State v. Hansen

Decision Date26 September 1995
Docket NumberNo. 94-584,94-584
Citation903 P.2d 194,273 Mont. 321
PartiesSTATE of Montana, Plaintiff and Appellant, v. Frank Richard HANSEN, Defendant and Respondent.
CourtMontana Supreme Court

Joseph P. Mazuzrek, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Helena, Montana; Carlo Canty, Deputy Silver Bow County Attorney, Butte, for appellant.

Deirdre Caughlan, Dunlap & Caughlan, Butte, for respondent.

HUNT, Justice.

Respondent Frank Hansen was arrested and charged with third offense domestic abuse. Section 45-5-206(3), MCA, provides that a third offense for domestic abuse may be charged as a felony. Consequently, the State filed an information charging respondent with felony domestic abuse. Respondent moved to dismiss the felony charge, claiming that he had not knowingly waived counsel during his first misdemeanor domestic abuse conviction. He argued that a prior uncounseled misdemeanor conviction cannot be used to convert a misdemeanor charge into a felony. The District Court granted his motion to dismiss the felony charge, and the State appeals. We reverse.

The following issue was raised on appeal:

Did the District Court err in ruling that a valid prior uncounseled misdemeanor conviction may not be used to convert a later charge from a misdemeanor to a felony?

FACTS

On April 20, 1992, respondent was charged with first offense domestic abuse, which is a misdemeanor under § 45-5-206(3), MCA. Unrepresented by counsel, he pled guilty and was ordered to complete a domestic violence treatment program, with a fine and jail term being suspended.

On September 30, 1992, respondent pled guilty to second offense domestic abuse, a misdemeanor, and received a suspended sentence. Respondent was represented by counsel when he pled guilty to this second offense.

On May 10, 1994, respondent was again arrested for domestic abuse. Because this was his third offense, the State filed an information charging him with felony domestic abuse. Respondent moved to dismiss the information, arguing that his April, 1992, uncounseled misdemeanor conviction could not be used to convert a subsequent charge from a misdemeanor to a felony.

The District Court found that the record did not show respondent had made a knowing waiver of counsel before pleading guilty to the April, 1992 charge. The court further found, absent proof of an informed waiver of a right to counsel, the first misdemeanor conviction could not be used as a basis for making the third charge a felony. For these reasons, the District Court dismissed the felony domestic abuse charge. We reverse and hold that a valid prior uncounseled misdemeanor conviction may be used to convert a subsequent charge from a misdemeanor to a felony.

STANDARD OF REVIEW

Whether a prior conviction may be used for sentence enhancement is a question of law, as is the appropriateness of granting (or failing to grant) a purely procedural motion to dismiss in a criminal case. The standard of review of a district court's conclusions of law is plenary, and we will review to determine whether those conclusions of law are correct. State v. Rushton (1994), 264 Mont. 248, 255, 870 P.2d 1355, 1359. See also State v. Sage (1992), 255 Mont. 227, 229, 841 P.2d 1142, 1143.

ISSUE

May a valid prior uncounseled misdemeanor be used to convert a later charge from a misdemeanor to a felony?

Respondent was charged with third offense domestic abuse pursuant to § 45-5- 206(3), MCA, which provides as follows:

A person convicted of domestic abuse for the first or second time shall be fined not to exceed $1,000 or be imprisoned in the county jail not to exceed 1 year, or both. On a third or subsequent conviction for domestic abuse, the person convicted shall be fined not less that $500 and not more than $50,000 and be imprisoned in the county jail or in the state prison for a term not less than 10 days and not more than 5 years, or both.

Respondent moved to quash his felony domestic abuse charge because he had not been represented by counsel at his first misdemeanor conviction. Then and now, he contends that a prior uncounseled misdemeanor cannot be used to enhance a later sentence. In framing this argument, respondent relies almost entirely on the United States Supreme Court case Baldasar v. Illinois (1980), 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169. In Baldasar, the Court held that an uncounseled misdemeanor conviction may not be used under an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term. Baldasar, 446 U.S. at 222, 100 S.Ct. at 1585. If Baldasar remained good law, it would dispose of this case entirely.

Appellant, however, argues that Baldasar has been overturned by Nichols v. United States (1994), --- U.S. ----, 114 S.Ct. 1921, 128 L.Ed.2d 745. In Nichols, the Supreme Court held that an uncounseled misdemeanor conviction is also valid when used to enhance punishment at a subsequent conviction. Nichols, --- U.S. at ----, 114 S.Ct. at 1928.

Respondent insists Nichols is distinguishable and serves only to modify Baldasar. Nichols dealt with a defendant whose sentence was increased under the Federal Sentencing Guidelines because of a prior misdemeanor. Respondent contends that Nichols therefore is applicable to federal sentencing cases only. Moreover, respondent points out that the defendant in Nichols was already charged with a felony when the question of a potential sentence increase arose. In the case at bar, the prior misdemeanor would serve to convert the latest charge from a misdemeanor to a felony. Respondent advocates a narrow reading of Nichols, while appellant insists it should be read more broadly. In short, the disposition of this case rests on a determination of how Nichols should be construed.

Such a determination is easily made. A cursory reading reveals that Nichols does not modify Baldasar; it expressly overrules it. Nichols, at ----, 114 S.Ct. at 1928. While it is true that Nichols did not deal with...

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