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Bingman v. State11/1/2005
hes to such conviction. The defendant may overcome the presumption with direct evidence of irregularity. Once a defendant produces such direct evidence, the burden then shifts to the State to prove by a preponderance of the evidence that it did not obtain the prior conviction in violation of the defendant's rights. (Internal citations omitted.)
While Snell addresses constitutionally infirm convictions as opposed to sentences, the two are in fact interchangeable under the criminal code. Section 46-1-201(7), MCA, defines "conviction" as "a judgment or sentence entered upon a guilty plea . . . or upon a verdict or finding of guilty . . . ." (Emphasis added.) In State v. Diesen, 1998 MT 163, 3, 290 Mont. 55, 3, 964 P.2d 712, 3, we declined to consider an appeal because no sentence had yet been entered. We said:
"An appeal may be taken by the defendant only from a final judgment of conviction and orders after judgment which affect the substantial rights of the defendant." Section 46-20-104(1), MCA. "'Conviction' means a judgment or sentence entered upon a guilty plea . . ."[,] § 46-1-202(6), MCA, and "' udgment' means an adjudication by a court that the defendant is guilty or not guilty, and if the adjudication is that the defendant is guilty, it includes the sentence pronounced by the court"[,] § 46-1-202(10), MCA.
We concluded in Diesen that because the district court had not sentenced Diesen following his adjudication of guilt, we were without jurisdiction to consider his appeal, as there had been "no final judgment of conviction." Diesen, 4. Thus, because the term "conviction" clearly encompasses the sentence imposed, Snell and its many precedents govern here.
Applying Snell to the matter before us, we look first to whether the enhanced sentence imposed upon Snell in 1986 carries with it today a presumption of regularity. Clearly, that sentence is not presumptively regular, in light of Guillaume.Thus, the burden shifts to the State to prove by a preponderance of the evidence that the sentence was not imposed in violation of the defendant's rights. This the State cannot do. And because the State cannot carry its burden, the constitutionally infirm sentence may not, under Snell, be used to support an enhanced punishment.
The result I urge here would not unhinge the system, as it would apply narrowly. I would simply hold that, when a prior sentence, like a prior conviction, is constitutionally infirm, it may not be later used to support an enhanced punishment. I dissent from our refusal to so hold.
PATRICIA O. COTTER
Justice James C. Nelson joins in the dissent of Justice Patricia O. Cotter.
JAMES C. NELSON
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