96-449
No. 96-449
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and Appellant,
v.
MICHAEL DUANE OLSON,
Defendant and Respondent.
APPEAL FROM: District Court of the Seventeenth Judicial District,
In and for the County of Phillips,
The Honorable John C. McKeon, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Joseph P. Mazurek, Attorney General;
Cregg W. Coughlin (argued) , Assistant Attorney General;
Helena, Montana
Ed Amestoy; Phillips County Attorney; Dan O'Brien;
Deputy County Attorney; Malta, Montana
For Respondent:
Torger Oaas (argued); Attorney at Law;
Lewistown, Montana
Submitted: April 22, 1997
Decided: May 29, 1997
Filed:
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__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
The defendant, Michael Duane Olson, was charged by information, filed in the
District Court for the Seventeenth Judicial District in Phillips County, with the
offense
of driving or being in actual physical control of a motor vehicle while under the
influence
of alcohol, in violation of 61-8-401(1)(a), MCA. Based on his three 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 to dismiss the felony DUI charge, which the District
Court granted. The State of Montana appeals. We vacate the judgment of the District
Court and remand to that court for further factual findings.
The sole issue on appeal is whether the District Court erred when it dismissed
the
felony DUI charge against Michael Duane Olson?
FACTUAL BACKGROUND
On December 20, 1995, Michael Olson was charged by information with the
offense of driving or being in actual physical control of a motor vehicle while
under the
influence of alcohol. The charge alleged in the information would have, if proven,
constituted his fourth DUI offense. He was previously convicted of DUI in Gallatin
County in 1987, in Musselshell County in 1989, and in Fergus County in 1992. Based
on those three prior convictions, the information charged him with a felony,
pursuant to
61-8-714(4) and -722(4), MCA.
Olson filed a motion to dismiss the felony DUI charge in which he contended that,
at the time he pled guilty to the 1989 DUI charge, he was not, in fact, represented
by an
attorney, he had not been adequately advised of his constitutional right to an
attorney, and
he had not waived his right to an attorney. On that basis, he asserted that his
prior DUI
conviction was entered in derogation of his constitutional rights, and therefore,
cannot be
used to increase the current DUI charge to a felony.
In support of his motion, Olson submitted an affidavit which provides, in
relevant
part, as follows:
5. In August of 1989 I was charged with a D.U.I. in Musselshell
County. Again I plead [sic] guilty and was not represented by an attorney
because I could not afford to hire one.
6. On this charge I spent seven days in jail.
7. To the best of my recollection I was not advised that I could have a
court appointed attorney.
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In response, the State maintained that a presumption of regularity is attached to
Olson's prior conviction and that his evidence fails to establish that his prior
conviction
was invalid. Furthermore, although the records from Olson's 1989 conviction are
silent
regarding whether he was represented by an attorney, whether he was informed of his
right to counsel, and whether he waived his right to counsel, the State presented the
testimony of City Judge Robert E. Mihalovich, the Justice of the Peace who convicted
Olson in Musselshell County in 1989.
Judge Mihalovich testified that every time he advises a defendant of his
constitutional rights, he reads directly from a standard form which includes the
following
language: "You have the right to counsel. If you cannot afford to hire your own
attorney, one may be appointed for you." He also stated that he always asks a
defendant
whether he understands his constitutional rights. Finally, he testified that this
has been
his standard practice for "many years" and, on that basis, maintained that Olson was
advised of his constitutional rights, including his right to counsel.
However, Judge Mihalovich conceded that the records from Olson's 1989
conviction do not contain a written waiver of rights. He also admitted that his
testimony
is based upon his "normal practice in the courtroom," and that he does not
specifically
remember Olson's appearance in his court, whether he advised Olson of his right to an
attorney, or whether Olson waived his right to an attorney.
The District Court granted Olson's motion to dismiss the felony DUI charge. In
its written order, the District Court made the following findings:
[Olson] has presented sufficient evidence to meet [his] burden. For the
August, 1989 DUI misdemeanor conviction, [Olson] states that he does not
recall waiving his constitutional right to counsel. There is no written
evidence of [Olson's] waiver and no independent recollection of waiver
during this conviction by the Justice of the Peace [Mihalovich]. To counter
these facts, the State presented the testimony of the Justice of the Peace as
to his usual practice.
The District Court then concluded, as a matter of law, that:
Judging waiver of the constitutional right to counsel must entail finding of
a knowing and intelligent relinquishment of a known right. State v.
Blakney, __ Mont. __, 641 P.2d 1045, 1049 (1982). There is absolutely
no way of assuring a knowing and intelligent relinquishment of a known
right when all you can present is the "usual practice" of the court.
On that basis, the District Court concluded that, because there is nothing in the
Musselshell County Court records which affirmatively establishes that Olson waived
his
right to counsel, "the State's 'usual practice' testimony does not even raise a
triable issue
of fact." Accordingly, the District Court held that Olson's 1989 DUI conviction is
invalid and cannot, therefore, be used to increase the current DUI charge to a
felony.
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DISCUSSION
Did the District Court err when it dismissed the felony DUI charge against Duane
Michael Olson?
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.
In this case, the State contends on appeal that the District Court erred when it
dismissed the felony DUI charge against Olson.
The State asserts the same two arguments in support of its contention that it
asserted in State v. Okland (Mont. May 29, 1997), No. 96-362, i.e., that (1) a
presumption of regularity attaches to prior convictions, and that (2) even if the
District
Court did, in fact, recognize the presumption of regularity and assign the respective
burdens of proof accordingly, it erred when it determined that the evidence
presented by
Olson--his affidavit--effectively rebutted the presumption and shifted the burden of
proof
to the State.
We conclude, as we did in Okland, that: (1) a rebuttable presumption of
regularity
does attach to prior convictions; (2) that presumption may be overcome by direct
evidence of irregularity; and (3) once direct evidence of irregularity is offered by
the
defendant, the burden shifts to the State to prove by direct evidence that the prior
conviction was not obtained in violation of the defendant's rights. See Okland, No.
96-
362, slip op. at 11-12.
Pursuant to that procedural framework, we must first determine whether Olson
presented direct evidence in support of his claim that his constitutional rights were
violated in a prior proceeding. In support of his claim, Olson submitted an
affidavit
which states, in relevant part, as follows:
5. In August of 1989 I was charged with a D.U.I. in Musselshell
County. Again I plead [sic] guilty and was not represented by an attorney
because I could not afford to hire one.
6. On this charge I spent seven days in jail.
7. To the best of my recollection I was not advised that I could have a
court appointed attorney.
Olson's affidavit asserts that: (a) he could not afford to hire an attorney;
(b) he
was not advised of his constitutional right to a court-appointed attorney; (c) he was
convicted without the assistance of counsel; and (d) he was actually imprisoned as
the
result of his uncounseled conviction. We, therefore, conclude that Olson's direct
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evidence
of a constitutional infirmity in the prior proceeding is sufficient to rebut the
presumption
of regularity and to shift the burden of proof to the State.
Next, we must determine whether the State presented direct evidence which
affirmatively proves that Olson's prior conviction was not entered in violation of
his
constitutional rights. Although the court records from Olson's 1989 conviction are
silent
regarding whether he was represented by an attorney, whether he was informed of his
right to counsel, and whether he waived his right to counsel, the State presented the
testimony of City Judge Robert E. Mihalovich, the Justice of the Peace who convicted
Olson in Musselshell County in 1989.
Judge Mihalovich testified that every time he advises a defendant of his
constitutional rights, he reads directly from a standard form which includes the
following
language: "You have the right to counsel. If you cannot afford to hire your own
attorney, one may be appointed for you." He also stated that he always asks a
defendant
whether he understands his constitutional rights. Finally, he testified that this
has been
his standard practice for "many years" and, on that basis, maintained that Olson was
advised of his constitutional rights, including his right to counsel.
The District Court concluded that Judge Mihalovich's testimony does not
affirmatively establish that Olson knowingly and intelligently waived his right to
counsel
and that, therefore, "the State's usual practice testimony does not even raise a
triable
issue of fact." On that basis, the District Court granted Olson's motion to dismiss
the
felony DUI charge. In essence, therefore, the District Court concluded, as a matter
of
law, that the State failed to satisfy its burden of proof.
Although Judge Mihalovich testified that he does not specifically remember
Olson's
appearance in his court, whether he advised Olson of his right to an attorney, or
whether
Olson waived his right to an attorney, he also testified that he always asks a
defendant
whether he understands his constitutional rights and that, every time he advises a
defendant of his constitutional rights, he reads directly from a standard form which
includes the following language: "You have the right to counsel. If you cannot
afford
to hire your own attorney, one may be appointed for you." Based on that testimony,
it
could be inferred that Olson was, in fact, advised of his constitutional right to
counsel and
that he did, in fact, waive that right.
"Evidence of habit or of routine practice . . . is relevant to prove that
conduct on
a particular occasion was in conformity with the habit or routine practice." Rule
406,
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M.R.Evid. We conclude, therefore, that the State's routine practice testimony
constitutes
substantive evidence which, in turn, creates a triable issue of fact. The District
Court was
required to consider that evidence and weigh it against the defendant's
representations
before deciding whether the State satisfied its burden of proof.
Accordingly, we hold that the District Court erred when it concluded, as a matter
of law, that the State failed to satisfy its burden of proof. We recognize,
however, that
the weight of the evidence and the credibility of the witnesses are exclusively
within the
province of the trier of fact; and when the evidence conflicts, the trier of fact is
in the
best position to make the necessary inferences and determine which shall prevail.
State
v. Bower (1992), 254 Mont. 1, 8, 833 P.2d 1106, 1111. Therefore, we vacate the
judgment of the District Court and remand to that court for a factual determination
of
whether Olson's prior conviction was obtained in violation of his constitutional
right to
counsel.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
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