STATE OF NORTH CAROLINA v. MARK A. MUSCIA, Defendant, 115 N.C. App. 498

COZORT, Judge. The only question before us is whether the trial court properly considered defendant’s prior driving while impaired conviction to enhance the punishment imposed for this offense of driving while impaired. Defendant contends the trial court should not have considered his prior DWI conviction of May 1990 because it was based on a guilty plea which was obtained in violation of his constitutional rights. Specifically, defendant contends the prior guilty plea could not be considered because it was invalid under Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274 (1969).

Defendant contends the plea was entered without defendant first being advised of his right against compulsory self-incrimination and his right to confront his witnesses against him. We affirm. Defendant was arrested for driving while impaired on 3 January 1992. Defendant was convicted of driving while impaired in district court. Thereafter, defendant appealed to the superior court. Defendant entered a guilty plea and made a motion to suppress the prior 1990 conviction for purposes of sentencing. The motion was heard by the Honorable Gary E. Trawick on 1 February 1993.

Judge Trawick denied defendant’s motion, considered defendant’s prior 1990 DWI conviction as a grossly aggravating factor, and imposed a level two punishment. Instate v. Stafford, 114 N.C. App. 101, 440 S.E.2d 846 (1994), this Court held that a defendant could not collaterally attack the validity of his prior convictions in a habitual impaired driving case. The defendant in Stafford moved to suppress the admission of his prior DWI convictions in his habitually impaired driving trial on grounds that they were invalid under Boykin v. Alabama.

We find Stafford controlling here, where defendant seeks to suppress the use of his prior conviction to aggravate the sentence imposed for a subsequent DWI offense on grounds that the prior conviction was invalid under Boykin. Thus, following Stafford, we find the trial court did not err by denying defendant’s motion to suppress and by considering defendant’s prior DWI conviction. Affirmed. Judges GREENE and WYNN concur.