State v. LaPier, 97-397

• Decision Date: 16 July 1998
• Docket Number: No. 97-397,97-397
• Citation: 961 P.2d 1274,1998 MT 174
• Parties: STATE of Montana, Plaintiff and Respondent, v. Harold Joseph LaPIER, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1274

961 P.2d 1274

1998 MT 174

STATE of Montana, Plaintiff and Respondent, v. Harold Joseph LaPIER, Defendant and Appellant.

No. 97-397.

Supreme Court of Montana.

Submitted on Briefs May 28, 1998.

Decided July 16, 1998.

William F. Hooks, Appellate Defender, Helena, for Appellant.

Joseph P. Mazurek, Attorney General, Tammy K. Plubell, Ass't Attorney General, Helena, Robert M. McCarthy, Silver Bow County Attorney, Butte, for Respondent.

GRAY, Justice.

¶1 Harold LaPier (LaPier) appeals from the judgment and sentence entered by the Second Judicial District Court, Silver Bow County, on a jury verdict finding him guilty of the offense of violation of a protective order. We affirm.

¶2 The sole issue on appeal is whether the District Court had jurisdiction to sentence LaPier for a felony offense.

¶3 LaPier was charged in the District Court with the offenses of partner or family member assault and violation of an order of protection. The State of Montana (State) alleged that both charges were third offenses and, therefore, felonies pursuant to statutory enhancement provisions.

¶4 A jury found LaPier not guilty of assault, but guilty of violating an order of protection. The District Court ordered a presentence investigation report, which was prepared by adult parole and probation officer John J. Riley (Riley), and held a sentencing hearing. Riley testified that LaPier had two prior convictions for the offense of violating a protective order--one in the justice court and one in the police court. LaPier challenged the existence of the justice court conviction and the conviction was established via a certified copy of the judgment in that case. Riley recommended that LaPier be sentenced to the maximum term of imprisonment available for the offense but he did not offer a recommendation on further sentencing in the event the District Court determined LaPier to be a persistent felony offender. LaPier also made a lengthy statement, at the end of the sentencing hearing, that he believed he was wrongfully convicted and should not be sentenced to a term of incarceration in addition to the time already served in the county jail.

¶5 The District Court determined that LaPier was guilty of the felony offense of violation of a protective order. It fined him $2,000, sentenced him to a two-year term of imprisonment at the Montana State Prison and added a five-year term for persistent felony offender, to run consecutively to the sentence imposed for the underlying offense. LaPier also was credited for time served. The District Court entered judgment accordingly and this appeal followed.

¶6 Did the District Court have jurisdiction to sentence LaPier for the felony offense?

¶7 Based on the information in the presentence investigation report and Riley's testimony at the sentencing hearing, the District Court determined that LaPier was guilty of the felony offense of violation of a protective order because it was his third such offense. The court sentenced LaPier accordingly and LaPier contends that the court lacked jurisdiction to do so because one of the prior convictions was constitutionally infirm.

¶8 Whether a prior conviction can be used to enhance a criminal sentence is a question of law. State v. Hansen (1995), 273 Mont. 321, 323, 903 P.2d 194, 195. We review a district court's conclusions of law to determine whether they are correct. Hansen, 273 Mont. at 323, 903 P.2d at 195 (citations omitted).

¶9 Before turning to the issue raised by LaPier, we address a threshold issue raised by the State, namely, whether this case is properly before us. The State contends that, because LaPier did not raise the issue of whether his police court conviction was constitutionally infirm in the District Court, he may not raise it for the first time on appeal. This contention is without merit. Notwithstanding the general rule that this Court will not address an issue raised for the first time on appeal (see Day v. Payne (1996), 280 Mont. 273, 276, 929 P.2d 864, 866 (citation omitted)), certain jurisdictional issues constitute an exception to that general rule. Lack of subject matter jurisdiction is a nonwaivable defect which may be raised at any stage of the proceedings. See, e.g., State v. Moorman (1996), 279 Mont. 330, 336, 928 P.2d 145, 148 (citation omitted); § 46-13-101(3), MCA. Thus, we turn to the issue raised by LaPier of whether the District Court had jurisdiction to sentence him for the felony offense.

¶10 The Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution guarantee an accused the fundamental right to the assistance of counsel. State v. Okland (1997), 283 Mont. 10, 14, 941 P.2d 431, 433 (citations omitted). The fundamental right extends only to cases in which a sentence of imprisonment is actually imposed. Okland, 283 Mont. at 14, 941 P.2d at 433 (citations omitted). Moreover, an accused may waive the right to counsel, but a waiver requires a knowing and intelligent relinquishment of a known right. Okland, 283 Mont. at 14, 941 P.2d at 433 (citations omitted).

¶11 It has long been established in Montana that a constitutionally infirm conviction cannot be used to support an enhanced punishment. Okland, 283 Mont. at 15, 941 P.2d at 434 (citing Lewis v. State (1969), 153 Mont. 460, 463, 457 P.2d 765, 766). A rebuttable presumption of regularity attaches to prior convictions during a collateral attack, however, and "a defendant who challenges the validity of his prior conviction during a collateral attack has the burden of producing direct evidence of its invalidity." Okland, 283 Mont. at 18, 941 P.2d at 436. If the defendant comes forward with such direct evidence, the burden shifts to the State to "produce direct evidence and prove by a preponderance of the evidence that the prior conviction was not entered in violation of the defendant's rights." Okland, 283 Mont. at 18, 941 P.2d at 436.

¶12 Here, LaPier contends that his police court conviction of violating an order of protection was constitutionally infirm because he was not represented by counsel and did not waive the right to counsel. He concedes that a rebuttable presumption of regularity attaches to that conviction under Okland. He asserts, however, that he produced direct evidence of the constitutional infirmity during his cross-examination of Riley at the sentencing hearing and that the State did not meet its burden thereafter of proving that the prior conviction was not entered in violation of his rights. We disagree.

¶13 The judgment in LaPier's police court case reflected that he was sentenced to a term of six months in the county jail, thus triggering his right to assistance of counsel--absent a knowing and intelligent waiver of the right--as discussed above. The evidence of constitutional infirmity in his police court conviction on which LaPier relies is the following exchange regarding the judgment in that case between his counsel and Riley at the sentencing hearing:

Q. Is there anything that shows a waiver of rights to an attorney or...