, 153 Idaho 325, 329-30, 281 P.3d 1103, 1107-08 (Ct. App. 2012), we
explained:
       When a violation of a constitutional right is asserted, we accept the trial court’s
       factual findings unless they are clearly erroneous, but freely review whether
       constitutional requirements have been satisfied in light of the facts found. Also,
       this Court will not substitute its view for that of the trier of fact as to the
       credibility of the witnesses, the weight to be given to the testimony, and the
       reasonable inferences to be drawn from the evidence. In State v. Coby, 128 Idaho
       90, 92, 910 P.2d 762, 764 (1996), the Idaho Supreme Court set forth the
       respective burdens for a constitutional challenge to a prior conviction used to
       enhance a DUI charge from a misdemeanor to a felony. The state bears the
       burden of making a prima facie showing of the validity of a prior conviction used
       to enhance a pending crime. Thus, the state must first establish the existence of
       the prior convictions on which the state is relying for enhancement purposes.
       This burden requires only that the state produce the judgments of conviction or
       other evidence of the existence of the convictions. Once the state meets that
       burden, the burden of going forward with proof that the conviction was
       constitutionally defective is placed on the defendant. Accordingly, the defendant
       must produce evidence establishing a constitutional challenge to the validity of
       the judgments on which the state relies. The state must then prevail on its claim
       of the validity of the prior judgments.
(citations omitted).
       When the government seeks to enhance the punishment for a new offense by offering
evidence of a prior conviction, the defendant may collaterally attack the prior conviction based



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on the violation of his right to counsel in the prior case. Burgett v. Texas, 389 U.S. 109, 114-16
(1967). The Court explained:
       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.
Burgett, 389 U.S. at 115 (citation omitted).
       An indigent defendant has the right to have counsel appointed at public expense. Gideon
v. Wainwright, 372 U.S. 335 (1963). The right to collaterally attack prior convictions used for
sentence enhancement purposes cannot be extended beyond the right established in Gideon.
Custis v. United States, 511 U.S. 485 (1994) (declining to extend Burgett to other collateral
attacks on prior convictions; see also State v. Weber, 140 Idaho 89, 90 P.3d 314 (2004)).
       Farfan-Galvan first asserts that he had a right to counsel in the plea and sentencing
proceedings in the 2010 case and that the trial court denied his right to counsel. Farfan-Galvan
contends that because the trial court did not state the basis for the denial of the application for
court-appointed counsel, we should presume that it was denied in violation of his Sixth
Amendment right. Farfan-Galvan’s attempt to liken this situation to that in Burgett, where the
Supreme Court presumed a Sixth Amendment violation when it was unclear whether the
defendant was represented by counsel, is without merit.         Burgett is factually and legally
inapposite to this case. Farfan-Galvan provides no other legal or rational basis for the claim that
a violation should be presumed.
       Next, Farfan-Galvan claims that this Court should review the propriety of the denial of
the appointment of counsel in the 2010 case de novo. He provides no support for this claim
other than a contention that without a stated basis for the denial of the application, this Court
cannot review the denial under an abuse of discretion standard. Regardless of what standard of
review we apply, Farfan-Galvan has failed to demonstrate any error or violation of his Sixth
Amendment rights. The burden of proving inadequate financial means to afford counsel is on
the defendant. Quinlivan v. State, 94 Idaho 334, 335, 487 P.2d 928, 929 (1971). In the
application for court-appointed counsel, Farfan-Galvan reported income of $2,800 per month and
expenses of $1,028 per month. Farfan-Galvan lived with his girlfriend and his son. Without any
support from the record, Farfan-Galvan asserts that “clearly” some amount of the reported
household income was attributable to his girlfriend and “more likely” it would be half. So, given
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that his girlfriend’s income could not be considered in regard to his ability to pay for an attorney,
he established his indigency. Aside from his claims not being factually supported in the record,
Farfan-Galvan relies upon reports and U.S. Census Bureau data which are likewise not part of
the record, as well as subsequent and, thus, inapplicable amendments to Idaho law. Farfan-
Galvan has not demonstrated indigency or an unconstitutional denial of his right to counsel in the
2010 case.
       Finally, Farfan-Galvan claims that his right to counsel in the 2010 case was violated
because the record does not show a valid waiver of his right to counsel. Farfan-Galvan notes that
he was arrested for DUI on September 5, 2010, and bonded out on September 7.                     On
September 9, he appeared at the courthouse and signed a form notifying him of the potential
penalties for DUI, a form notifying him of his rights, and a guilty plea form. The form notifying
him of his rights stated: “You have the right to be represented by an attorney at all times. If you
want an attorney, but cannot afford to pay for one, the court will, in appropriate cases, appoint
one to help you.” On September 14, Farfan-Galvan submitted the application for appointment
of counsel, which was denied the next day. He then appeared before the magistrate on October 5
without counsel, pled guilty, and was sentenced.
       Farfan-Galvan contends that the application for appointment of counsel was not only a
request for free counsel, but a timely invocation of “a desire for counsel generally.” He cites to
no authority for this proposition and the Court is aware of nothing that renders a request for
court-appointed counsel an invocation of the right to counsel of one’s choosing. Next, Farfan-
Galvan asserts that since he was advised of his right to counsel but was thereafter denied his
request for court-appointed counsel, he “might not have known” that he could still speak up and
request an opportunity to hire counsel. Thus, “under the circumstances” the magistrate had an
obligation to ensure a knowing, intelligent, and voluntary waiver of counsel prior to accepting
his guilty plea and entering sentence. First, again, Farfan-Galvan provides no direct authority for
this argument. Second, as the State points out, he has provided no authority providing that the
adequacy of a waiver of counsel is a ground upon which he may collaterally attack a prior
conviction. As noted, denial of the right to counsel under Gideon is the exclusive means
available to collaterally attack the prior conviction. Weber, 140 Idaho at 94, 90 P.3d at 319
(recognizing that Weber’s plea may not have been knowingly, voluntarily, or intelligently made,
but nevertheless refusing to allow a collateral attack). “[F]ailure to appoint counsel for an

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indigent defendant [is] a unique constitutional defect,” and is the only collateral attack the
Constitution requires that a defendant be able to make on a prior conviction used as an
enhancement. Custis, 511 U.S. at 496.
                                              III.
                                        CONCLUSION
       Farfan-Galvan has not shown that his right to counsel was denied in the 2010
misdemeanor DUI conviction. The district court’s order denying Farfan-Galvan’s motion to
dismiss or reduce his felony charge to a misdemeanor is affirmed.
       Chief Judge MELANSON and Judge GUTIERREZ CONCUR.




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