No. 02-628
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 206
STATE OF MONTANA,
Plaintiff and Respondent,
v.
MARVIN A. MARKUSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake, Cause No. DC 02-024
The Honorable Deborah Kim Christopher, 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 12, 2003
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Marvin A. Markuson (Markuson) appeals from the judgment entered by the Twentieth
Judicial District Court, Lake County, on his conviction and sentence for felony partner or
family member assault. We affirm.
¶2 The issue on appeal is whether the District Court erred in denying Markuson’s motion
to dismiss.
BACKGROUND
¶3 In August of 1989, Markuson was charged in the Lake County Justice Court (Justice
Court) with misdemeanor partner or family member assault. He waived his right to be
represented by counsel and pleaded guilty to the charge. In May of 2001, he again was
charged in the Justice Court with misdemeanor partner or family member assault and again
pleaded guilty after waiving his right to counsel. In February of 2002, the State of Montana
(State) charged Markuson by information in the District Court with partner or family
member assault. Based on his prior two convictions, the State charged Markuson with a
third offense, which is a felony pursuant to § 45-5-206(3)(a)(iv), MCA.
¶4 Markuson moved the District Court to dismiss the information, arguing that his prior
two misdemeanor convictions were constitutionally infirm because the Justice Court failed
to advise him of the dangers and disadvantages of self-representation when he waived his
right to counsel. Consequently, according to Markuson, his prior two convictions could not
be used to enhance his current offense to a felony. The District Court denied the motion.
Markuson subsequently pleaded guilty to felony partner or family member assault pursuant
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to a plea agreement in which he expressly reserved his right to appeal the District Court’s
denial of his motion to dismiss. The District Court accepted his guilty plea, sentenced him
and entered judgment on the conviction and sentence. Markuson appeals.
STANDARD OF REVIEW
¶5 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 on appeal. State v. Beanblossom, 2002 MT 351, ¶ 9, 313
Mont. 394, ¶ 9, 61 P.3d 165, ¶ 9 (citation omitted).
DISCUSSION
¶6 Did the District Court err in denying Markuson’s motion to dismiss?
¶7 Markuson contends that his two misdemeanor convictions for partner or family
member assault in 1989 and 2001 are constitutionally infirm under both the United States
and Montana Constitutions because the Justice Court failed to advise him of the dangers and
disadvantages of proceeding without counsel prior to his waiving his right to counsel and
entering guilty pleas to those offenses. As a result, according to Markuson, the two earlier
convictions cannot be used to enhance the offense at issue in this case to a felony, and the
information charging him with a felony should be dismissed.
¶8 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.
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¶9 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 such
as the felony partner or family member assault charged in this case. 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 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.
¶10 Here, Markuson attempted to overcome the presumption that his two prior
misdemeanor convictions were valid by offering his affidavit stating that, in both
proceedings, the Justice Court failed to advise him specifically of the dangers and
disadvantages of proceeding without representation prior to waiving his right to counsel and
pleading guilty. He contends that, because he was not advised of the dangers and
disadvantages of proceeding without representation, his waiver of his right to counsel was
not knowing, voluntary and intelligent and, therefore, those convictions are constitutionally
invalid. The State responds that Markuson’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.
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¶11 Markuson first cites State v. Colt (1992), 255 Mont. 399, 843 P.2d 747, and State v.
Langford (1994), 267 Mont. 95, 882 P.2d 490, in support of his 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. Specifically, Markuson relies on those
portions of Colt and Langford in which we quoted language from Faretta v. California
(1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, which stated that a trial court must
satisfy itself that a defendant is aware of the dangers and disadvantages of self-representation
and that the defendant knows what he or she is doing by waiving the right to counsel. See
Colt, 255 Mont. at 407, 843 P.2d at 751; Langford, 267 Mont. at 99, 882 P.2d at 492. We
conclude that neither Colt nor Langford supports Markuson’s argument here.
¶12 In Colt, we expressly stated that
[t]his Court does not require district courts to adhere to a rigid set of
requirements in ascertaining whether a defendant in a criminal proceeding has
made a knowing and intelligent waiver of his right to counsel. District judges
are in the best position to determine whether the defendant has made a
knowing and intelligent waiver of his right to counsel. . . . Requiring the
district courts to specifically discuss the dangers and disadvantages of pro se
representation is far beyond the scope of what Faretta or our case law
requires.
Colt, 255 Mont. at 406-07, 843 P.2d at 751. We further stated that trial courts are “in the
best position to determine the extent, context, and degree of inquiry necessary to determine
whether the individual before them has made a voluntary, knowing, and intelligent waiver
of the right to counsel.” Colt, 255 Mont. at 407, 843 P.2d at 752. We subsequently
reaffirmed these statements in Langford. See Langford, 267 Mont. at 99-100, 882 P.2d at
492.
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¶13 In this case, Markuson’s affidavit states only that, with regard to his two misdemeanor
convictions in Justice Court, “I was not advised of the dangers and disadvantages of waiving
my right to an attorney when I did so or at any time thereafter.” As stated above, however,
we held in both Colt and Langford that a trial court is not required 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 it deems necessary to ensure that the
defendant’s waiver of counsel is voluntary, knowing and intelligent. Markuson’s affidavit
does not state that the Justice Court failed to make any inquiry; nor does the affidavit state
that the Justice Court failed to make sufficient inquiry. We conclude that Markuson’s
affidavit does not establish, pursuant to Colt and Langford, that his waivers of counsel in the
earlier misdemeanor cases were not voluntary, knowing and intelligent. Consequently, his
affidavit is insufficient to rebut the presumption that those convictions were constitutionally
valid.
¶14 Markuson also relies on United States v. Akins (9th Cir. 2001), 276 F.3d 1141, in
support of his argument that the Justice Court was required to advise him specifically of the
dangers and disadvantages of self-representation. In Akins, the defendant was charged with
the offense of possession of a firearm by a person previously convicted of a misdemeanor
crime of domestic violence, a violation of 18 U.S.C. § 922(g)(9). The defendant moved to
dismiss the charge, arguing that his underlying misdemeanor conviction was constitutionally
invalid because he did not knowingly and intelligently waive his right to counsel when he
pleaded guilty to that offense. The trial court denied his motion. Akins, 276 F.3d at 1145.
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¶15 On appeal, the United States Court of Appeals for the Ninth Circuit observed that 18
U.S.C. § 921(a)(33)(B)(i), provides a statutory defense to an alleged violation of § 922(g)(9),
in that a defendant will not be considered to have been convicted of a misdemeanor crime
of domestic violence unless the defendant was represented by counsel or knowingly and
intelligently waived the right to counsel. After some discussion of what constitutes a
knowing and intelligent waiver of the right to counsel, the Ninth Circuit concluded that
Akins’ waiver was not knowing and intelligent because he was not warned specifically of
the dangers and disadvantages of self-representation. Akins, 276 F.3d at 1149. The Ninth
Circuit recognized that, generally, a trial court is not required to engage in a prescribed form
colloquy with a defendant when determining whether a waiver of counsel is knowing and
intelligent. Akins, 276 F.3d at 1146. However, in reaching its ultimate conclusion, the
Ninth Circuit stated
[w]e hold that for purposes of 18 U.S.C. § 922(g)(9), a defendant pleading
guilty to a misdemeanor must be informed of the dangers and disadvantages
of self-representation before waiver of the right to counsel will be deemed
knowing and intelligent.
Akins, 276 F.3d at 1149.
¶16 The Ninth Circuit’s holding in Akins that a defendant must be warned of the dangers
and disadvantages of self-representation was limited expressly to cases in which the
defendant is charged with a violation of 18 U.S.C. § 922(g)(9). Markuson has not been
charged with that offense. As a result, Akins does not support his argument in the present
case.
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¶17 We conclude that, because Markuson’s affidavit does not establish that his waivers
of counsel in his prior misdemeanor cases were not voluntary, knowing and intelligent, his
affidavit is insufficient to rebut the presumption of regularity attached to the earlier
convictions. We hold, therefore, that the District Court did not err in denying Markuson’s
motion to dismiss.
¶18 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ JIM REGNIER
/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
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