STATE v HOWARD
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No. 01-855 IX THE SIJPREME COURT OF THE S?'ATE OF MONTASA 2002 MT 276 STATE OF MONTXNA? Plaintiff atid Respondent, I. ' NANETTE tIAUREEN HOWARD, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the Coun~y blissoula, of ttonorable John S. t-ienson, Judge Presiding COUUSEI. OF RECORD: For Appclla~~t: Leslre Ocks, Publlc Defender Office, bl~ssoula, Montana For Respondent. Honorable Mike McGrath, Attorney General; Crcgg W Coughlin, Assista~it Attorney General, Helena, Montana Fred Van Valkenburg, Co~mt]Attonieq, Kr~steii Lacroix. Deput) t-t Count? Attorney, Mrssoula, Montana Submiitcd on Briefs: .April 18, 2002 I>ecided: December 5 , 2002 Jnstice 'CV. M~illiami.eapkari dciivercd thc Opinion ofthe Court. q!1 In Octohcr 2000. the defendant, Xanette Maureen Howard jlioward), was chargcd with two offenses liied in Missouia County District Court: Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs, a Fourth or Subseque~lt[Lifetime Offense, in violation of $6 61-8-401(1)(a), and -714. MCA; and Driving While License Stlspended or Rcvokcd, in violation of $ 61-5-212, MC.4. Howard filed a motion to dismiss the felony DUI ehargc, which the District Court denied. 1-his appeal follo\vs. We reverse the judgment of the District Court. BACKGROUXD "2 11 On October 23, 20001 Howard was charged by information with driving under the influence (DUI) and driving with a revoked or suspended license. The DUI charge alleged in the information, if proven, would have constituted her fourth DUI offense. Howard had been previously convicted of DUI in Missoula County Municipal Court on August 28, 2000> December 20, 1999, and January 13, 1997. Rased on those three prior convictions, the infonnation charged her with a felony. 13 Howard filed amotion to dismiss the felony Dtil ellarge in which slle contended that, at tlie time she pled guilty to the 1997 DL'[ charge, she did not expressly waive her right to an attonicy. 011 that basis, she asserted that thc I997 DC1 eonvictio~~ entered in was rights, specifically l ~ c Sixth Amendment right to counsel, r derogation of her co~~stitutional and cannot be uscd to increase the current DlJl charge to a felony. ?4 , in support of !let. ~notiorito dismiss the klony DL.1 charge, I-loward subrniltcd an affidavit whiclr provides. in relcvant par?, as follows: On January 13, I997 I could not afford coi~nsel and I was not reprcsenred by c a u ~ ~ s eIl .\%:asnot advised of my right to court-appointed counsel before I entered my plea of guilty, nor did I waive my right to court-appointed counsel. 75 No record of Howard's 1997 DVI plea colloquy exists. At an evidentiary hearing, Judge Donald J. Louden, the Missoula Municipal Coui-t Judge who had presided over I iouard's 1997 guilty plea, testified. Judge Louden test~fied he has been the rvhssoula that Municipal Court Judge for twelve years and that he handles three to four hundred DUl charges each year. FIe explained his practice of advising defendants, and recited from memory the colloqtry he uses with all criminal defendants. This colloquy included advis~ng defendants that they have the right to be represented by an attorney. to h a ~ e attorney an appointed to represent them, that they can have Inore t ~ m to think o\er their plea deciscon e and discuss it with an attorney or anyone elsc they wish. On cross-examination, thc prosecutor asked Judge Louden: Q: ,4lthough you don't recall specifically Miss Howard saying those words, meaning she waives her riglit to counsel, and there's not a note on this ticket from 1997, do you know that she did waive that right'? A: I know that she was told that she had the right to have an attorney and to llave an attorney appointed to represent her. 1 know that she was told that if she pled guilty, that she was waiving all of the rights. That she would have indicated that slic did understand the rights and indicated that she wished to enter a plea of guilty. !;(I i\rhiic judge Laoudcn furthcr testified that it was iris practice to advise ail criminal ticfendants that by pleading guilty to thc offensc, thcy would waive their right to coi~nscl, hi: made clear that it was not his practice in 1997 to expressly ask dci'cndants bvhcther they waived thcir righi to counsel prior to the defendant entering a plea of guilty. 77 On March 7; 2001, the District Court denied EIoward's motion to dismiss the felony DUI charge. Eventually, Hourard entered into a plea agreement with the State, whereby she pled guilty to both counts but reserved her right to appeal the present issue. Howard received a sentence of thirteen months and four years probation for the felony DU1 charge. She received a six-month sentence wit11 all but two days deferred for the Driving While License S~ispendcd Revoked charge. This appeal follows. We conclude that ihc District or C:ourt's decision to deny Howard's motion to dismiss was incorrect as a matter of law and, therefore, must be reversed. *I8 The sole issue on appeal is uhether thc Distrcct Court erred in dcny~ng Houard's motion to dismiss the felony D b l charge. DISCUSSION 79 When \i7c review a district court's conclusions of law, thc standard of review is plenary anil we must dctennine whether the district court's conclusions are correct as a matter of law. Stirre I,. Okliznil(l"177), 283 Mont. i0, 14, 941 P.2d 431,433; Stale v. Sage (19921,255 htont. 227,229, 841 P.2d 1142, 1143. 710 1:. A rebuttable presumption of regularity atvaches to prior criminal convictions. Sture hfijgn, 1999 M'T 283,q 11: 297 Mont. 1 , +i 1 1 , "19 P.2d R56,6;; 11; iiicinnd, 283 Mont. at 18, 941 P.2d at 436. If the defendant overcomes that presumption with direct e\-idcnce o i irrcgirlarity, the burden then shifts to the State to prove by direct evidence that the prior conviction was not obtained in violation of tlie defendant's rights. iLfogu,1 11; Clklnnd, 283 1 Mont. at 18,941 P.2d at 436. 711 1 L Montana, it is well established that the State may not use a constitutionally infirm n conviction to support an enhanced punishment, such as a felony DCI. Oklnrld. 283 Mont. at 15,941 P.2d at 434; Lewis v. Sirrre (1960), 153 Vont. 400,463,457 P.2d 765, 766. The Sixth Amcndn?ent of the United States Cons~itution,and Article IT, Section 24, of the ;Montana Constitution, guarantee tlic filndamental right to the assistance of counscl. <;ideon 11. W~inivriglti (1963), 372 U.S. 335, 83 S.Ct. 792,') L.Ed.2d 799; O k l ~ z n ~ f : Mont. at 14; 283 941 P.2d at 433. Defendants without means to hire an attorney are entitled to legal at representation by court-appointed co~~nselpublic expense. Oklnizd, 283 h4011t. at 14,031 P.2d at 433. :!I2 The fundamental right to counsel does not extend to defendants who waive the right. Olclrzt~d, 283 Mont. at 14: 041 P.2d at 433. b2'aiver, however, requires a knowing and intelligent relinquishment of a k n o m right. Okiatzd 283 Mont. at 14,941 P.2d ~.,t 433; S'rilic v. B!irkr:eyj1982), 197 Mont. 131, 138,641 P.2d 1045, 1049. This Courtu-ill not engagc in presumptions of waiver; any \raiver o f a constitutional right must be made spceifical!y, volunrarjiy. and knowingly. Stitti? I:, Bird, 2OOi M T 2,7135,308 Mont, 75,ci 35;43 P.3d 266, 7/35;k r k v . ,i'i.x-fl~,/~rci. Court, I908 MT 164;'?36.289 %font.367,T 36,961 P.2d 1267, i Disf. 1; 36 (citing .l(~/ti~~oiz V . Zerhst (1938). 304 b.S. 458; 461. 58 S.Ct. 1019, 1023, 82 1-.Ed. t1 I ) . With these legal prcccpts in mind, we turn to the case at bar. 1 13 As stated abovc, a rebuttable presun~ptionof regularity attaches to Howard's 1997 DI!1 conviction; however, tiou-ard may overcome this presuinption by direct evidence of irregularity. By way of direct cvidence, Howard presented an affidavit in support of her motion in which she states that she did not waive her right to counsel at her 1997 Dl![ guilty plea. Whtle u e habe held tn the past that a dei'endant's sketchy recollection as to \+hcther or not she was advised of and waived her rigltt to couiisel is not sufficient to overcome ihi: presumption of regularity (Sfcrrev. Big Hair, 1998 MT G1,lj 1 8, 288 Mont. 135. 'l 18, 055 P.2d 1352,1! 18), we have recognized that a defendant's unequivocal and sworn statement that she did not waive her right to counsel constitutes direct evidence which rebuts the presunlption of regularity. Stilte v. Co:~l~trlre, MT 137> 15,289 Mont. 21 5 , l 15. 959 1998 71 P.2d 948,1; 15. Because Howard's affidavit is direct evidence demonstrating that her plea was obtained in violation of her constitutional rights, and therefore "irregular," we now turn to the State's case. '114 The State must prove by direct cvidence that Howard's 1'997 DUI conviction was not obtained in violation of her rights. In support of its burden the State offcrs Judge L.o~tdcn's testimony "that [Howard] was told that if she plcd guilty, t!mt she was waiving a!! of thc righrs." Tkc Statc sub~nits bccausc Howard d i d plead guilty; it mag be inferred that she that validly waived lter right to counsel. This Court rcfuses to make such an infcrencc. On several occasions this Court has stated that it will indulge in every reasonable presu~nption against waiver of fundamental eo~~stitutionitl rights and will not indulge in any presumption L of waiver. State v. Bird. 2001 N T 2, 1' 35? 308 Mont. 7 5 , l 35, 43 P.3d 266," 35; Pnik v. .Si.xt\t .hid Uist. Cozlrt, 1098 MT 164,136,280 Mont. 367,'; 36,961 P.2d 1267,1135 (citing .Jolzrt.sorl v. Zerhst j1938), 303 U.S. 458, 304, 58 S.Ct. 1019: 1023, 82 L..Ed. 1461, 1466); St(zte v. Lrrcero (l968), 151 Mont. 531; 538, 445 P.2d 731. 735. Similarly, this Court will of not engage in infere~rces any such waiver. As the llnited States Supreme Court stated in the bedrock case of ./ohrtson v. Zer6sr, "[tjhe constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court. in which the accused--whoselife or liberty is at stake--is without counsel. This protecting duty imposes the serious and weighty rcspousibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused." ./ohnsotz v. Zcrhst, 304 U.S. at 465, 58 S.Ct. at 1023, 82 L.Ed. at 1467. 7/15 Although employing the formula, "If you plead guilty, you also xvaivc your right to counselv may streamline the process of obtaining a defendant's waiver and guilty plea, such ashortcut is notperniissible ~vhere aperson is waiving her fundamental right to counscl. The difference between, "By pleading guilty you waive your right to counsel," and "Do you xvaive your right to counsel?" is important; only the latter pros ides the defe!-rdantwith the opportunity to affirmatively and expressly vvaivc the right. Combining the two issues into orle aftinnative stirlcmcnt increases thc possibility that an unreprcscntcd defendant mat. become confused and decreases the likelihood tirat slie will he able to specifically, voluntarily. and knowingly waive her right to counsel as Montana law requires. 1 16 Today's ruling is one that benefits both the accused and the people of Montana. As the California Supreme Court stated in It2 re Told (Cal. 1969),460 P.2d 449,456 (overniled on other grounds by 12.lills v. Mz4tticiprd Court (Cal. 197J), 5 15 P.2d 273), "trial court[s] would be ~vell advised to err on the side of caution and employ the time necessary to explain adequately and to obtain express waiver of the rights involved. At stake is the protection of both the accused and the People, the latter by the assurance that an othemisc sound conviction will not fall due to an inadequate record." 117 111 denying tloward's motioii to dismiss, the District Court concluded that Howard's 1999 MT 283; 297 ?\/font.1, 989 case u:as "on all fours" with the holding of State v. ~bloga, P.2d 856. Ilo.ivard's case is, however, distinguishable. In rClogu, we affirmed the district court's deaial of a motion to dismiss where the defendant alleged that he had not waived his right to counsel. In that ease, however, the judge who accepted the defendant's plea stated that it was his practice to advise defendants of their right to counsel and secure a waiver of that right from unrepresented defendants to entry of guilty pleas. Store t:. Piloga, f 13, Yct i n the case at bar, tile judge stated that it was his practice to secure thc waiver and guilty pica sirnuitanconsly. This practice docs not offcr the defcndani file oppoc~ilnity expressly. to affirmatively waive her right to counsel and consequcntly violates that right. 8 In summation, Judge Louden's testimony confiims Howard's asscrtiori that she did not expressly M-aivehcr right to counsel prior to entering her plca, We coneltide that the District Court's ruling that t-loxard validly waived her right to counsel was incorrect as a matter of law: bvaiver of the right to counsel must be express and must he secured before the entcring of a guilty plea. Therefore, we hold that irloward's 1997 DUL conviction was constitutionally infirm and may not serve to enhance the October 2000 Dl!I conviction. Accordingly, we reverse the District Court's holding. We concur: Justices Justice Jim Kegnier dissenting. 'jlY 1 rcspectiiilly dissent. l'l-rc Cou1-1 essentially concludes that ihe Defendant did not expressly waive her right to an attorney when Judge Louden informed her that by pleading guilty, she waived her constitutional rights inclnditlg her right to an attorney. The Court states that Judge louden sllould have first asked the Defendant if she waived her right to counsel and then, in a separate sentence, asked her if she was pleading guilty. By doing so: according to the Court, we are assured the defendant is propicled an opportunity to affirmatively and expressly waive the right to counsel. '120 The record is quite clear. Judge Louden advised Howardofhcr rights and specifically advised her of her right to counsel before she entered her guilty plea. Judge Louden also informed her that if she pled guilty, she was waiving tllose rights, including 11er right to counsel. Judge 1.ouden made certain that the Defendant understood her rights and the effect of her entry of the guilty plea. 1 The colloquy that occurred in this ease. in my view, was sufficient. Apparently .fudge Louden and the District Court reached the same conclusion. The Defendant did not acquiesce in the waiver of her rights by pleading guilty. She pled guil~y only after she was fully iiifomcd and understood that by pleading guilty, she waived her constitutional rights. In my judgment, the plea in t h ~ case mas constiruttonall) lahd. I uould affirm the ihstrtct s Court and dissent from our failure to do so
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