No. 02-576
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 226
STATE OF MONTANA,
Plaintiff and Respondent,
v.
YVONNE NANCY JOSEPH,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake, Cause No. DC 02-57
The Honorable C. B. McNeil, Judge Presiding.
COUNSEL OF RECORD:
For Appellant:
Benjamin R. Anciaux, Attorney at Law, Polson, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Jennifer Anders,
Assistant Attorney General, Helena, Montana
Robert Long, Lake County Attorney, Polson, Montana
Submitted on Briefs: May 13, 2003
Decided: August 25, 2003
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Yvonne Nancy Joseph (Joseph) appeals from the judgment entered by the Twentieth
Judicial District Court, Lake County, on her conviction and sentence for felony driving under
the influence (DUI). We affirm.
¶2 The issue on appeal is whether the District Court erred in denying Joseph’s motion
to dismiss.
BACKGROUND
¶3 In April of 2002, the State of Montana (State) charged Joseph by information with the
offense of DUI. Because Joseph had been convicted of DUI on three prior occasions, the
State charged the offense as a felony pursuant to § 61-8-731, MCA. Joseph subsequently
moved to dismiss the information, arguing that one of her prior convictions was
constitutionally infirm because, when she waived her right to an attorney and pleaded guilty
in that case, the Polson City Court (City Court) failed to advise her of the dangers and
disadvantages of self-representation. Consequently, according to Joseph, that conviction in
City Court could not be used to enhance her current offense to a felony. The District Court
denied the motion. Joseph then pleaded guilty to felony DUI pursuant to a plea agreement
in which she reserved her right to appeal the District Court’s denial of her motion to dismiss.
The District Court accepted Joseph’s guilty plea, sentenced her and entered judgment on the
conviction and sentence. Joseph appeals.
STANDARD OF REVIEW
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¶4 A district court’s grant or denial of a motion to dismiss in a criminal case is a question
of law which we review de novo. State v. Beanblossom, 2002 MT 351, ¶ 9, 313 Mont. 394,
¶ 9, 61 P.3d 165, ¶ 9 (citation omitted).
DISCUSSION
¶5 Did the District Court err in denying Joseph’s motion to dismiss?
¶6 Joseph contends that one of her prior DUI convictions is constitutionally infirm under
both the United States and Montana Constitutions because the City Court failed to advise her
of the dangers and disadvantages of proceeding without counsel prior to her waiving her
right to counsel and pleading guilty to that offense. As a result, according to Joseph, that
prior conviction cannot be used to enhance the offense at issue here to a felony, and the
information charging her with a felony should be dismissed.
¶7 A criminal defendant is guaranteed the right to assistance of counsel by the Sixth
Amendment to the United States Constitution and Article II, Section 24, of the Montana
Constitution. State v. Howard, 2002 MT 276, ¶ 11, 312 Mont. 359, ¶ 11, 59 P.3d 1075, ¶
11. A defendant may waive the right to assistance of counsel as long as that waiver is made
knowingly, voluntarily and intelligently. Howard, ¶ 12.
¶8 It is well-established in Montana that the State may not use constitutionally infirm
prior convictions--such as where the defendant did not knowingly, voluntarily and
intelligently waive his or her right to counsel--to enhance a subsequent charged offense. See
Howard, ¶ 11 (citations omitted). However, a rebuttable presumption of regularity attaches
to prior convictions. Howard, ¶ 10. In other words, a prior conviction is presumed to be
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valid absent evidence to the contrary. A defendant may overcome the presumption that a
prior conviction is valid by producing direct evidence of irregularity. Howard, ¶ 10. If the
defendant produces such evidence, the burden then shifts to the State to establish by direct
evidence that the prior conviction was not obtained in violation of the defendant’s
constitutional rights. Howard, ¶ 10.
¶9 Here, Joseph attempted to overcome the presumption that her prior DUI conviction
in City Court was valid by offering her affidavit stating that the City Court failed to advise
her specifically of the dangers and disadvantages of proceeding without representation prior
to waiving her right to counsel and pleading guilty. She contends that, because she was not
advised of the dangers and disadvantages of proceeding without representation, her waiver
of the right to counsel was not knowing, voluntary and intelligent and, therefore, that
conviction is constitutionally invalid. The State responds that Joseph’s affidavit is
insufficient to overcome the presumption of regularity because there is no requirement that
a court advise a defendant specifically of the dangers and disadvantages of proceeding
without representation.
¶10 Joseph relies on State v. Colt (1992), 255 Mont. 399, 843 P.2d 747, State v. Langford
(1994), 267 Mont. 95, 882 P.2d 490, and United States v. Akins (9th Cir. 2001), 276 F.3d
1141, in support of her argument that a court must advise a criminal defendant of the dangers
and disadvantages of self-representation prior to allowing a defendant to waive the right to
counsel. We recently addressed identical arguments under similar facts in State v. Markuson,
2003 MT 206, 317 Mont. 43, __ P.3d ___. There, we concluded that Akins did not support
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Markuson’s arguments because the United States Court of Appeals for the Ninth Circuit
expressly limited application of Akins to cases in which the defendant is charged with
violating 18 U.S.C. § 922(g)(9), and Markuson was not charged with that offense.
Markuson, ¶ 16. Similarly, Joseph has not been charged with violating 18 U.S.C.
§ 922(g)(9), and Akins is inapplicable here.
¶11 We also determined in Markuson that neither Colt nor Langford requires a court to
advise a defendant specifically of the dangers and disadvantages of self-representation as
long as the court makes inquiry of the defendant to the extent necessary to ensure the
defendant’s waiver of counsel is voluntary, knowing and intelligent. Markuson, ¶ 13. Here,
as in Markuson, Joseph’s affidavit in support of her motion to dismiss does not state that the
City Court failed to make any inquiry or that the court’s inquiry was insufficient to ensure
her waiver of counsel was voluntary, knowing and intelligent.
¶12 We conclude that Joseph’s affidavit in support of her motion to dismiss does not
establish that her waiver of counsel in her prior DUI conviction was not voluntary, knowing
and intelligent. As a result, we further conclude that her affidavit is insufficient to rebut the
presumption of regularity attached to that earlier conviction. We hold, therefore, that the
District Court did not err in denying Joseph’s motion to dismiss.
¶13 Affirmed.
/S/ KARLA M. GRAY
We concur:
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/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JIM RICE
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