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State v. Deville7/2/2004
, from a silent record, that the defendant knowingly and intelligently waived his right to trial, then a court may also presume from a record which is not silent with respect to the waiver of counsel that the defendant made a knowing and intelligent decision to proceed without the guiding *692 hand of an attorney and that the trial court would not have accepted the waiver if the contrary had appeared. See Parke, 506 U.S. at 30, 113 S.Ct. at 523 (" '[T]here is no principle of law better settled, than that every act of a court of competent jurisdiction shall be presumed to have been rightly done, till the contrary appears.' ")(quoting Voorhees v. Jackson, 35 U.S. (10 Pet.) 449, 472, 9 L.Ed. 490 (1836)). It remains for the defendant to show otherwise if he is able to do so and for the trial court ultimately to resolve the question in light of all of the circumstances surrounding entry of the guilty plea. See, e.g., State v. Couture, 289 Mont. 215, 959 P.2d 948, 950-51 (1998)(although defendant executed affidavits that he was not advised of his right to counsel in prior D.U.I. guilty pleas, trial court did not abuse its discretion in finding on the basis of waiver forms executed **6 contemporaneously with the pleas that the defendant was advised of his right to counsel and waived that right).
The judgment below granting the motion to quash is therefore vacated, and this case is remanded to the district court for further proceedings consistent with the views expressed herein.
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