96-617
No. 96-617
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and Respondent,
v.
ELMER DALE PERRY,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Daniel P. Buckley; Berg, Lilly, Andriolo
& Tollefsen; Bozeman, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General;
Cregg W. Coughlin, Assistant Attorney General;
Helena, Montana
Marty Lambert, Gallatin County Attorney;
Susan Swimley, Deputy County Attorney;
Bozeman, Montana
Submitted on Briefs: May 8, 1997
Decided: May 29, 1997
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
The defendant, Elmer Dale Perry, was charged by information, filed in the District
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-617%20Opinion.htm (1 of 3)4/12/2007 12:23:41 PM
96-617
Court for the Eighteenth Judicial District in Gallatin County, with the offense of driving
under the influence of alcohol, in violation of 61-8-401(1)(a), MCA. Based on his
seven 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 in which he objected to the District
Court's consideration of his seven prior DUI's for purposes of determining whether he
is guilty of felony DUI. After a hearing, the District Court denied that motion. He
appeals the judgment of the District Court. We affirm.
The sole issue on appeal is whether the District Court erred when it denied Elmer
Dale Perry's motion to dismiss the felony DUI charge against him.
FACTUAL BACKGROUND
On March 13, 1996, Elmer Dale Perry was charged by information with the
offense of driving a motor vehicle while under the influence of alcohol. The charge
alleged in the information, if proven, would have constituted his eighth DUI offense.
Based on his prior DUI convictions, the information charged him with a felony, pursuant
to 61-8-714(4) and -722(4), MCA.
On August 12, 1996, Perry filed a motion in which he objected to the District
Court's consideration of his seven prior convictions for purposes of determining whether
he is guilty of felony DUI. He asserted that before the District Court can consider his
prior DUI convictions and, on that basis, increase the current DUI charge to a felony,
the State is required to affirmatively establish the constitutional validity of his prior
convictions. Specifically, he claimed that "[t]he records of the previous court
conviction[s] must affirmatively show that [he] was informed of his rights, including the
right to appointed counsel, and that [he] knowingly waived them."
The State maintained that a presumption of regularity attached to Perry's prior
convictions and that, therefore, the burden of proof is, at least initially, on Perry to
establish, by sufficient evidence, that his prior convictions were entered in violation of
his constitutional right to counsel. Additionally, the State submitted as evidence a
certified copy of Perry's driving record, as well as the court records from three of his
prior convictions.
Perry did not submit any evidence to establish that his rights were violated during
the prior proceedings. In fact, he did not even assert that his prior convictions were
invalid. Rather, he contended that it is the State's burden to affirmatively prove the
validity of his prior convictions.
At the conclusion of the hearing, the District Court rejected Perry's contention
and, on that basis, denied his motion. In its written order, the District Court held as
follows:
There is a presumption of validity which attaches to final judgments, and
the burden of proof to overcome the presumption rests with the defendant.
Parke v. Raley, ___ U.S. ___, 113 S.Ct. 517, 121 L.Ed.2d 391, 404
(1992). [Perry] has not met his burden of proof, and his motion is denied.
DISCUSSION
Did the District Court err when it denied Perry's motion to dismiss the felony DUI
charge against him?
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.
On appeal, Perry contends that the District Court erred when it denied his motion
and considered his seven prior convictions for purposes of determining whether the
current DUI charge can be increased to a felony. He claims that waiver of the right to
counsel cannot be presumed from a silent record and that, therefore, the State of Montana
is required to affirmatively prove that his prior DUI convictions were constitutionally
valid. In essence, he asserts that the District Court erred when it: (a) concluded that
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-617%20Opinion.htm (2 of 3)4/12/2007 12:23:41 PM
96-617
there is a presumption of regularity which attaches to prior judgments; (b) did not require
the State to affirmatively establish that his prior DUI convictions were constitutionally
valid; and, instead, (c) placed the burden of proof on him to establish that his right to
counsel was violated in the prior proceedings.
The State, however, maintains that a presumption of regularity attaches to prior
convictions and that, therefore, the burden of proof is on a defendant to show that his
rights were violated in a prior proceeding. Moreover, the State asserts that, in this case,
Perry failed to offer any evidence that his rights were violated during the prior
proceedings and that he did not even assert that any such violations occurred.
The State's position and the District Court's decision are consistent with our recent
decision in State v. Okland (Mont. May 29, 1997), No. 96-362. In that case, we held
that:
[W]e conclude that [Parke v.] Raley [(1992), 506 U.S. 20, 113 S. Ct. 517,
121 L. Ed. 2d 391,] 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.
Okland, No. 96-362, slip op. at 11-12.
After a review of the record, we conclude that Perry failed to present any direct
evidence to establish that his constitutional rights were violated in a prior proceeding.
In fact, he does not even assert, by affidavit or otherwise, that any such violations took
place. We conclude, therefore, that he failed to rebut the presumption of regularity and
that, for that reason, the State had no further burden of proof regarding the regularity of
his prior convictions. Accordingly, we hold that the District Court did not err when it
denied Elmer Dale Perry's motion. The judgment of the District Court is affirmed.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ JIM REGNIER
/S/ KARLA M. GRAY
/S/ WILLIAM E. HUNT, SR.
/S/ W. WILLIAM LEAPHART
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-617%20Opinion.htm (3 of 3)4/12/2007 12:23:41 PM