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BLACKMUN, J., concurring in judgment

tion 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,

BLACKMUN, J., concurring in judgment

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,

BLACKMUN, J., concurring in judgment

“[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.

Syllabus

RICHMOND v. LEWIS, DIRECTOR, ARIZONA
DEPARTMENT OF CORRECTIONS, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 91–7094. Argued October 13, 1992—Decided December 1, 1992 Following a sentencing hearing on petitioner Richmond's first degree mur

der conviction, the Arizona trial judge found three statutory aggravating factors, including, under Ariz. Rev. Stat. Ann. $ 13–703(F)(6), that the offense was committed in an "especially heinous, cruel or depraved manner" ((F)(6) factor). Concluding also that there were no mitigating circumstances sufficiently substantial to warrant leniency, the judge sentenced Richmond to death. The State Supreme Court affirmed, with each of the five justices joining one of three opinions. Among other things, the principal opinion for two of the justices found that the (F)(6) factor—which had been narrowed in State v. Gretzler, 135 Ariz. 42, 659 P. 2d 1, subsequent to Richmond's sentencing—was applicable. The principal opinion also conducted an independent review of the sentence and concluded that Richmond's mitigation evidence did not outweigh the aggravating factors. In a special concurrence, two of the other justices disagreed that the offense came within the (F)(6) factor as narrowed by Gretzler, but agreed that a death sentence was appropriate even absent that factor. The fifth justice filed a dissenting opinion urging reversal. After this Court denied certiorari, the Federal District Court declined to grant Richmond habeas corpus relief, and the Court of Appeals

affirmed. Held: Richmond's death sentence violates the Eighth Amendment. The

(F)(6) factor was unconstitutionally vague at the time the sentencing judge gave it weight. Walton v. Arizona, 497 U. S. 639, 654. The State Supreme Court did not cure this error, because the two specially concurring justices did not actually reweigh the aggravating and mitigating circumstances in affirming the sentence. See, e. g., Clemons v. Mississippi, 494 U. S. 738. Those justices did not purport to perform a new sentencing calculus, or even mention the evidence in mitigation. Nor can such a reweighing be presumed, since language in the concurrence plainly indicates that Richmond's aggravated criminal background provided a conclusive justification for the death penalty, thereby evincing the sort of automatic affirmance rule proscribed in a "weighing” State such as Arizona. Id., at 751. Because a majority of the State Supreme Court did not perform a curative reweighing in voting to af

Opinion of the Court

firm Richmond's death sentence, the question whether the principal opinion properly relied on the (F)(6) factor as narrowed in Gretzler need

not be decided by this Court. Pp. 46-52. 948 F. 2d 1473, reversed and remanded.

O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, BLACKMUN, STEVENS, KENNEDY, SOUTER, and THOMAS, JJ., joined. THOMAS, J., filed a concurring opinion, post, p. 52. SCALIA, J., filed a dissenting opinion, post, p. 53.

error.

Timothy K. Ford argued the cause for petitioner. With him on the briefs were Judith H. Ramseyer and Carla Ryan.

Paul J. McMurdie argued the cause for respondents. With him on the brief were Grant Woods, Attorney General of Arizona, and Jack Roberts, Assistant Attorney General.

JUSTICE O'CONNOR delivered the opinion of the Court.

The question in this case is whether the Supreme Court of Arizona has cured petitioner's death sentence of vagueness .

I On August 25, 1973, Bernard Crummett had the misfortune to meet Rebecca Corella in a Tucson, Arizona, bar. Crummett left the bar with Corella and, in the parking lot, met petitioner, who had been waiting for Corella with his girlfriend, Faith Erwin. Corella agreed to perform an act of prostitution with Crummett, and petitioner drove the group to Corella's hotel. There, Corella communicated to petitioner that Crummett was “loaded,” and petitioner in turn whispered to Erwin that he intended to rob Crummett.

After Corella and Crummett concluded their encounter at the hotel, the group again went for a drive, this time to a deserted area outside Tucson, where, Crummett believed, Corella would perform another act of prostitution. Petitioner stopped the car and got out. He first struck Crummett to the ground and next threw several large rocks at Crummett's head. Crummett's watch and wallet were

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