State v. Rasmussen

389 Mont. 139

404 P.3d 719

2017 MT 259

STATE of Montana, Plaintiff and Appellee,

v.David Derell RASMUSSEN, Defendant and Appellant.

DA 16-0403.

Supreme Court of Montana.

Submitted on Briefs: August 30, 2017

Decided: October 31, 2017

For Appellant: Chad Wright, Chief Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana, Kirsten H. Pabst, Missoula County Attorney, Karla Painter, Deputy County Attorney, Missoula, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶ 1 David Rasmussen was arrested in Missoula for driving under the influence of alcohol (DUI). The State charged him with felony DUI because Rasmussen had four prior DUI convictions. Rasmussen moved to dismiss, arguing that two of his prior convictions were obtained in violation of his constitutional right to counsel. The District Court held a hearing on the motion at which Rasmussen testified as the only witness. After the hearing, the court denied Rasmussen's motion to dismiss on the ground that he had not met his burden of rebutting the presumption of regularity that attached to the prior convictions. Rasmussen appeals that ruling. We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 2 Rasmussen was arrested in April 2015 and charged with felony DUI under § 61-8-401(1)(a), MCA. The State based its felony enhancement on the fact that Rasmussen had four prior qualifying DUI convictions: on March 4, 1996, March 25, 1996, August 9, 2001, and April 3, 2008.

¶ 3 Rasmussen moved to dismiss the charge. He asserted that the State had obtained the two March 1996 convictions in violation of his constitutional right to counsel and that these convictions could not be used for felony DUI enhancement purposes. Rasmussen submitted an affidavit with his motion to dismiss. As to the proceedings for the March 4, 1996 conviction, Rasmussen asserted that "he did not have an attorney and that he did not sign a waiver of his right to an attorney and he did not understand that he had a right to an attorney." As to the March 25, 1996 proceedings, Rasmussen's affidavit stated that "he did not have an attorney and did not sign any document waiving his right to an attorney."

¶ 4 The District Court held a hearing in September 2015 on Rasmussen's motion to dismiss. The parties agreed that there were no records in existence of Rasmussen's 1996 DUI proceedings, other than an e-mail from the Missoula Justice Court clerk advising that that court's file on Rasmussen's March 4, 1996 conviction had been shredded and including some coding notes from the court's "old system." Rasmussen was the only witness at the hearing. His testimony on direct examination essentially repeated his statements in the affidavit. As to the March 4, 1996 proceedings, he testified that he did not have an attorney, that he did not sign a waiver of his right to an attorney, and that he did not understand that he had a right to an attorney. With regard to the March 25, 1996 proceedings, he testified that he did not have an attorney and did not sign a waiver of his right to an attorney.

¶ 5 At the conclusion of Rasmussen's direct examination, the State argued that Rasmussen had failed to meet his burden to rebut the presumption of regularity in the 1996 convictions. The District Court asked for cross-examination, noting that it was "reserving [its] decision" on whether Rasmussen had satisfied his burden until a more complete record could be developed.

¶ 6 On cross-examination, Rasmussen testified that he knew at the time he executed his affidavit that no court records existed for the 1996 convictions that could contradict his affidavit. Rasmussen confirmed that his attorney had secured court records for the August 2001 conviction, that the records showed that Rasmussen was represented by counsel in those proceedings, that the 2001 case was the first time he "ever did need an attorney," and that he was not challenging the validity of that conviction. Rasmussen acknowledged that challenging a prior DUI conviction had "worked for [him] in the past" in a separate case. He agreed that he was previously convicted of multiple jailable, traffic-related offenses prior to 1996 and that he was arrested for DUI in 1983. Rasmussen testified that he remembered the judge, he remembered "not signing any waiver" of his right to counsel, and he remembered that he did not have an attorney in the 1996 proceedings.

¶ 7 The prosecutor asked specifically, "Do you agree with me that that's a pretty specific memory, right, that you were never advised of the right to an attorney? That's pretty specific." Rasmussen replied, "I—well, I was never asked to sign anything for an attorney." The prosecutor asked Rasmussen for other details about the 1996 proceedings. Rasmussen stated what he recalled about the presiding judges and then responded, "This has been 20-some years ago." When the prosecutor remarked to Rasmussen that it was "curious" that he remembered specifically that he did not sign a waiver of his right to counsel but that he could "not remember anything else" from the proceedings, Rasmussen responded, "I do remember not signing anything." The prosecutor again asked, "As to your 1996 justice court conviction, in your affidavit, you assert that you were never advised of your right to an attorney; is that right?" Rasmussen responded, "Correct." She continued, "You never signed any waiver of your right to an attorney." Rasmussen again replied, "Correct." Rasmussen confirmed his assertion that, despite having eight prior jailable offenses before 1996, he never knew that he had the right to counsel.

¶ 8 The day after the hearing, the District Court denied Rasmussen's motion to dismiss. In a brief, written order denying the motion, the court summarized Rasmussen's and the State's arguments. The court then stated that, "[b]ased on the contents of [Rasmussen's] Affidavit and his own testimony during the hearing," Rasmussen had not met his burden to rebut the presumption of regularity in his 1996 convictions.

¶ 9 A Missoula County jury subsequently found Rasmussen guilty of DUI. The court imposed a felony DUI sentence of thirteen months in the Department of Corrections' WATCh program, followed by a five-year suspended commitment to the Department. Rasmussen appeals.

STANDARDS OF REVIEW

¶ 10 Whether a prior conviction may be used for sentence enhancement is a question of law that we review 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, a district 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. Maine , ¶ 12. We will not disturb such findings unless they are clearly erroneous. Maine , ¶ 12.

DISCUSSION

¶ 11 Rasmussen contends that the District Court erred in denying his motion to dismiss. He argues that the court erred as a matter of law by making a "categorical ruling" that a defendant's "self-serving" testimony is never sufficient to satisfy the defendant's burden to overcome the presumption of validity that attaches to prior convictions. Rasmussen contends that a defendant's testimony is categorically insufficient only if it is both self-serving and conclusory. His testimony, although self-serving, was not conclusory in his view because it described the facts and circumstances of his 1996 convictions. He asserts that his testimony therefore constituted "affirmative evidence" sufficient to satisfy his burden.

¶ 12 The Due Process Clause of Article II, Section 17, of the Montana Constitution"protects a defendant from being sentenced based upon misinformation." State v. Chaussee , 2011 MT 203, ¶ 9, 361 Mont. 433, 259 P.3d 783 (citing State v. Phillips , 2007 MT 117, ¶ 17, 337 Mont. 248, 159 P.3d 1078 ). "A constitutionally infirm prior conviction used for enhancement purposes constitutes ‘misinformation of constitutional magnitude.’ " Chaussee , ¶ 9 (quoting United States v. Tucker , 404 U.S. 443, 447, 92 S.Ct. 589, 592, 30 L.Ed.2d 592 (1972) ). The State therefore "may not use a constitutionally infirm conviction to support an enhanced punishment." Chaussee , ¶ 9 (quoting State v. Okland , 283 Mont. 10, 15, 941 P.2d 431, 434 (1997) ).

¶ 13 Article II, Section 24, of the Montana Constitution guarantees that in all criminal prosecutions, the accused shall have the right to the assistance of counsel. "The fundamental right to counsel in misdemeanor cases extends only to those cases in which a sentence of imprisonment is actually imposed." State v. Hass , 2011 MT 296, ¶ 20, 363 Mont. 8, 265 P.3d 1221 (citing State v. Walker , 2008 MT 244, ¶ 17, 344 Mont. 477, 188 P.3d 1069 ).¹

¶ 14 "[A] rebuttable presumption of regularity attaches to [a] prior conviction, and we presume that the convicting court complied with the law in all respects." State v. Krebs , 2016 MT 288, ¶ 12, 385 Mont. 328, 384 P.3d 98 (citation and internal quotations omitted). "[T]he defendant has the burden to overcome the presumption of regularity by producing affirmative evidence and persuading the court, by a preponderance of the evidence, that the prior conviction is constitutionally infirm." Chaussee , ¶ 13. "Affirmative evidence" is evidence showing "that certain facts actually exist or, in the context of a collateral challenge, that certain facts actually existed at some point in the past—e.g., that an indigent defendant actually requested the appointment of counsel but counsel was actually refused." Hass , ¶ 16. "Ambiguous documents, self-serving and conclusory inferences, and forcing the State to prove the validity of the prior conviction, when such validity is already presumed, do not suffice as affirmative evidence for purposes of meeting the defendant's burden." Hass , ¶ 16 (citing Chaussee , ¶ 18 ). If the defendant satisfies his burden, the...