State v. Weldele

Decision Date29 April 2003
Docket NumberNo. 01-546.,01-546.
Citation69 P.3d 1162,2003 MT 117
PartiesSTATE of Montana, Plaintiff and Respondent, v. Bryan Trent WELDELE, Defendant and Appellant.
CourtMontana Supreme Court

Wendy Holton, Helena, Montana, for Appellant.

Mike McGrath, Montana Attorney General, Pamela D. Bucy, Assistant Montana Attorney General, Helena, Montana; Leo J. Gallagher, Lewis and Clark County Attorney, Mike Menahan, Deputy Lewis and Clark County Attorney, Helena, Montana, for Respondent.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Bryan Weldele (Weldele) was convicted of felony driving under the influence (DUI) and assault on a minor. He raises eight issues on appeal. We affirm.

ISSUES

¶ 2 Weldele challenged several aspects of the District Court's ruling. The restatement of the issues presented to this Court is:

1. Did the District Court err when it denied Weldele's motion to dismiss after finding that Weldele knowingly and intelligently waived his right to counsel when he pled guilty to DUI in Oregon in 1987?

2. Did the District Court err when it denied Weldele's motion to dismiss and subsequently used Weldele's 1984 and 1987 DUI guilty pleas to raise his 2000 DUI offense to a felony despite a law in effect between 1981 and 1989 that required expungement, under certain circumstances, of DUIs after five years?

3. Does the decision of the United States Supreme Court in Apprendi v. New Jersey preclude enhancing punishment based on factors that have not been charged and proved beyond reasonable doubt?

4. Did the District Court erroneously deny Weldele's motion in limine to preclude the use of the results of the breath tests at trial on the basis that the State had failed to provide full discovery regarding these tests?

5. Did the District Court erroneously deny Weldele's motion in limine to preclude the use of the results of the preliminary breath test (PBT), a/k/a preliminary alcohol screening test (PAST), at trial?

6. Did the District Court err when it denied various motions filed by Weldele at the pretrial conference as untimely?

7. Was Weldele's counsel ineffective for failing to file the denied motions in a timely manner?

8. Did the District Court err in refusing to grant a mistrial when a witness repeatedly referred to alleged prior bad acts by Weldele?

¶ 3 We address each of these issues below.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 Weldele and Susan Sheridan (Sheridan), who had been dating for several months, drove to Sheridan's Helena residence on the evening of February 14, 2000, after completing some errands. Sheridan alleges that Weldele was angry with her when they returned. They had been drinking and according to Sheridan, Weldele was drinking heavily and quickly. Sheridan asserts that Weldele became verbally abusive to her ten-year old daughter, J.B.1, and was "tormenting" and physically "fighting" with J.B., while Weldele characterizes the event as one of "horseplay" between him and J.B. During this incident between Weldele and J.B., Weldele was struck in the eye by J.B.'s finger or by a pencil that J.B. had been holding. Sheridan claims that Weldele responded by grabbing J.B. by the hair and dragging her across the room and that this was done with enough force to pull out some of J.B.'s hair. When Sheridan attempted to intervene, she claims Weldele grabbed her by her hair as well. Sheridan immediately told Weldele to leave which he did. Sheridan thereafter called the police. Sheridan reported that Weldele had assaulted her daughter and her, that he had left her residence, presumably en route to his own, and that he was driving while possibly intoxicated.

¶ 5 Deputy Sheriff Ken Goetz and Sergeant Dirk Anderson of the Lewis and Clark Sheriff's Department were dispatched separately in response to Sheridan's call. Goetz observed Weldele traveling toward his residence on 1-15 northbound just south of the Lincoln Road interchange. Goetz pursued Weldele and overtook him as Weldele pulled into a grocery store parking lot on Lincoln Road. Goetz activated his emergency lights, pulled in and parked behind Weldele's vehicle. The deputy approached Weldele and advised him that he was investigating a reported assault. Goetz noted that Weldele appeared "unsteady on his feet," and was weaving while standing and walking. Goetz also noticed that Weldele's motor skills seemed impaired and his speech was slurred. In response to Goetz's question, Weldele said he had a few beers and that he "had committed a little domestic violence tonight." He also told Goetz that he had perhaps been a "little rough on [J.B.]." Based on his observations, Goetz asked Weldele if he would perform some field sobriety tests. Weldele agreed. Weldele subsequently attempted to perform the one-legged stand and the walk and turn tests. According to Goetz, Weldele either failed these tests or performed them poorly.

¶ 6 After waiting the prescribed observation period and advising Weldele of his rights vis-a-vis the PBT, Goetz administered the field PBT to Weldele with Weldele's permission. Weldele's PBT indicated an estimated breath alcohol concentration (BAC) of .154. Goetz thereafter arrested Weldele for DUI.

¶ 7 Most of this investigation was videotaped by Officer Joseph Cohenour of the Montana Highway Patrol. Cohenour had heard the dispatcher, offered his assistance and arrived on the scene approximately two minutes after Goetz. He immediately positioned his vehicle and activated his patrol car's video camera. The camera proceeded to videotape Weldele as he took the field sobriety tests. Additionally, Cohenour spoke with Weldele and he too observed that Weldele smelled of alcohol, slurred his words and was unsteady on his feet.

¶ 8 While Goetz was in the field with Weldele, Anderson was interviewing Sheridan and J.B. at the Sheridan residence. Based upon these interviews, Anderson notified Goetz that Weldele should also be arrested for partner assault against Sheridan and assault on a minor.

¶ 9 Goetz transported Weldele to the detention center where Weldele once again performed the one-legged stand and walk and turn tests. Additionally, he consented to and took the Intoxilizer breath analysis test. The result of the Intoxilizer test was .171.

¶ 10 Weldele was charged by Information on February 18, 2000, with felony DUI, driving without valid insurance (subsequently dropped), partner assault, and assault on a minor. The DUI charge was enhanced to a felony based on three previous DUI convictions on Weldele's record, occurring in October 1984, October 1987, and March 1991. After multiple continuances of his trial date, Weldele's jury trial was scheduled for November 13-14, 2000. At his November 1st pretrial conference, Weldele submitted a motion in limine and a motion to suppress evidence, both of which were denied by the District Court as untimely.

¶ 11 During trial, Sheridan made several references to an alleged prior domestic assault by Weldele even though a motion in limine excluding mention of prior bad acts had been granted. Following Sheridan's testimony, Weldele's counsel moved for a mistrial based upon these prior bad act references. The motion was denied but a curative jury instruction was delivered. Ultimately, the jury found Weldele not guilty of partner assault against Sheridan and guilty of felony DUI and assault on a minor. He was subsequently sentenced to house arrest for six months, followed by three years probation for the DUI charge and one year suspended, subject to specific conditions, for the assault charge. Additionally, Weldele was required to pay certain surcharges and a $1,000 fine. Weldele filed a timely appeal.

DISCUSSION

The enhancement of Weldele's DUI to felony status

¶ 12 Weldele challenges the enhancement of his February 14, 2000 DUI charge to a felony DUI on three separate grounds: 1) he did not knowingly waive his right to counsel for his 1987 DUI charge; 2) the law in effect at the time he pled guilty to two previous DUIs in 1984 and 1987 stated that those offenses would be expunged from his record after five years; and 3) under Apprendi, prior offenses not included in the charging document or proved beyond a reasonable doubt cannot be used to enhance his DUI charge.

¶ 13 The first issue we address is whether the District Court erred when it denied Weldele's motion to dismiss after finding that Weldele knowingly and intelligently waived his right to counsel when he pled guilty to DUI in Oregon in 1987. The grant or denial of a motion to dismiss in a criminal case is a question of law which we review de novo on appeal. Our standard of review is plenary, and we determine whether a district court's conclusion is correct. State v. Hardaway, 2001 MT 252, 307 Mont. 139, 36 P.3d 900 (citation omitted).

¶ 14 Weldele was arrested and charged with DUI in La Grande, Oregon, on September 29, 1987. He appeared before District Court Judge Eric Valentine on October 12, 1987, and pled guilty to the charge. Weldele asserts that he was not represented by an attorney nor does he recall being told that he had the right to an attorney and that an attorney would be appointed to represent him if he could not afford one.

¶ 15 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. Okland, (1997), 283 Mont. 10, 14, 941 P.2d 431, 433. However, a defendant may waive this fundamental right if he or she does so specifically, voluntarily, and knowingly. State v. Howard, 2002 MT 276, ¶ 12, 312 Mont. 359, ¶ 12, 59 P.3d 1075, ¶ 12 (citations omitted).

¶ 16 While it is well established that the State may not use a constitutionally infirm conviction to support an enhanced punishment, such as a felony DUI, there is a rebuttable...

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