No. 01-855 

IX THE SIJPREME COURT OF THE S?'ATE OF MONTASA 

2002 MT 276 

STATE OF MONTXNA? 

Plaintiff atid Respondent, 

I'. 

NANETTE tIAUREEN HOWARD, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and For the Coun~y of blissoula, 

ttonorable John S. t-ienson, Judge Presiding 

COUUSEI. OF RECORD: 

For Appclla~~t: 

Leslre Ocks, Publlc Defender Office, bl~ssoula, Montana 

For Respondent. 

Honorable Mike McGrath, Attorney General; Crcgg W Coughlin, 

Assista~it Attorney General, Helena, Montana 

Fred Van Valkenburg, Co~mt] Attonieq, Kr~steii t-t Lacroix. Deput) 

Count? Attorney, Mrssoula, Montana 

Submiitcd on Briefs: .April 18, 2002 

I>ecided: December 5, 2002 
Jnstice 'CV. M~illiam i.eapkari dciivercd thc Opinion ofthe Court. 

q!1 In Octohcr 2000. the defendant, Xanette Maureen Howard jlioward), was chargcd 

with two offenses liied in Missouia County District Court: Operating a Motor Vehicle While 

Under the Influence of Alcohol or Drugs, a Fourth or Subseque~lt [Lifetime Offense, in 

violation of $6 61-8-401(1)(a), and -714. MCA; and Driving While License Stlspended or 

Rcvokcd, in violation of $ 61-5-212, MC.4. Howard filed a motion to dismiss the felony 

DUI ehargc, which the District Court denied. 1-his appeal follo\vs. We reverse the judgment 

of the District Court. 

BACKGROUXD 

"2 11 On October 23, 20001 Howard was charged by information with driving under the 

influence (DUI) and driving with a revoked or suspended license. The DUI charge alleged 

in the information, if proven, would have constituted her fourth DUI offense. Howard had 

been previously convicted of DUI in Missoula County Municipal Court on August 28, 2000> 

December 20, 1999, and January 13, 1997. Rased on those three prior convictions, the 

infonnation charged her with a felony. 

13 Howard filed amotion to dismiss the felony Dtil ellarge in which slle contended that, 

at tlie time she pled guilty to the 1997 DL'[ charge, she did not expressly waive her right to 

an attonicy. 011 that basis, she asserted that thc I997 DC1 eonvictio~~ was entered in 

derogation of her co~~stitutional rights, specifically l~cr Sixth Amendment right to counsel, 

and cannot be uscd to increase the current DlJl charge to a felony. 
?4 , in support of !let. ~notiori to dismiss the klony DL.1 charge, I-loward subrniltcd an 

affidavit whiclr provides. in relcvant par?, as follows: 

On January 13, I997 I could not afford coi~nsel and I was not reprcsenred by cau~~sel. I \%:as not advised of my right to court-appointed counsel 

before I entered my plea of guilty, nor did I waive my right to court-appointed 

counsel. 

75 No record of Howard's 1997 DVI plea colloquy exists. At an evidentiary hearing, 

Judge Donald J. Louden, the Missoula Municipal Coui-t Judge who had presided over 

I iouard's 1997 guilty plea, testified. Judge Louden test~fied that he has been the rvhssoula 

Municipal Court Judge for twelve years and that he handles three to four hundred DUl 

charges each year. FIe explained his practice of advising defendants, and recited from 

memory the colloqtry he uses with all criminal defendants. This colloquy included advis~ng 

defendants that they have the right to be represented by an attorney. to ha~e an attorney 

appointed to represent them, that they can have Inore t~me to think o\er their plea deciscon 

and discuss it with an attorney or anyone elsc they wish. On cross-examination, thc 

prosecutor asked Judge Louden: 

Q: ,4lthough you don't recall specifically Miss Howard saying those 

words, meaning she waives her riglit to counsel, and there's not a note 

on this ticket from 1997, do you know that she did waive that right'? 

A: I know that she was told that she had the right to have an attorney and 

to llave an attorney appointed to represent her. 1 know that she was told 

that if she pled guilty, that she was waiving all of the rights. That she 

would have indicated that slic did understand the rights and indicated 

that she wished to enter a plea of guilty. 
!;(I i\rhiic judge Laoudcn furthcr testified that it was iris practice to advise ail criminal 

ticfendants that by pleading guilty to thc offensc, thcy would waive their right to coi~nscl, hi: 

made clear that it was not his practice in 1997 to expressly ask dci'cndants bvhcther they 

waived thcir righi to counsel prior to the defendant entering a plea of guilty. 

77 On March 7; 2001, the District Court denied EIoward's motion to dismiss the felony 

DUI charge. Eventually, Hourard entered into a plea agreement with the State, whereby she 

pled guilty to both counts but reserved her right to appeal the present issue. Howard 

received a sentence of thirteen months and four years probation for the felony DU1 charge. 

She received a six-month sentence wit11 all but two days deferred for the Driving While 

License S~ispendcd or Revoked charge. This appeal follows. We conclude that ihc District 

C:ourt's decision to deny Howard's motion to dismiss was incorrect as a matter of law and, 

therefore, must be reversed. 

*I8 The sole issue on appeal is uhether thc Distrcct Court erred in dcny~ng Houard's 

motion to dismiss the felony Dbl charge. 

DISCUSSION 

79 When \i7c review a district court's conclusions of law, thc standard of review is 

plenary anil we must dctennine whether the district court's conclusions are correct as a 

matter of law. Stirre I,. Okliznil(l"177), 283 Mont. i0, 14, 941 P.2d 431,433; Stale v. Sage 

(19921,255 htont. 227,229, 841 P.2d 1142, 1143. 
710 A rebuttable presumption of regularity atvaches to prior criminal convictions. Sture 

1:. hfijgn, 1999 M'T 283,q 11: 297 Mont. 1, +i 1 1, "19 P.2d R56,6;; 11; iiicinnd, 283 Mont. at 

18, 941 P.2d at 436. If the defendant overcomes that presumption with direct e\-idcnce oi 

irrcgirlarity, the burden then shifts to the State to prove by direct evidence that the prior 

conviction was not obtained in violation of tlie defendant's rights. iLfogu, 11 11; Clklnnd, 283 

Mont. at 18,941 P.2d at 436. 

711 1 Ln Montana, it is well established that the State may not use a constitutionally infirm 

conviction to support an enhanced punishment, such as a felony DCI. Oklnrld. 283 Mont. 

at 15,941 P.2d at 434; Lewis v. Sirrre (1960), 153 Vont. 400,463,457 P.2d 765, 766. The 

Sixth Amcndn?ent of the United States Cons~itution, and Article IT, Section 24, of the 

;Montana Constitution, guarantee tlic filndamental right to the assistance of counscl. <;ideon 

11. W~inivriglti (1963), 372 U.S. 335, 83 S.Ct. 792,') L.Ed.2d 799; Okl~zn~f: 283 Mont. at 14; 

941 P.2d at 433. Defendants without means to hire an attorney are entitled to legal 

representation by court-appointed co~~nsel at public expense. Oklnizd, 283 h4011t. at 14,031 

P.2d at 433. 

:!I2 The fundamental right to counsel does not extend to defendants who waive the right. 

Olclrzt~d, 283 Mont. at 14: 041 P.2d at 433. b2'aiver, however, requires a knowing and 

intelligent relinquishment of a knom right. Okiatzd 283 Mont. at 14,941 P.2d ~.,t 433; S'rilic 

v. B!irkr:eyj1982), 197 Mont. 131, 138,641 P.2d 1045, 1049. This Courtu-ill not engagc in 

presumptions of waiver; any \raiver of a constitutional right must be made spceifical!y, 
volunrarjiy. and knowingly. Stitti? I:, Bird, 2OOi MT 2,7135,308 Mont, 75,ci 35; 43 P.3d 266, 

7/35; ikrkv. ,i'i.x-fl~,/~rci. Disf. Court, I908 MT 164;'?36.289 %font. 367,T 36,961 P.2d 1267, 

1; 36 (citing .l(~/ti~~oiz V. Zerhst (1938). 304 b.S. 458; 461. 58 S.Ct. 1019, 1023, 82 1-.Ed. 

t 1 I). With these legal prcccpts in mind, we turn to the case at bar. 

11 3 As stated abovc, a rebuttable presun~ption of regularity attaches to Howard's 1997 

DI!1 conviction; however, tiou-ard may overcome this presuinption by direct evidence of 

irregularity. By way of direct cvidence, Howard presented an affidavit in support of her 

motion in which she states that she did not waive her right to counsel at her 1997 Dl![ guilty 

plea. Whtle ue habe held tn the past that a dei'endant's sketchy recollection as to \+hcther 

or not she was advised of and waived her rigltt to couiisel is not sufficient to overcome ihi: 

presumption of regularity (Sfcrre v. Big Hair, 1998 MT G1,lj 1 8, 288 Mont. 135. 'l 18, 055 

P.2d 1352,1! 18), we have recognized that a defendant's unequivocal and sworn statement 

that she did not waive her right to counsel constitutes direct evidence which rebuts the 

presunlption of regularity. Stilte v. Co:~l~trlre, 1998 MT 137> 71 15,289 Mont. 21 5,l 15. 959 

P.2d 948,1; 15. Because Howard's affidavit is direct evidence demonstrating that her plea 

was obtained in violation of her constitutional rights, and therefore "irregular," we now turn 

to the State's case. 

'114 The State must prove by direct cvidence that Howard's 1'997 DUI conviction was not 

obtained in violation of her rights. In support of its burden the State offcrs Judge L.o~tdcn's 

testimony "that [Howard] was told that if she plcd guilty, t!mt she was waiving a!! of thc 
righrs." Tkc Statc sub~nits that bccausc Howard did plead guilty; it mag be inferred that she 

validly waived lter right to counsel. This Court rcfuses to make such an infcrencc. On 

several occasions this Court has stated that it will indulge in every reasonable presu~nption 

against waiver of fundamental eo~~stitutionitl rights and will not indulge in any presumption 

of waiver. State v. Bird. 2001 NLT 2, '1 35? 308 Mont. 75,l 35, 43 P.3d 266," 35; Pnik v. 

.Si.xt\t .hid Uist. Cozlrt, 1098 MT 164,136,280 Mont. 367,'; 36,961 P.2d 1267,1135 (citing 

.Jolzrt.sorl v. Zerhst j1938), 303 U.S. 458, 304, 58 S.Ct. 1019: 1023, 82 L..Ed. 1461, 1466); 

St(zte v. Lrrcero (l968), 151 Mont. 531; 538, 445 P.2d 731. 735. Similarly, this Court will 

not engage in infere~rces of any such waiver. As the llnited States Supreme Court stated in 

the bedrock case of ./ohrtson v. Zer6sr, "[tjhe constitutional right of an accused to be 

represented by counsel invokes, of itself, the protection of a trial court. in which the 

accused--whose life or liberty is at stake--is without counsel. This protecting duty imposes the 

serious and weighty rcspousibility upon the trial judge of determining whether there is an 

intelligent and competent waiver by the accused." ./ohnsotz v. Zcrhst, 304 U.S. at 465, 58 

S.Ct. at 1023, 82 L.Ed. at 1467. 

7/15 Although employing the formula, "If you plead guilty, you also xvaivc your right to 

counselv may streamline the process of obtaining a defendant's waiver and guilty plea, such 

ashortcut is notperniissible ~vhere aperson is waiving her fundamental right to counscl. The 

difference between, "By pleading guilty you waive your right to counsel," and "Do you 

xvaive your right to counsel?" is important; only the latter pros ides the defe!-rdant with the 
opportunity to affirmatively and expressly vvaivc the right. Combining the two issues into 

orle aftinnative stirlcmcnt increases thc possibility that an unreprcscntcd defendant mat. 

become confused and decreases the likelihood tirat slie will he able to specifically, 

voluntarily. and knowingly waive her right to counsel as Montana law requires. 

11 6 Today's ruling is one that benefits both the accused and the people of Montana. As 

the California Supreme Court stated in It2 re Told (Cal. 1969),460 P.2d 449,456 (overniled 

on other grounds by 12.lills v. Mz4tticiprd Court (Cal. 197J), 5 15 P.2d 273), "trial court[s] 

would be ~vell advised to err on the side of caution and employ the time necessary to explain 

adequately and to obtain express waiver of the rights involved. At stake is the protection of 

both the accused and the People, the latter by the assurance that an othemisc sound 

conviction will not fall due to an inadequate record." 

117 111 denying tloward's motioii to dismiss, the District Court concluded that Howard's 

case u:as "on all fours" with the holding of State v. ~bloga, 1999 MT 283; 297 ?\/font. 1, 989 

P.2d 856. Ilo.ivard's case is, however, distinguishable. In rClogu, we affirmed the district 

court's deaial of a motion to dismiss where the defendant alleged that he had not waived his 

right to counsel. In that ease, however, the judge who accepted the defendant's plea stated 

that it was his practice to advise defendants of their right to counsel and secure a waiver of 

that right from unrepresented defendants to entry of guilty pleas. Store t:. Piloga, f 13, 

Yct in the case at bar, tile judge stated that it was his practice to secure thc waiver and guilty 
pica sirnuitanconsly. This practice docs not offcr the defcndani file oppoc~ilnity to expressly. 

affirmatively waive her right to counsel and consequcntly violates that right. 

8 In summation, Judge Louden's testimony confiims Howard's asscrtiori that she did 

not expressly M-aive hcr right to counsel prior to entering her plca, We coneltide that the 

District Court's ruling that t-loxard validly waived her right to counsel was incorrect as a 

matter of law: bvaiver of the right to counsel must be express and must he secured before the 

entcring of a guilty plea. Therefore, we hold that irloward's 1997 DUL conviction was 

constitutionally infirm and may not serve to enhance the October 2000 Dl!I conviction. 

Accordingly, we reverse the District Court's holding. 

We concur: 

Justices 
Justice Jim Kegnier dissenting. 

'jlY 1 rcspectiiilly dissent. l'l-rc Cou1-1 essentially concludes that ihe Defendant did not 

expressly waive her right to an attorney when Judge Louden informed her that by pleading 

guilty, she waived her constitutional rights inclnditlg her right to an attorney. The Court 

states that Judge louden sllould have first asked the Defendant if she waived her right to 

counsel and then, in a separate sentence, asked her if she was pleading guilty. By doing so: 

according to the Court, we are assured the defendant is propicled an opportunity to 

affirmatively and expressly waive the right to counsel. 

'120 The record is quite clear. Judge Louden advised Howardofhcr rights and specifically 

advised her of her right to counsel before she entered her guilty plea. Judge Louden also 

informed her that if she pled guilty, she was waiving tllose rights, including 11er right to 

counsel. Judge 1.ouden made certain that the Defendant understood her rights and the effect 

of her entry of the guilty plea. 

1 The colloquy that occurred in this ease. in my view, was sufficient. Apparently .fudge 

Louden and the District Court reached the same conclusion. The Defendant did not 

acquiesce in the waiver of her rights by pleading guilty. She pled guil~y only after she was 

fully iiifomcd and understood that by pleading guilty, she waived her constitutional rights. 

In my judgment, the plea in th~s case mas constiruttonall) lahd. I uould affirm the ihstrtct 

Court and dissent from our failure to do so