I’ve talked before you about how your total number of DUIs is calculated. What people often forget is that all your past DUIs are fair game, even when they happen out of state. Often defendants will be shocked to find themselves charged with a second or third offense, thinking that because it happened in Vermont is doesn’t count in Montana. It does.
But, there’s a flip side to that rule. The conviction must be for a DUI-equivalent offense, and it must be constitutionally firm. Even for most lawyers, the term constitutionally firm (at least in this context) may be a bit vague. However, the Montana Supreme Court recently had a chance to address the issue in State v. Nixon (2012 MT 316).
On September 13, 2010, Kennth Nixon was charged with felony DUI for his fourth or subsequent DUI. Among his past convictions was a 1992 DUI conviction in Ravalli County Justice Court. Nixon challenged that conviction as constitutionally infirm. Specifically, he said, that the Ravalli County Justice Court failed to obtain a valid and express waiver of the right to counsel prior to taking his guilty plea. Nixon submitted an affidavit in support of the argument. It said:
On December 24, 1992 I pled guilty to DUI in Ravalli County Justice Court [.] I was indigent and unable to retain a private attorney. I was not represented by a lawyer in this proceeding. Prior to entering my guilty plea on December 24, 1992 I was not expressly advised of my right to counsel and I did not expressly and explicitly waive that right prior to pleading guilty.
The District Court (his trial court) found that the conviction was firm, and found that Nixon had failed to meet his burdent o come forward with an affirmative defense establishing that the 1992 conviction was obtained in violation of the Constitution. Following that decision, Nixon entered a no contest plea to the felony DUI charge, and appealed.
The Montana Supreme Court explained that a constitutionally inform prior conviction used for enhancement purposes amounts to sentencing based upon misinformation, which is prohibited by the Due Process Clause of Article II, Section 17 of the Montana Constitution. The Court uses a three-step framework for evaluating collateral challenges to prior convictions offered for sentence enhancement purposes:
1. a rebuttable presumption of regularity attaches to the prior conviction, and we presume that the convicting court complied with the law in all respects;
2. the 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; and
3. once the defendant has done so, the State has the burden to rebut the defendant’s evidence. There is no burden of proof imposed on the State to show that the prior conviction is valid, however. The State’s burden, rather, is only to rebut the defendant’s showing of invalidity.
A defendant can’t point to an ambiguous or silent record, but must produce affirmative evidence establishing that the prior conviction was constitutionally infirm. Affirmative evidence is evidence that demonstrates 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. It takes more than ambiguous documents, self-serving and conclusory inferences, or forcing the State to prove the validity of the prior conviction (which is already presumed).
In reviewing Nixon’s affidavit, the Supreme Court reiterated that the defendant bears both the burden of production and persuasion. The burden of production requires the defendant to produce some evidence with establishes his claim. Nixon met that requirement. What he failed to do was persuade. Specifically, the Supreme Court looked to testimony by Judge Sabo, who was a judge in Ravalli County Justice Court at the time Nixon was sentenced. While she was assigned his case, it was actually Judge Sperry who took Nixon’s plea and sentenced him. Because Nixon failed to persuade the District Court, in the face of Judge Sabo’s contrary testimony, and because his own testimony included some uncertainty, the Supreme Court found that he had failed to carry the full burden imposed and denied his appeal.
This decision seems to contradict the Court’s prior decisions in State v. Howard (2002 MT 276) and State v. Walker (2008 MT 244). In Howard and Walker, the Court recognized that a defendant’s unequivocal and sworn statements that he did not waive the right to counsel constituted direct evidence which rebuts the presumption of regularity. In both cases the Supreme Court found that the defendants’ affidavits contained unequivocal and sworn statements that they did not waive their rights to counsel, and held that the defendants satisfied their burdens. However, the Court distinguishes Nixon from these cases based on State v. Maine (2011 MT 90). In Maine, the Court determined that the ultimate burden of proof (production and persuasion) and that he must prove it by a preponderance of the evidence.
In the end, Nixon’s felony DUI conviction was upheld. The District Court sentencing him to the Department of Corrections for a period of thirteen months, and ordered that if he successfully completed the WATCH program, the remainder of his thirteen months would be served on probation, followed by a five-year suspended sentence to the Department of Corrections.
State v. Nixon, 2012 MT 316