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State v. Weldele4/29/2003
Heard: April 29, 2002
Submitted: May 14, 2002
Bryan Weldele (Weldele) was convicted of felony driving under the influence (DUI) and assault on a minor. He raises eight issues on appeal. We affirm.
ISSUES
Weldele challenged several aspects of the District Court's ruling. The restatement of the issues presented to this Court is:
1. Did the District Court err when it denied Weldele's motion to dismiss after finding that Weldele knowingly and intelligently waived his right to counsel when he pled guilty to DUI in Oregon in 1987?
2. Did the District Court err when it denied Weldele's motion to dismiss and subsequently used Weldele's 1984 and 1987 DUI guilty pleas to raise his 2000 DUI offense to a felony despite a law in effect between 1981 and 1989 that required expungement, under certain circumstances, of DUIs after five years?
3. Does the decision of the United States Supreme Court in Apprendi v. New Jersey preclude enhancing punishment based on factors that have not been charged and proved beyond reasonable doubt?
4. Did the District Court erroneously deny Weldele's motion in limine to preclude the use of the results of the breath tests at trial on the basis that the State had failed to provide full discovery regarding these tests?
5. Did the District Court erroneously deny Weldele's motion in limine to preclude the use of the results of the preliminary breath test (PBT), a/k/a preliminary alcohol screening test (PAST), at trial?
6. Did the District Court err when it denied various motions filed by Weldele at the pretrial conference as untimely?
7. Was Weldele's counsel ineffective for failing to file the denied motions in a timely manner?
8. Did the District Court err in refusing to grant a mistrial when a witness repeatedly referred to alleged prior bad acts by Weldele?
We address each of these issues below.
FACTUAL AND PROCEDURAL BACKGROUND
Weldele and Susan Sheridan (Sheridan), who had been dating for several months, drove to Sheridan's Helena residence on the evening of February 14, 2000, after completing some errands. Sheridan alleges that Weldele was angry with her when they returned. They had been drinking and according to Sheridan, Weldele was drinking heavily and quickly. Sheridan asserts that Weldele became verbally abusive to her ten-year old daughter, J.B. , and was "tormenting" and physically "fighting" with J.B., while Weldele characterizes the event as one of "horseplay" between him and J.B. During this incident between Weldele and J.B., Weldele was struck in the eye by J.B.'s finger or by a pencil that J.B. had been holding. Sheridan claims that Weldele responded by grabbing J.B. by the hair and dragging her across the room and that this was done with enough force to pull out some of J.B.'s hair. When Sheridan attempted to intervene, she claims Weldele grabbed her by her hair as well. Sheridan immediately told Weldele to leave which he did. Sheridan thereafter called the police. Sheridan reported that Weldele had assaulted her daughter and her, that he had left her residence, presumably en route to his own, and that he was driving while possibly intoxicated.
Deputy Sheriff Ken Goetz and Sergeant Dirk Anderson of the Lewis and Clark Sheriff's Department were dispatched separately in response to Sheridan's call. Goetz observed Weldele traveling toward his residence on I-15 northbound just south of the Lincoln Road interchange. Goetz pursued Weldele and overtook him as Weldele pulled into a grocery store parking lot on Lincoln Road. Goetz activated his emergency light
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