State v. Weaver

• Decision Date: 12 March 2008
• Docket Number: No. DA 06-0366.,DA 06-0366.
• Citation: 342 Mont. 196,179 P.3d 534,2008 MT 86
• Parties: STATE of Montana, Plaintiff and Appellee, v. Wesley Allan WEAVER, Defendant and Appellant.
• Court: Montana Supreme Court

179 P.3d 534

2008 MT 86

342 Mont. 196

STATE of Montana, Plaintiff and Appellee, v. Wesley Allan WEAVER, Defendant and Appellant.

No. DA 06-0366.

Supreme Court of Montana.

Submitted on Briefs May 16, 2007.

Decided March 12, 2008.

For Appellant: Brian C. Smith, Office of the State Public Defender, Missoula, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General, John Paulson, Assistant Attorney General, Helena, Montana, Fred R. Van Valkenburg, Missoula County Attorney, Jennifer Clark, Deputy County Attorney, Missoula, Montana.

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

¶ 1 Wesley Allan Weaver appeals from the order of the District Court for the Fourth Judicial District, Missoula County, denying his motion to dismiss. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 The State charged Weaver by information on April 21, 2005, with Count I, operating a motor vehicle while under the influence of alcohol or drugs ("DUI"), fourth or subsequent offense, a felony, in violation of §§ 61-8-401 and -731, MCA, and Count II, unauthorized use of a motor vehicle, a misdemeanor, in violation of § 45-6-308, MCA. The facts underlying these offenses occurred on or about April 7, 2005. In support of the felony DUI charge, the State alleged that Weaver had been convicted of DUI on four prior occasions: August 5, 1994, in Juab County Justice Court, Nephi, Utah; November 20, 1996, in Missoula County Justice Court; June 18, 1997, in Missoula County District Court; and July 15, 1998, in Missoula County Justice Court.

¶ 3 Weaver pleaded not guilty to both counts and thereafter filed a motion to dismiss the DUI charge. He asserted that two of his alleged prior DUI convictions—specifically, the 1994 and 1996 convictions—were invalid and could not be used as the basis for a charge of felony DUI (i.e., fourth or subsequent offense) in this case. (He did not dispute the 1997 or 1998 convictions.) In responding to Weaver's motion, the State elected not to verify the validity of the 1994 conviction, instead taking the position that the evidence of the 1996, 1997, and 1998 convictions was sufficient to charge Weaver with felony DUI "regardless of whether the most recent charge constitutes a fourth or fifth offense." The District Court ultimately ruled in Weaver's favor on the 1994 conviction, and the State has not challenged this ruling. Accordingly, only the 1996 conviction is at issue here.

¶ 4 In his briefs in support of his motion to dismiss, Weaver observed that he was charged with DUI, first offense, on April 19, 1996, and was tried on this charge on November 20, 1996, in absentia.¹ Weaver pointed out that under § 46-16-122(2), MCA (1995), a court could try a defendant in absentia on a misdemeanor charge only after finding that the defendant had knowledge of the trial date and was voluntarily absent. Weaver asserted that there was no such finding in the record and that he in fact did not have knowledge of the trial date and was not voluntarily absent. In addition, Weaver asserted that he had a constitutional right to be present at all criminal court proceedings and that any waiver of this right had to be knowing, voluntary, and specific. On these grounds, Weaver maintained that the 1996 conviction was constitutionally infirm.

¶ 5 In response to Weaver's arguments, the State produced Missoula County Justice Court records, which indicated that Weaver failed to appear in court on the scheduled trial date but that he was represented by a public defender at the time and his counsel appeared on that date, at which time the trial was held in Weaver's absence. The State asserted that Weaver, by and through his counsel, had requested continuances of two earlier trial settings; that notice of the November 20, 1996 trial date had been given to the Public Defender's Office; and that the court had ordered Weaver to maintain contact with his counsel. Thus, the State concluded, Weaver either had sufficient notice of the trial date or was unaware of the trial date because he failed to follow the court's order to maintain contact with counsel. Either way, the State argued, Weaver "waived his right to be present at trial." In this regard, the State quoted the following language from Brewer v. Raines, 670 F.2d 117 (9th Cir.1982): "Brewer's failure to know of the continued dates of his trial and his date of sentencing is directly attributable to his failure to keep in contact with the court and his attorney. A defendant cannot be allowed to keep himself deliberately ignorant and then complain about his lack of knowledge." Brewer, 670 F.2d at 119. Based on the 1997 and 1998 convictions, which Weaver did not challenge, and on the records it had produced supporting the 1996 conviction, the State contended that the charge of DUI, fourth or subsequent offense, is correct in this case.

¶ 6 The District Court held a hearing on Weaver's motion on October 4, 2005, at which time Weaver testified on his own behalf. The State cross-examined Weaver but did not call any witnesses. Thereafter, on November 9, 2005, the court entered its order denying Weaver's motion. With respect to the 1996 conviction, the court stated as follows:

The record indicates that the Defendant was arrested on April 19, 1996, and was required to appear on or before April 22, 1996. The back of the citation indicates that on April 22, Weaver appeared, a "not guilty" plea was entered, and the Public Defender's office was appointed to represent the Defendant. An omnibus form dated May 30, 1996, indicates that a bench trial was set for July 18, 1996.

On July 8, 1996, Weaver's appointed counsel, Margaret Borg, moved to vacate and continue the trial date due to a conflict. The court thereafter noticed up the trial for August 30, 1996. On the date scheduled for trial, Ms. Borg again moved to continue trial "for the reason that Defendant is experiencing health problems." On September 4th, the court noticed the new trial date for November 20th.

The docket minutes indicate that the court advised Mr. Weaver at his April 22 appearance that he had been appointed Ms. Borg, and that he was to stay in contact. It reiterates this in the condition # 4 where it states that Weaver is to stay in biweekly contact with his attorney. It is clear that Weaver did stay in contact sufficiently to have Ms. Borg request a later trial date due to injuries Weaver had suffered. At hearing, Weaver surmised that the injury might have been a burnt hand while employed at Stone Container.

It was the duty, as clearly propounded by the lower court, for Mr. Weaver to remain in contact with his attorney. He knew who his appointed attorney was, as shown by the final motion to continue.

Mr. Weaver indicated that he began shuttling between residences in October of that year. That did not relieve him of his obligation to remain in contact with his counsel or the court. When Mr. Weaver failed to appear, the court, based upon the clear indications that he had been previously in contact with his lawyer, determined that Mr. Weaver knew of the date and was willfully absent. Nothing presented by the Defendant causes this Court to dispute that determination.

On this basis, the District Court concluded that "the November 20, 1996 conviction is determined valid, and may therefore be used as a prior conviction for purposes of enhancement in this action."

¶ 7 Weaver and the State thereafter entered into a plea agreement, wherein Weaver agreed to plead guilty on Count I and the State, in return, agreed to dismiss Count II and to recommend a specific sentence on Count I. Weaver specifically reserved his right to appeal the District Court's ruling on the 1996 conviction. The court accepted the plea agreement and sentenced Weaver in accordance with the agreement. The court entered written judgment on March 28, 2006. Weaver now appeals.

ISSUE

¶ 8 The sole issue raised by Weaver is whether the District Court erred in concluding that the 1996 conviction could be used as a prior conviction to support a charge of felony DUI in this case.

STANDARD OF REVIEW

¶ 9 As a general rule, the grant or denial of a motion to dismiss in a criminal proceeding is a question of law, which we review de novo to determine whether the district court's conclusion of law is correct. See State v. Luckett, 2007 MT 47, ¶ 6, 336 Mont. 140, ¶ 6, 152 P.3d 1279, ¶ 6. In the case at hand, however, the District Court first had to make a number of factual findings, based on oral and documentary evidence, concerning the circumstances surrounding Weaver's 1996 conviction. We review findings of fact under the clearly erroneous standard. State v. Burt, 2000 MT 115, ¶ 6, 299 Mont. 412, ¶ 6, 3 P.3d 597, ¶ 6; see also United States v. Houtchens, 926 F.2d 824, 826 (9th Cir.1991) ("The judge's factual finding that a defendant has knowingly and voluntarily failed to appear at trial is reviewable for clear error."). A trial court's findings are clearly erroneous if they are not supported by substantial evidence, if the court has misapprehended the effect of the evidence, or if our review of the record leaves us with a definite and firm conviction that a mistake has been made. State v. Lewis, 2007 MT 295, ¶ 17, 340 Mont. 10, ¶ 17, 171 P.3d 731, ¶ 17; State v. Warclub, 2005 MT 149, ¶ 23, 327 Mont. 352, ¶ 23, 114 P.3d 254, ¶ 23.

¶ 10 The interpretation and construction of a statute is a matter of law, which we review de novo to determine whether the district court's interpretation and construction of the statute is correct. See Miller v. District Court, 2007 MT 149, ¶ 22, 337 Mont. 488, ¶ 22, 162 P.3d 121, ¶ 22; Thompson v. State, 2007 MT 185, ¶ 14, 338 Mont. 511, ¶ 14, 167 P.3d 867, ¶ 14. Likewise, the district court's application of controlling legal principles to its factual findings is a mixed question of law and fact, which we review de novo. See Warclub, ¶¶ 21, 23.²

DISCUSSION

The Procedural Bar Asserted by the State

¶ 11 As a preliminary matter, ...