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State v. Johnson9/21/2000
APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Thomas A. Olson, Judge presiding.
Submitted on Briefs: August 3, 2000
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating Rules, the following decision shall not be cited as precedent but 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.
The Defendant, William Phillip Johnson, was charged by Information filed in the District Court for the Eighteenth Judicial District in Gallatin County with a fourth offense of driving a motor vehicle while under the influence of alcohol, a felony pursuant to § 61-8-401, MCA. Johnson filed a motion to dismiss the felony DUI charge based on his contention that all three prior convictions were constitutionally invalid and, therefore, could not be considered to prove the offense. The District Court denied Johnson's motion to dismiss. Johnson then pled guilty, but reserved the right to appeal the denial of his motion to dismiss. After considering his appeal, we affirm the judgment of the District Court.
The sole issue presented on appeal is whether the District Court erred when it denied Johnson's motion to dismiss the felony DUI charge.
FACTUAL BACKGROUND
On June 1, 1999, William Phillip Johnson was charged by Information with the offense of driving or being in actual physical control of a motor vehicle while under the influence of alcohol. Johnson was previously convicted of DUI in Bozeman in 1985 and 1995 and in Belgrade in 1995. Based on these three prior convictions, the Information charged Johnson with a felony pursuant to § 61-8-401, MCA. The Information also charged Johnson with failure to carry proof of liability insurance in violation of § 61-6-301, MCA and speeding in violation of § 61-8-303, MCA.
On August 27, 1999, Johnson filed a motion to dismiss in which he argued that his prior convictions were unsupported by any evidence that he had been advised of, or waived, his right to counsel. On the basis of these assertions, Johnson requested that the felony charge be dismissed.
In support of his motion, Johnson submitted an affidavit which stated as follows:
1. On October 28, 1985, April 17, 1995, and July 24, 1995 I pled guilty to a DUI charge.
2. I was incarcerated regarding the April 17, 1995, and July 24, 1995, DUI charges.
3. I do not recall being advised of my rights, or waiving my right to counsel orally or in writing.
Johnson further supported his motion by submitting the records of his April 1995 conviction in Bozeman City Court and his July 1995 conviction in Belgrade City Court. The District Court record includes certified copies of the court records for Johnson's 1985 conviction in Bozeman. While the court records concerning the July 1995 conviction include a waiver of the right to an attorney form signed by Johnson, the April 1995 and 1985 court records contain no express waiver. The record of the 1985 conviction, however, included handwritten court minutes which stated that a waiver of attorney form had been signed and filed.
The State responded to Johnson's motion to dismiss by arguing that the court records for the 1985 offense and the July 1995 offense demonstrated that Johnson was informed of his right to counsel and that he waived that right. Furthermore, the State presented the affidavit of James D. M
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