State v. Perry

Decision Date29 May 1997
Docket NumberNo. 96-617,96-617
Citation283 Mont. 34,938 P.2d 1325
PartiesSTATE of Montana, Plaintiff and Respondent, v. Elmer Dale PERRY, Defendant and Appellant.
CourtMontana Supreme Court

Daniel P. Buckley; Berg, Lilly, Andriolo & Tollefsen; Bozeman, for Appellant.

Joseph P. Mazurek, Attorney General; Cregg W. Coughlin, Assistant Attorney General; Helena, Marty Lambert, Gallatin County Attorney; Susan Swimley, Deputy County Attorney; Bozeman, for respondent.

TRIEWEILER, Justice.

The defendant, Elmer Dale Perry, was charged by information, filed in the District Court for the Eighteenth Judicial District in Gallatin County, with the offense of driving under the influence of alcohol, in violation of § 61-8-401(1)(a), MCA. Based on his seven 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 in which he objected to the District Court's consideration of his seven prior DUI's for purposes of determining whether he is guilty of felony DUI. After a hearing, the District Court denied that motion. He appeals the judgment of the District Court. We affirm.

The sole issue on appeal is whether the District Court erred when it denied Elmer Dale Perry's motion to dismiss the felony DUI charge against him.

FACTUAL BACKGROUND

On March 13, 1996, Elmer Dale Perry was charged by information with the offense of driving a motor vehicle while under the influence of alcohol. The charge alleged in the information, if proven, would have constituted his eighth DUI offense. Based on his prior DUI convictions, the information charged him with a felony, pursuant to §§ 61-8-714(4) and -722(4), MCA.

On August 12, 1996, Perry filed a motion in which he objected to the District Court's consideration of his seven prior convictions for purposes of determining whether he is guilty of felony DUI. He asserted that before the District Court can consider his prior DUI convictions and, on that basis, increase the current DUI charge to a felony, the State is required to affirmatively establish the constitutional validity of his prior convictions. Specifically, he claimed that "[t]he records of the previous court conviction[s] must affirmatively show that [he] was informed of his rights, including the right to appointed counsel, and that [he] knowingly waived them."

The State maintained that a presumption of regularity attached to Perry's prior convictions and that, therefore, the burden of proof is, at least initially, on Perry to establish, by sufficient evidence, that his prior convictions were entered in violation of his constitutional right to counsel. Additionally, the State submitted as evidence a certified copy of Perry's driving record, as well as the court records from three of his prior convictions.

Perry did not submit any evidence to establish that his rights were violated during the prior proceedings. In fact, he did not even assert that his prior convictions were invalid. Rather, he contended that it is the State's burden to affirmatively prove the validity of his prior convictions.

At the conclusion of the hearing, the District Court rejected Perry's contention and, on that basis, denied his motion. In its written order, the District Court held as follows:

There is a presumption of validity which attaches to final judgments, and the burden of proof to overcome the presumption rests with the defendant. Parke v. Raley, 506 U.S. 20, 29-30, 113 S.Ct. 517, 523-24, 121 L.Ed.2d 391, 404 (1992). [Perry] has not met his burden of proof, and his motion is denied.

DISCUSSION

Did the District Court err when it denied Perry's motion to dismiss the felony DUI charge against him?

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.

On appeal, Perry contends that the District Court erred when it denied his motion and considered his seven prior convictions for purposes of determining whether the current DUI charge can be increased to a felony. He claims that waiver of the right to counsel cannot be presumed from a silent record and that, therefore, the State of Montana is required to affirmatively prove that his prior DUI convictions were constitutionally valid. In essence, he asserts that ...

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    ...State v. Shelton, 621 So.2d 769, 779-780 (La.1993); People v. Carpentier, 446 Mich. 19, 37, 521 N.W.2d 195 (1994); State v. Perry, 938 P.2d 1325, 1327 (Mont.1997); State v. White, 244 Neb. 577, 593, 508 N.W.2d 554 (1993); People v. Polanco, 192 A.D.2d 393, 394, 596 N.Y.S.2d 366 (1993); Stat......
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