State v. Okland, No. 96-362

• Docket Nº: No. 96-362
• Citation: 283 Mont. 10, 941 P.2d 431
• Case Date: May 29, 1997
• Court: United States State Supreme Court of Montana

Page 431

941 P.2d 431 283 Mont. 10 STATE of Montana, Plaintiff and Appellant,
v.
David Matthew OKLAND, Defendant and Respondent. No. 96-362. Supreme Court of Montana. Submitted on Briefs April 22, 1997.
Decided May 29, 1997.

Page 432

[283 Mont. 12] Joseph P. Mazurek, Attorney General, Cregg W. Coughlin (argued), Assistant Attorney General, Helena, Kim Christopher, Lake County Attorney, Mitchell A. Young, Deputy County Attorney, Polson, for Appellant.

Matthew H. O'Neill (argued), French, Mercer, Grainey & O'Neill, Polson, for Respondent.

TRIEWEILER, Justice.

The defendant, David Matthew Okland, was charged by information, filed in the District Court for the Twentieth Judicial District in Lake County, with the offense of driving or being in actual physical control of a motor vehicle while under the influence of alcohol, in violation of § 61-8-401(1)(a), MCA. Based on his three prior convictions for DUI, the information charged him with a felony, pursuant to §§ 61-8-714(4) and -722(4), MCA. He filed a motion to dismiss the felony DUI charge, which the District Court granted. The State of Montana appeals. We affirm the judgment of the District Court.

The sole issue on appeal is whether the District Court erred when it dismissed the felony DUI charge against David Matthew Okland.

FACTUAL BACKGROUND

On January 9, 1996, David Matthew Okland was charged by information with the offense of driving or being in actual physical control of a motor vehicle while under the influence of alcohol. The charge alleged in the information, if proven, would have constituted his fourth DUI offense. He was previously convicted of DUI in Lake County in 1985, in Flathead County in 1986, and again in Lake County in 1995. Based on those three prior convictions, the information charged him with a felony, pursuant to §§ 61-8-714(4) and -722(4), MCA.

Okland filed a motion to dismiss the felony DUI charge in which he contended that, at the time he pled guilty to the prior DUI charges, he was not, in fact, represented by an attorney, he had not been adequately advised of his constitutional right to an attorney, he had not waived his right to an attorney, and he had been denied a [283 Mont. 13] court-appointed attorney despite his request that one be appointed. On that basis, he asserted that his prior DUI convictions were entered in derogation of his constitutional rights and cannot be used to increase the current DUI charge to a felony.

In support of his motion, he submitted an affidavit which provides, in relevant part, as follows:

3. With regard to the 08-20-85 conviction, the City Judge, Joy Francke, told me that I could not have an attorney appointed to represent me because I owned a motor vehicle. I had no basis to argue with her and no money to hire an attorney to do it for me.

4. With regard to the 09-02-86 conviction in Kalispell, I do not recall being advised of any rights at all.

5. Neither can I recall being advised of my constitutional rights in connection with my 07-24-95 conviction. My recollection is that the Judge asked only whether I contested the ticket or not.

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6. I was actually incarcerated on each of the above three convictions and was not represented by counsel in any one of them.

Okland also submitted the record of his 1985 Lake County DUI conviction in Polson City Court. The record expressly states that Okland requested a court-appointed attorney; however, the record does not reflect that an attorney was provided or that he waived his right to an attorney.

In response, the State maintained that a presumption of regularity attached to Okland's prior convictions and that he failed to establish that his prior convictions were invalid. With regard to his 1985 DUI conviction, the State produced a copy of a letter sent to Okland in July 1985, which provides, in relevant part, as follows:

On April 18, 1985, you appeared in Polson City Court....

At that time, you requested a Court Appointed Attorney. You were given a financial statement to fill out, have notarized, and then return to City Court. You have not done so.

It is most important that you comply with this procedure, or a trial date will be set, as the Court will procede [sic] with the understanding you have retained a Lawyer.

The State contends that Okland failed to submit the required financial statement.

The District Court granted Okland's motion to dismiss the felony DUI charge. In its written order, the District Court made the following findings:

[283 Mont. 14] The record herein is that [Okland] was cited April 17, 1985, for D.U.I. On April 18, 1985, [Okland] requested a court-appointed attorney. The record does not reflect that an attorney was ever provided to [Okland]. On August 20, 1985, [Okland] was found guilty and was fined and sentenced to 60 days in jail.... The record is void of any waiver by [Okland] of his right to an attorney.

On that basis, the District Court concluded that:

[Okland] was neither provided an attorney for his August 20, 1985, D.U.I. conviction nor waived his right thereto and was actually sentenced to jail. His misdemeanor conviction without counsel may not be used under Sec. 61-8-714(4), MCA, to increase the D.U.I. charge to a fourth, felony offense.

DISCUSSION

Did the District Court err when it dismissed the felony DUI charge against David Matthew Okland?

When we review a district court's conclusions of law, the standard of review is plenary and we must determine whether the district court's conclusions are correct as a matter of law. State v. Rushton (1994), 264 Mont. 248, 254-55, 870 P.2d 1355, 1359; State v. Sage (1992), 255 Mont. 227, 229, 841 P.2d 1142, 1143. When we review a district court's findings of fact, the standard of review is whether those findings are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906.

The Sixth Amendment of the United States Constitution, and Article II, Section 24, of the Montana Constitution, guarantee the fundamental right to the assistance of counsel. Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; State v. Craig (1995), 274 Mont. 140, 148, 906 P.2d 683, 688 (citing State v. Langford (1994), 267 Mont. 95, 99, 882 P.2d 490, 492). Indigent defendants are entitled to legal representation by court-appointed counsel at public expense. State v. Enright (1988), 233 Mont. 225, 228, 758 P.2d 779, 781. However, the fundamental right to counsel extends only to cases in which a sentence of imprisonment is actually imposed. Scott v. Illinois (1979), 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383; State v. Hansen (1995), 273 Mont. 321, 325, 903 P.2d 194, 197.

The fundamental right to counsel does not extend to defendants who waive the right. Craig, 274 Mont. at 152, 906 P.2d at 690. Waiver, however, requires a knowing and intelligent relinquishment of a known right. State v. Blakney (1982), 197 Mont. 131, 138, 641 P.2d 1045, 1049.

Page 434

[283 Mont. 15] In Montana, it is well established that the State may not use a constitutionally infirm conviction to support an enhanced punishment. Lewis v. State (1969), 153 Mont. 460, 463, 457 P.2d 765, 766. In Lewis, the defendant was convicted of an offense punishable by five-years imprisonment. That penalty, however, was to be increased to ten years if the defendant had a prior felony conviction. Lewis alleged that his constitutional rights had been violated during his prior conviction. We concluded that the records from his prior conviction revealed that "he was not told that if he could not afford counsel then the State would provide him with one." Lewis, 153 Mont. at 461-62, 457 P.2d at 766.

We expressly adopted the reasoning of the United States Supreme Court in Burgett v. Texas (1967), 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, and relied on the following language from that case:

In this case the certified records of the [prior] Tennessee conviction on their face raise a presumption that petitioner was denied his right to counsel in the Tennessee proceeding, and therefore that his conviction was void. Presuming waiver of counsel from a silent record is impermissible. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense (see Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526 [1966] ) is to erode the principle of that case.

Lewis, 153 Mont. at 463, 457 P.2d at 766. On that basis, we held that Lewis's prior conviction could not be used to enhance his...