No. 01-855 IX THESIJPREME 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 ofthe 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 5,2002Jnstice '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 DistrictCourt:Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs, a Fourth or Subseque~lt [LifetimeOffense, 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-hisappeal follo\vs. We reverse the judgment of the District Court. BACKGROUXD "2 11 

### On October 23, 

### 20001Howard 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, ifproven, would have constitutedher fourth DUI offense. Howard had been previously convicted ofDUI in Missoula CountyMunicipal 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 amotionto dismiss the felonyDtil

### ellarge in 

### which sllecontended that, at tlie time shepled guilty to the 1997DL'[ 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 ofher 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 myplea ofguilty, 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 colloqtryhe 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 shehad the right to have an attorney and to llave an attorney appointed to represent her. 

### 1know that shewas told that if she pled guilty, that she was waiving all ofthe 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 ticfendantsthat bypleading guiltyto 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, Hourardentered 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 ofthirteen 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 

### Dblcharge. DISCUSSION 79 When \i7creview 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,q11: 

### 297 Mont. 

### 1,

### +i 11, 

### "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 oftlie 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 ;MontanaConstitution, guarantee tlic filndamental right to the assistance ofcounscl. 

### <;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 ofaknomright. 

### Okiatzd 283 Mont. at 

### 14,941 P.2d ~.,t 

### 433;S'rilic

v.

### B!irkr:eyj1982), 197 Mont. 

### 131, 138,641P.2d 

### 1045, 1049. This Courtu-illnot 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 36,961P.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-ardmay 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 statesthat she didnot waive her right to counsel ather 1997

### Dl![ guilty plea. Whtle uehabe 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 18, 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 ofregularity. 

### Stilte 

### v. Co:~l~trlre, 1998

### MT 137> 

## 71 15,289Mont. 215,l 15. 959 P.2d 948,1; 15. Because Howard's affidavit is direct evidence demonstrating that her plea

was obtained in violation ofher constitutional rights, and therefore "irregular," we now turn to the State's case. '114 The State mustprove by direct cvidencethat Howard's 1'997

### DUI conviction was not obtained in violation ofher rights. In support ofitsburden 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 didplead 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 offundamental eo~~stitutionitl rights and will not indulge in anypresumption ofwaiver. 

### State v. 

### Bird. 2001 NLT 2,

## '1 35?308 Mont. 75,l35, 43 P.3d 266," 35; 

### Pnik v. 

### .Si.xt\t .hid Uist.

### Cozlrt, 1098

### MT 164,136,280Mont. 367,'; 36,961 P.2d 1267,1135(citing 

### .Jolzrt.sorl v. 

### Zerhst j1938), 303U.S. 458, 304, 58 S.Ct. 1019: 1023, 82 

### L..Ed. 1461, 1466); 

### St(ztev. 

### 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 lifeorliberty is at stake--iswithout counsel.Thisprotecting duty imposesthe serious and weighty rcspousibility upon the trialjudge 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 employingthe formula, "If you plead guilty, you also xvaivc your right to counselvmay streamlinetheprocess ofobtaining 

### a defendant's waiver and guiltyplea, such ashortcut isnotperniissible ~vhere aperson 

### is waiving her fundamental rightto 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 prosides 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 SupremeCourt statedin It2 

### re Told

### (Cal. 1969),460P.2d 449,456 (overniled

on other grounds by 12.lillsv.Mz4tticiprd 

### Court 

### (Cal. 197J), 

### 515 

### P.2d 273),

### "trial court[s] would be ~vell advised to err onthe side ofcaution and employ the time necessary to explain adequately and to obtain express waiver ofthe 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 ofState 

### v.~bloga, 

### 1999MT 283; 297 

### ?\/font.1, 989 

### P.2d 856. Ilo.ivard's case is, however, distinguishable. In 

### rClogu, we affirmed the district court's deaial ofa motion to dismiss where the defendant alleged that he had not waived his right to counsel. 

### In that ease, however, thejudge who accepted the defendant's plea stated that it was his practice to advise defendants oftheir right to counsel and secure a waiver of that right from unrepresented defendants to entry of guilty pleas. Store t:. 

### Piloga, f 

### 13, Yct 

### inthe case atbar, tilejudge statedthat itwas his practice to securethc waiver and guiltypica sirnuitanconsly. 

### Thispractice docsnot offcrthe defcndanifile 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 oflaw: bvaiverofthe right tocounsel mustbe express and musthe 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:

JusticesJustice 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 JudgeLouden 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 Therecord isquite clear. JudgeLouden advisedHowardofhcrrights 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 Defendantunderstood her rights andthe effect ofher entry ofthe guilty plea. 1 The colloquythat 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 ofher 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 myjudgment, the plea in th~s case mas constiruttonall) lahd. 

### I uould affirm the ihstrtct Court and dissent from our failure to do so