State v. Gregory Alan Me.

Decision Date02 May 2011
Docket NumberNo. DA 10–0329.,DA 10–0329.
Citation255 P.3d 64,2011 MT 90,360 Mont. 182
PartiesSTATE of Montana, Plaintiff and Appellee,v.Gregory Alan MAINE, Defendant and Appellant.
CourtMontana Supreme Court


For Appellant: Joslyn Hunt, Chief Appellate Defender, Matthew M. Wilcox, Assistant Appellate Defender, Helena, Montana.For Appellee: Steve Bullock, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana, Michael B. Hayworth, Rosebud County Attorney, Forsyth, Montana.Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 The State of Montana charged Gregory Alan Maine in the Sixteenth Judicial District Court, Rosebud County, with driving under the influence of alcohol (DUI). Section 61–8–401(1)(a), MCA. Because Maine had three prior DUI convictions, the State charged the present offense as Maine's fourth DUI, a felony. See § 61–8–731, MCA. Maine filed a motion seeking to invalidate one of the prior convictions and thus reduce the present offense to his third DUI, a misdemeanor. The District Court denied the motion. Maine then pleaded guilty pursuant to a plea agreement, reserving his right to appeal the denial of his motion.

¶ 2 The sole issue on appeal is whether the District Court erred in denying Maine's Motion to Reduce Charge to Misdemeanor. We affirm.


¶ 3 The events underlying the present DUI occurred the evening of July 27, 2009. Sergeant Spencer Anderson of the Rosebud County Sheriff's Office came upon a car parked on the left-hand side of Greenleaf Road facing the wrong direction. The vehicle had one occupant, Maine, who was asleep behind the wheel. Anderson woke Maine, who explained that he had been sleeping because he was tired. Maine stated that he had parked on the wrong side of the road because there was more room on that side, though Anderson noted that there was no more room on the left side of the gravel roadway than there was on the right side. Maine insisted that he was on his way to Kinsey, which is located northeast of Miles City in Custer County, when in fact he was 60 miles southwest of Miles City in Rosebud County. Anderson smelled a strong odor of an alcoholic beverage coming from Maine and noted that his eyes were bloodshot and glassy. Based on these observations and the results of several sobriety tests, Anderson transported Maine to the Sheriff's Office in Forsyth and booked him into jail.

¶ 4 Through a records check, the Rosebud County Attorney ascertained that Maine had three prior DUI convictions: 1991 in Oregon, 1994 in Rosebud County, and 1997 in Rosebud County. Hence, the prosecutor charged Maine with DUI, fourth or subsequent offense, a felony. As noted, Maine filed a Motion to Reduce Charge to Misdemeanor. He asserted that the 1997 conviction was invalid and therefore could not be used as the basis for charging a felony. The parties briefed this issue and the District Court held a hearing at which Maine, a law enforcement officer, and a former detention officer testified, and four exhibits were introduced, all relating to the 1997 conviction. The circumstances of that conviction, as described by Maine, are as follows.

¶ 5 At around noon on July 28, 1996, Maine attended a rodeo in Ingomar, Montana. Upon arriving, he drank a couple of beers at the beer garden. While there, he noticed a former employer, Rodney Newman. Maine testified that “Mr. Newman said hello and I said hello, and I was looking at him. And he says, ‘I've been meaning to talk to you,’ and I said, ‘Yeah, I've been meaning to talk to you too.’ And I asked him if he was having an affair with my wife and that's when he swung at me.” According to Maine, five of Newman's friends held Maine down while Newman beat Maine to the point of unconsciousness. When Maine regained consciousness, he walked over to a horse trough to wash his face. He then noticed his assailants walking toward him. Maine testified that he felt threatened and believed that he had no safe place to go in Ingomar, which did not have a police station. Thus, he went to his pickup and headed down Highway 12 toward Forsyth, roughly 40 miles away.

¶ 6 Meanwhile, two Rosebud County deputies were responding to the report of an altercation in Ingomar involving Maine, who reportedly was “drunk and challenging to fight.” En route, one of the deputies recognized Maine's pickup traveling the opposite direction. They turned around, intending to follow him and observe his driving behavior for a short distance, but Maine immediately pulled over on his own initiative. At this point, he had driven about 20 miles from Ingomar. Maine told the deputies that several persons had held him down while Rodney Newman beat him. Maine had visible cuts and abrasions on his head and body, but none of them appeared life-threatening. He admitted that he had drunk 12 beers the night before in Roundup and a couple of beers that day in Ingomar. Based on this admission, the dispatch report, the odor of an alcoholic beverage emanating from his person, and the results of field sobriety tests, the deputies placed Maine under arrest for DUI and transported him to the detention center in Forsyth.

¶ 7 Maine was appointed counsel, and his case ultimately proceeded to a bench trial in Rosebud County Justice Court, at the conclusion of which he was found guilty. The court fined Maine $300 and sentenced him to 60 days in jail, with 53 days suspended. He received credit for time served (1 day), leaving 6 days which the court told him he could serve on consecutive weekends. Maine did not appeal the conviction to District Court for a trial de novo, nor did he pursue any postconviction review.

¶ 8 Maine's defense to the 1996 DUI charge was that he had not been under the influence of alcohol while driving. According to Maine, his attorney never raised or discussed with him the possibility of a compulsion defense. See § 45–2–212, MCA; State v. Leprowse, 2009 MT 387, 353 Mont. 312, 221 P.3d 648 (a defendant may assert the affirmative defense of compulsion to a charge of DUI). Yet, given his reasons for fleeing Ingomar in his pickup, Maine argued that a compulsion defense “obviously” should have been raised. Thus, he asserted that he had received ineffective assistance of counsel and that his 1997 conviction was constitutionally infirm as a result. In response, the prosecutor argued that Maine had not overcome the presumption that the conviction is valid. For one thing, he argued, Maine had not established that his decision to drive away from Ingomar met the six elements of compulsion. See Leprowse, ¶ 12. Moreover, he argued that trial counsel's failure to raise a compulsion defense may have been the product of sound trial strategy and that Maine had not shown otherwise.

¶ 9 In its order denying Maine's motion, the District Court observed that

[i]t is impossible for the Court to adequately sort out the claims and counterclaims regarding the viability of a compulsion defense at a trial conducted more than 12 years ago without the testimony of the participants, except for Mr. Maine, and without the testimony of trial counsel as to whether he considered the compulsion defense and, if so, why he did not present it at trial. All the Court has is Mr. Maine's recollections of what was or was not discussed. The Court does not have [trial counsel's] recollections. Nor does the Court have the testimony of the other participants in, or witnesses to, the Ingomar altercation. All the Court can say is that the compulsion defense should have been considered and may have been sufficient to inject reasonable doubt in the mind of the trier of fact. The Court cannot say that it would necessarily have provided a complete defense as claimed by the Defense.

¶ 10 The District Court concluded that Maine's “allegation of ineffective counsel based on not raising an affirmative defense as to which questions of fact remain ... does not render the conviction ‘constitutionally infirm’ for purposes of determining the enhancement of punishment of later offenses.” The court reasoned that there is a need for finality and that the “mere possibility” of a different outcome in the original trial is insufficient to invalidate the conviction. In this regard, the court noted that the present situation—which would require a “20–20 hindsight” inquiry into the viability of a defense that was never raised—is distinguishable from a situation in which the alleged error is “so fundamental that it taints the entire proceeding” and the resulting conviction is thus constitutionally infirm “on its face.”

¶ 11 The District Court sentenced Maine, in accordance with the plea agreement, to the Department of Corrections for 13 months, followed by a 3–year suspended prison sentence. Maine now appeals.


¶ 12 Whether a prior conviction may be used for sentence enhancement is generally a question of law, for which our review is de novo. State v. Hansen, 273 Mont. 321, 323, 903 P.2d 194, 195 (1995); State v. Weaver, 2008 MT 86, ¶ 10, 342 Mont. 196, 179 P.3d 534. However, in determining whether a prior conviction is invalid, the court may first need to make findings of fact, based on oral and documentary evidence presented by the parties, regarding the circumstances of that conviction. See e.g. Weaver, ¶ 9; State v. Peterson, 2002 MT 65, ¶¶ 3–5, 309 Mont. 199, 44 P.3d 499. We will not disturb such findings unless they are clearly erroneous. Weaver, ¶ 9; Peterson, ¶ 7.


¶ 13 In State v. Okland, 283 Mont. 10, 941 P.2d 431 (1997), we set forth the procedural framework for determining whether a prior conviction may be used to enhance punishment on a current charge: (1) a rebuttable presumption of regularity attaches to the prior conviction, (2) the defendant has the initial burden to produce direct evidence that the prior conviction is invalid, and (3) once the defendant has made this showing, the burden shifts to the State to produce direct...

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