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Herman v. State11/8/2005
Submitted on Briefs: October 5, 2005
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating Rules, the following decision shall not be cited as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and shall be reported by case title, Supreme Court cause number and result to the State Reporter Publishing Company and to West Group in the quarterly table of noncitable cases issued by this Court.
On October 16, 2002, Douglas Herman signed an acknowledgment and waiver of rights and pled guilty to driving while under the influence of alcohol, a felony in violation of § 61-8-401, MCA. Herman signed a plea agreement whereby he acknowledged: "I am charged with the offense of DUI (I) designated a PFO [Persistent Felony Offender] and the maximum possible penalty provided by law is imprisonment in the State Prison for a term of 100 years, and/or a fine of 50,000 dollars" pursuant to § 46-18-501, MCA. On February 4, 2003, the District Court for the Thirteenth Judicial District, Yellowstone County, sentenced Herman to a term of fifteen years in Montana State Prison, with five years suspended. Herman filed an appeal, but since the filing did not occur within sixty days, this Court dismissed the appeal as untimely under Rule 5(b), M.R.App.P. Herman then filed a petition for post-conviction relief in the District Court, along with a memorandum in support. After the court denied Herman post-conviction relief, he timely filed a notice of appeal with this Court.
On appeal, Herman sets forth several issues, which we restate as follows:
1. Whether Herman has been denied due process of law by the State's failure to comply with § 46-13-108, MCA, by not filing notice, at or before the omnibus hearing, that it sought to designate Herman a persistent felony offender.
2. Whether the sentencing court lacked statutory authority to impose a fifteen-year sentence under the persistent felony offender statute.
3. Whether Herman has been wrongly denied counsel and necessary documents for filing this appeal.
We affirm.
ISSUE 1
Whether Herman has been denied due process of law by the State's failure to comply with § 46-13-108, MCA, by not filing notice, at or before the omnibus hearing, that it sought to designate Herman a persistent felony offender.
The State charged Herman with violating § 61-8-401, MCA, for driving under the influence of alcohol or drugs for a fourth or subsequent offense. The record demonstrates that Herman signed a plea agreement whereby he acknowledged: "I am charged with the offense of DUI (I) designated a PFO and the maximum possible penalty provided by law is imprisonment in the State Prison for a term of 100 years, and/or a fine of 50,000 dollars." Herman contends that the State violated § 46-13-108, MCA, by not filing a notice "at or before the omnibus hearing" specifying his "alleged prior convictions," as mandated by the statute. Section 46-13-108, MCA. The State contends that Herman lacks recourse because he waived non-jurisdictional defects and defenses when he pled guilty. As precedent, the State cites State v. Wheeler (1997), 285 Mont. 400, 402, 948 P.2d 698, 699, in which we held that " fter a criminal defendant pleads guilty and thereby admits that he is guilty of the offense charged, he may only attack the voluntary and intelligent character of his plea and may not raise independent claims relating to prior deprivation of his constitutional rights." Accordingly, because Herman pled guilty to the persistent felony offender designation, without raising a prior objection to the State's failure to file
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