December 23 2014
DA 14-0193
Case Number: DA 14-0193
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 339N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
KURTIS J. KOSKI,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DC 12-187B
Honorable Mike Salvagni, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Robert J. Quinn, Quinn Law Office, Bozeman, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant
Attorney General, Helena, Montana
Marty Lambert, Gallatin County Attorney, Deborah Pratt, Deputy Gallatin
County Attorney, Bozeman, Montana
Submitted on Briefs: December 3, 2014
Decided: December 23, 2014
Filed:
__________________________________________
Clerk
Justice Patricia Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not serve
as precedent. Its case title, cause number, and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 On October 12, 2012, the Gallatin County Attorney’s Office filed an Information
accusing Kurtis Koski of felony driving under the influence of alcohol, fourth or subsequent
offense, and misdemeanor criminal possession of dangerous drugs. On December 3, 2012,
he entered a not guilty plea. In October 2013, Koski, through counsel, filed a motion to
dismiss the State’s felony complaint. He argued that the felony charge was based upon three
previous DUIs for which he entered guilty pleas but for which he had not been properly
advised of the rights he possessed or was waiving at the time he entered those pleas. The
State opposed the motion. On December 12, 2013, the Eighteenth Judicial District Court
denied his motion ruling that Koski “was provided a full and accurate advisement of his
rights and the rights he was waiving in the prior three convictions. Thus, the convictions are
constitutionally sound and [Koski’s] felony DUI should not be dismissed.” Koski appeals
this ruling.
¶3 On January 8, 2014, following the court’s ruling, Koski changed his plea to guilty.
The court sentenced Koski to the Department of Corrections for 13 months, followed by an
additional four-year DOC commitment, all suspended, with conditions. Execution of the
sentence was stayed pending this appeal.
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¶4 On appeal, Koski asserts that his three previous convictions were constitutionally
infirm for lack of appropriate advisements. However, the record reflects that in each of these
cases, Koski was represented by counsel and signed plea forms that expressly advised him of
his rights to remain silent or testify for himself. The plea forms further advised him of his
right to trial or appeal and that such rights were waived if he entered a guilty plea. Counsel
represented to each sentencing court that Koski understood the rights he was waiving by
entering a guilty plea. Additionally, by signing the plea forms, Koski stated that he read and
initialed each paragraph and that he understood it to be an itemization of the rights he was
waiving by entering a guilty plea.
¶5 Koski argues that statements on some of the forms were inaccurate and did not
correctly represent applicable law. We disagree. Koski presented no affirmative evidence of
any constitutional right or consequence of pleading guilty of which he had not been advised
or that he did not understand. Consequently, Koski failed to carry his burden to prove by
affirmative evidence that the previous convictions were invalid or infirm. State v. Maine,
2011 MT 90, ¶ 34, 360 Mont. 182, 255 P.3d 64 (“[T]he defendant . . . must prove by a
preponderance of the evidence that the conviction is invalid.”) (emphasis in original). A
prior conviction carries a rebuttable presumption of regularity. Koski has failed to overcome
this presumption. Maine, ¶¶ 33-34.
¶6 Moreover, the evidence in the record unequivocally reflects that Koski was advised
of his rights, and knowingly and voluntarily entered into guilty pleas. As a result, his
previous convictions were used appropriately to enhance Koski’s DUI to felony status and
the District Court did not err in denying Koski’s motion to dismiss.
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¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for noncitable memorandum opinions. The
issue in this case is legal and is controlled by settled Montana law which the District Court
correctly interpreted.
¶8 Affirmed.
/S/ PATRICIA COTTER
We Concur:
/S/ MIKE McGRATH
/S/ JIM RICE
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
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