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Smart Summary

Factual and Procedural Background

In 1986, respondent Ricky Harold Raley was charged in Kentucky with robbery and with being a “persistent felony offender” under Ky. Rev. Stat. Ann. § 532.080, based on two prior burglary convictions obtained by guilty pleas in 1979 and 1981. Raley moved to suppress use of those prior convictions for enhancement, asserting the guilty pleas were invalid under Boykin v. Alabama because the records contained no transcripts and therefore did not affirmatively show the pleas were knowing and voluntary.

The trial court held a suppression hearing under Kentucky procedures described in Commonwealth v. Gadd and Dunn v. Commonwealth: after the Commonwealth proved the existence of the prior judgments, a presumption of regularity attached and Raley bore a burden of production to present evidence of invalidity; if rebutted, the burden shifted back to the Commonwealth to prove validity. Evidence included certified judgments; Raley’s testimony (11th-grade education, adequate reading ability, counsel in both cases, not impaired, recalled being asked if the pleas were voluntary but did not remember advisements of specific rights); and plea forms (1979 form reflecting advisement and counsel verification; 1981 form reflecting charges and Raley’s admission he was advised at least of the right to a jury trial). The trial court denied suppression, and Raley entered a conditional guilty plea on the robbery and persistent-felony-offender counts, receiving a 5-year robbery sentence enhanced to 10 years.

The Kentucky Court of Appeals affirmed, finding the 1979 plea knowing and voluntary and inferring from the 1979 plea and Raley’s increased sophistication that he understood the consequences of the 1981 plea as well; the Kentucky Supreme Court denied discretionary review. Raley then sought federal habeas relief. The District Court denied relief, but the Sixth Circuit (relying on Dunn v. Simmons) reversed as to the 1981 plea, holding that where no transcript exists the prosecution bears the entire burden to prove validity by clear and convincing evidence and that no presumption of regularity attaches; it ordered conditional habeas relief unless Kentucky held a new hearing. The U.S. Supreme Court granted certiorari and reversed.

Legal Issues Presented

  1. Whether Kentucky’s procedure for adjudicating a Boykin challenge to prior guilty pleas used for recidivist sentence enhancement violates the Due Process Clause because it (i) applies a presumption of regularity after proof of the prior judgment and (ii) places a burden of production on the defendant when transcripts of the prior plea proceedings are unavailable.
  2. Whether due process requires the Commonwealth to prove the validity of such prior guilty pleas by “clear and convincing” extrarecord evidence when no transcript exists.
  3. Whether, on federal habeas review, the Kentucky courts properly concluded that Raley’s 1981 guilty plea was knowing and voluntary.

Arguments of the Parties

Petitioner (Kentucky Warden) and United States (Amicus) — Arguments

  • Contended that Kentucky’s burden-shifting framework for Boykin-based collateral attacks in recidivism proceedings is consistent with due process and should not be displaced by a rule requiring the prosecution to carry the entire burden whenever a transcript is missing.
  • Advanced a broader argument (which the Court declined to reach) that, with narrow exceptions not applicable, due process does not require States to permit any challenge to prior guilty pleas used for enhancement purposes.
  • Challenged the Sixth Circuit’s imposition of a “clear and convincing” standard, arguing instead for a lower measure of proof (citing the preponderance standard referenced in the Court’s discussion of habeas practice).

Respondent (Raley) — Arguments

  • Argued Kentucky unconstitutionally shifted a burden of production to him; in his view, when no transcript exists the prosecution must bear the full burden to establish plea validity and no presumption of regularity should attach.
  • Maintained that imposing even a production burden on a defendant is fundamentally unfair where constitutional rights waived by a guilty plea are at stake, particularly given the practical difficulty of contesting old convictions with missing records.
  • Supported the Sixth Circuit’s “clear and convincing” extrarecord-evidence requirement as necessary given the “murky memories” involved in collateral reconstruction.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Boykin v. Alabama, 395 U.S. 238 On direct review, reversible error if record does not affirmatively show guilty plea was knowing and voluntary; waiver cannot be presumed “from a silent record.” Distinguished as a direct-review case; the Court refused to import its “presumption of invalidity” into collateral recidivism attacks where final judgments carry a presumption of regularity.
Spencer v. Texas, 385 U.S. 554 States have latitude in recidivism procedures; “tolerance for a spectrum of state procedures dealing with [recidivism] is especially appropriate.” Used to support deference to varied state approaches and uphold Kentucky’s burden scheme as within due process tolerances.
Burgett v. Texas, 389 U.S. 109 Uncounseled convictions cannot be used to support guilt or enhance punishment. Distinguished; the Court rejected reading Burgett to mean missing Boykin transcripts make prior convictions “presumptively void” on collateral review.
Commonwealth v. Gadd, 665 S.W.2d 915 (Ky. 1984) Kentucky: prosecution must prove fact of prior conviction beyond reasonable doubt; need not affirmatively prove validity absent a defendant’s attack, but defendants may challenge invalidity. Provided the Kentucky procedural foundation for allowing collateral attacks while not requiring validity proof in the first instance.
Dunn v. Commonwealth, 703 S.W.2d 874 (Ky. 1985) Kentucky: after the Commonwealth proves existence of judgment, presumption of regularity attaches; defendant bears burden of production; if rebutted, burden shifts back to government to show rights were protected. Central state-law scheme the Court held permissible under the Due Process Clause.
Dunn v. Simmons, 877 F.2d 1275 (6th Cir. 1989) Sixth Circuit rule: where no plea transcript exists, prosecution bears entire burden; no presumption of regularity; extrarecord proof must be clear and convincing. Rejected as a constitutional requirement; the Court held due process does not compel this approach.
Teague v. Lane, 489 U.S. 288 (1989) Nonretroactivity doctrine on federal habeas. Not applied because the Commonwealth did not argue Teague barred use of Simmons; mentioned as background.
Collins v. Youngblood, 497 U.S. 37 Teague is not jurisdictional. Cited to note the Commonwealth’s choice not to raise Teague did not present a jurisdictional barrier.
Yee v. Escondido, 503 U.S. 519 The Court ordinarily does not reach issues not raised in the petition for certiorari. Used to decline petitioner’s broader, unpresented argument that States need not permit enhancement-related plea challenges at all.
McCarthy v. United States, 394 U.S. 459 Reinforces requirement that guilty pleas be knowing and voluntary. Part of the Court’s baseline description of guilty-plea validity standards.
North Carolina v. Alford, 400 U.S. 25 Standard: whether plea is a voluntary and intelligent choice among alternatives open to the defendant. Used to frame the constitutional inquiry into plea validity.
Johnson v. Zerbst, 304 U.S. 458 Presumption of regularity attaches to final judgments, including issues involving waiver of constitutional rights; collateral attacks may place proof burdens on the challenger. Key support for allowing Kentucky to apply a presumption of regularity and assign a production burden to defendants on collateral review.
Barefoot v. Estelle, 463 U.S. 880 Example of presumption of regularity in habeas corpus context. Cited illustratively to show the presumption’s established role in collateral proceedings.
Voorhees v. Jackson, 10 Pet. 449 Early articulation that acts of a court of competent jurisdiction are presumed properly done until contrary appears. Used to show the deep historical roots of the presumption of regularity in collateral attack settings.
Lewis v. United States, 445 U.S. 55 Characterizes certain challenges to prior convictions used as predicates as “collateral.” Supported the Court’s classification of Raley’s attack as collateral and thus subject to presumptions attaching to final judgments.
Loper v. Beto, 405 U.S. 473 Notes practical difficulties of proving matters in stale collateral settings (cited via a dissenting discussion). Used to acknowledge practical burdens on any party, but not to constitutionalize a particular allocation of proof burdens.
Medina v. California, 505 U.S. 437 Due process does not require the State to adopt procedures producing results more favorable to the accused; historical tradition and contemporary practice inform fundamental fairness. Used to reject the notion that difficulty for defendants mandates shifting the full burden to the prosecution and to evaluate Kentucky’s scheme against history and practice.
Graham v. West Virginia, 224 U.S. 616 Recidivism laws’ long tradition; recidivism pertains to punishment. Cited to situate recidivist sentencing in longstanding doctrine and practice.
Rummel v. Estelle, 445 U.S. 263 States have a valid interest in deterring and segregating habitual criminals. Supported the legitimacy of recidivist sentencing interests potentially impaired by overly onerous proof rules.
Oyler v. Boles, 368 U.S. 448 Recidivism statutes go to punishment, not a separate offense; due process does not require advance notice of habitual-criminal accusation. Used as part of the Court’s description of established recidivism doctrine and procedural flexibility.
McDonald v. Massachusetts, 180 U.S. 311 Recidivism charge affects punishment only. Used to reinforce the punishment-only characterization of recidivism proceedings.
Gryger v. Burke, 334 U.S. 728 Recidivism precedents; defendant’s prior experience may be relevant to knowing waiver analysis. Cited both for recidivism doctrine (via Spencer) and later to support considering prior system experience in assessing plea understanding.
Moore v. Missouri, 159 U.S. 673 Example of recidivism statute upheld against various constitutional challenges. Used within a list illustrating the Court’s repeated approval of recidivism regimes.
Solem v. Helm, 463 U.S. 277 Eighth Amendment proportionality limit in a recidivism context (life without parole for minor offenses). Not applied; cited as a counterexample indicating constitutional constraints exist even in recidivism sentencing.
Kelly v. People, 115 Ill. 583 Historical practice: some courts barred defendants in recidivism proceedings from challenging prior convictions as erroneous (as opposed to jurisdictionally void). Used to show no historical tradition requiring the prosecution to bear the full validity burden in enhancement proceedings.
State v. Webb, 36 N.D. 235 Historical practice consistent with limiting challenges to prior convictions in recidivism contexts. Used as additional evidence that respondent’s claimed due process requirement lacked historical grounding.
State v. Elling, 11 Ohio Misc.2d 13 Example of a jurisdiction placing full burden on prosecution in a prior-conviction challenge. Used to demonstrate diversity of contemporary state approaches (undercutting a claim of constitutional uniformity).
State v. Hennings, 100 Wn.2d 379 Example of a jurisdiction requiring strong proof standards in such challenges. Used to show variability in standards and burdens across States.
People v. Harris, 61 N.Y.2d 9 Example of placing entire burden on defendant once conviction fact is shown. Used to show Kentucky’s “middle position” is within a broad range of accepted state practices.
Watkins v. People, 655 P.2d 834 Example of a “middle position” burden allocation; also illustrates a preponderance standard where government bears ultimate burden. Used to demonstrate contemporary practice supports Kentucky’s approach and that proof standards are not uniform.
State v. O'Neil, 91 N.M. 727 Example of “middle position” burden shifting in prior-conviction challenges. Used to confirm Kentucky’s approach aligns with practices in other jurisdictions.
State v. Triptow, 770 P.2d 146 Example of standards used where government has ultimate burden (cited as preponderance in some states). Used to show there is no uniform requirement for “clear and convincing” evidence.
United States v. Gallman, 907 F.2d 639 Under 18 U.S.C. § 924(e), some federal courts place the full burden on defendants to prove invalidity of prior guilty-plea convictions. Used to show analogous federal practice supports placing significant burdens on defendants, contrary to respondent’s due process argument.
United States v. Paleo, 967 F.2d 7 Federal appellate practice consistent with assigning burden to defendant in analogous enhancement settings. Cited as “accord” to strengthen the analogy to federal approaches.
United States v. Day, 949 F.2d 973 Same as above (burden allocation in federal enhancement context). Cited as additional supporting authority.
United States v. Ruo, 943 F.2d 1274 Same as above (burden allocation in federal enhancement context). Cited as additional supporting authority.
United States v. Boyer, 931 F.2d 1201 Defendant bears burden when claiming an invalid guilty plea makes a conviction unavailable for Sentencing Guidelines criminal-history calculations. Used to bolster conclusion that respondent’s desired rule is not compelled by analogous federal practice.
Roddy v. Black, 516 F.2d 1380 Cited in connection with Sixth Circuit authority supporting a heightened (“clear and convincing”) standard in collateral contexts. Not adopted; mentioned as part of what the Sixth Circuit relied upon in Simmons.
Marshall v. Lonberger, 459 U.S. 422 On habeas, while the constitutional standard for voluntariness is federal law, state findings of historical fact and fair inferences receive a presumption of correctness under 28 U.S.C. § 2254(d). Provided the framework for reviewing Kentucky courts’ determination that the 1981 plea was knowing and voluntary.
Miller v. Fenton, 474 U.S. 104 Voluntariness of confession subject to independent federal determination; distinguished from Lonberger. Cited to clarify the scope of deference owed in guilty-plea contexts versus confession contexts.
Sumner v. Mata, 449 U.S. 539 Deference is owed to factual findings of state trial and appellate courts. Supported applying § 2254(d)’s presumption of correctness to Kentucky appellate inferences and findings.
Jackson v. Virginia, 443 U.S. 307 Sufficiency-of-the-evidence standard (mentioned as a possible alternative review frame). The Court stated it need not choose between standards because the Kentucky findings were fairly supported by the record under § 2254(d)(8).
Hardin v. Commonwealth, 573 S.W.2d 657 (Ky. 1978) Kentucky: persistent-felony-offender provision recognizes a status and enhances penalty; it does not create a separate offense. Cited in Justice Blackmun’s concurrence to explain why he viewed Kentucky’s burden-shifting as constitutionally acceptable in a sentencing (not substantive-offense) scheme.
Malicoat v. Commonwealth, 637 S.W.2d 640 (Ky. 1982) Additional Kentucky authority referenced regarding the persistent-felony-offender sentencing framework. Cited in concurrence as part of Kentucky’s characterization of the statute as sentencing-related.
Hon v. Commonwealth, 670 S.W.2d 851 (Ky. 1984) Kentucky: Commonwealth must prove beyond a reasonable doubt each “element” of first-degree persistent felony offender status. Cited in concurrence to distinguish proving the fact of prior convictions from proving their constitutional validity absent rebuttal of regularity.

Court's Reasoning and Analysis

The Court framed the “question presented” as whether Kentucky violates due process by not requiring the government to carry the entire burden of proving the validity of prior guilty pleas by clear and convincing evidence when plea transcripts are unavailable. It first emphasized the longstanding legitimacy of recidivist statutes and the Court’s traditional “tolerance for a spectrum” of state recidivism procedures.

The Court declined to decide petitioner’s broader contention that States generally need not allow any challenge to prior guilty pleas used for enhancement, because the argument was not raised below or in the certiorari petition and because Kentucky in fact allows such challenges.

On the merits, the Court held there was “no tension” between Kentucky’s approach and Boykin. Boykin governs direct review of a conviction; Raley’s attempt to invalidate final convictions in a later persistent-felony-offender proceeding was a collateral attack. In that collateral context, the Court relied on the deeply rooted “presumption of regularity” attaching to final judgments, including those involving waiver of constitutional rights. The Court rejected the inference that the mere absence of a transcript (absent allegations of government misconduct) implies constitutional invalidity; it reasoned that missing or nonexistent records for older pleas are not atypical and that it “defies logic” to presume noncompliance from unavailability alone.

The Court distinguished Burgett, explaining that the right-to-counsel issue there arose in a different historical setting (where the right had not yet been recognized when the prior conviction occurred), which made a presumption against waiver more plausible than in the modern Boykin context. The Court further rejected respondent’s fairness objections, reasoning that practical evidentiary difficulties burden whichever party bears proof; the prosecution does not necessarily have better access to evidence (especially where prior pleas occurred in other jurisdictions), and forcing the government to reconstruct distant old cases could significantly impair the State’s legitimate interest in enhanced punishment for repeat offenders. History and contemporary practice, the Court found, showed wide variation in how jurisdictions allocate burdens in recidivism challenges, undermining any claim that Kentucky’s allocation is fundamentally unfair.

Turning to the Sixth Circuit’s “clear and convincing” requirement for extrarecord evidence, the Court held due process does not impose that standard. Boykin did not address the measure of proof, and even if it had, the Court reasoned the same standard would not necessarily govern collateral recidivism proceedings. Given mutual difficulties of proof and the lack of any historical tradition fixing a heightened standard at “clear and convincing,” the Court was “unprepared to say” such a standard is constitutionally required, especially in light of nonuniform contemporary practice.

Finally, because Raley no longer challenged the 1979 plea, the Court reviewed the Kentucky courts’ conclusion that the 1981 plea was valid. Applying the deference framework described in Marshall v. Lonberger and 28 U.S.C. § 2254(d), the Court concluded the Kentucky factual determinations and inferences were “fairly supported by the record.” The Kentucky Court of Appeals permissibly inferred from Raley’s fully advised 1979 plea, his counsel representation, his signing of the 1981 form specifying the charges, and evidence of increased sophistication that he understood the consequences of the 1981 plea. Combined with Raley’s admission he understood the charges and his inability to remember additional advisements, the Court held it was not error to conclude the Commonwealth carried its burden of persuasion under Kentucky’s framework.

Holding and Implications

REVERSED. The Court held (1) Kentucky’s burden-of-proof scheme—requiring the Commonwealth to prove the existence of the prior judgment, applying a presumption of regularity, placing a burden of production on the defendant to show invalidity, and shifting the burden back to the Commonwealth if the presumption is rebutted—is permissible under the Due Process Clause; (2) due process does not require the Commonwealth to prove validity by clear and convincing extrarecord evidence when no transcript exists; and (3) the Kentucky courts properly concluded Raley’s 1981 guilty plea was valid, with state factual findings entitled to deference under 28 U.S.C. § 2254(d).

The immediate effect was to overturn the Sixth Circuit’s conditional habeas order and reinstate Kentucky’s use of the 1981 conviction for persistent-felony-offender enhancement in Raley’s case. The decision rejected a constitutional requirement that missing plea transcripts automatically eliminate the presumption of regularity or trigger a “clear and convincing” proof standard in enhancement-related collateral attacks, thereby permitting States to employ burden-shifting procedures like Kentucky’s without setting a new rule beyond the Court’s due process analysis in this context.

PARKE, WARDEN v. RALEY

In 1986, respondent Raley was charged with robbery and with being a persistent felony offender under a Kentucky statute that enhances sentences for repeat felons. He moved to suppress the 1979 and 1981 guilty pleas that formed the basis for the latter charge, claiming that they were invalid because the records contained no transcripts of the proceedings, and hence did not affirmatively show, as required by Boykin v. Alabama, 395 U.S. 238, that the pleas were knowing and voluntary. Under the state procedures governing the hearing on his motion, the ultimate burden of persuasion rested with the government, but a presumption of regularity attached to the judgments once the Commonwealth proved their existence, and the burden then shifted to Raley to produce evidence of their invalidity. As to the 1981 plea, Raley testified that, among other things, he signed a form specifying the charges to which he agreed to plead guilty and the judge at least advised him of his right to a jury trial. His suppression motion was denied, he was convicted, and he appealed. The Kentucky Court of Appeals found that Raley was fully informed of his rights in 1979, and inferred that he remained aware of them in 1981. Raley then filed a federal habeas petition. The District Court rejected his argument that the state courts had erred in shifting the burden of production to him, but the Court of Appeals reversed as to the 1981 plea, holding, inter alia, that, where no transcript is available, the prosecution has the entire burden of establishing a plea's validity by clear and convincing evidence and no presumption of regularity attaches to the prior judgment.

Held:

1. Kentucky's burden-of-proof scheme is permissible under the Due Process Clause. Pp. 26-35.
(a) "Tolerance for a spectrum of state procedures dealing with [recidivism] is especially appropriate" given the high rate of recidivism and the diversity of approaches that States have developed for addressing it. Spencer v. Texas, 385 U.S. 554, 566. Pp. 26-28.
(b) The deeply rooted presumption of regularity that attaches to final judgments would be improperly ignored if the presumption of invalidity applied in Boykin to cases on direct review were to be imported to recidivism proceedings, in which final judgments are collaterally attacked. In the absence of an allegation of government misconduct, it cannot be presumed from the mere unavailability of a transcript on collateral review that a defendant was not advised of his rights. Burgett v. Texas, 389 U.S. 109, distinguished. The presumption of regularity makes it appropriate to assign a proof burden to the defendant even when a collateral attack rests on constitutional grounds. And the difficulty of proving the invalidity of convictions entered many years ago does not make it fundamentally unfair to place a burden of production on the defendant, since the government may not have superior access to evidence. Nor is Raley's position supported by the state courts' historical treatment of defendants in recidivism proceedings, the wide range of contemporary state practices regarding the allocation of the proof burden, or interpretations of analogous federal laws, see, e.g., United States v. Gallman, 907 F.2d 639, 643-645. Pp. 28-34.
(c) Due process does not require the Commonwealth to prove the validity of a prior conviction by clear and convincing extrarecord evidence. Even if Boykin had addressed the question of measure of proof, it would not necessarily follow that the same standard should apply in recidivism proceedings. Given the difficulties of proof for both sides, it is not fundamentally unfair to require something less than clear and convincing evidence when the government is assigned the burden of persuasion. There is no historical tradition setting the standard at this particular level, and contemporary practice is far from uniform. Pp. 34-35.
2. The Kentucky courts properly concluded that Raley's 1981 guilty plea was valid. Their factual determinations are entitled to the presumption of correctness accorded state court factual findings under 28 U.S.C. § 2254(d). Marshall v. Lonberger, 459 U.S. 422, 431-432. The Kentucky Court of Appeals fairly inferred from Raley's 1979 experience that he understood the consequences of his 1981 plea. See, e.g., id., at 437. That, combined with his admission that he understood the charges against him and his self-serving testimony that he could not remember whether the trial judge advised him of other rights, satisfied every court that has considered the issue that the government carried its burden of persuasion under the Kentucky scheme. It cannot be said that this was error. Pp. 35-37.
945 F.2d 137, reversed.

O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 37.

JUSTICE O'CONNOR delivered the opinion of the Court.

Kentucky's "Persistent felony offender sentencing" statute, Ky. Rev. Stat. Ann. § 532.080 (Michie 1990), provides mandatory minimum sentences for repeat felons. 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. Respondent, who was indicted under the statute, claimed that two convictions offered against him were invalid under Boykin v. Alabama, 395 U.S. 238 (1969). The trial court, after a hearing, rejected this claim, and respondent was convicted and sentenced as a persistent felony offender. After exhausting his state remedies, respondent petitioned for a writ of habeas corpus in the United States District Court for the Western District of Kentucky. The District Court denied relief, but the Court of Appeals for the Sixth Circuit ordered that the writ conditionally issue, concluding that the trial court proceedings were constitutionally infirm. As it comes to this Court, the question presented is whether Kentucky's procedure for determining a prior conviction's validity under Boykin violates the Due Process Clause of the Fourteenth Amendment because it does not require the government to carry the entire burden of proof by clear and convincing evidence when a transcript of the prior plea proceeding is unavailable.

I

In May, 1986, the Commonwealth charged respondent Ricky Harold Raley with robbery and with being a persistent felony offender in the first degree. The latter charge was based on two burglaries to which respondent had pleaded guilty in November, 1979, and October, 1981. Respondent never appealed his convictions for those crimes. He nevertheless moved to suppress them in the persistent felony offender proceeding, arguing that they were invalid under Boykin because the records did not contain transcripts of the plea proceedings, and hence did not affirmatively show that respondent's guilty pleas were knowing and voluntary.

"A persistent felony offender in the first degree is a person who is more than twenty-one (21) years of age and who stands convicted of a felony after having been convicted of two (2) or more felonies." Ky. Rev. Stat. Ann. § 532.080(3) (Michie 1990). The applicable penalty depends upon the nature of the offense for which the defendant presently stands convicted. A defendant convicted both of second-degree robbery (the crime to which respondent ultimately pleaded guilty) and of being a first-degree persistent felony offender faces a mandatory sentence of 10 to 20 years. § 515.030, 532.080(6)(b). A first-degree persistent felony offender is also ineligible for probation or parole until he has served at least 10 years. § 532.080(7).

The trial court held a hearing according to procedures set forth in Commonwealth v. Gadd, 665 S.W.2d 915 (Ky. 1984), and Dunn v. Commonwealth, 703 S.W.2d 874 (Ky. 1985), cert. denied, 479 U.S. 832 (1986). In Gadd, the Supreme Court of Kentucky observed that the persistent felony offender statute requires that the prosecution prove only the fact of a previous conviction beyond a reasonable doubt; the Commonwealth need not also show that the conviction was validly obtained. 665 S.W.2d, at 917. But, citing Burgett v. Texas, 389 U.S. 109 (1967), the court also held that defendants must be able to attack a prior conviction's invalidity. 645 S.W.2d, at 917. Dunn v. Commonwealth clarified the procedures to be followed. When a defendant challenges a previous conviction through a suppression motion, the Commonwealth 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. 703 S.W.2d, at 876.

After the prosecution filed certified copies of the prior judgments of conviction for burglary, both sides presented evidence about the earlier plea proceedings. Respondent testified that he had an 11th grade education, that he read adequately, that he was not intoxicated or otherwise mentally impaired when he entered the challenged pleas, and that he was represented by counsel on both occasions. He remembered the trial judge in each case asking him whether his plea was voluntary, but he said he could not remember whether he was specifically told about the rights he waived by pleading guilty. The government's evidence showed that, in the 1979 proceeding, respondent signed (though he later claimed not to have read) a "Plea of Guilty" form, which stated that he understood the charges against him, the maximum punishment he faced, his constitutional rights, and that a guilty plea waived those rights. The attorney who represented respondent in the first case verified his own signature on another part of the form indicating that he had fully explained respondent's rights to him. As to the 1981 plea, respondent acknowledged signing a form that specified the charges to which he agreed to plead guilty. He also admitted that the judge had at least advise him of his right to a jury trial.

Based on this evidence, the trial court denied respondent's suppression motion. Respondent then entered a conditional guilty plea on the robbery and the persistent felony offender counts, reserving the right to appeal the suppression determination. The trial court sentenced him to 5 years for robbery, enhanced to 10 because of the persistent felony offender conviction.

The Kentucky Court of Appeals affirmed. It found the totality of circumstances surrounding the 1979 plea sufficient to support a finding that the plea was knowing and voluntary. It also upheld use of the 1981 conviction. The court explained that respondent's knowledge of his rights in November, 1979, permitted an inference that he remained aware of them 23 months later. Respondent's testimony, moreover, indicated that his sophistication regarding his legal rights had increased substantially after his first conviction. The Supreme Court of Kentucky denied discretionary review.

Respondent then filed a federal habeas petition, arguing that the Kentucky courts had erred in requiring him to adduce evidence, rather than requiring the Commonwealth affirmatively to prove the prior convictions' validity. The District Court denied the petition for essentially the same reasons given by the Kentucky Court of Appeals. Raley v. Parke, Civ. Action No. C89-0756-L(A) (WD Ky., Mar. 15, 1990). The Court of Appeals for the Sixth Circuit, however, agreed with respondent, relying on its recent decision in Dunn v. Simmons, 877 F.2d 1275 (1989), cert. denied, 494 U.S. 1061 (1990). 945 F.2d 137 (1991). Simmons held that, when no transcript of the prior guilty plea proceeding exists, the prosecution has the entire burden of establishing the plea's validity, and no presumption of regularity attaches to the final judgment. 877 F.2d, at 1277. It also held that, when the prosecution seeks to demonstrate the regularity of the prior proceeding with extrarecord evidence, that evidence must be "clear and convincing." Ibid. Although Simmons was decided after respondent's persistent felony offender conviction became final, the Commonwealth did not argue that Teague v. Lane, 489 U.S. 288, (1989), barred its application to this case. Cf. Collins v. Youngblood, 497 U.S. 37, 40-41 (1990) ( Teague not jurisdictional).

The Court of Appeals affirmed the District Court's determination with respect to the 1979 plea, but reversed with respect to the 1981 plea. It declined to infer that respondent remembered his rights from 1979, reasoning that such an inference would give rise to line-drawing problems and would discriminate improperly between accused recidivists and first offenders on the basis of prior court experience. The Court of Appeals observed that, because the trial court hearing took place before Simmons was decided, the Commonwealth had not yet had an opportunity to try to meet the higher standard of proof that decision imposed. Thus, rather than issue the writ of habeas corpus outright, the Court of Appeals directed the District Court to grant the writ if Kentucky did not hold a new hearing on the validity of the 1981 conviction in compliance with Simmons within 90 days. We granted certiorari. 503 U.S. 905 (1992).

II A

Statutes that punish recidivists more severely than first offenders have a long tradition in this country that dates back to colonial times. See, e.g., I The Acts and Resolves, Public and Private, of the Province of Massachusetts Bay 52 (Boston 1869) (1692 statute providing progressive punishments for robbery and burglary); 3 Laws of Virginia 276-278 (W. Henning ed. 1823) (1705 recidivism statute dealing with hog stealing); see also Graham v. West Virginia, 224 U.S. 616, 623 (1912). Such laws currently are in effect in all 50 States, see Department of Justice, Statutes Requiring the Use of Criminal History Record Information 17-41 (June 1991) (NJC-129846), and several have been enacted by the Federal Government as well, see, e.g., 18 U.S.C. § 924(e) (Armed Career Criminal Act); 21 U.S.C. § 842(c)(2)(B), 843(c), 844(a) (provisions of the Controlled Substances Act); see also United States Sentencing Commission, Guidelines Manual § 4A1.1 (Nov. 1992) (prior criminal conduct enhances criminal history for purpose of determining sentencing range).

States have a valid interest in deterring and segregating habitual criminals. See Rummel v. Estelle, 445 U.S. 263, 284 (1980). We have said before that a charge under a recidivism statute does not state a separate offense, but goes to punishment only. See Oyler v. Boles, 368 U.S. 448, 452 (1962); Graham, supra, at 623-624; McDonald v. Massachusetts, 180 U.S. 311, 313 (1901). And we have repeatedly upheld recidivism statutes "against contentions that they violate constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal protection, and privileges and immunities." Spencer v. Texas, 385 U.S. 554, 560 (1967) (citing Oyler, supra; Gryger v. Burke, 334 U.S. 728 (1948); Graham, supra; McDonald, supra; Moore v. Missouri, 159 U.S. 673 (1895)). But see Solem v. Helm, 463 U.S. 277 (1983) (life sentence without parole imposed under recidivism statute violated Eighth Amendment when current conviction was for passing a bad check and prior offenses were similarly minor).

The States' freedom to define the types of convictions that may be used for sentence enhancement is not unlimited. In Burgett v. Texas, 389 U.S. 109 (1967), we held that uncounseled convictions cannot be used "against a person either to support guilt or enhance punishment for another offense." Id., at 115. This Court has nevertheless also expressed a willingness to uphold, under the Due Process Clause, a variety of state procedures for implementing otherwise valid recidivism statutes. See Spencer, supra, (due process allows government to introduce proof of past convictions before jury has rendered guilt determination for current offense); Oyler, supra, (due process does not require advance notice that trial for substantive offense will be followed by habitual-criminal accusation). As Justice Harlan observed 25 years ago in Spencer, the Court is not "a rulemaking organ for the promulgation of state rules of criminal procedure." 385 U.S., at 564. "Tolerance for a spectrum of state procedures dealing with [recidivism] is especially appropriate," given the high rate of recidivism and the diversity of approaches that States have developed for addressing it. Id., at 566. We think this reasoning remains persuasive today; studies suggest that as many as two-thirds of those arrested have prior criminal records, often from other jurisdictions. See Department of Justice, supra, at 1; see also Spencer, supra, at 566, n. 9. The narrow question we face is whether due process permits Kentucky to employ its particular burden-of-proof scheme when allowing recidivism defendants to attack previous convictions as invalid under Boykin. In our view, Kentucky's burden-shifting rule easily passes constitutional muster.

B

As an initial matter, we decline to reach the broad argument advanced by petitioner and the Solicitor General that Kentucky's procedure is a fortiori constitutional because, with narrow exceptions not applicable here, due process does not require state courts to permit challenges to guilty pleas used for enhancement purposes at all. Petitioner did not make this argument below or in his petition for certiorari. We ordinarily do not reach issues not raised in the petition for certiorari, see Yee v. Escondido, 503 U.S. 519, 535 (1992), and it is unnecessary for us to determine whether States must allow recidivism defendants to challenge prior guilty pleas, because Kentucky does allow such challenges. We turn, then, to the question before us.

It is beyond dispute that a guilty plea must be both knowing and voluntary. See, e.g., Boykin, 395 U.S., at 242; McCarthy v. United States, 394 U.S. 459, 466 (1969). "The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31 (1970). That is so because a guilty plea constitutes a waiver of three constitutional rights: the right to a jury trial, the right to confront one's accusers, and the privilege against self-incrimination. Boykin, 395 U.S., at 243.

In Boykin, the Court found reversible error when a trial judge accepted a defendant's guilty plea without creating a record affirmatively showing that the plea was knowing and voluntary. Id., at 242. The Sixth Circuit thought rejection of Kentucky's burden-shifting scheme compelled by Boykin's statement that the waiver of rights resulting from a guilty plea cannot be "presume[d] . . . from a silent record." Id., at 243. Kentucky favors the prosecution with only an initial presumption upon proof of the existence of a prior judgment; but because a defendant may be unable to offer rebuttal evidence, the Sixth Circuit reasoned that Kentucky's procedure improperly permits the Commonwealth to carry its burden of persuasion upon a "bare record of a conviction." Simmons, 877 F.2d, at 1278.

We see no tension between the Kentucky scheme and Boykin. Boykin involved direct review of a conviction allegedly based upon an uninformed guilty plea. Respondent, however, never appealed his earlier convictions. They became final years ago, and he now seeks to revisit the question of their validity in a separate recidivism proceeding. To import Boykin's presumption of invalidity into this very different context would, in our view, improperly ignore another presumption deeply rooted in our jurisprudence: the "presumption of regularity" that attaches to final judgments, even when the question is waiver of constitutional rights. Johnson v. Zerbst, 304 U.S. 458, 464, 468 (1938). Although we are perhaps most familiar with this principle in habeas corpus actions, see, e.g., Barefoot v. Estelle, 463 U.S. 880, 887 (1983); Johnson, supra, it has long been applied equally to other forms of collateral attack, see, e.g., Voorhees v. Jackson, 10 Pet. 449, 472 (1836) (observing, in a collateral challenge to a court-ordered sale of property in an ejectment action, that "[t]here is no principle of law better settled than that every act of a court of competent jurisdiction shall be presumed to have been rightly done, till the contrary appears"). Respondent, by definition, collaterally attacked his previous convictions; he sought to deprive them of their normal force and effect in a proceeding that had an independent purpose other than to overturn the prior judgments. See Black's Law Dictionary 261 (6th ed. 1990); see also Lewis v. United States, 445 U.S. 55, 58, 65 (1980) (challenge to uncounseled prior conviction used as predicate for subsequent conviction characterized as "collateral").

There is no good reason to suspend the presumption of regularity here. This is not a case in which an extant transcript is suspiciously "silent" on the question whether the defendant waived constitutional rights. Evidently, no transcripts or other records of the earlier plea colloquies exist at all. Transcripts of guilty plea proceedings are normally made in Kentucky only if a direct appeal is taken or upon the trial judge's specific direction, Tr. of Oral Arg. 13-14, and the stenographer's notes and any tapes made of the proceedings normally are not preserved more than five years, id., at 16-17. The circumstance of a missing or nonexistent record is, we suspect, not atypical, particularly when the prior conviction is several years old. But Boykin colloquies have been required for nearly a quarter century. On collateral review, we think it defies logic to presume from the mere unavailability of a transcript (assuming no allegation that the unavailability is due to governmental misconduct) that the defendant was not advised of his rights. In this situation, Boykin does not prohibit a state court from presuming, at least initially, that a final judgment of conviction offered for purposes of sentence enhancement was validly obtained. Burgett v. Texas, 389 U.S. 109 (1967), does not necessitate a different result. There the Court held that a prior conviction could not be used for sentence enhancement because the record of the earlier proceeding did not show that the defendant had waived his right to counsel. Id., at 114-115. Respondent suggests that, because Burgett involved a state recidivism proceeding, it stands for the proposition that every previous conviction used to enhance punishment is "presumptively void" if waiver of a claimed constitutional right does not appear from the face of the record. Brief for Respondent 14-15. We do not read the decision so broadly. At the time the prior conviction at issue in Burgett was entered, state criminal defendants' federal constitutional right to counsel had not yet been recognized, and so it was reasonable to presume that the defendant ha not waived a right he did not possess. As we have already explained, the same cannot be said about a record that, by virtue of its unavailability on collateral review, fails to show compliance with the well-established Boykin requirements.

Respondent argues that imposing even a burden of production on him is fundamentally unfair because "a constitutionally protected right is in question." Brief for Respondent 15. By this, he apparently refers to the Fifth and Sixth Amendment rights that a defendant waives by pleading guilty. Our precedents make clear, however, that even when a collateral attack on a final conviction rests on constitutional grounds, the presumption of regularity that attaches to final judgments makes it appropriate to assign a proof burden to the defendant. See, e.g., Johnson, supra, at 468-469.

Respondent also contends that Kentucky's rule is unfair because it may be difficult to prove the invalidity of a conviction entered many years ago, perhaps in another jurisdiction, when records are unavailable and witnesses inaccessible. We have little doubt that serious practical difficulties will confront any party assigned an evidentiary burden in such circumstances. See Loper v. Beto, 405 U.S. 473, 500-501 (1972) (REHNQUIST, J., dissenting). "The Due Process Clause does not, however, require a State to adopt one procedure over another on the basis that it may produce results more favorable to the accused." Medina v. California, 505 U.S. 437, 451 (1992). When a defendant challenges the validity of a previous guilty plea, the government will not invariably, or perhaps even usually, have superior access to evidence. Indeed, when the plea was entered in another jurisdiction, the defendant may be the only witness who was actually present at the earlier proceeding. If raising a Boykin claim and pointing to a missing record suffices to place the entire burden of proof on the government, the prosecution will not infrequently be forced to expend considerable effort and expense attempting to reconstruct records from farflung States where procedures are unfamiliar and memories unreliable. To the extent that the government fails to carry its burden due to the staleness or unavailability of evidence, of course, its legitimate interest in differentially punishing repeat offenders is compromised. In light of the relative positions of the defendant and the prosecution in recidivism proceedings, we cannot say that it is fundamentally unfair to place at least a burden of production on the defendant.

Respondent cites no historical tradition or contemporary practice indicating that Kentucky's scheme violates due process. See Medina, supra, at 446, 447. For much of our history, it appears that state courts altogether prohibited defendants in recidivism proceedings from challenging prior convictions as erroneous, as opposed to void for lack of jurisdiction. See, e.g., Kelly v. People, 115 Ill. 583, 588, 4 N.E. 644, 645-646 (1886); accord, State v. Webb, 36 N.D. 235, 243, 162 N.W. 358, 361 (1917). In recent years, state courts have permitted various challenges to prior convictions, and have allocated proof burdens differently. Some, like the Sixth Circuit, evidently place the full burden on the prosecution. See, e.g., State v. Elling, 11 Ohio Misc.2d 13, 15, 463 N.E.2d 668, 670 (Com. Pl. 1983) (challenge to allegedly uncounseled conviction); State v. Hennings, 100 Wn.2d 379, 382, 670 P.2d 256, 257 (1983) (challenge to guilty plea). Others assign the entire burden to the defendant once the government has established the fact of conviction. See, e.g., People v. Harris, 61 N.Y.2d 9, 15, 471 N.Y.S.2d 61, 63, 459 N.E.2d 170, 172 (1983) (guilty plea); see also D.C. Code Ann. § 23-111(c)(2) (1989); N.C. Gen. Stat. § 15A-980(c) (1988). Several, like Kentucky, take a middle position that requires the defendant to produce evidence of invalidity once the fact of conviction is proved, but that shifts the burden back to the prosecution once the defendant satisfies his burden of production. See, e.g., Watkins v. People, 655 P.2d 834, 837 (Colo. 1982) (guilty plea); State v. O'Neil, 91 N.M. 727, 729, 580 P.2d 495, 497 (Ct.App. 1978) (uncounseled conviction); State v. Triptow, 770 P.2d 146, 149 (Utah 1989) (same). This range of contemporary state practice certainly does not suggest that allocating some burden to the defendant is fundamentally unfair.

Interpretations of analogous federal laws by the Courts of Appeals point even more strongly away from respondent's position. Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), Courts of Appeals have placed on the defendant the entire burden of proving the invalidity of a prior conviction based on a guilty plea. See, e.g., United States v. Gallman, 907 F.2d 639, 643-645 (CA7 1990), cert. denied, 499 U.S. 908 (1991); accord, United States v. Paleo, 967 F.2d 7, 13 (CA1 1992); United States v. Day, 949 F.2d 973, 982-983 (CA8 1991); United States v. Ruo, 943 F.2d 1274, 1276 (CA11 1991). Courts of Appeals have also allocated the full burden of proof to defendants claiming that an invalid guilty plea renders a prior conviction unavailable for purposes of calculating criminal history under the Sentencing Guidelines. See, e.g., United States v. Boyer, 931 F.2d 1201, 1204-1205 (CA7), cert. denied, 502 U.S. 873 (1991). And the text of the Comprehensive Drug Abuse Prevention and Control Act of 1970 itself clearly provides that a defendant raising a constitutional challenge to a prior conviction used for sentence enhancement bears the burden of proof. See 21 U.S.C. § 851(c)(2).

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.

C

Petitioner also challenges the Sixth Circuit's holding that the prosecution's extrarecord evidence must be clear and convincing. In petitioner's view, the preponderance of the evidence standard applicable to constitutional claims raised on federal habeas, see, e.g., Johnson, 304 U.S., at 468-469, is appropriate. The Sixth Circuit based its conclusion to the contrary on Boykin, observing that an "extraordinary standard of persuasion" is justified "in view of misgivings inherent in `collateral proceedings that seek to probe murky memories.'" Simmons, 877 F.2d, at 1277 (quoting Boykin, 395 U.S., at 244); see also Roddy v. Black, 516 F.2d 1380, 1384 (CA6), cert. denied, 423 U.S. 917 (1975). Respondent, in support of the Sixth Circuit's heightened standard, reiterates his arguments regarding the importance of the constitutional rights at stake and the government's position relative to the defendant's.

Our analysis of this question parallels our discussion of the proper allocation of proof burdens. Boykin did not address the question of measure of proof, and even if it had, it would not necessarily follow that the same standard should apply in recidivism proceedings. We find respondent's arguments no more persuasive here than they were in the allocation context. Given the difficulties of proof for both sides, it is not obvious to us that, once a State assigns the government the burden of persuasion, requiring anything less than clear and convincing extrinsic evidence is fundamentally unfair. Again, we are pointed to no historical tradition setting the standard of proof at this particular level. And contemporary practice is far from uniform; state courts that impose the ultimate burden on the government appear to demand proof ranging from preponderance, see Triptow, supra, at 149; Watkins, supra, at 837, to beyond a reasonable doubt, see Hennings, supra, at 382, 670 P.2d, at 257. We are therefore unprepared to say that, when the government carries the ultimate burden of persuasion and no transcript of the prior proceeding exists, the Due Process Clause requires the Commonwealth to prove the validity of the conviction by clear and convincing extrarecord evidence.

III

Respondent no longer challenges the validity of his 1979 plea. Thus, the final issue before us is whether the Kentucky courts properly concluded that respondent's 1981 guilty plea was valid. For the proper standard of review, petitioner cites Marshall v. Lonberger, 459 U.S. 422 (1983), a case quite similar to this one. In Lonberger, the state defendant challenged a prior conviction used to obtain a death sentence on the ground that the conviction was based on a guilty plea invalid under Boykin. We held that, although "the governing standard as to whether a plea of guilty is voluntary for purposes of the Federal Constitution is a question of federal law," 459 U.S., at 431, questions of historical fact, including inferences properly drawn from such facts, are, in this context, entitled to the presumption of correctness accorded state court factual findings under 28 U.S.C. § 2254(d), Lonberger, supra, at 431-432; cf. Miller v. Fenton, 474 U.S. 104, 113, 115, 117 (1985) (holding that the question whether a confession is voluntary is subject to independent federal determination, expressly distinguishing Lonberger). We said that the federal habeas courts in Lonberger were bound to respect the contents of the record of the prior plea proceeding, the state trial court's findings that the defendant was "an intelligent individual, well experienced in the criminal processes and well represented at all stages of the proceedings by competent and capable counsel," the similar conclusions of the state appellate court, and "inferences fairly deductible from these facts." Lonberger, supra, at 435 (internal quotation marks omitted); see also Sumner v. Mata, 449 U.S. 539, 545-547 (1981) (deference owed to findings of both state trial and appellate courts).

We note that petitioner's theory of the case, which we have declined to consider, suggests a different standard. If Kentucky's procedure is indeed not constitutionally mandated, the Kentucky courts' determination that respondent understood his rights when he entered his plea would seem to be reviewable at most for sufficiency of the evidence under Jackson v. Virginia, 443 U.S. 307 (1979). There is no need to choose between the two standards of review in this case, however, because we are convinced that the Kentucky courts' factual determinations are "fairly supported by the record" within the meaning of 28 U.S.C. § 2254(d)(8).

The Kentucky Court of Appeals, reviewing the trial court's decision not to suppress the 1981 conviction, observed that respondent had an 11th grade education, could read adequately, was represented by counsel in the 1981 proceedings, and was in no way mentally impaired when he entered his plea. The court noted that respondent had signed a form specifying the charges to which he agreed to plead guilty. And it found that he had been fully advised of his rights in 1979. Respondent does not now dispute those determinations. The Kentucky Court of Appeals inferred that respondent remained aware in 1981 of the rights of which he was advised in 1979. Supporting that inference was the court's determination, based on respondent's testimony at the trial court hearing, that his "knowledge and sophistication regarding his rights under our judicial system increased substantially after his first conviction." App. to Pet. for Cert. A32. Respondent knew, for example, the difference between first- and second-degree persistent felony offender charges, and he knew the sentencing and parole requirements for both offenses. "[H]e indicated that the evidence against him and his lack of a strong defense had persuaded him to accept the Commonwealth's offered plea bargain in return for a recommendation that he be given a minimum sentence. In fact, he voluntarily and knowingly chose not to risk the uncertainties of a jury trial." Id., at 32-33.

We have previously treated evidence of a defendant's prior experience with the criminal justice system as relevant to the question whether he knowingly waived constitutional rights, see, e.g., Lonberger, supra, at 437; Gryger v. Burke, 334 U.S., at 730, and we think the Kentucky Court of Appeals fairly inferred that respondent understood the full consequences of his 1981 plea. That, combined with respondent's admission that he understood the charges against him and his self-serving testimony that he simply could not remember whether the trial judge advised him of other rights, satisfied every court that has considered the issue that the government carried its burden of persuasion under the Kentucky framework. We cannot say that this was error.

The judgment of the Court of Appeals for the Sixth Circuit is accordingly

Reversed.

JUSTICE BLACKMUN, concurring in the judgment.

I agree that Kentucky's burden-shifting procedures established in Dunn v. Commonwealth, 703 S.W.2d 874, 876 (Ky. 1985), cert. denied, 479 U.S. 832 (1986), are constitutional under the Due Process Clause, and that the Court of Appeals erred in concluding that the Commonwealth had the burden of establishing by clear and convincing evidence that the prior guilty pleas complied with Boykin v. Alabama, 395 U.S. 238 (1969). I write separately, however, to emphasize that I agree with this conclusion only because Kentucky's persistent felony offender statute, Ky. Rev. Stat. Ann. § 532.080 (Michie 1990), is a sentencing provision, rather than a statute creating a separate criminal offense.

The persistent felony offender provision is located not in the substantive criminal offense chapters of the Kentucky Revised Statutes, but as part of chapter 532, where the offense classifications and the respective penalties are located. Section 532.080 is entitled "Persistent felony offender sentencing," and it is specifically concerned with enhancing the penalty that would otherwise follow from a conviction on the underlying criminal offense. In respondent's case, for example, his persistent felony offender status enhanced the punishment normally associated with a second-degree robbery conviction — at least 5 but not more than 10 years imprisonment — to a minimum of 10 and a maximum of 20 years. § 532.080(6)(b).

The Supreme Court of Kentucky has described the persistent felony offender statute:

"There is no additional punishment imposed by a persistent felony offender conviction, merely a more severe punishment. KRS 532.080 does not create or define a criminal offense. It recognizes a status and, in a proceeding separate and apart from the initial trial, fixes a penalty which is to be imposed, rather than the one fixed by the jury on the initial trial." Hardin v. Commonwealth, 573 S.W.2d 657, 661 (Ky. 1978).

See also Malicoat v. Commonwealth, 637 S.W.2d 640, 641 (Ky. 1982). Under Kentucky law, the Commonwealth has the burden of proving beyond a reasonable doubt each "element" of the offense of being a first-degree persistent felony offender. Hon v. Commonwealth, 670 S.W.2d 851, 853 (Ky. 1984). However,

"[i]t is the fact of conviction which the Commonwealth seeks to prove in introducing the judgment against a defendant charged as a persistent felon. KRS 532.080 does not specify that the Commonwealth must affirmatively prove both the fact of conviction and that the previous conviction was not obtained by constitutionally impermissible means." Commonwealth v. Gadd, 665 S.W.2d 915, 917 (Ky. 1984).

I believe that, had Kentucky chosen to make being a persistent felony offender a separate crime, as respondent mistakenly believes that it has, Brief for Respondent 12-13, the Commonwealth would have had the burden affirmatively to prove that the underlying felony convictions were obtained by constitutional means. Under those circumstances, Boykin would not permit the Commonwealth to rely on a silent record. But, because the persistent-felony offender statute is properly understood to be a sentencing provision, I see no reason why the Commonwealth may not place the burden on the defendant to rebut the presumption of regularity that attaches to the prior convictions. For this reason, I agree that the Court of Appeals has demanded more of the Commonwealth of Kentucky than is constitutionally required.

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