State v. Peterson, 00-594.

• Citation: 2002 MT 65,44 P.3d 499,309 Mont. 199
• Decision Date: 02 April 2002
• Docket Number: No. 00-594.,00-594.
• Court: United States State Supreme Court of Montana
• Parties: STATE of Montana, Plaintiff and Respondent, v. Todd Allen PETERSON, Defendant and Appellant.

44 P.3d 499

2002 MT 65

309 Mont. 199

STATE of Montana, Plaintiff and Respondent, v. Todd Allen PETERSON, Defendant and Appellant.

No. 00-594.

Supreme Court of Montana.

Submitted on Briefs February 1, 2001.

Decided April 2, 2002.

Brian Kohn, Billings, Montana, For Appellant.

Joseph P. Mazurek, Montana Attorney General, Pamela P. Collins, Assistant Montana Attorney General, Helena, Montana; Thomas P. Meissner, Fergus County Attorney, Lewistown, Montana, For Respondent.

Justice JAMES C. NELSON delivered the Opinion of the Court.

I. INTRODUCTION

¶ 1 Todd Peterson (Peterson) was charged by information with fourth offense driving under the influence, a felony, in violation of § 61-8-401 and § 61-8-731, MCA, in the Tenth Judicial District Court, Fergus County. Peterson collaterally challenged the felony status of the charge through a motion to dismiss, asserting that two of his previous misdemeanor convictions were constitutionally insufficient because he was not properly informed of his right to counsel. The District Court denied his motion, finding that Peterson was properly informed of his right to counsel in both instances. Peterson appeals the denial of his motion. We affirm the District Court on one conviction and remand for further findings on the other conviction.

¶ 2 We address the following issue on appeal:

Did the District Court err in finding that Peterson was informed of his right to counsel in two previous misdemeanor convictions for driving under the influence?

II. FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 The facts of Peterson's most recent guilty plea to driving under the influence (DUI) are not at issue in this case. Therefore, we turn directly to the facts regarding Peterson's guilty pleas in two of his previous convictions. In 1988, Peterson pled guilty to a DUI charge in front of Fergus County Justice of the Peace David L. Sather (Judge Sather). In 1989, Peterson pled guilty to a DUI charge in front of Lewistown City Judge R.D. Brassey (Judge Brassey). Peterson asserted in an affidavit attached to his motion to dismiss that he was not properly informed of his right to counsel in both of these convictions.

¶ 4 The District Court held an evidentiary hearing to determine whether Peterson was properly advised during the entry of these two pleas and heard testimony from five witnesses. Sandra Coppedge, the custodian of the records for Fergus County Justice Court, testified regarding the documentation of Peterson's previous pleas and these documents were admitted as evidence. Judge Brassey testified regarding Peterson's 1989 plea. Because Judge Sather passed away on July 21, 1999, Judge Brassey and Fergus County Justice of the Peace Jack Shields (Judge Shields) also testified regarding their understanding of the routine procedures Judge Sather used and would have followed in 1988. Peterson testified regarding both pleas, and his mother Betty Schramm (Schramm), testified regarding the 1989 plea.

¶ 5 Following the hearing, the District Court entered an Order Denying Defendant's Motion to Dismiss (Order). In its Order, the court noted evidence in addition to that submitted at the hearing. Specifically, the court noted Judge Sather's testimony in State v. Louann Rowland Petersen (Fergus County Cause No. DC 96-46), in which Judge Sather testified as to his routine practice. The District Court further noted that this testimony was consistent with Judge Brassey's testimony of Judge Sather's routine practice to inform defendants of the right to counsel and the right to appointed counsel if indigent. Peterson now appeals this Order. Further details of the testimony and evidence are discussed below.

III. STANDARD OF REVIEW

¶ 6 A rebuttable presumption of regularity, including the presumption that a defendant was properly informed of and waived any constitutional rights at issue, attaches to a prior DUI conviction used to enhance a subsequent conviction to a felony. State v. Okland (1997), 283 Mont. 10, 17-18, 941 P.2d 431, 436. This presumption must be overcome by direct evidence of irregularity from the defendant. State v. Big Hair, 1998 MT 61, ¶ 16, 288 Mont. 135, ¶ 16, 955 P.2d 1352, ¶ 16. The burden then shifts to the State to prove by a preponderance of evidence that the prior conviction was not obtained in violation of the defendant's rights. State v. Ailport, 1998 MT 315, ¶ 7, 292 Mont. 172, ¶ 7, 970 P.2d 1044, ¶ 7. ¶ 7 We review a trial court's findings on the evidence regarding a prior plea to determine whether those findings are clearly erroneous. Ailport, ¶ 6. A finding is clearly erroneous if it is not supported by substantial evidence, the court misapprehended the effect of the evidence, or our review of the record convinces us that a mistake has been committed. Ailport, ¶ 6. In making its findings, the trial court may consider evidence offered by the State that is outside the record of the conviction at issue which demonstrates the conviction was constitutionally sound. Ailport, ¶ 15. Further, we have declined to require any specific type of evidence for the State to meet its burden. State v. Brown, 1999 MT 143, ¶ 20, 295 Mont. 5, ¶ 20, 982 P.2d 1030, ¶ 20. Conflicts in the evidence and questions of credibility are properly resolved by the trier of fact. Brown, ¶ 22; State v. Moga, 1999 MT 283, ¶ 14, 297 Mont. 1, ¶ 14, 989 P.2d 856, ¶ 14. Finally, we review a trial court's decision to admit evidence for abuse of discretion. State v. Stringer (1995), 271 Mont. 367, 374, 897 P.2d 1063, 1067.

IV. DISCUSSION

¶ 8 Did the District Court err in finding that Peterson was informed of his right to counsel in two previous misdemeanor convictions for driving under the influence?

¶ 9 At issue in this case is a defendant's constitutional right to counsel, State v. Craig (1995), 274 Mont. 140, 148, 906 P.2d 683, 688, or right to court appointed counsel if indigent, Okland, 283 Mont. at 14, 941 P.2d at 433, whenever a sentence of imprisonment is imposed, State v. Hansen (1995), 273 Mont. 321, 325, 903 P.2d 194, 197. The right to counsel may be validly waived by the defendant if the waiver is knowing and intelligent. Okland, 283 Mont. at 14, 941 P.2d at 433. If a prior conviction is invalid for failure to inform the defendant of these rights regarding counsel, it may not be used to enhance the penalty of a subsequent conviction. Okland, 283 Mont. at 15, 941 P.2d at 434 (citing Lewis v. State (1969), 153 Mont. 460, 463, 457 P.2d 765, 766).

¶ 10 We have reviewed the issue of collateral challenges to the validity of prior DUI convictions a number of times. In Okland, we upheld the district court when it prohibited the use of a prior DUI conviction to enhance a subsequent DUI to a felony because the prior conviction record demonstrated that the defendant asked for a court appointed attorney but was eventually convicted without an attorney. Okland, 283 Mont. at 19-20, 941 P.2d at 436-37.

¶ 11 Further, in Moga we upheld the trial court when it allowed the use of a prior DUI conviction where the defendant testified that he was not informed of his right to counsel but the presiding judge submitted an affidavit stating that, although he could not remember the specific defendant, the record of the prior conviction indicated it was routine and it was his routine practice to properly inform defendants of the right to counsel, the right to court appointed counsel, and to require a valid waiver of that right. Moga, ¶¶ 12-15. In contrast, in Jenni, we upheld the district court when it disallowed the use of a prior DUI conviction when the State's evidence consisted only of a court document that generally stated the defendant was advised of all his rights. State v. Jenni (1997), 283 Mont. 21, 25-26, 938 P.2d 1318, 1321.

¶ 12 In Couture we upheld the trial court when it allowed the use a prior DUI conviction where the defendant denied being informed of the right to counsel, but the court record indicated the defendant was informed even though he did not sign the acknowledgment forms. State v. Couture, 1998 MT 137, ¶ 15-18, 289 Mont. 215, ¶ 15-18, 959 P.2d 948, ¶ 15-18. In Ailport, we upheld the trial court's allowance of a prior DUI conviction where the court was required to consider competing affidavits regarding a North Dakota court's routine practice. Ailport, ¶¶ 10-16.

¶ 13 The parties in this case agree that Peterson met his burden to show direct evidence of irregularity because he testified that he was not informed of his rights regarding counsel or appointed counsel at either conviction. See Couture, ¶ 15. Compare Big Hair, ¶ 17-18 (defendant's statement that he couldn't recall whether or not he was informed of his rights insufficient to rebut presumption of regularity of prior proceeding). Therefore, we must determine whether the District Court was clearly erroneous in finding that the State met its burden by a preponderance of the evidence to show Peterson was properly informed of his rights in each of his prior pleas.

A. The 1989 Plea.

¶ 14 Regarding this conviction, Peterson asserts that he was not properly informed of his right to counsel. The State asserts that Judge Brassey's testimony regarding his routine practice to inform defendants of the right to counsel and the right to appointed counsel if indigent proves that Peterson was properly informed. The District Court found that the preponderance of the evidence demonstrated that Peterson's prior conviction was valid because he was "advised of his constitutional rights, he specifically requested time to consult with an attorney and thereafter entered a plea of guilty upon the advice of counsel." After a careful review of the record as discussed below, we conclude there is a conflict in the evidence that requires remand to the District Court for further findings regarding this plea.

¶ 15 In support of his motion, Peterson testified that at his arraignment, he requested time to consult with attorney Torger Oaas (Oaas). He and his mother,...