No. 96-362
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Appellant,
v.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Joseph P. Mazurek, Attomey General;
Cregg W. Coughlin (argued) , Assistant Attomey General;
Helena, Montana
Kim Christopher; Lake County Attomey; Mitchell A. Young;
Deputy County Attorney; Polson, Montana
For Respondent:
Matthew H. O'Neill (argued); French, Mercer, Grainey & O'Neill;
Polson, Montana
Submitted: April 22,1997
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The defendant, David Matthew Okland, was charged by information, filed in the
District Court for the Twentieth Judicial District in Lake 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 5 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 affirm the judgment of the District Court.
The sole issue on appeal is whether the District Court erred when it dismissed the
felony DUI charge against David Matthew Okland.
FACTUAL BACKGROUND
On January 9, 1996, David Matthew Okland 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, if proven, would have
constituted his fourth DUI offense. He was previously convicted of DUI in Lake County in
1985, in Flathead County in 1986, and again in Lake County in 1995. Based on those three
prior convictions, the information charged him with a felony, pursuant to $561-8-714(4) and
-722(4), MCA.
Okland filed a motion to dismiss the felony DUI charge in which he contended that,
at the time he pled guilty to the prior DUI charges, he was not, in fact, represented by an
attorney, he had not been adequately advised of his constitutional right to an attorney, he had
not waived his right to an attorney, and he had been denied a court-appointed attorney despite
his request that one be appointed. On that basis, he asserted that his prior DUI convictions
were entered in derogation of his constitutional rights and cannot be used to increase the
current DUI charge to a felony.
In support of his motion, he submitted an affidavit which provides, in relevant part,
as follows:
3. With regard to the 08-20-85 conviction, the City Judge, Joy Francke,
told me that I could not have an attorney appointed to represent me because I
owned a motor vehicle. I had no basis to argue with her and no money to hire
an attorney to do it for me.
4. With regard to the 09-02-86 conviction in Kalispell, I do not recall
being advised of any rights at all.
5. Neither can I recall being advised of my constitutional rights in
connection with my 07-24-95 conviction. My recollection is that the Judge
asked only whether I contested the ticket or not.
6. I was actually incarcerated on each of the above three convictions and
was not represented by counsel in any one of them.
Okland also submitted the record of his 1985 Lake County DUI conviction in Polson
City Court. The record expressly states that Okland requested a court-appointed attorney;
however, the record does not reflect that an attorney was provided or that he waived his right
to an attorney.
In response, the State maintained that a presumption of regularity attached to Okland's
prior convictions and that he failed to establish that his prior convictions were invalid. With
regard to his 1985 DUI conviction, the State produced a copy of a letter sent to Okland in
July 1985, which provides, in relevant part, as follows:
On April 18, 1985, you appeared in Polson City Court. . . .
At that time, you requested a Court Appointed Attorney. You were given a
financial statement to fill out, have notarized, and then return to City Court.
You have not done so.
It is most important that you comply with this procedure, or a trial date will be
set, as the Court will procede [sic] with the understanding you have retained
a Lawyer.
The State contends that Okland failed to submit the required financial statement.
The District Court granted Okland's motion to dismiss the felony DUI charge. In its
written order, the District Court made the following findings:
The record herein is that [Okland] was cited April 17, 1985, for D.U.I.
On April 18,1985, [Okland] requested a court-appointed attorney. The record
does not reflect that an attorney was ever provided to [Okland]. On August 20,
1985, [Okland] was found guilty and was fined and sentenced to 60 days in jail
. . . . The record is void of any waiver by [Okland] of his right to an attorney.
On that basis, the District Court concluded that:
[Okland] was neither provided an attorney for his August 20, 1985,
D.U.I. conviction nor waived his right thereto and was actually sentenced to
jail. His misdemeanor conviction without counsel may not be used under Sec.
61-8-714(4), MCA, to increase the D.U.I. charge to a fourth, felony offense.
DISCUSSION
Did the District Court err when it dismissed the felony DUI charge against David
Matthew Okland?
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.
The Sixth Amendment of the United States Constitution, and Article 11, Section 24,
of the Montana Constitution, guarantee the fundamental right to the assistance of counsel.
Gideon v. Wainwright (l963), 372 U.S. 335, 83 S. Ct. 792,9 L. Ed. 2d 799; State v. Craig
(1995), 274 Mont. 140,148,906 P.2d 683, 688 (citing State v. Landord (1994), 267 Mont.
95,99, 882 P.2d 490,492). Indigent defendants are entitled to legal representation by court-
appointed counsel at public expense. State v. Enright (1988), 233 Mont. 225,228, 758 P.2d
779, 781. However, the fundamental right to counsel extends only to cases in which a
sentence of imprisonment is actually imposed. Scott v. Illinois (1979), 440 U.S. 367, 99
S. Ct. 1158, 59 L. Ed. 2d 383; State v. Hansen (1995), 273 Mont. 321, 325, 903 P.2d 194,
197.
The fundamental right to counsel does not extend to defendants who waive the right.
Craig, 274 Mont. at 152, 906 P.2d at 690. Waiver, however, requires a knowing and
intelligent relinquishment of a known right. State v. Blakney (1982), 197 Mont. 131, 138,
641 P.2d 1045,1049.
In Montana, it is well established that the State may not use a constitutionally infirm
conviction to support an enhanced punishment. Lewis v. State (1969), 153 Mont. 460,463,
457 P.2d 765, 766. In Lewis, the defendant was convicted of an offense punishable by
five-years imprisonment. That penalty, however, was to be increased to ten years if the
defendant had a prior felony conviction. Lewis alleged that his constitutional rights had been
violated during his prior conviction. We concluded that the records hom his prior conviction
revealed that "he was not told that if he could not afford counsel then the State would provide
him with one." Lewis, 153 Mont. at 461-62,457 P.2d at 766.
We expressly adopted the reasoning of the United States Supreme Court in Burgett
v. Texas (1967), 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319, and relied on the following
language from that case:
In this case the certified records of the [prior] Tennessee conviction on
their face raise a presumption that petitioner was denied his right to counsel in
the Tennessee proceeding, and therefore that his conviction was void.
Presuming waiver of counselfrom a silent record is impermissible. Carnley
v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). To permit a
conviction obtained in violation of Gideon v. Wainwright to be used against
a pcrson cither to support guilt or enhancepunishmentfor another offense (see
Greer v. Beto, 384 U.S. 269,86 S.Ct. 1477, 16 L.Ed.2d 526 [1966]) is to erode
the principle of that case.
Lewis, 153 Mont. at 463, 457 P.2d at 766. On that basis, we held that Lewis's prior
conviction could not be used to enhance his sentence.
The State does not dispute the constitutional standards previously discussed. In fact,
the State, in its brief, expressly recognizes that, pursuant to Lewis, "[ilt is beyond dispute that
the State may not use a constitutionally infirm conviction to support an enhanced
punishment."
Nonetheless, the State asserts two alternative arguments in support of its contention
that the District Court erred when it dismissed Okland's felony DUI charge. First, the State
asserts that a presumption of regularity attaches to prior convictions and, therefore, that
Okland-the defendant--is required to prove the invalidity of his prior DUI convictions.
While the State concedes that the presumption is a rebuttable one, it asserts that the District
Court erred when it required the State to prove the validity of Okland's prior convictions. In
essence, the State's first argument is that the District Court misapplied Lewis and failed to
accord a presumption of regularity to Okland's prior convictions.
Second, the State maintains that, 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: (a) determined that the evidence presented by Okland effectively rebutted the
presumption and shifted the burden of proof to the State; and (b) determined that the State
failcd to produce sufficient evidence to satisfy its burden.
In support of its contention that a presumption of regularity attaches to prior
convictions, the State cites State v. Farnsworth (1989), 240 Mont. 328, 783 P.2d 1365. In
Farnsworth, the defendant asserted that, because the State failed to establish the
constitutional validity of his prior conviction, the district court erred when it designated him
a persistent felony offender. We rejected his claim and held that "the State is not required
to prove that the prior conviction offered for purposes of the persistent felony offender
determination is constitutionally valid." Farnsworth, 240 Mont. at 334-35,783 P.2d at 1369.
Pursuant to Farnsworth and its recognition of the presumption of regularity, the State
maintains that Okland has the burden of proving the invalidity of his prior convictions and
that until he presents evidence to the contrary, proof of the fact of his prior convictions is
sufficient to enhance the pending DUI charge to a felony offense.
As the State recognizes, tension exists between: (1) Farnsworth's presumption of
regularity; (2) Lewis's mandate that a constitutionally infirm conviction may not be used to
enhance a sentence; and (3) Burgett's principle that waiver of a constitutional right may not
be presumed from a silent record.
The State asserts, however, that the United States Supreme Court resolved any
potential conflict when it decided Parke v. Raley (1992), 506 U S . 20, 113 S. Ct. 517, 121
L. Ed. 2d 391. In that case, the defendant challenged the enhancement of his sentence
pursuant to the State of Kentucky's persistent felony offender statute. He claimed that
because the records of his prior convictions did not contain transcripts of the plea
proceedings and, therefore, did not affirmatively reveal that his guilty pleas were voluntarily
and knowingly entered, his prior convictions could not be used to enhance his sentence. As
authority for his position, he relied on Boykin v. Alabama (1969), 395 U.S. 238, 89 S. Ct.
1709,23 L. Ed. 2d 274.
In Boykin, the U.S. Supreme Court held that when the record fails to affirmatively
reveal that a guilty plea was both voluntarily and knowingly entered, then the acceptance of
that guilty plea constitutes reversible error. The Court reasoned: "Presuming waiver from
a silent record is impermissible. The record must show, or there must be an allegation and
evidence which show, that an accused was offered counsel but intelligently and
understandingly rejected the offer." Boykin, 395 U.S. at 242 (citing Carnley v. Cochran
(1962), 369 U S . 506).
In Raley, the persistent felony offender statute at issue required the State of Kentucky
to prove the existence of a defendant's prior convictions upon which it intended to rely. Once
that was accomplished, a presumption of regularity attached to the prior convictions and a
burden was then imposed on the defendant to produce evidence to show that, in the prior
proceeding(s), his rights had been violated. Raley challenged this scheme and moved to
suppress the evidence of his prior convictions. He testified that he could not remember
whether the trial judge specifically informed him regarding the rights he waived by pleading
guilty. The motion to suppress was denied and his punishment was increased by an
additional five-year term.
The U.S. Supreme Court concluded that a presumption of regularity attaches to prior
convictions during a collateral attack. The Court concluded that, once a state proves the fact
of a prior conviction, due process is not offended when the state then imposes the burden of
proving the invalidity of the prior conviction on the defendant. The Court gave the following
rationale:
We see no tension between the Kentucky scheme and Boykin. Boykin
involved direct review of a conviction allegedly based upon an uninformed
guilty plea. Respondent, however, never appealed his earlier convictions.
They became final years ago, and he now seeks to revisit the question of their
validity in a separate recidivism proceeding. To import Boykin's presumption
of invalidity into this very different context would . . . improperly ignore
another presumption deeply rooted in our jurisprudence: the "presumption of
regularity" that attaches to final judgments, even when the question is waiver
of constitutional rights. Johnson v. Zerbst, 304 U.S. 458,464,468 (1938).
Raley, 506 U S . at 29 (emphasis added).
The Court also addressed its prior holding in Carnley v. Cochran (1962), 369 U.S.
506, 82 S. Ct. 884, 8 L. Ed. 2d 70, also cited in Boykin and Burgett, which states that a
waiver of constitutional rights may not be presumed from a silent record. The Court
concluded that Carnley and its progeny do not preclude the presumption of regularity from
attaching to final judgments during a collateral attack. The Court opined:
There is no good reason to suspend the presumption of regularity here.
This is not a case in which an extant transcript is suspiciously "silent" on the
question whether the defendant waived constitutional rights. Evidently, no
transcripts or other records of the earlier plea colloquies exist at all. . . . The
circumstance of a missing or nonexistent record is, we suspect, not atypical,
particularly when the prior conviction is several years old. But Boykin
colloquies have been required for nearly a quarter-century. On collateral
review, we think it defies logic to presume from the mere unavailability of a
transcript (assuming no allegation that the unavailability is due to
governmental misconduct) that the defendant was not advised of his rights. In
this situation, Boykin does not prohibit a state court from presuming, at least
initially, that a final judgment of conviction offered for purposes of sentence
enhancement was validly obtained.
. . . Our precedents make clear, however, that even when a collateral
attack on a final conviction rests on constitutional grounds, the presumption
of regularity that attaches to final judgments makes it appropriate to assign a
proof burden to the defendant. See, e.g. Johnson, supra, at 468-469.
Raley, 506 U.S. at 30-31.
Without necessarily agreeing that Raley is totally consistent with the Supreme Court's
prior decisions, we conclude that Raley is persuasive and that, in Montana, a presumption of
regularity attaches to prior convictions during a collateral attack. Therefore, even in the
absence of a transcript or record, a prior conviction is presumptively valid and a defendant
who challenges the validity of his prior conviction during a collateral attack has the burden
of producing direct evidence of its invalidity.
We further conclude that the presumption of regularity is a rebuttable presumption.
Accordingly, while this presumption does operate, at least initially, to establish the validity
of a prior conviction, it can be rebutted by a defendant who produces direct evidence that his
constitutional rights were violated in a prior proceeding. Once a defendant has made such
a showing, the burden then shifts to the State to produce direct evidence and prove by a
preponderance of the evidence that the prior conviction was not entered in violation of the
defendant's rights.
As the U.S. Supreme Court recognized in Raley, this particular allocation of the
parties' respective burdens of proof has been adopted by a number of other states:
In recent years state courts have permitted various challenges to prior
convictions and have allocated proof burdens differently. . . . Several, like
Kentucky, take a middle position that requires the defendant to produce
evidence of invalidity once the fact of conviction is proved but that shifts the
burden back to the prosecution once the defendant satisfies his burden of
production. See, e.g., Watkins v. People, 655 P.2d 834, 837 (Colo. 1982)
(guilty plea); State v. OINeil,91 N.M. 727,729, 580 P.2d 495,497 (Ct. App.
1978) (uncounseled conviction); State v. Triptow, 770 P.2d 146, 149 (Utah
1989) (same). This range of contemporary state practice certainly does not
suggest that allocating some burden to the defendant is fundamentally unfair.
Raley, 506 U.S. at 32-33. Additionally, the Court recognized that "state courts that impose
the ultimate burden on the government appear to demand proof ranging from preponderance,
see Triptow, supra, at 149; Watkins, supra, at 837, to beyond a reasonable doubt, see
[State v.] Hennings [I00 Wash. 2d 379, 382,670 P.2d 256, 2571." Raley, 506 U.S. at 35.
Pursuant to that procedural framework, we must first determine whether Okland
presented direct evidence in support of his claim that his constitutional rights were violated
in a prior proceeding. Okland submitted an affidavit in which he states, in relevant part, as
follows:
3. With regard to the 08-20-85 conviction, the City Judge, Joy Francke,
told me that I could not have an attorney appointed to represent me because I
owned a motor vehicle. I had no basis to argue with her and no money to hire
an attorney to do it for me.
6. I was actually incarcerated. . . and was not represented by counsel . . . .
Okland's affidavit was accompanied by the record from his 1985 Lake County DUI
conviction in Polson City Court. The record expressly states that Okland requested a
court-appointed attorney; however, the record does not reflect that an attorney was provided
or that he waived his right to an attorney.
The evidence presented by Okland establishes that: (a) he could not afford to hire an
attorney; (b) despite his request, he was not provided a court-appointed attorney; (c) he was
convicted without the assistance of counsel; and (d) he was actually imprisoned for his
uncounseled conviction. We, therefore, conclude that Okland's direct evidence of a
constitutional infirmity in the 1985 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 Okland's 1985 conviction was not entered in violation of his
constitutional rights. The State submitted a copy of a letter sent to Okland in July 1985,
which provides, in relevant part, as follows:
On April 18,1985, you appeared in Polson City Court . . . .
At that time, you requested a Court Appointed Attorney. You were given a
financial statement to fill out, have notarized, and then return to City Court.
You have not done so.
It is most important that you comply with this procedure, or a trial date will be
set, as the Court will procede [sic] with the understanding you have retained
a Lawyer.
The State contends that Okland failed to submit the required financial statement; however,
the record is silent regarding what occurred after the letter was sent. Therefore, the letter is
not inconsistent with, and does not rebut Okland's affidavit.
Although the July 1985 letter reveals that Okland was aware of his constitutional right
to an attorney and recognizes that he did, in fact, request an attorney, it does not establish that
he waived his right to an attorney, especially in light of Okland's assertion that "the City
Judge, Joy Francke, told me that I could not have an attorney appointed to represent me
because I owned a motor vehicle." An equally plausible explanation is that Okland's
ownership of a vehicle was disclosed to Judge Francke in response to her letter, and that she
concluded, on that basis, that he did not qualify for court-appointed counsel.
We conclude that. based on Okland's direct evidence that he was convicted without
the benefit of counsel and that he did not waive his right to counsel, the burden shifted to the
State to present direct evidence that Okland's prior conviction was not entered in violation
of his right to counsel and that the State failed to meet that burden. Accordingly, we hold
that the District Court did not err when it dismissed the felony DUI charge against David
Matthew Okland. The judgment of the District Court is affirmed.
We Concur: