No. 04-826 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2006 MT 117 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

RANDY BLAINE SMERKER, 

Defendant and Appellant 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and For the County of Hill, Cause No. DC-03-019

Honorable E. Wayne Phillips, Presiding Judge 

COUNSEL OF RECORD: 

For Appellant: 

Randy H. Randolph, Attorney at Law, Havre, Montana 

For Respondent: 

Hon. Mike McGrath, Attorney General; Joslyn M. Hunt, 

Assistant Attorney General, Helena, Montana 

Cyndee L. Peterson, Hill County Attorney, Havre, Montana 

Submitted on Briefs: January 31, 2006 

 Decided: May 25. 2006 

Filed: 

__________________________________________ 

Clerk
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Chief Justice Karla M. Gray delivered the Opinion of the Court. 

¶1 Randy Blaine Smerker (Smerker) appeals from the judgment entered by the Twelfth 

Judicial District Court, Hill County, on his conviction for driving under the influence of 

alcohol (DUI), fourth or subsequent offense, a felony. We affirm. 

¶2 Smerker raises the following issues on appeal: 

¶3 1. Did the District Court err in denying Smerker’s motion to dismiss based on a 

violation of his right to receive an independent examination of his blood alcohol 

concentration? 

¶4 2. Did the District Court abuse its discretion in denying Smerker’s motion for a new 

trial based on attorney conflict of interest? 

¶5 3. Was Smerker’s constitutional right to due process violated when the District Court 

refused to rule on his motion to dismiss? 

¶6 4. Should the felony DUI charge be dismissed because two of Smerker’s prior DUI 

convictions were constitutionally invalid? 

BACKGROUND 

¶7 On March 1, 2003, Havre police Sergeant Russ Ostwalt (Ostwalt) initiated a traffic 

stop of Smerker’s vehicle. The traffic stop culminated in Smerker’s arrest for DUI. Ostwalt 

transported Smerker to the Hill County detention center for processing. At the detention 

center, Ostwalt requested Smerker take several field sobriety tests, which Smerker failed. 

Ostwalt then read Smerker an implied consent advisory form and requested him to take a 
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breath test to determine his blood alcohol concentration (BAC). While attempting to 

complete the breath test, Smerker kept placing his tongue over the mouthpiece, thereby 

obstructing the airflow into the machine, and Ostwalt was unable to obtain a proper breath 

sample. As a result, Ostwalt informed Smerker that the improper sample would be recorded 

as a refusal to take the breath test. The traffic stop and the subsequent events at the detention 

center were recorded on videotape. 

¶8 The State of Montana (State) ultimately charged Smerker by information with DUI, 

fourth or subsequent offense, a felony. Smerker moved the District Court to dismiss the 

charge against him on the basis that Ostwalt had failed to properly advise Smerker of his 

right, and unreasonably impeded his ability, to obtain an independent test to determine his 

BAC. The District Court held a hearing on the motion, reviewed the videotape of Smerker’s 

processing at the detention center on the night of his arrest and the parties’ briefs on the 

motion, and subsequently denied Smerker’s motion to dismiss. 

¶9 A jury trial was held on April 26, 2004, and the jury found Smerker guilty of DUI. 

The District Court then set a date for a sentencing hearing and ordered the preparation of a 

presentence investigation (PSI) report. Following the trial, Smerker retained new defense 

counsel and moved the District Court for a new trial on the basis that his trial counsel 

rendered ineffective assistance of counsel because of a conflict of interest. The District 

Court denied this motion. 

¶10 At the beginning of the sentencing hearing held on September 20, 2004, Smerker 

informed the District Court that he would be filing a motion to dismiss the felony DUI charge 
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on the basis that two of his underlying misdemeanor DUI convictions were constitutionally 

invalid and could not be used to enhance the current offense to a felony. Smerker also 

informed the court that he would be filing a notice of appeal. The District Court proceeded 

with the sentencing hearing, ultimately sentencing Smerker to 13 months with the 

Department of Corrections (DOC), to be followed by a four-year suspended sentence under 

the DOC’s supervision. The court stayed execution of the sentence pending briefing by the 

parties and resolution of Smerker’s motion to dismiss. Later that day, Smerker 

simultaneously filed his notice of appeal and his motion to dismiss the felony DUI charge, 

together with his affidavit in support of the motion. 

¶11 Smerker and the State then filed briefs in support of and opposition to the motion to 

dismiss. Both parties provided the District Court with various documents from the prior DUI 

proceedings in support of their respective positions. On December 1, 2004, the District Court 

entered an order in which it declined to rule on the motion to dismiss, concluding that 

Smerker’s filing of a notice of appeal in the case deprived the court of jurisdiction to 

determine the issue. The court also observed that, on the same basis, it appeared to have no 

authority to enter a written judgment on Smerker’s conviction and sentence. Following entry 

of this order, the clerk of the Hill County District Court transmitted the District Court record 

to this Court for purposes of the appeal. 

¶12 In June of 2005, Smerker moved this Court for a second extension of time in which to 

file his opening brief on appeal. In his motion, he observed that the District Court had not 

entered a written judgment as a result of his filing his notice of appeal. Smerker appended to 
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his motion a stipulation entered into between himself and the Hill County Attorney, in which 

the parties agreed that this Court could treat the minute entry memorializing what occurred at 

the sentencing hearing as the final judgment in this case. On June 22, 2005, we entered an 

order in which, notwithstanding the parties’ stipulation, we declined to deem the minute entry 

the final judgment. We ordered that the appeal be held in abeyance while the case was 

remanded to the District Court for entry of a final written judgment. The District Court 

entered its written judgment on Smerker’s conviction and sentence on June 29, 2005. The 

parties subsequently have filed their briefs on appeal and the case is ready for resolution. 

DISCUSSION 

¶13 1. Did the District Court err in denying Smerker’s motion to dismiss based on a 

violation of his right to receive an independent examination of his blood alcohol 

concentration?

¶14 As stated above, Smerker moved the District Court to dismiss the charge against him, 

asserting that his due process rights were violated because Ostwalt failed to properly advise 

Smerker of his right, and unreasonably impeded his ability, to obtain an independent test to 

determine his BAC. After hearing the parties’ arguments and viewing the videotape of 

Smerker’s processing at the detention center on the night of his arrest, the District Court 

concluded that Ostwalt informed Smerker of his right to obtain an independent test of his 

BAC and did not impede Smerker’s ability to obtain such a test. On that basis, the court 

denied Smerker’s motion to dismiss. Smerker asserts error. A district court’s ruling on a 

motion to dismiss in a criminal case involves a question of law which we review de novo. 

State v. Minkoff, 2002 MT 29, ¶ 8, 308 Mont. 248, ¶ 8, 42 P.3d 223, ¶ 8. 
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¶15 Pursuant to § 61-8-402(1), MCA, any person operating or in actual physical control of 

a vehicle upon ways of the state is considered to have given consent to a test of the person’s 

blood or breath for the presence of alcohol or drugs. The peace officer investigating or 

making an arrest for a DUI offense may designate which test is to be used to determine the 

person’s BAC. Section 61-8-402(2)(b), MCA. However, § 61-8-405(2), MCA, provides as 

follows: 

In addition to any test administered at the direction of a peace officer, a person 

may request that an independent blood sample be drawn by a physician or 

registered nurse for the purpose of determining any measured amount or 

detected presence of alcohol, drugs, or any combination of alcohol and drugs 

in the person. The peace officer may not unreasonably impede the person’s 

right to obtain an independent blood test. The officer may but has no duty to 

transport the person to a medical facility or otherwise assist the person in 

obtaining the test. The cost of an independent blood test is the sole 

responsibility of the person requesting the test. The failure or inability to 

obtain an independent test by a person does not preclude the admissibility in 

evidence of any test given at the direction of a peace officer. 

¶16 We have held that an accused has a constitutionally guaranteed due process right to 

attempt to obtain exculpatory evidence, which right includes the right to obtain an 

independent test to determine the accused’s BAC when charged with a DUI offense. 

Minkoff, ¶ 9; State v. Sidmore (1997), 286 Mont. 218, 233, 951 P.2d 558, 568. A defendant 

who alleges a denial of due process with regard to the right to an independent BAC test must 

establish both that the defendant timely requested the independent test and that the arresting 

officer unreasonably impeded the right to the test. Minkoff, ¶ 10. Additionally, “we have 

held that the accused must be informed of his or her right to independent testing and that 

failure to so advise is a due process violation.” Minkoff, ¶ 9. 
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¶17 The videotape recorded at the detention center on the night of Smerker’s arrest 

portrays the following events. Upon arriving at the detention center, Ostwalt requested 

Smerker to perform several field sobriety tests. Following the tests, Ostwalt informed 

Smerker that he was under arrest for DUI. Ostwalt then began reading an implied consent 

advisory form to Smerker. When Ostwalt reached the portion of the form describing the 

implied consent law and informed Smerker that Ostwalt was requesting him to take a breath 

test, Smerker interrupted and asked whether he could take a urine test. Ostwalt responded 

that, if Smerker listened, the remaining portion of the advisory form would answer his 

question. Ostwalt continued reading the advisory form, including the portion which 

described Smerker’s right to obtain an independent test of his BAC at his own expense. 

¶18 When Ostwalt finished reading the implied consent advisory form, Smerker asked 

whether he could take a different test. Ostwalt responded that he was requesting that 

Smerker take a breath test. While waiting for the breath test machine to warm up, Smerker 

asked whether he could take a breath test and Ostwalt responded that was the test he was 

going to take. Smerker consented to taking a breath test but could not—or would not—

provide a proper sample. Ostwalt then informed him that the result would have to be 

recorded as a refusal. Ostwalt read Smerker his Miranda rights and proceeded to fill out 

paperwork. Smerker again asked whether he could take a urine test and Ostwalt told him he 

could do so at his own expense. Smerker then asked “will that do it for you or not?” Ostwalt 

told Smerker the urine test would not change the fact that Ostwalt had to record the breath 
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test as a refusal, but if Smerker wished to take a urine test he was more than welcome to do 

so at his own expense. Smerker replied “[n]o, I was just asking.” 

¶19 Smerker argues that Ostwalt violated his due process rights by improperly frustrating 

his ability to obtain an independent BAC test. He contends he clearly requested an 

independent test and Ostwalt impeded his ability to obtain such a test by telling him it would 

make no difference to the effect of his refusal to take the breath test. Smerker asserts that he 

believed the independent test would be of no use because he already had effectively refused 

the breath test and he did not understand his rights in the context of obtaining exculpatory 

evidence. He argues that Ostwalt had “an affirmative duty under [State v. Strand (1997), 286 

Mont. 122, 951 P.2d 552] to ensure the defendant understands his rights with regard to an 

independent test.” 

¶20 In Strand, we held that “due process requires that the arresting officer inform the 

accused of his or her right to obtain an independent blood test, regardless of whether the 

accused consents to the test designated by the officer.” Strand, 286 Mont. at 126, 951 P.2d at 

554. Nowhere in Strand, however, did we state that the arresting officer must ensure that the 

accused understands all the nuances of what the right to an independent test entails. Here, 

Ostwalt clearly informed Smerker of his right to obtain an independent BAC test, thus 

fulfilling his obligation under Strand. Furthermore, the videotape reveals that Ostwalt told 

Smerker he was more than welcome to obtain a urine test at his own expense. There is no 

indication that Ostwalt in any way denied or impeded Smerker’s ability to obtain such a test. 
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¶21 We conclude Smerker has failed to establish that Ostwalt unreasonably impeded his 

right to obtain an independent BAC test and, as a result, has failed to establish a violation of 

his due process rights. We hold, therefore, that the District Court did not err in denying 

Smerker’s motion to dismiss based on a violation of his right to receive an independent 

examination of his BAC. 

¶22 2. Did the District Court abuse its discretion in denying Smerker’s motion for a new 

trial based on attorney conflict of interest?

¶23 After his arrest, Smerker retained Thomas J. Sheehy (Sheehy) as defense counsel. 

Sheehy represented Smerker throughout pretrial proceedings and during the trial. Following 

the trial, Smerker retained new counsel and moved the District Court for a new trial, arguing 

that Sheehy had rendered ineffective assistance of counsel because of a conflict of interest. 

Smerker alleged that a partner in Sheehy’s law firm, Steve Gannon (Gannon), became a 

deputy Hill County Attorney during the pretrial phase of this case and that this affiliation 

resulted in a conflict for both Sheehy and the prosecutor, Hill County Attorney Cyndee L. 

Peterson (Peterson). In response to the motion, the State presented the District Court with 

Gannon’s affidavit in which he stated that he had never discussed the merits or facts of the 

case with either Sheehy or Peterson and never worked on the case for either the prosecution 

or defense. 

¶24 The District Court held a hearing, following which it entered its order denying the 

motion for a new trial on the basis that Smerker had failed to present legal authority or 

evidence establishing that an actual conflict of interest existed for either Sheehy or Peterson. 
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We review a district court’s denial of a motion for a new trial to determine whether the court 

abused its discretion. State v. Clark, 2005 MT 330, ¶ 18, 330 Mont. 8, ¶ 18, 125 P.3d 1099, ¶ 

18. 

¶25 A criminal defendant’s right to assistance of counsel is guaranteed under the Sixth 

Amendment to the United States Constitution and Article II, Section 42 of the Montana 

Constitution. State v. Deschon, 2002 MT 16, ¶ 17, 308 Mont. 175, ¶ 17, 40 P.3d 391, ¶ 17. 

The constitutional right to assistance of counsel includes both the right to reasonably 

competent counsel and the right to counsel’s undivided loyalty. Deschon, ¶ 17. A defendant 

claiming ineffective assistance of counsel on the basis that counsel failed to provide 

undivided loyalty due to a conflict of interest must establish that counsel actively represented 

conflicting interests and that an actual conflict of interest adversely affected counsel’s 

performance. Deschon, ¶ 18. We observe that this test is stated in the conjunctive, thus 

requiring a defendant to establish both prongs. See, e.g., Swan v. State, 2006 MT 39, ¶ 25, 

331 Mont. 188, ¶ 25, 130 P.3d 606, ¶ 25. Consequently, if either prong is not met, the 

conflict of interest claim fails. We conclude here that Smerker has failed to establish the 

second prong of the conflict of interest test. 

¶26 Here, Smerker points to no evidence of record establishing that an actual conflict of 

interest existed for either Sheehy or Peterson. Rather, he merely asserts that Gannon’s 

affiliation with both Sheehy’s law firm and the Hill County Attorney’s office resulted in a 

conflict of interest. Such conjecture does not meet Smerker’s burden of establishing that an 

actual conflict of interest existed. Furthermore, in his brief on appeal, Smerker states that 
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“[a]lthough [he] cannot argue that either attorney did not do their job throughout the trial of 

this matter, justice warrants a new trial based upon the appearance of impropriety . . . .” 

Thus, Smerker tacitly concedes that the alleged conflict of interest did not “adversely affect 

counsel’s performance.” See Deschon, ¶ 18. Finally, we observe that Smerker’s argument 

regarding the “appearance of impropriety” was not raised in the District Court. We will not 

address arguments on appeal which were not raised in the trial court and, therefore, we 

decline to further address Smerker’s “appearance of impropriety” argument. See State v. 

Clifford, 2005 MT 219, ¶ 33, 328 Mont. 300, ¶ 33, 121 P.3d 489, ¶ 33; State v. Gouras, 2004 

MT 329, ¶ 26, 324 Mont. 130, ¶ 26, 102 P.3d 27, ¶ 26. 

¶27 We conclude that Smerker has not met the second prong of the test to establish 

ineffective assistance of counsel due to a conflict of interest. As a result, we hold that the 

District Court did not abuse its discretion in denying Smerker’s motion for a new trial based 

on attorney conflict of interest. 

¶28 3. Was Smerker’s constitutional right to due process violated when the District Court 

refused to rule on his motion to dismiss?

¶29 Following the sentencing hearing, Smerker simultaneously filed his notice of appeal to 

this Court and a motion to dismiss the felony charge. His motion to dismiss alleged that two 

of his underlying misdemeanor DUI convictions were constitutionally invalid and could not 

be used to enhance the current charge to a felony. Smerker and the State each briefed the 

issue and submitted documents relating to the two misdemeanor convictions in support of 

their respective positions. The District Court subsequently declined to rule on the motion to 
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dismiss, concluding that Smerker’s filing of his notice of appeal deprived the District Court 

of jurisdiction to address the issue. Approximately six months later, this Court remanded this 

case to the District Court for the sole purpose of allowing the District Court to enter its 

written judgment on the conviction and sentence. The District Court entered its written 

judgment, but did not address Smerker’s motion to dismiss. 

¶30 Smerker contends that the District Court violated his constitutional right to due 

process by refusing to rule on his motion to dismiss. He cites Rule 5(b), M.R.App.P., which 

provides that, in criminal cases, “[a] notice of appeal filed after the oral pronouncement of a 

decision or sentence but before the entry of the judgment is treated as filed on the day of and 

after the entry.” He contends based on this rule that, although he filed his notice of appeal on 

the day of the sentencing hearing, the notice was not effective until the date on which the 

District Court subsequently entered its written judgment on the conviction and sentence. He 

asserts, therefore, that the District Court retained jurisdiction over the case during the time 

between the sentencing hearing and entry of the written judgment, and should have ruled on 

his motion to dismiss. 

¶31 We conclude that we need not address whether the District Court retained jurisdiction 

to rule on Smerker’s motion to dismiss, as the court’s failure to address the motion was 

harmless in this instance. In an appeal of a criminal case, “[a]ny error, defect, irregularity, or 

variance that does not affect substantial rights must be disregarded.” Section 46-20-701(2), 

MCA. We previously have stated that whether a prior conviction may be used to enhance the 

sentence on a subsequent offense is a question of law over which we have plenary review. 
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State v. Jackson, 2002 MT 212, ¶ 7, 311 Mont. 281, ¶ 7, 54 P.3d 990, ¶ 7. The term 

“plenary” is defined as “[c]omplete in all respects; unlimited or full . . . .” THE AMERICAN 

HERITAGE DICTIONARY 1348 (4th ed. 2000). 

¶32 Furthermore, we observe that, in arguing their respective positions regarding the 

motion to dismiss, the parties submitted only documentary evidence in the form of Smerker’s 

affidavit and documents relating to the justice court proceedings on the two 1996 DUI 

convictions at issue. With respect to documentary evidence, this Court is in as good a 

position as the District Court to judge the weight to be given to such evidence. See Kills on 

Top v. State, 2000 MT 340, ¶ 18, 303 Mont. 164, ¶ 18, 15 P.3d 422, ¶ 18. Neither party here 

requested the District Court to hold an evidentiary hearing on the motion to dismiss for the 

purpose of presenting witness testimony. Nor does either party request this Court to remand 

this case to give the District Court the opportunity to hear witness testimony. Rather, the 

parties request us to address the merits of whether the 1996 DUI convictions are 

constitutionally valid. In light of the unique procedural posture under which this case is 

presented, we determine that it is appropriate for us to do so. 

¶33 Because Smerker raises on appeal the issue of whether his prior DUI convictions were 

constitutionally valid, resolution of that issue depends solely on documentary evidence and 

we exercise plenary review over the question of law regarding whether a prior conviction 

may be used to enhance the sentence on a subsequent offense, we conclude that the issue 

properly and adequately may be addressed by this Court on appeal. Consequently, the 

District Court’s failure to rule on Smerker’s motion to dismiss did not affect Smerker’s 
14

substantial rights. We hold, therefore, that Smerker’s constitutional right to due process was 

not violated when the District Court refused to rule on his motion to dismiss. 

¶34 4. Should the felony DUI charge be dismissed because two of Smerker’s prior DUI 

convictions were constitutionally invalid?

¶35 The State charged Smerker with fourth offense DUI, a felony, based on its allegation 

that Smerker had three prior misdemeanor DUI convictions. According to the State, and as 

set forth in the PSI report, Smerker was convicted of one misdemeanor DUI per se on 

November 19, 2001, and he was convicted of two misdemeanor DUI per se offenses on July 

29, 1996. Smerker contends that his two 1996 DUI convictions were constitutionally invalid 

and cannot be used to enhance his current offense to a felony. Specifically, he asserts that, 

although the written judgments relating to those convictions stated he pleaded guilty to the 

two offenses, he had never actually entered guilty pleas in those cases. 

¶36 It is well-established that that the State may not use a constitutionally infirm prior 

conviction to enhance a subsequent offense to a felony. State v. Snell, 2004 MT 334, ¶ 25, 

324 Mont. 173, ¶ 25, 103 P.3d 503, ¶ 25. However, prior convictions are presumed to be 

valid. Snell, ¶ 25. A defendant who challenges a prior conviction as constitutionally invalid 

must present direct evidence of irregularity in the prior proceeding. Snell, ¶ 25. If the 

defendant presents such direct evidence, the burden shifts to the State to prove by a 

preponderance of the evidence that the prior conviction was not obtained in violation of the 

defendant’s rights. Snell, ¶ 25. 
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¶37 Smerker provided the District Court with his affidavit in support of his motion to 

dismiss the felony DUI charge. Smerker’s affidavit reflects the following. On December 12, 

1995, Smerker was charged in the Cascade County Justice Court (Justice Court) with one 

count of DUI. On April 1, 1996, he was charged under a second cause number in the same 

Justice Court with one count of DUI and one count of driving while license suspended. On 

May 7, 1996, Smerker appeared in Justice Court and pled guilty to the driving while license 

suspended charge; he did not plead guilty to either DUI count on that day. On July 29, 1996, 

he appeared before the Justice Court for what he believed to be a sentencing hearing on the 

driving while license suspended charge. Although he signed two unspecified documents on 

that day, he did not enter guilty pleas to the two DUI charges. The judgments entered by the 

Justice Court under the two cause numbers on July 29, 1996, indicate that Smerker pled 

guilty to two amended charges of DUI per se on May 7, 1996. The Justice Court judgments 

are incorrect, because he never actually changed his pleas to guilty, and “[n]o record can be 

found that [Smerker] entered a guilty plea on May 7, 1996 to the two pending DUI charges 

because it never happened.” 

¶38 Smerker’s affidavit unequivocally states that, notwithstanding the Justice Court 

judgments, at no time did he enter guilty pleas to the two DUI charges in the Justice Court. 

These unequivocal statements constitute direct evidence of irregularity in the underlying 

Justice Court proceedings. See State v. Howard, 2002 MT 276, ¶ 13, 312 Mont. 359, ¶ 13, 59 

P.3d 1075, ¶ 13. Consequently, the affidavit was sufficient to shift the burden to the State to 
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prove that the two 1996 DUI per se convictions were not obtained in violation of Smerker’s 

rights. 

¶39 In opposition to Smerker’s motion to dismiss, the State provided the District Court 

with various documents from the 1996 Justice Court proceedings which the State contended 

established, contrary to Smerker’s assertions, that he did enter guilty pleas to the two DUI 

charges and the convictions were valid. These documents include a plea bargain agreement 

dated May 7, 1996, signed by Smerker, Smerker’s attorney and the prosecutor. The 

agreement referenced the two Justice Court cause numbers at issue and provided that the 

State would amend the two DUI charges to DUI per se. The agreement also provided that, 

in exchange for Smerker’s guilty pleas to the amended DUI offenses and the driving while 

license suspended offense, the State would recommend a specified sentence. The State also 

submitted a Justice Court order entered under the two cause numbers and dated May 7, 1996. 

 In this order, the Justice Court stated that Smerker 

appeared, acting freely, voluntarily, with no promise of reward, understanding 

sentencing is entirely up to the Court, signing waiver, entered a plea of guilty 

to 2 Counts DUI Per Se (amended from DUI), Violation of Section 61-8-406 

and Driving While Suspended Violation of Section 61-6-151. 

The order also set sentencing in the matter for July 29, 1996. 

¶40 We conclude that the State has provided direct evidence, via the Justice Court’s May 

7, 1996, order, establishing that Smerker did plead guilty to the two DUI per se offenses at 

issue here on that date. Thus, we further conclude that the State has met its burden of 

establishing by a preponderance of the evidence that these two convictions were not obtained 
17

in violation of Smerker’s rights and are constitutionally valid. We hold, therefore, that the 

prior DUI convictions were constitutionally valid and were properly used—in conjunction 

with his 2001 conviction—to enhance Smerker’s current DUI offense to a felony. 

¶41 Affirmed. 

/S/ KARLA M. GRAY 

We concur: 

/S/ JAMES C. NELSON 

/S/ PATRICIA COTTER 

/S/ JIM RICE 

/S/ W. WILLIAM LEAPHART