October 11 2011
DA 11-0025
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 256
STATE OF MONTANA,
Plaintiff and Appellee,
v.
PATRICK CHESTERFIELD,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. ADC-2009-319
Honorable Dorothy McCarter, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Nathan J. Hoines, Hoines Law Office, P.C., Great Falls, Montana
For Appellee:
Steve Bullock, Montana Attorney General, C. Mark Fowler, Assistant
Attorney General, Helena, Montana
Leo Gallagher, Lewis and Clark County Attorney, Michael Menahan,
Deputy County Attorney, Helena, Montana
Submitted on Briefs: September 7, 2011
Decided: October 11, 2011
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Patrick Chesterfield appeals his conviction in the District Court for the First
Judicial District, Lewis and Clark County, of driving or being in actual physical control
of a motor vehicle while under the influence of alcohol or drugs (DUI), his fourth
offense. In doing so, Chesterfield collaterally attacks his three prior DUI convictions.
We affirm.
¶2 Chesterfield raises one issue which we have restated as follows: Whether the
District Court erred by denying his Motion to Dismiss without holding an evidentiary
hearing concerning his claim that his prior DUI convictions were constitutionally infirm.
Factual and Procedural Background
¶3 On September 24, 2009, Chesterfield was charged by Information with DUI in
violation of § 61-8-401, MCA. Since this was determined to be Chesterfield’s fourth
such offense, it was charged as a felony.
¶4 Chesterfield filed a Motion to Dismiss on February 5, 2010, claiming that his three
prior convictions for DUI were constitutionally infirm because he was denied his right to
counsel. These three convictions occurred in 1986, 1989 and 1993, and all three
convictions were obtained in the Great Falls Municipal Court. The clerks of the
Municipal Court were able to locate some of the records of these three proceedings which
Chesterfield appended to his motion.
¶5 Regarding the 1986 DUI, the record indicates that Chesterfield appeared without
counsel when he entered his guilty plea. The State attached to its trial court brief in the
instant case a copy of the “NOTICE TO APPEAR AND COMPLAINT” issued to
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Chesterfield at the time of his 1986 arrest and the “FINAL DISPOSITION OF
LICENSING AUTHORITY,” the document the Municipal Court forwarded to the Driver
Improvement Bureau in Helena to notify the State of Chesterfield’s DUI conviction.
Nothing on the face of either of these documents indicates Chesterfield was either
informed of his right to counsel or made a knowing, voluntary and intelligent waiver of
his right to counsel.
¶6 Regarding the 1989 DUI, the record indicates that Chesterfield appeared in the
Municipal Court on the same day of his arrest and pled guilty. The record does not show
whether Chesterfield was represented by counsel. Unfortunately, the Court Minutes are
too obscured to determine whether the Judge advised Chesterfield of his right to counsel
or whether Chesterfield made a knowing, voluntary and intelligent waiver of his right to
counsel by his plea of guilty.
¶7 Finally, regarding the 1993 DUI, the Court Minutes indicate that Chesterfield
again pled guilty and that he waived his constitutional rights by doing so. There is,
however, no written waiver signed by Chesterfield indicating that he knowingly,
voluntarily and intelligently waived his right to counsel.
¶8 In his Motion to Dismiss filed on February 5, 2010, Chesterfield contested the
validity of his prior DUI convictions, in particular his 1986 conviction, and asked the
court to dismiss the felony DUI charge. He pointed out that the State may not use a
constitutionally infirm conviction to support an enhanced punishment such as a felony
DUI. Attached to this Motion to Dismiss was Chesterfield’s affidavit wherein he stated
that he had no independent recollection that he waived his constitutional rights in his
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prior DUI convictions or that he was advised of the possibility of enhanced punishment
for any subsequent DUI convictions. The District Court denied his motion without
conducting an evidentiary hearing concluding that Chesterfield had not met his burden to
rebut the presumption of regularity.
¶9 Thereafter, Chesterfield moved the court to reconsider its denial of his Motion to
Dismiss. He attached to his Motion to Reconsider a supplemental affidavit wherein he
stated that after having his recollection refreshed by defense counsel’s paralegal, he
remembered that he did not have funds to hire counsel in 1986 and 1989 and that he
assumed his only option was to plead guilty. He also remembered that he did not have
legal representation on the 1993 charge and again he assumed that his only option was to
plead guilty. While he now remembers that he was not represented by counsel in his
three prior convictions, he cannot recall if he waived his constitutional rights. He also
stated that he did not believe that he was ever informed that there could be enhanced
penalties for future offenses. The District Court denied Chesterfield’s Motion to
Reconsider.
¶10 On November 10, 2010, Chesterfield changed his plea to guilty while reserving his
right to appeal the court’s denial of his Motion to Dismiss. The District Court sentenced
Chesterfield to thirteen months with the Department of Corrections (DOC) followed by a
three year suspended sentence to the DOC upon conditions. In addition, the court stayed
Chesterfield’s sentence pending this appeal, but ordered Chesterfield to submit to twice
daily breath tests.
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¶11 Chesterfield now appeals the District Court’s judgment along with the court’s
denial of his Motion to Dismiss.
Standard of Review
¶12 Whether a prior conviction may be used for sentence enhancement purposes is
generally a question of law which we review de novo. State v. Maine, 2011 MT 90, ¶ 12,
360 Mont. 182, 255 P.3d 64 (citing State v. Hansen, 273 Mont. 321, 323, 903 P.2d 194,
195 (1995); State v. Weaver, 2008 MT 86, ¶ 10, 342 Mont. 196, 179 P.3d 534). In
determining whether a prior conviction is invalid, however, the court may first need to
make findings of fact, based on oral and documentary evidence presented by the parties,
regarding the circumstances of that conviction. Maine, ¶ 12 (citing Weaver, ¶ 9; State v.
Peterson, 2002 MT 65, ¶¶ 3-5, 309 Mont. 199, 44 P.3d 499). We will not disturb these
findings unless they are clearly erroneous. Maine, ¶ 12 (citing Weaver, ¶ 9; Peterson,
¶ 7).
Discussion
¶13 Whether the District Court erred by denying Chesterfield’s Motion to Dismiss
without holding an evidentiary hearing concerning his claim that his prior DUI
convictions were constitutionally infirm.
¶14 Chesterfield contends on appeal that the Municipal Court records along with his
affidavits sufficiently set forth that he was not represented by an attorney during any of
his prior convictions thereby calling into question the validity of those convictions. Thus,
Chesterfield argues that, contrary to the District Court’s conclusion, he met his burden to
show irregularity in the proceedings and the court should have set an evidentiary hearing.
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¶15 The State points out that Chesterfield’s prior DUI convictions are entitled to a
rebuttable presumption of regularity, but neither Chesterfield’s inability to recall the
details of those convictions, nor the absence of information in the original court records,
constituted sufficient evidence to overcome that presumption and shift the burden of
proving the validity of those convictions to the State.
¶16 The Sixth Amendment to the United States Constitution and Article II, Section 24
of the Montana Constitution guarantee that the accused shall have the fundamental right
to the assistance of counsel in all criminal prosecutions. State v. Chaussee, 2011 MT
203, ¶ 4, 361 Mont. 433, ___ P.3d ___ (citing State v. Howard, 2002 MT 276, ¶ 11, 312
Mont. 359, 59 P.3d 1075). A defendant without the means to hire an attorney is entitled
to legal representation by court-appointed counsel at public expense. Chaussee, ¶ 4. A
defendant may waive the right to counsel, but, to be valid, any such waiver must be made
voluntarily, knowingly, and intelligently. Chaussee, ¶ 4 (citing Howard, ¶ 12).
¶17 In addition, the Due Process Clause of Article II, Section 17 of the Montana
Constitution protects a defendant from being sentenced based upon misinformation.
Chaussee, ¶ 9 (citing State v. Phillips, 2007 MT 117, ¶ 17, 337 Mont. 248, 159 P.3d
1078). Because a constitutionally infirm prior conviction used for enhancement purposes
constitutes misinformation of constitutional magnitude, it is well settled in Montana that
the State may not use a constitutionally infirm conviction to support an enhanced
punishment. Chaussee, ¶ 9 (citing United States v. Tucker, 404 U.S. 443, 447, 92 S. Ct.
589, 592 (1972); State v. Okland, 283 Mont. 10, 18, 941 P.2d 431, 436 (1997); Lewis v.
State, 153 Mont. 460, 463, 457 P.2d 765, 766 (1969)).
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¶18 Four days after Chesterfield filed his initial brief on appeal in the case sub judice,
this Court handed down its decision in State v. Maine, 2011 MT 90, 360 Mont. 182, 255
P.3d 64, wherein we analyzed the procedural framework set forth in Okland, and
numerous other cases, for determining whether a prior conviction may be used to enhance
punishment on a current charge. We acknowledged in Maine that the State has an
interest in deterring habitual offenders as well as an interest in the finality of convictions,
which are difficult to defend against collateral attacks many years after the fact. Maine,
¶ 29. Thus, we concluded that the ultimate burden of proof—which includes both the
burden of production and the burden of persuasion—is on the defendant as the moving
party. Maine ¶ 34 (citing Okland, 283 Mont. at 18, 941 P.2d at 436). Consequently, we
set forth the following framework for evaluating collateral challenges to prior
convictions: (1) a rebuttable presumption of regularity attaches to the prior conviction,
and we will presume that the convicting court complied with the law in all respects;
(2) the defendant has the initial burden to demonstrate that the prior conviction is
constitutionally infirm; and (3) once the defendant has done so, the State has the burden
to rebut the defendant’s evidence. Maine, ¶ 33.
¶19 In addition, we stated in Maine that to meet his or her burden of proof,
the defendant may not simply point to an ambiguous or silent record, but
must come forward with affirmative evidence establishing that the prior
conviction was obtained in violation of the Constitution. Self-serving
statements by the defendant that his or her conviction is infirm are
insufficient to overcome the presumption of regularity and bar the use of
the conviction for enhancement.
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Maine, ¶ 34. We also pointed out that when a prior conviction offered for enhancement
purposes is challenged, the difficulties in evaluating the defendant’s claim are the result,
not necessarily of the particular constitutional theory raised, but rather of the adequacy of
the record. Maine, ¶ 32.
¶20 Three months after we handed down our decision in Maine, we refined the
framework for evaluating collateral challenges to prior convictions offered for sentence
enhancement purposes. In State v. Chaussee, 2011 MT 203, ¶ 13, 361 Mont. 433, ___
P.3d ___, we set forth that refined framework as: (1) a rebuttable presumption of
regularity attaches to the prior conviction, and we presume that the convicting court
complied with the law in all respects; (2) the defendant has the burden to overcome the
presumption of regularity by producing affirmative evidence and persuading the court, by
a preponderance of the evidence, that the prior conviction is constitutionally infirm; and
(3) once the defendant has done so, the State has the burden to rebut the defendant’s
evidence.
¶21 In addition, we defined our use of the phrase “affirmative evidence” to include
both direct evidence and circumstantial evidence, and we stated that
[a]ffirmative evidence is evidence which demonstrates that certain facts
actually exist or, in the context of a collateral challenge, that certain facts
actually existed at some point in the past—for example, that the trial court
actually did not advise the accused of her right to counsel, or that an
indigent defendant actually requested the appointment of counsel but
counsel was actually refused. An affidavit from the defendant, a witness,
or court personnel attesting this sort of affirmative evidence will figure
more persuasively in the calculus of whether the rebuttable presumption of
regularity has been overcome than will, for example, references to unclear
court minutes, judge’s notes, or preprinted forms.
8
Chaussee, ¶ 18 (emphasis in original).
¶22 In the instant case, the record of Chesterfield’s 1986 DUI conviction indicates that
Chesterfield appeared without counsel when he entered his guilty plea. However,
nothing in that record indicates whether Chesterfield was informed of his right to counsel
or made a knowing, voluntary and intelligent waiver of his right to counsel.
¶23 The record in Chesterfield’s 1989 DUI conviction indicates that Chesterfield
appeared in the Municipal Court on the same day of his arrest and pled guilty. The
record does not show whether Chesterfield was represented by counsel. Unfortunately,
the Court Minutes are too obscured to determine whether the judge advised Chesterfield
of his right to counsel or whether Chesterfield made a knowing, voluntary and intelligent
waiver of his right to counsel by his plea of guilty.
¶24 The record in Chesterfield’s 1993 DUI conviction indicates that Chesterfield pled
guilty and that he waived his constitutional rights by doing so. There is, however, no
written waiver signed by Chesterfield indicating that he knowingly, voluntarily and
intelligently waived his right to counsel.
¶25 We made it clear in Maine that a defendant cannot meet his burden of proof by
simply pointing to an ambiguous or silent record. Maine, ¶ 34. Moreover, in State v.
Anderson, 2001 MT 188, ¶ 22, 306 Mont. 243, 32 P.3d 750, we stated that the fact that
the record failed to show that the defendant waived his right to counsel was not evidence
that the defendant was denied his right to an attorney. “In sum, it is not proof of
anything. It is absence of proof. And it is wholly insufficient to shift the burden of proof
to the State.” Anderson, ¶ 22.
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¶26 Based on all of the foregoing, we conclude that none of the records Chesterfield
presented for his prior DUI convictions provided affirmative evidence that any or all of
those convictions were constitutionally infirm. See Chaussee, ¶ 25 (“the lack of evidence
showing that the prior conviction is valid is not proof, by affirmative evidence, that the
conviction is invalid”); Anderson, ¶ 22 (“Proof of a fact is not made by presenting no
evidence for its converse.”).
¶27 Likewise, Chesterfield’s affidavits are also not affirmative evidence that his prior
convictions were constitutionally infirm. In his first affidavit, Chesterfield stated that he
had no independent recollection that he waived his constitutional rights in his prior DUI
convictions or that he was advised of the possibility of enhanced punishment for any
subsequent DUI convictions. In his supplemental affidavit, he stated that his recollection
had been refreshed and that he now remembered that he was not represented by counsel
in his three prior DUI convictions, but he still could not recall if he waived his
constitutional rights. As we stated in Maine, “[s]elf-serving statements by the defendant
that his or her conviction is infirm are insufficient to overcome the presumption of
regularity and bar the use of the conviction for enhancement.” Maine, ¶ 34.
Chesterfield’s evidence was insufficient to shift the burden to the State.
¶28 Chesterfield also contended that the District Court should have held an evidentiary
hearing on his Motion to Dismiss. We concluded in Chaussee that the decision to grant a
hearing on a motion challenging the validity of a prior conviction offered for sentence
enhancement purposes is within the sound discretion of the trial court. And, before a
defendant may be entitled to such a hearing, he must make a prima facie showing that the
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challenged conviction is invalid. Chaussee, ¶ 26. Chesterfield has not made such a
showing here.
¶29 Finally, Chesterfield claims that the remoteness of his prior DUI convictions
should be taken into consideration as they occurred 24, 21 and 17 years prior to the
instant offense. However, the Legislature has made it clear that remoteness is not a
consideration when reviewing a fourth DUI offense. See § 61-8-734(1)(b), MCA (“An
offender is considered to have been previously convicted for the purposes of sentencing if
less than 5 years have elapsed between the commission of the present offense and a
previous conviction, unless the offense is the offender’s fourth or subsequent offense, in
which case all previous convictions must be used for sentencing.” (emphasis added)).
¶30 Chesterfield failed in his burdens of production and persuasion to demonstrate that
his three prior DUI convictions were constitutionally infirm. Accordingly, we hold that
the District Court did not err by denying Chesterfield’s Motion to Dismiss.
¶31 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
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Justice Jim Rice, concurring.
¶32 I concur with the Court’s holding and with its analysis insofar as it is applied to
collateral attacks of prior convictions based upon a violation of the right to counsel. See
State v. Maine, 2011 MT 90, ¶ 59, 360 Mont. 182, 255 P.3d 64 (Rice, J., concurring in
part and dissenting in part).
/S/ JIM RICE
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