No. 01-822
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 212
STATE OF MONTANA,
Plaintiff and Respondent,
v.
TROY ALLEN JACKSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable John W. Whelan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Cregg W. Coughlin,
Assistant Attorney General, Helena, Montana
Robert McCarthy, Silver Bow County Attorney; Samm Cox, Deputy County
Attorney, Butte, Montana
Submitted on Briefs: April 25, 2002
Decided: September 17, 2002
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.
¶1 Troy Allen Jackson appeals from an Order Denying Defendant’s
Motion to Dismiss. We affirm.
¶2 The following issue is dispositive of this appeal:
¶3 Did the District Court err in relying on Jackson’s prior DUI
convictions for sentence enhancement purposes?
BACKGROUND
¶4 On January 11, 2001, the State charged Jackson by Information
with the felony offense of operating a motor vehicle under the
influence of alcohol or drugs (DUI), a fourth or subsequent
offense. Jackson moved the District Court to dismiss the DUI
charge. In doing so, he alleged that two of his three previous DUI
convictions were invalid for sentence enhancement purposes.
¶5 Jackson’s first DUI conviction was in February 1990. In that
matter, he signed a document that waived his right to counsel when
he originally entered a plea of not guilty. Jackson later pled
guilty and signed an Acknowledgment of Waiver of Rights By Plea of
Guilty (the “Acknowledgment of Waiver”). In November 1993, the
State charged Jackson with a second DUI offense. On that charge,
Jackson had an attorney, went to trial and was found guilty. The
State charged Jackson with his third DUI in November 1997. He did
not have an attorney when he pled guilty in February 1998.
¶6 On August 27, 2001, the District Court denied Jackson’s Motion
to Dismiss. Jackson then entered a conditional guilty plea,
reserving the right to appeal. Jackson then appealed the court’s
Order.
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STANDARD OF REVIEW
¶7 Whether a prior conviction can be used to enhance a criminal
sentence is a matter of law. See State v. LaPier, 1998 MT 174, ¶
8, 289 Mont. 392, ¶ 8, 961 P.2d 1274, ¶ 8. Our standard of review
for a district court’s conclusions of law is plenary and we must
determine whether the court’s conclusions are correct as a matter
of law. See State v. Okland (1997) 283 Mont. 10, 14, 941 P.2d 431,
433. When reviewing a district court’s findings of fact, we must
determine whether those findings are clearly erroneous. See
Okland, 283 Mont. at 14, 941 P.2d at 433.
DISCUSSION
¶8 Did the District Court err in relying on Jackson’s prior DUI
convictions for sentence enhancement purposes?
¶9 When a defendant collaterally attacks a prior conviction, a
presumption of regularity attaches to the conviction. See Okland,
283 Mont. at 18, 941 P.2d at 436. The defendant, therefore, has
the burden of producing direct evidence that the conviction was
invalid. See Okland, 283 Mont. at 18, 941 P.2d at 436. Once a
defendant has made this showing, “the burden then shifts to the
State to produce direct evidence and to prove by a preponderance of
the evidence that the prior conviction was not entered in violation
of the defendant’s rights.” Okland, 283 Mont. at 18, 941 P.2d at
436.
¶10 On appeal, Jackson alleges that the State failed to meet its
burden that his 1990 and 1998 DUI convictions were valid. He
asserts that the Acknowledgment of Waiver he signed in 1990 did not
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include a waiver of the right to counsel. In addition, he claims
that Judge Gallagher failed to demand a specific waiver of the
right to counsel from him in 1998.
¶11 A defendant’s failure to sign a waiver of rights form does not
constitute reversible error. See State v. Brown, 1999 MT 143, ¶
19, 295 Mont. 5, ¶ 19, 982 P.2d 1030, ¶ 19. While the State must
produce affirmative evidence of the constitutional validity of a
defendant’s prior conviction, there is no specific type of direct,
affirmative evidence necessary for the state to produce. See
Brown, ¶ 20. Instead, the existence of a waiver of rights form is
merely a factor we consider in the totality of the circumstances.
See Brown, ¶ 20.
¶12 The weight of the evidence and the credibility of witnesses
are exclusively in the domain of the district court. See State v.
Couture, 1998 MT 137, ¶ 17, 289 Mont. 215, ¶ 17, 959 P.2d 948, ¶
17. Thus, when the evidence conflicts, the district court is in
the best position to make the necessary inferences and determine
which evidence is more persuasive. See Couture, ¶ 17.
¶13 Here, Jackson signed a Waiver of Right to Attorney in 1990.
By signing this waiver, Jackson not only waived his right to an
attorney but also agreed that he had been advised of his right to
counsel. Furthermore, he testified at the May 10, 2001, hearing
that he knew that he had a right to counsel when he pled guilty.
¶14 As for the 1998 DUI conviction, Jackson testified during
direct examination that he did not remember whether Butte-Silver
Bow City Court Judge Thomas Gallagher had advised him that he had
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the right to counsel. When asked on cross-examination whether he
remembered Judge Gallagher telling him that he had the right to
have an attorney, he answered “Yes.” In addition, Judge Gallagher
testified that during Jackson’s appearance to plead guilty, he told
Jackson that he had a right to have an attorney.
¶15 When given a defendant’s affidavit on the one hand and the
State’s proof on the other, the district court is in the best
position to weigh that evidence. See Couture, ¶ 18. Here, the
State presented the District Court with sufficient proof for it to
rely on Jackson’s earlier DUI convictions in sentencing.
Therefore, we conclude that the District Court did not err in doing
so.
¶16 Affirmed.
/S/ JIM REGNIER
We Concur:
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ JIM RICE
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