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State v. Brown6/15/1999
Submitted on Briefs: November 11, 1998
. David Lee Brown (Appellant) appeals from the findings of fact, Conclusions of law, and order entered by the Seventeenth Judicial District Court, Phillips County, denying his motion to dismiss the charges of driving under the influence of alcohol (DUI) (5th offense), a felony, in violation of § 61-8-401(1)(a), MCA, or, alternatively, operating a vehicle with an alcohol concentration of .10 or more (DUI per se) (5th offense), a felony, in violation of § 61-8-406, MCA. We affirm.
. The sole issue on appeal is whether the District Court erred in concluding that three out of four of Appellant's prior DUI convictions in Glacier County and the City of Cut Bank were constitutionally valid and could be used to support the enhanced felony charges against Appellant.
BACKGROUND
. On May 18, 1997, law enforcement authorities cited Appellant for DUI and, alternatively, DUI per se, and placed him under arrest. Based on Appellant's prior convictions for DUI, and pursuant to § 61-8-731, MCA, the State of Montana (State) charged Appellant by information with felony DUI and, alternatively, felony DUI per se. On July 14, 1997, Appellant pleaded not guilty to the charges.
. On August 27, 1997, Appellant filed a motion to dismiss the information on the ground that the charges of felony DUI and felony DUI per se were based on prior convictions that were constitutionally invalid. Appellant conceded that one prior DUI conviction, in Toole County, was constitutionally valid, but argued that the remaining prior DUI convictions, in Glacier County and the City of Cut Bank, were constitutionally invalid because there was no written record of Appellant making a knowing, voluntary waiver of his right to counsel before entering pleas of guilty. Appellant attached to his brief in support of the motion to dismiss an affidavit stating that he did not recall being informed of his right to counsel and did not sign or otherwise make a knowing waiver of his right to counsel.
. In their respective briefs in support of and in opposition to the motion to dismiss, the parties agreed on the proper allocation of their respective burdens of proof as set forth in State v. Okland (1997), 283 Mont. 10, 941 P.2d 431. In that case, we held that a rebuttable presumption of regularity attaches to prior convictions during a collateral attack. We concluded that a defendant who challenges the validity of his prior conviction during a collateral attack has the initial burden of producing direct evidence of its invalidity. Once a defendant has made such a showing, the burden then shifts to the State to produce direct evidence and prove by a preponderance of the evidence that the prior conviction is constitutionally valid. Okland, 283 Mont. at 18, 941 P.2d at 436.
. The District Court held an evidentiary hearing and oral argument on September 25, 1997. In an effort to rebut the presumption of regularity of his prior DUI convictions in Glacier County and the City of Cut Bank, Appellant testified that he did not recall being informed of his right to counsel and did not sign a waiver of his right to counsel when he pleaded guilty to those prior DUI charges. Upon hearing this testimony, the court found that Appellant had provided direct evidence sufficient to rebut the presumption of regularity and shift the burden of proof to the State. The State does not contest this finding.
. Prior to calling any witnesses, the State introduced into evidence six exhibits containing documentary evidence. The parties had previously stipulated to the admission of this evidence. Exhibit 1 was a certified copy of Appellant's driving record pr
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