Opinion
DA 18-0244
01-08-2019
STATE OF MONTANA, Plaintiff and Appellee, v. CASEY RYAN SCHLEPP, Defendant and Appellant.
COUNSEL OF RECORD: For Appellant: Palmer A. Hoovestal, Hoovestal Law Firm, PLLC, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant Attorney General, Helena, Montana Leo J. Gallagher, Lewis and Clark County Attorney, Jeff Sealey, Deputy County Attorney, Helena, Montana
APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. DDC 2016-504 Honorable James P. Reynolds, Presiding Judge COUNSEL OF RECORD: For Appellant: Palmer A. Hoovestal, Hoovestal Law Firm, PLLC, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant Attorney General, Helena, Montana Leo J. Gallagher, Lewis and Clark County Attorney, Jeff Sealey, Deputy County Attorney, Helena, Montana Filed: /S/ BOWEN GREENWOOD
Clerk Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Casey Ryan Schlepp appeals from a First Judicial District order denying his motion to dismiss his felony driving under the influence (DUI) charge. We affirm. ¶3 On November 22, 2016, the State charged Schlepp with felony DUI in violation of § 61-8-465(1)(e), MCA, which states:
A person commits the offense of aggravated driving under the influence if the person is in violation of 61-8-401, 61-8-406, or 61-8-411 and:Schlepp previously pleaded guilty to DUI three times, twice in Gallatin County, in 2000 and 2001, and once in Silver Bow County, in 2008. ¶4 On April 4, 2017, Schlepp filed a motion to dismiss the felony DUI charge, alleging that his two prior convictions for DUI in Gallatin County were constitutionally infirm. He contemporaneously filed an affidavit stating he did not know he had a right to counsel and did not knowingly and intelligently waive that right in those proceedings. The State filed a response. Schlepp did not file a reply. ¶5 The records from Schlepp's DUI convictions in Gallatin County each contain a register of actions specifically indicating Schlepp was advised of his rights when he appeared before the respective judges and that he waived his right to an attorney. Both records contain a form, signed and dated by Schlepp, whereby Schlepp checked boxes stating, "I hereby waive my right to counsel or to have counsel appointed," and, "I hereby waive my right to a judge/ jury trial." The forms also include the statement, "I attest that I am not under the influence of alcohol or drugs and I knowingly, voluntarily, and intelligently enter a plea of guilty to the charge(s)." ¶6 On May 30, 2017, the District Court denied Schlepp's motion to dismiss. The District Court found that "[b]ased on [the] records of the Gallatin County proceedings . . . Schlepp has failed to carry his 'heavy burden' to show that the Gallatin County convictions are constitutionally infirm and may not be used for purposes of sentence enhancement in this matter." On February 27, 2018, Schlepp pleaded guilty to felony aggravated DUI. After reviewing the pre-sentence investigation report and holding a sentencing hearing, the District Court sentenced Schlepp to the Montana Department of Corrections for thirteen months, followed by a three-year suspended sentence. Schlepp appeals. ¶7 Whether a prior conviction may be used for sentence enhancement is a question of law, which this Court reviews de novo. State v. Rasmussen, 2017 MT 259, ¶ 10, 389 Mont. 139, 404 P.3d 719. This Court will not disturb the factual findings of a district court regarding the circumstances of the conviction unless they are clearly erroneous. Rasmussen, ¶ 10. ¶8 Pursuant to the due process clause of Article II, Section 17, of the Montana Constitution, a constitutionally infirm prior conviction cannot support an enhanced punishment. Rasmussen, ¶ 12 (citing State v. Chaussee, 2011 MT 203, ¶ 9, 361 Mont. 433, 259 P.3d 783). However, a rebuttable presumption of regularity attaches to prior convictions; this Court presumes that the convicting court complied with the law. Rasmussen, ¶ 14. The defendant bears a heavy burden to produce affirmative evidence and to persuade the court, by a preponderance of the evidence, that prior convictions are constitutionally infirm. State v. Hancock, 2016 MT 21, ¶ 12, 382 Mont. 141, 364 P.3d 1258; State v. Maine, 2011 MT 90, ¶ 34, 360 Mont. 182, 255 P.3d 64. While a defendant's affidavit may serve as evidence of irregularity, an affidavit merely alleging the unconstitutionality of a prior conviction is not sufficient to rebut the presumption of regularity. Hancock, ¶ 12 (citing State v. Nixon, 2012 MT 316, ¶ 19, 367 Mont. 495, 291 P.3d 1154). ¶9 A criminal defendant has a fundamental right to the assistance of counsel. State v. Mann, 2006 MT 33, ¶ 12, 331 Mont. 137, 130 P.3d 164 (citing Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963). Schlepp argues that his recollections in the affidavit show he was not advised of his right to have an attorney appointed to him and he never waived his right to an attorney. ¶10 Schlepp had the burden to both produce affirmative evidence and to persuade the District Court. He did not meet this burden. The District Court found that "the factual record contradict[ed] Schlepp's recollections" from sixteen and seventeen years ago. For both convictions, the District Court stated, "Schlepp filled in and signed a form stating, 'I hereby waive my right to counsel or to have counsel appointed.' The registers of actions for both cases likewise recite that Schlepp 'waived attorney.'" The District Court further stated, "The registers of actions for both convictions also note the justice of peace advised Schlepp of his rights." ¶11 Schlepp claims on appeal that the record supports his argument because it states only that Schlepp was advised of his rights, not that he was specifically advised of his right to counsel, and that the clerks of the court, not the respective judges, filled out the registers of action; the record is therefore ambiguous as to whether the judge in either case informed him of his right to counsel. However, an ambiguous or silent record from the convicting court is insufficient to rebut the presumption of regularity. See Chaussee, ¶¶ 17, 24. Absence of proof is wholly insufficient to shift the burden of proof to the State. Rasmussen, ¶ 17. ¶12 This Court agrees with the District Court that the record affirmatively contradicts Schlepp's recollections. This Court will not disturb the District Court's factual findings regarding the circumstances of the 2000 and 2001 convictions. See Rasmussen, ¶ 10. ¶13 While Schlepp contends the District Court should have held an evidentiary hearing, the decision to grant a hearing on a motion challenging the validity of a prior conviction for sentence enhancement purposes is within the sound discretion of the District Court. See Chaussee, ¶ 26. "Moreover, before a defendant may be entitled to such a hearing, he must make a prima facie showing that the challenged conviction is invalid," which Schlepp failed to do. Chaussee, ¶ 26. The District Court properly declined to hold an evidentiary hearing based on its review of Schlepp's affidavit and Gallatin County's factual records. ¶14 The District Court correctly concluded that Schlepp failed to meet his burden to present affirmative evidence and persuade the court, by a preponderance of the evidence, that his 2000 and 2001 convictions for DUI were constitutionally infirm. See Nixon, ¶ 21. ¶15 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. ¶16 Affirmed.
(e) the person has one prior conviction or pending charge for a violation of 45-5-106, 45-5-205, 61-8-401, 61-8-406, 61-8-411, or this section within 10 years of the commission of the present offense or has two or more prior convictions or pending charges, or any combination thereof, for violations of 45-5-106, 45-5-205, 61-8-401, 61-8-406, or 61-8-411.
/S/ MIKE McGRATH We Concur: /S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
/S/ LAURIE McKINNON