State v. Burns

• Decision Date: 14 July 2011
• Docket Number: No. DA 10–0424.,DA 10–0424.
• Citation: 361 Mont. 191,2011 MT 167,256 P.3d 944
• Parties: STATE of Montana, Plaintiff and Appellee,v.Brandon James BURNS, Defendant and Appellant.
• Court: Montana Supreme Court

361 Mont. 191

256 P.3d 944

2011 MT 167

STATE of Montana, Plaintiff and Appellee,

v.Brandon James BURNS, Defendant and Appellant.

No. DA 10–0424.

Supreme Court of Montana.

Submitted on Briefs June 1, 2011.Decided July 14, 2011.

For Appellant: Fred Snodgrass, Attorney at Law, Billings, Montana.For Appellee: Steve Bullock, Montana Attorney General, John Paulson, Assistant Attorney General, Helena, Montana.Scott Twito, Yellowstone County Attorney, Julie Mees, Deputy County Attorney, Billings, Montana.Justice PATRICIA O. COTTER delivered the Opinion of the Court.

[361 Mont. 192] ¶ 1 Brandon James Burns (Burns) was charged by information on December 18, 2008, with felony Driving Under the Influence of Alcohol or Drugs (DUI) or, in the alternative, felony Operation of a Motor Vehicle by a Person with Alcohol Concentration of 0.08% or more (DUI per se). Ultimately, on March 22, 2010, Burns entered a plea agreement with the State and pled guilty to DUI per se, reserving his right to appeal. On June 22, 2010, the Thirteenth Judicial District Court, Yellowstone County, designated Burns as a Persistent Felony Offender (PFO) and sentenced him to Montana State Prison for 15 years with five years suspended, consecutive to any other sentences Burns was serving. Burns timely appeals. We affirm.

ISSUES

¶ 2 A restatement of Burns' issues on appeal is:

¶ 3 1. Whether the District Court erred in denying Burns' motion to dismiss for lack of a speedy trial.

¶ 4 2. Whether the District Court erred in denying Burns' motion to suppress evidence.

¶ 5 3. Whether the District Court erred in denying Burns' motion to dismiss the felony DUI charge on the grounds that his third prior DUI conviction was invalid.

[361 Mont. 193] ¶ 6 4. Whether the District Court erred in sentencing Burns as a persistent felony offender.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 7 On December 13, 2008, around 8:30 p.m., Billings Police Department (BPD) officers responded to a citizen's 911 report of a suspicious car parked on Avenue C, a residential street in Billings. The citizen, who identified herself, reported that the vehicle's engine was running, its headlights were lights on, and a male occupant was slumped over in the driver's seat. The citizen stated that she called 911 out of concern for the driver's safety due to the cold weather and her uncertainty as to whether the vehicle had sufficient gas to continue running. The citizen also expressed concern about having an unknown man passed out in his vehicle just outside of her home.

¶ 8 BPD Officer Jensen and Sergeant Lawrence were dispatched to investigate the citizen's report. Both officers testified that it was a very cold night and the roads were snow covered and icy. Jensen testified that he was directed to go to Avenue C for a welfare check on a suspicious vehicle with a male occupant passed out in the driver's seat. Lawrence testified that he remembered being dispatched to a possible drunk driver passed out in a vehicle. Jensen did not activate his overhead lights when he pulled up behind the vehicle because he was making a welfare check. Jensen testified that when he arrived the vehicle was running, the headlights were on, and there was a male occupant slumped over in the driver's seat.

¶ 9 Jensen further testified that he knocked on the window of the vehicle at least twice and tried to call to the driver but could not awaken him. Therefore, Lawrence approached the passenger side of the vehicle, opened the passenger side door, and attempted to wake the driver. Lawrence testified that he was able to wake the driver by shaking him on the shoulder.

¶ 10 Once the driver was awake, the BPD officers attempted to identify him. Both noted an odor of alcohol emanating from the vehicle and observed a bottle of vodka that was two-thirds empty sitting on the front passenger seat. Jensen asked the driver his name, but he had difficulty understanding the driver because his speech was slurred. Finally, Jensen identified the driver as Burns. When asked for his license and registration, Burns appeared disoriented and could not locate them on the floor of his vehicle. Jensen noted Burns' eyes were red and glassy.

¶ 11 Jensen asked Burns to exit his vehicle. Burns' movements were slow and deliberate, and he had to hold on to his vehicle to maintain his balance as he exited. Jensen testified that, based on his observations, he contacted dispatch and changed the call from a welfare check to a DUI investigation. Due to the road conditions and the weather, none of the standard field sobriety tests were administered other than the Horizontal Gaze Nystagmus test. Burns was arrested and taken to the Yellowstone County Detention Facility (YCDF). En route to YCDF, the officers called Burns' parole officer who requested they take both a urine analysis and a blood alcohol content analysis. Once at YCDF, the officers performed the standard field sobriety tests on Burns, which he failed. A sample of Burns' breath registered a BAC of 0.230. After being Mirandized, Burns agreed to answer questions. He admitted to driving and thought it was Tuesday, December 12, 2009, at 2:30 p.m. when it was actually Saturday, December 13, 2008, at 9:38 p.m.

¶ 12 On December 19, 2008, Burns was arraigned and charged with one count of felony DUI in violation of § 61–8–401(1)(a), MCA, and in the alternative, one count of DUI per se in violation of § 61–8–406(1)(a), MCA. The State filed notice of its intent to have Burns designated a PFO. The District Court scheduled Burns' omnibus hearing for February 19, 2009, and set a trial date of April 13, 2009. The trial was reset five times during the proceedings based on substantive motions by both parties, and ultimately a trial date was set for March 23, 2010.

¶ 13 Burns moved to dismiss for lack of speedy trial, and his motion was denied. On March 22, 2010, Burns filed an acknowledgement of waiver of rights and plea agreement in which he agreed to plead guilty to the alternative charge of DUI per se and the State agreed to dismiss the DUI charge. The State also agreed to recommend a sentence of 15 years with 5 years suspended as a PFO. The parties agreed that Burns could reserve the right to appeal the District Court's prior rulings. The court accepted Burns' change of plea at a hearing on the same date.

¶ 14 On June 22, 2010, the District Court followed the State's recommendation and sentenced Burns to Montana State Prison for 15 years with 5 suspended and designated him a PFO. Burns timely appeals. Additional facts are discussed below as necessary.

STANDARDS OF REVIEW

¶ 15 We review a district court's findings of fact in a ruling on a motion to dismiss on speedy trial grounds for clear error. State v. Sartain, 2010 MT 213, ¶ 10, 357 Mont. 483, 241 P.3d 1032. Factual findings are clearly erroneous “if they are not supported by substantial credible evidence, if the district court has misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been made.” Id. Whether factual circumstances constitute a violation of a defendant's right to a speedy trial is a question of constitutional law that we review de novo. Id.

¶ 16 We review a district court's denial of a motion to suppress evidence to determine whether the district court's findings of fact are clearly erroneous and whether the court correctly interpreted and applied the law to those findings. State v. Kenfield, 2009 MT 242, ¶ 15, 351 Mont. 409, 213 P.3d 461. We review for correctness a district court's conclusions of law with respect to the application of the community caretaker doctrine. Id.

¶ 17 A ruling on a motion to dismiss in a criminal proceeding is a question of law, which we review de novo. State v. Allen, 2009 MT 124, ¶ 9, 350 Mont. 204, 206 P.3d 951. “Whether a prior conviction can be used to enhance a criminal sentence is a question of law, which this Court reviews for correctness.” Id. (quoting State v. Spotted Eagle, 2003 MT 172, ¶ 11, 316 Mont. 370, 71 P.3d 1239).

¶ 18 Generally, we review a criminal sentence longer than one year for legality only; that is, we review the sentence to determine whether it falls within the statutory parameters. State v. Holt, 2011 MT 42, ¶ 7, 359 Mont. 308, 249 P.3d 470.

DISCUSSION

¶ 19 Issue One: Did the District Court err in denying Burns' motion to dismiss for lack of a speedy trial?

¶ 20 The Sixth and Fourteenth Amendments to the United States Constitution and Article II, Section 24 of the Montana Constitution grant criminal defendants the right to a speedy trial. State v. Brown, 2011 MT 94, ¶ 10, 360 Mont. 278, 253 P.3d 859. When a defendant alleges that his or her right to a speedy trial has been violated, Montana courts apply the four-factor speedy trial analysis we set forth in State v. Ariegwe, 2007 MT 204, 338 Mont. 442, 167 P.3d 815. The four factors to be balanced are the length of the delay, the reasons for the delay, the accused's responses to the delay, and the prejudice to the accused. Ariegwe, ¶ 34. Each factor's significance varies based on the particular unique facts and circumstances of each case. State v. Hendershot, 2009 MT 292, ¶ 9, 352 Mont. 271, 216 P.3d 754 (quoting State v. Billman, 2008 MT 326, ¶ 11, 346 Mont. 118, 194 P.3d 58).

¶ 21 As to Factors One and Two-length of delay and reason for the delay—it is the burden of the courts and prosecutors to bring a defendant to trial and it is the burden of the prosecution to explain pretrial delays. State v. Lacey, 2010 MT 6, ¶ 17, 355 Mont. 31, 224 P.3d 1247 (citing Ariegwe, ¶¶ 64–65, 72). However, “if the defendant avoids being brought to trial, some or all responsibility for the delay should be attributed to him.” Lacey, ¶ 18. The defendant and the State can share the responsibility for the same period of delay. Id.

¶ 22 Here, there is no dispute as to Factor One; the length of the delay was 465 days. Under Ariegwe, a delay...