State v. Brown, 98-085.

• Decision Date: 15 June 1999
• Docket Number: No. 98-085.,98-085.
• Citation: 1999 MT 143,982 P.2d 1030
• Parties: STATE of Montana, Plaintiff and Respondent, v. David Lee BROWN, Defendant and Appellant.
• Court: Montana Supreme Court

982 P.2d 1030

1999 MT 143

STATE of Montana, Plaintiff and Respondent, v. David Lee BROWN, Defendant and Appellant.

No. 98-085.

Supreme Court of Montana.

Submitted on Briefs November 11, 1998.

Decided June 15, 1999.

Alan Johnson, Malta, Montana, For Appellant. Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana; Ed Amestoy, Phillips County Attorney, Dan O'Brien, Deputy Phillips County Attorney, Malta, Montana, For Respondent.

Justice WILLIAM E. HUNT, SR. delivered the Opinion of the Court.

¶ 1 David Lee Brown (Appellant) appeals from the findings of fact, conclusions of law, and order entered by the Seventeenth Judicial District Court, Phillips County, denying his motion to dismiss the charges of driving under the influence of alcohol (DUI) (5th offense), a felony, in violation of § 61-8-401(1)(a), MCA, or, alternatively, operating a vehicle with an alcohol concentration of .10 or more (DUI per se) (5th offense), a felony, in violation of § 61-8-406, MCA. We affirm.

¶ 2 The sole issue on appeal is whether the District Court erred in concluding that three out of four of Appellant's prior DUI convictions in Glacier County and the City of Cut Bank were constitutionally valid and could be used to support the enhanced felony charges against Appellant.

BACKGROUND

¶ 3 On May 18, 1997, law enforcement authorities cited Appellant for DUI and, alternatively, DUI per se, and placed him under arrest. Based on Appellant's prior convictions for DUI, and pursuant to § 61-8-731, MCA, the State of Montana (State) charged Appellant by information with felony DUI and, alternatively, felony DUI per se. On July 14, 1997, Appellant pleaded not guilty to the charges.

¶ 4 On August 27, 1997, Appellant filed a motion to dismiss the information on the ground that the charges of felony DUI and felony DUI per se were based on prior convictions that were constitutionally invalid. Appellant conceded that one prior DUI conviction, in Toole County, was constitutionally valid, but argued that the remaining prior DUI convictions, in Glacier County and the City of Cut Bank, were constitutionally invalid because there was no written record of Appellant making a knowing, voluntary waiver of his right to counsel before entering pleas of guilty. Appellant attached to his brief in support of the motion to dismiss an affidavit stating that he did not recall being informed of his right to counsel and did not sign or otherwise make a knowing waiver of his right to counsel.

¶ 5 In their respective briefs in support of and in opposition to the motion to dismiss, the parties agreed on the proper allocation of their respective burdens of proof as set forth in State v. Okland (1997), 283 Mont. 10, 941 P.2d 431. In that case, we held that a rebuttable presumption of regularity attaches to prior convictions during a collateral attack. We concluded that a defendant who challenges the validity of his prior conviction during a collateral attack has the initial burden of producing direct evidence of its invalidity. Once a defendant has made such a showing, the burden then shifts to the State to produce direct evidence and prove by a preponderance of the evidence that the prior conviction is constitutionally valid. Okland, 283 Mont. at 18, 941 P.2d at 436.

¶ 6 The District Court held an evidentiary hearing and oral argument on September 25, 1997. In an effort to rebut the presumption of regularity of his prior DUI convictions in Glacier County and the City of Cut Bank, Appellant testified that he did not recall being informed of his right to counsel and did not sign a waiver of his right to counsel when he pleaded guilty to those prior DUI charges. Upon hearing this testimony, the court found that Appellant had provided direct evidence sufficient to rebut the presumption of regularity and shift the burden of proof to the State. The State does not contest this finding.

¶ 7 Prior to calling any witnesses, the State introduced into evidence six exhibits containing documentary evidence. The parties had previously stipulated to the admission of this evidence. Exhibit 1 was a certified copy of Appellant's driving record provided by the Department of Justice, Motor Vehicle Division, State of Montana. Exhibits 2 through 6 were certified copies of court records detailing each of Appellant's prior DUI convictions as follows: (1) on July 30, 1990 in Glacier County before William L. Burns, Justice of the Peace (Judge Burns); (2) on November 20, 1990 in Glacier County before Judge Burns; (3) on January 30, 1992 in Glacier County before Judge Burns; (4) on November 10, 1992 in Toole County before Sandra Peterson, Justice of the Peace (Judge Peterson); and (5) on October 20, 1994 in the City of Cut Bank before Judge Burns in his capacity as City Judge.

¶ 8 Exhibits 2 through 5 detailed Appellant's DUI convictions in Glacier County and the City of Cut Bank before Judge Burns. Each of these exhibits contained copies of the citations issued to Appellant upon his arrest for DUI. With the exception of Exhibit 3, these exhibits also contained copies of forms entitled "Initial Appearance and Advisement of Rights," which Judge Burns had signed, but which Appellant had not signed. On these forms appeared hand-written check marks next to each of Appellant's specific rights, including the right to counsel, indicating that Appellant had been advised of these rights. Although Exhibit 3 did not contain an advisement of rights form, it contained a sentencing order, signed by Judge Burns, in which he stated in general terms that Appellant had been advised of his rights.

¶ 9 Exhibit 6 detailed Appellant's DUI conviction in Toole County before Judge Peterson. Exhibit 6 contained an initial appearance and advisement of rights form and an acknowledgment of waiver of rights form, both of which were signed by Judge Peterson and Appellant. As previously noted, Appellant does not contest the validity of his DUI conviction in Toole County.

¶ 10 After introducing these exhibits into evidence, the State presented testimony from Judge Burns. Judge Burns testified that he is the justice of the peace for Glacier County and the city judge for the City of Cut Bank, and has held both positions for 22 years. He stated that he received his law degree from the University of Montana School of Law in 1973 and is an active member of the State Bar of Montana. Each year, Judge Burns attends two weeks of mandatory judge's training in Montana.

¶ 11 Judge Burns testified that when a defendant makes an initial appearance in his courtroom, he engages in a routine procedure. First, Judge Burns determines the identity of the defendant. Next, he advises the defendant of his or her rights. When asked how he advises defendants of their right to counsel, Judge Burns stated that he advises defendants "that they have a right to be represented by counsel, and, if there's a possibility of a jail sentence, that counsel can be appointed for them if they cannot afford counsel." Judge Burns stated that once he believes that a defendant understands his or her rights, he reads the charging document and explains the maximum penalty for the offense. If applicable, Judge Burns also explains the enhanced penalty for subsequent convictions of the offense. Next, Judge Burns explains the elements of the offense and explains the State's burden of proving each element beyond a reasonable doubt in order for the defendant to be found guilty. Finally, Judge Burns sets bond.

¶ 12 Judge Burns testified that the above procedure is used in both justice court and city court and that every criminal defendant hears the same advisement. He stated that in going through the procedure, he always uses a form. He said that when he advises a defendant of his or her rights, he asks the defendant whether he or she understands each right and, if the defendant indicates his or her understanding, he places a check mark next to that right. He stated that if a defendant asks questions or indicates a lack of understanding, he further explains the right until the defendant understands. Judge Burns also testified that if a defendant has undergone the initial advisement of rights, and at a later time decides to plead guilty, the defendant is re-advised of his or her rights using another form. Judge Burns stated that he has used advisement of rights forms since 1990, and that although in the past he did not require defendants to sign the forms, he does so now.

¶ 13 Judge Burns testified that with respect to all of Appellant's prior DUI convictions in Glacier County and the City of Cut Bank, he is absolutely certain that he advised Appellant of his rights, including his right to counsel, and that Appellant knowingly and voluntarily waived those rights. In reference to Exhibits 2, 4, and 5, Judge Burns distinctly remembered arraigning Appellant on the charges detailed therein, and remembered going through the advisement of rights forms with Appellant on the occasion of his conviction detailed in Exhibit 2. He also remembered the circumstances surrounding the offenses detailed in Exhibits 2, 4, and 5. Regarding Exhibit 2, Judge Burns remembered that Appellant "had a little wrestling match" with the police officers which resulted in the officers charging Appellant with another offense in addition to the offense of DUI. Regarding Exhibit 4, Judge Burns remembered that Appellant was involved in a high speed chase with police officers which he described as "a life threatening situation." Regarding Exhibit 5, Judge Burns remembered that Appellant was again involved in a high speed chase with police officers after getting mad at his wife and driving his car "through their hedge and partly into the living room."

¶ 14 In reference to Exhibit 3, Judge Burns testified that he did not remember the circumstances surrounding the DUI detailed in that exhibit. When asked about the missing advisement of rights form in...