State v. Letherman

413 Mont. 459

537 P.3d 862

STATE of Montana, Plaintiff and Appellee,

v.Mikel S. LETHERMAN, Defendant and Appellant.

DA 21-0589

Supreme Court of Montana.

Submitted on Briefs: August 2, 2023

Decided: October 24, 2023

For Appellant: Chad Wright, Appellate Defender, Alexander H. Pyle, Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Cori Losing, Assistant Attorney General, Helena, Montana, Scott Twito, Yellowstone County Attorney, Victoria Callender, Deputy County Attorney, Billings, Montana

Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Mikel Stetson Letherman appeals his sentence from the Thirteenth Judicial District Court, Yellowstone, County, for felony DUI per se. At his sentencing hearing, Letherman challenged the accuracy of his reported DUI convictions in the Presentence Investigation Report (PSI). The District Court followed the PSI and imposed a felony sentence.

¶2 The State bears the burden of providing competent proof of the existence of Letherman's prior convictions for the purposes of enhancing Letherman's sentence. Concluding that the PSI alone does not constitute competent proof if its accuracy is challenged, we reverse and remand for sentencing for a misdemeanor DUI.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On August 25, 2020, the State of Montana charged Mikel Stetson Letherman by Amended Information with DUI, a felony, in violation of § 61-8-401, MCA (2019), and with the alternative charge of DUI per se, a felony, in violation of § 61-8-406, MCA (2019). In its Motion for Leave to File the Amended Information, the State asserted that Letherman had three prior convictions for DUI: April 2005, June 2005, and August 2015. After a bench trial on January 5, 2021, the District Court found Letherman guilty of DUI per se.

¶4 Prior to sentencing, the State filed a PSI that, in relevant part, provided the following information pertaining to Letherman's criminal history:

1. 02/04/2005, Billings, Operating a Motor Vehicle w/BAC of .08 or above (M), Convicted;

2. 04/28/2005, Billings, DUI (M), Convicted;

3. 09/20/2014, Billings, DUI (M), Convicted;

4. 08/14/2015, Billings, DUI (M), Convicted; 5. 05/03/2020, Billings, DUI (F), Current Offense; Operating a Motor Vehicle with a BAC of .08 or Greater (F), Current Offense.

An officer from the Billings Regional Office of the Montana Department of Corrections Adult Probation and Parole Bureau completed and signed the PSI. The State certified that it provided a copy of the PSI to counsel representing Letherman at the time.

¶5 Letherman appeared pro se at his sentencing hearing for felony DUI on June 29, 2021. At the beginning of the hearing, the District Court asked Letherman if he had "any additions or corrections to the [PSI]." Letherman responded, "No, sir." After the State recommended the District Court impose the maximum sentence, the District Court asked Letherman for his recommendation. In Letherman's recommendation for treatment court, Letherman stated, "[M]y last DUI in 2015 was a second, I'm getting sentenced on a fourth today." The State responded by pointing to the "criminal history" section of the PSI and stated that Letherman had four prior DUI convictions—two a couple months apart in 2005, and two less than a year apart in 2014 and 2015. The District Court agreed with the State, and Letherman objected in the following colloquy:

Court: [M]r. Letherman, I agree, when I look at the PSI, that's what they show, it shows four previous convictions for DUI.

Letherman: I don't mean to argue with you, Your Honor, but it's three.

Court: All right. Well, as a matter of record, then, just so we make the record clear, I am proceeding based upon the PSI, and it shows four previous convictions.

Letherman: I just want it on the record that I haven't even been found guilty of a third, Your Honor. ...

¶6 Over Letherman's objection, the District Court relied on the PSI and ordered a felony sentence of five years to the Department of Corrections with three suspended and a $5,000 fine under the sentencing enhancement for a fourth or subsequent DUI in § 61-8-731, MCA (2019) (recodified at § 61-8-1008, MCA ). This Court granted Letherman's out-of-time appeal to determine whether the District Court erred by relying exclusively on the disputed PSI to impose a felony DUI sentence.

STANDARD OF REVIEW

¶7 "Whether a prior conviction may be used to enhance a criminal sentence is a question of law that we review for correctness." State v. Krebs , 2016 MT 288, ¶ 7, 385 Mont. 328, 384 P.3d 98 (citation omitted).

DISCUSSION

¶8 To convict a defendant of felony DUI, the defendant must have three or more prior DUI or DUI-equivalent convictions. See § 61-8-731(1), MCA (2019) (recodified at § 61-8-1008, MCA ). A defendant's prior convictions are considered at sentencing. Krebs , ¶ 17 (citations omitted). "[A] convicted defendant has a due process guarantee against a sentence predicated on misinformation." State v. McLeod , 2002 MT 348, ¶ 16, 313 Mont. 358, 61 P.3d 126 (citing State v. Orsborn , 170 Mont. 480, 486, 555 P.2d 509, 513 (1976) ).

¶9 When the State seeks to use a prior conviction as a sentence enhancement, "[i]t is the State's burden to prove the fact of a prior conviction." Krebs , ¶ 19 (citation omitted; internal quotations and brackets omitted). "And the State must do so by presenting ‘competent proof that the defendant in fact suffered the prior conviction.’ " Krebs , ¶ 19 (quoting State v. LaMere , 202 Mont. 313, 321, 658 P.2d 376, 380 (1983) (emphasis in original)). Once competent proof of a prior conviction has been provided, "a presumption of regularity" attaches to the conviction. State v. Snell , 2004 MT 334, ¶ 25, 324 Mont. 173, 103 P.3d 503 (citation omitted). The defendant must provide "direct evidence of irregularity" to challenge the use of that conviction to enhance the sentence. Snell , ¶ 25 (citation omitted). The State contends that the disputed PSI, on its own, constitutes competent proof of a prior conviction. Letherman contends the PSI may be so used only if it is undisputed.

¶10 Our prior cases have found a defendant's certified driving record and underlying court records to be competent proof.

State v. Perry , 283 Mont. 34, 36-37, 938 P.2d 1325, 1326-1327 (1997) ; see also State v. Faber , 2008 MT 368, ¶¶ 29-30, 346 Mont. 449, 197 P.3d 941 (certified driving record showing the defendant's convictions, coupled with the presiding judge's testimony regarding the judge's standard procedures held sufficient). In State v. Holder , we held that the National Crime Information Center (NCIC) criminal record provides competent proof that the prior conviction occurred. 2020 MT 61, ¶ 12, 399 Mont. 214, 459 P.3d 1282.

¶11 We agree with Letherman that a PSI is not equivalent to an NCIC criminal record. Although the PSI may be based on NCIC report information, a PSI is prepared by Probation and Parole Division employees and it can be inaccurate. See McLeod , ¶ 9 (PSI's comments section incorrectly referred to the offense as being the defendant's fifth felony when it was his fourth); Hirt v. State , 2009 MT 116, ¶¶ 8-10, 350 Mont. 162, 206 P.3d 908 (PSI documented three prior felony convictions, but defendant correctly reported only one felony conviction). It is the records reported in the PSI that comprise proof of the defendant's criminal history. When a defendant contests the accuracy of that report, the State must be able to demonstrate the underlying proof—through the NCIC report, a certified driving record, or the prior judgments of conviction. Here, unlike in Holder , the District Court relied solely on the disputed PSI, rather than on the NCIC criminal record. When Letherman challenged the accuracy, it was incumbent upon the State to submit competent proof of his prior convictions.

¶12 We have not had prior occasion to consider the issue Letherman raises, but we now join other courts in holding that a sentencing court may rely solely on statements of prior convictions in a presentence report only when the defendant does not object to the accuracy of the report's depiction of the defendant's criminal history. When a defendant does object, the State must produce additional evidence to meet its burden of proof. See, e.g., Kansas v. Schow , 287 Kan. 529, 197 P.3d 825, 833 (2008) ("We find ... a defendant may file a written objection to his or her criminal history worksheet ... and that such an objection places the burden of the State to produce further evidence establishing the existence of the challenged conviction(s) by a preponderance of the evidence."); Sutton v. Maryland , 128 Md.App. 308, 738 A.2d 286, 297 (1999) ("[A] presentence investigation report given to the defendant's attorney at the hearing is competent evidence sufficient to prove the factual predicate in order to impose enhanced punishment, provided counsel does not object to the accuracy of the record." (citations and internal quotations omitted)); People v. Waclawski , 286 Mich.App. 634, 780 N.W.2d 321, 357 (2009) (internal citations omitted) ("[U]pon assertion of a challenge to the factual accuracy of information [in the presentence investigation report], a court has a duty to resolve the challenge... Once a defendant effectively challenges a factual assertion, the prosecutor has the burden to prove the fact by a preponderance of the evidence.").

¶13 It does not violate due process for a district court to sentence a defendant based upon an undisputed PSI that contains inaccuracies, provided that the sentence imposed does not exceed the statutory limitations. See McLeod , ¶¶ 24-26 (citations omitted). In Orsborn , we held that due process was not offended when the district court referred at sentencing to facts outside the PSI because three factors were present: "(1) Defendant was represented by counsel at the time the sentencing information was made known to him; (2) He had the opportunity to rebut the information; [and] (3) Defendant chose to affirm...