Who has the burden of producing evidence of the defendant’s prior record for purposes of appointment of counsel?

The new punishment scheme does not explicitly address the issue, but as a practical matter the burden may fall to the State. Ultimately, the State has the burden of establishing the grounds for punishment. In this context, if the State wants the court to impose a sentence greater than a fine, it has to prove that the defendant has four or more prior convictions (except in the rare instance when a statute authorizes a greater punishment without four or more priors). If the State wants the option of seeking a punishment greater than a fine, the court must have the defendant’s record early enough in the case to support a finding that the defendant is eligible for such a sentence and thus eligible for counsel. Although the new statute does not preclude a court from obtaining prior record information from other sources, if the court does not have the necessary information it may not appoint counsel and the State may not seek a higher punishment.