State v. Hass

2011 MT 296

265 P.3d 1221

363 Mont. 8

STATE of Montana, Plaintiff and Appellee,

v.Michael Harlow HASS, Defendant and Appellant.

No. DA 11–0132.

Supreme Court of Montana.

Submitted on Briefs Nov. 16, 2011.Decided Nov. 29, 2011.

For Appellant: Brad L. Arndorfer, Arndorfer Law Firm, P.C., Billings, Montana.

For Appellee: Steve Bullock, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana, Scott Twito, Yellowstone County Attorney, David Carter, Deputy County Attorney, Billings, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

[363 Mont. 9] ¶ 1 The State charged Michael Harlow Hass by Information in the Thirteenth Judicial District Court, Yellowstone County, with three offenses alleged to have been committed in August 2009: Count I, driving a motor vehicle while under the influence of alcohol (DUI); Count II, driving while license is suspended or revoked; and Count III, unlawful possession of an open alcoholic beverage container. The State alleged that Hass has three prior DUI convictions, making Count I a felony. See §§ 61–8–731, –734(1)(b), MCA (2007).¹ Counts II and III are misdemeanors. See §§ 61–5–212(1)(b), 61–8–460(3), MCA.

¶ 2 Hass filed a motion challenging the validity of one of his prior DUI convictions—in particular, a conviction entered by the Yellowstone County Justice Court in 1994. Hass argued that his constitutional rights to counsel and to due process were violated when the trial judge in that case allowed Hass's counsel to withdraw on the day of trial and then proceeded to try and convict Hass in absentia. The District Court held an evidentiary hearing and denied Hass's motion from the bench. Thereafter, pursuant to a plea agreement, Hass pleaded guilty to fourth-offense DUI, reserving his right to appeal the District Court's denial of his motion. The State moved to dismiss Counts II and III. The District Court accepted the plea and imposed sentence.

¶ 3 Hass now appeals, raising one issue: whether the District Court erred in denying his motion challenging the validity of his 1994 conviction. We reverse and remand for further proceedings as detailed below.

BACKGROUND

¶ 4 Our focus in this appeal is on Hass's 1994 conviction. The record from that conviction reflects the following chronology of events.

¶ 5 Shortly after midnight on March 5, 1993, Hass was cited for misdemeanor DUI in Billings. Bail bond was posted later that same day. On June 11, the bond was forfeited due to “non-appearance.” The Justice Court issued an arrest warrant on June 14. On July 26, Hass entered a plea of not guilty. The Justice Court record specifically indicates that Hass did not waive his right to counsel. He advised the court that Greg Johnson was his attorney. On August 3, the Justice Court set trial for August 31.

¶ 6 On August 20, Hass sent the court a letter requesting a change to his bond or to be released on his own recognizance. The court replied by letter dated August 24 denying this request. In addition, the court noted that Greg Johnson had advised the court that he was not representing Hass in this matter. The court inquired whether Hass intended to represent himself and whether he wanted the court to call a jury for the August 31 trial date. Hass sent another letter on August 25 requesting a continuance and again asking to be released. The Justice Court replied on August 30 denying both requests. The court noted that he was serving jail time on another sentence and, thus, could not be released.

¶ 7 Hass appeared in court on August 31 without counsel. According to the Justice Court's notes, he seemed “emotionally unstable.” The court contacted a public defender, Jeff Michael, who appeared and requested a continuance. The court granted the request and reset trial for September 22. Thereafter, trial was continued to November 22 and then again to January 24, 1994. Both continuances were upon motions filed by the defense. The reasons for the two continuances were not stated, however.

¶ 8 On January 24, Michael appeared in court. Hass, who evidently had been released in the interim, was not present. Michael filed a motion to withdraw as counsel. The motion was dated January 24, 1994. As grounds, Michael stated in the motion: “Client has not made contributable contact with his attorney to prepare a proper defense.” The Justice Court granted the motion. The court then proceeded directly to hold a bench trial in absentia. After hearing the State's evidence, the court found Hass guilty of DUI.

¶ 9 The Justice Court issued an arrest warrant on January 25. On July 20, Hass appeared for sentencing. The court imposed a fine, plus 6 months in jail with 45 days suspended. At some point, Hass submitted an undated affidavit to the Justice Court explaining why he had not been present for his trial on the DUI charge. He stated that he had been “snowed in at Outlook, MT,” without a car, gas, money, or phone, and thus had not been “voluntarily absent” from the trial. Hass stated that his attorney had been notified, by way of his brother and by mail, that Hass was unable to attend.

¶ 10 At the evidentiary hearing in the present case, Hass testified that he did not recall many of the events detailed above. He attributed this in part to the fact that he had been hit by a car six years earlier, and in part to the fact that he had been dealing with divorce and custody issues back in 1993. Hass felt certain, however, that he did not receive notice of the January 1994 trial setting and did not receive notice of Michael's motion to withdraw as his counsel.

¶ 11 Michael also testified at the hearing. Because the public defender file in Hass's case had since been destroyed, Michael could only testify as to his general practices. During that period (1993 to 1994), his caseload consisted of roughly 100 misdemeanor cases at a time. When asked about the motion to withdraw in Hass's case, Michael testified that Hass would not have had notice of the motion since Michael “waited until the ninth second to file [it].” As for his reasons for filing it, Michael stated:

I think [the motion] kind of speaks for itself, that there just wasn't enough contact with the client to even prepare a defense, to even—I mean this would have been prepared probably right before trial. I mean, standing at the door waiting to go to trial wondering where your client's at. And probably just said I couldn't even try a case in absentia because I hadn't had enough contact with my client to even know if there was a defense.

Michael acknowledged, though, that he likely had contact with Hass early on, while Hass was still incarcerated, given his practice of making regular visits to his incarcerated clients. Michael also agreed that if he had stayed on as counsel, he could have objected to any improper testimony or evidence offered by the State and could have made sure the State presented sufficient evidence to support a conviction. Michael indicated, however, that he thought it would have been pointless to do so

because if you've ever sat through the trial in absentia, the State puts the cop on and he testifies. It's uncontroverted testimony. So the facts are taken. There's nobody—I mean, what's the defense? The guy gets up and says, I pulled him over and I did the test, I did this, I did that. And if he didn't have a driver's license, and you sit there and go, Okay. I mean, I've sat through trials in absentia.

...

My—my way of doing things is we had the police reports. I've read all the police reports. They have the officer to testify. I didn't have any defense. If I thought that there was a shot at winning a case, with or without a Defendant, I would have tried it.

¶ 12 In upholding the 1994 conviction, the District Court concluded that Hass had not presented sufficient evidence to meet his burden. In this regard, the court noted that Hass and Michael could not remember much about the specifics of the case. Furthermore, the court stated that it believed the authority cited by the State was controlling. One of the cases, which the prosecutor had characterized as “directly on point,” was State v. Weaver, 2008 MT 86, 342 Mont. 196, 179 P.3d 534. In Weaver, the defendant claimed that being tried in absentia on a misdemeanor charge violated his constitutional right to be present. We held that he had effectively waived this right, however, by being willfully absent from trial or by keeping himself deliberately ignorant of the trial date. Weaver, ¶¶ 16, 22. Here, based on the Justice Court record and the testimony at the hearing, the District Court inferred that Hass more than likely knew about the January 24 trial date and simply failed to make it to court. Conversely, if Hass did not know about the trial date, the court reasoned that he had failed to make appropriate arrangements to have his mail forwarded from his ex-wife's house and had failed to maintain sufficient contact with his attorney.

STANDARDS OF REVIEW

¶ 13 Whether a prior conviction may be used for sentence enhancement is generally a question of law, for which our review is de novo. State v. Maine, 2011 MT 90, ¶ 12, 360 Mont. 182, 255 P.3d 64. However, in determining whether a prior conviction is invalid, the trial court may first need to make findings of fact, based on oral and documentary evidence presented by the parties, regarding the circumstances of that conviction. We will not disturb such findings unless they are clearly erroneous. Maine, ¶ 12.

DISCUSSION

¶ 14 The Due Process Clause of Article II, Section 17 of the Montana Constitution protects a defendant from being sentenced based upon misinformation. Maine, ¶ 28. A constitutionally infirm prior conviction used for enhancement purposes constitutes misinformation of constitutional magnitude. Maine, ¶ 28. Thus, in Montana, it is well established that the State may not use a constitutionally infirm conviction to support an enhanced punishment. Maine, ¶ 28; accord State v. Burns, ...