DA 10-0424

IN THE SUPREME COURT OF THE STATE OF MONTANA

2011 MT 167

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

BRANDON JAMES BURNS,

 Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and For the County of Yellowstone, Cause No. DC 08-0701

Honorable Gregory R. Todd, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Fred Snodgrass, Attorney at Law, Billings, Montana

For Appellee:

Steve Bullock, Montana Attorney General, John Paulson, Assistant

Attorney General, Helena, Montana

Scott Twito, Yellowstone County Attorney, Julie Mees, Deputy County

Attorney, Billings, Montana

Submitted on Briefs: June 1, 2011

 Decided: July 14, 2011

Filed:

__________________________________________

Clerk

July 14 2011
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Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Brandon James Burns (Burns) was charged by information on December 18, 2008, 

with felony Driving Under the Influence of Alcohol or Drugs (DUI) or, in the alternative, 

felony Operation of a Motor Vehicle by a Person with Alcohol Concentration of 0.08% 

or more (DUI per se). Ultimately, on March 22, 2010, Burns entered a plea agreement 

with the State and pled guilty to DUI per se, reserving his right to appeal. On June 22, 

2010, the Thirteenth Judicial District Court, Yellowstone County, designated Burns as a 

Persistent Felony Offender (PFO) and sentenced him to Montana State Prison for 15 

years with five years suspended, consecutive to any other sentences Burns was serving. 

Burns timely appeals. We affirm.

ISSUES

¶2 A restatement of Burns’ issues on appeal is:

¶3 1. Whether the District Court erred in denying Burns’ motion to dismiss for lack 

of a speedy trial. 

¶4 2. Whether the District Court erred in denying Burns’ motion to suppress 

evidence.

¶5 3. Whether the District Court erred in denying Burns’ motion to dismiss the 

felony DUI charge on the grounds that his third prior DUI conviction was invalid.

¶6 4. Whether the District Court erred in sentencing Burns as a persistent felony 

offender.

FACTUAL AND PROCEDURAL BACKGROUND
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¶7 On December 13, 2008, around 8:30 p.m., Billings Police Department (BPD) 

officers responded to a citizen’s 911 report of a suspicious car parked on Avenue C, a 

residential street in Billings. The citizen, who identified herself, reported that the 

vehicle’s engine was running, its headlights were lights on, and a male occupant was 

slumped over in the driver’s seat. The citizen stated that she called 911 out of concern 

for the driver’s safety due to the cold weather and her uncertainty as to whether the 

vehicle had sufficient gas to continue running. The citizen also expressed concern about 

having an unknown man passed out in his vehicle just outside of her home.

¶8 BPD Officer Jensen and Sergeant Lawrence were dispatched to investigate the 

citizen’s report. Both officers testified that it was a very cold night and the roads were 

snow covered and icy. Jensen testified that he was directed to go to Avenue C for a 

welfare check on a suspicious vehicle with a male occupant passed out in the driver’s 

seat. Lawrence testified that he remembered being dispatched to a possible drunk driver 

passed out in a vehicle. Jensen did not activate his overhead lights when he pulled up 

behind the vehicle because he was making a welfare check. Jensen testified that when he 

arrived the vehicle was running, the headlights were on, and there was a male occupant 

slumped over in the driver’s seat.

¶9 Jensen further testified that he knocked on the window of the vehicle at least twice 

and tried to call to the driver but could not awaken him. Therefore, Lawrence 

approached the passenger side of the vehicle, opened the passenger side door, and 

attempted to wake the driver. Lawrence testified that he was able to wake the driver by 

shaking him on the shoulder. 
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¶10 Once the driver was awake, the BPD officers attempted to identify him. Both 

noted an odor of alcohol emanating from the vehicle and observed a bottle of vodka that 

was two-thirds empty sitting on the front passenger seat. Jensen asked the driver his 

name, but he had difficulty understanding the driver because his speech was slurred. 

Finally, Jensen identified the driver as Burns. When asked for his license and 

registration, Burns appeared disoriented and could not locate them on the floor of his 

vehicle. Jensen noted Burns’ eyes were red and glassy.

¶11 Jensen asked Burns to exit his vehicle. Burns’ movements were slow and 

deliberate, and he had to hold on to his vehicle to maintain his balance as he exited. 

Jensen testified that, based on his observations, he contacted dispatch and changed the 

call from a welfare check to a DUI investigation. Due to the road conditions and the 

weather, none of the standard field sobriety tests were administered other than the 

Horizontal Gaze Nystagmus test. Burns was arrested and taken to the Yellowstone 

County Detention Facility (YCDF). En route to YCDF, the officers called Burns’ parole 

officer who requested they take both a urine analysis and a blood alcohol content 

analysis. Once at YCDF, the officers performed the standard field sobriety tests on 

Burns, which he failed. A sample of Burns’ breath registered a BAC of 0.230. After 

being Mirandized, Burns agreed to answer questions. He admitted to driving and thought 

it was Tuesday, December 12, 2009, at 2:30 p.m. when it was actually Saturday, 

December 13, 2008, at 9:38 p.m.

¶12 On December 19, 2008, Burns was arraigned and charged with one count of 

felony DUI in violation of § 61-8-401(1)(a), MCA, and in the alternative, one count of 
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DUI per se in violation of § 61-8-406(1)(a), MCA. The State filed notice of its intent to 

have Burns designated a PFO. The District Court scheduled Burns’ omnibus hearing for 

February 19, 2009, and set a trial date of April 13, 2009. The trial was reset five times 

during the proceedings based on substantive motions by both parties, and ultimately a 

trial date was set for March 23, 2010.

¶13 Burns moved to dismiss for lack of speedy trial, and his motion was denied. On 

March 22, 2010, Burns filed an acknowledgement of waiver of rights and plea agreement 

in which he agreed to plead guilty to the alternative charge of DUI per se and the State 

agreed to dismiss the DUI charge. The State also agreed to recommend a sentence of 15 

years with 5 years suspended as a PFO. The parties agreed that Burns could reserve the 

right to appeal the District Court’s prior rulings. The court accepted Burns’ change of 

plea at a hearing on the same date.

¶14 On June 22, 2010, the District Court followed the State’s recommendation and 

sentenced Burns to Montana State Prison for 15 years with 5 suspended and designated 

him a PFO. Burns timely appeals. Additional facts are discussed below as necessary.

STANDARDS OF REVIEW

¶15 We review a district court’s findings of fact in a ruling on a motion to dismiss on 

speedy trial grounds for clear error. State v. Sartain, 2010 MT 213, ¶ 10, 357 Mont. 483, 

241 P.3d 1032. Factual findings are clearly erroneous “if they are not supported by 

substantial credible evidence, if the district court has misapprehended the effect of the 

evidence, or if a review of the record leaves this Court with the definite and firm 

conviction that a mistake has been made.” Id. Whether factual circumstances constitute 
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a violation of a defendant’s right to a speedy trial is a question of constitutional law that 

we review de novo. Id.

¶16 We review a district court’s denial of a motion to suppress evidence to determine 

whether the district court’s findings of fact are clearly erroneous and whether the court 

correctly interpreted and applied the law to those findings. State v. Kenfield, 2009 MT 

242, ¶ 15, 351 Mont. 409, 213 P.3d 461. We review for correctness a district court’s 

conclusions of law with respect to the application of the community caretaker doctrine. 

Id.

¶17 A ruling on a motion to dismiss in a criminal proceeding is a question of law, 

which we review de novo. State v. Allen, 2009 MT 124, ¶ 9, 350 Mont. 204, 206 P.3d 

951. “Whether a prior conviction can be used to enhance a criminal sentence is a 

question of law, which this Court reviews for correctness.” Id. (quoting State v. Spotted 

Eagle, 2003 MT 172, ¶ 11, 316 Mont. 370, 71 P.3d 1239). 

¶18 Generally, we review a criminal sentence longer than one year for legality only; 

that is, we review the sentence to determine whether it falls within the statutory 

parameters. State v. Holt, 2011 MT 42, ¶ 7, 359 Mont. 308, 249 P.3d 470.

DISCUSSION

¶19 Issue One: Did the District Court err in denying Burns’ motion to dismiss for lack 

of a speedy trial?

¶20 The Sixth and Fourteenth Amendments to the United States Constitution and 

Article II, Section 24 of the Montana Constitution grant criminal defendants the right to a 

speedy trial. State v. Brown, 2011 MT 94, ¶ 10, 360 Mont. 278, ___ P.3d ___. When a
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defendant alleges that his or her right to a speedy trial has been violated, Montana courts 

apply the four-factor speedy trial analysis we set forth in State v. Ariegwe, 2007 MT 204, 

338 Mont. 442, 167 P.3d 815. The four factors to be balanced are the length of the delay, 

the reasons for the delay, the accused’s responses to the delay, and the prejudice to the 

accused. Ariegwe, ¶ 34. Each factor’s significance varies based on the particular unique 

facts and circumstances of each case. State v. Hendershot, 2009 MT 292, ¶ 9, 352 Mont. 

271, 216 P.3d 754 (quoting State v. Billman, 2008 MT 326, ¶ 11, 346 Mont. 118, 194 

P.3d 58). 

¶21 As to Factors One and Two—length of delay and reason for the delay—it is the 

burden of the courts and prosecutors to bring a defendant to trial and it is the burden of 

the prosecution to explain pretrial delays. State v. Lacey, 2010 MT 6, ¶ 17, 355 Mont. 

31, 224 P.3d 1247 (citing Ariegwe, ¶¶ 64-65, 72). However, “if the defendant avoids 

being brought to trial, some or all responsibility for the delay should be attributed to 

him.” Lacey, ¶ 18. The defendant and the State can share the responsibility for the same 

period of delay. Id.

¶22 Here, there is no dispute as to Factor One; the length of the delay was 465 days. 

Under Ariegwe, a delay greater than 200 days triggers speedy trial concerns and there is a 

presumption of prejudice to the defendant that requires further analysis of the remaining 

factors. Ariegwe, ¶ 107. The District Court determined that the delay beyond the trigger 

date was 265 days. Accordingly, the State was required to provide compelling 

justifications for the delay under Factor Two, and to make a highly persuasive showing 

that Burns was not prejudiced by the delay under Factor Four. Ariegwe, ¶ 123.
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¶23 With respect to Factor Two, the reason for the delay, the District Court was 

required to identify each period of delay in bringing Burns to trial, attribute each period 

to either the State or Burns, and assign appropriate weight to each period of delay based 

on the specific cause and culpability. Ariegwe, ¶ 124. Burns argues he is responsible for

only the 72-day delay between April 13, 2009, and June 23, 2009, as he filed a motion to 

continue the April 13, 2009 trial date and affirmatively waived his right to speedy trial for 

that timeframe. The State asserts that the District Court did not err in attributing a total of 

190 days of the delay to the State, and the balance to Burns.

¶24 In addition to the 72 days for which Burns takes responsibility, the District Court 

attributed to Burns the 70-day delay between August 31, 2009, and November 9, 2009, 

because he filed a motion to dismiss concerning enhancement, as well as the last 134-day 

delay between November 9, 2009, and March 23, 2010, which was the time during which 

the court considered Burns’ motion to dismiss. To the State, the District Court delegated 

the 121-day delay between Burns’ arrest and the first trial setting on April 13, 2009, as

well as the 69-day delay between June 23, 2009, and August 31, 2009, caused by the 

State’s motion to continue. The District Court ultimately concluded that the bulk of the 

delay was caused by Burns’ motions to continue and dismiss, and that the State did not 

delay the trial in bad faith or with negligence or lack of diligence.

¶25 Factor Three requires a court to consider the accused’s response to the delay. 

Ariegwe, ¶ 110. This factor “serves an important role by providing insight into whether 

the accused really wanted a speedy trial, and guides the reviewing court in weighing the 

other three factors in the analysis.” Hendershot, ¶ 13 (citing Ariegwe, ¶ 79). In 
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considering this factor, the District Court noted that Burns was represented by counsel 

throughout the proceedings and did not object to the State’s motion to continue early in 

the proceedings. Further, the District Court noted that Burns filed a motion to continue 

and a waiver of speedy trial rights just before the April 2009 trial date, and again filed a 

motion to dismiss just before the August 2009 trial, which necessitated a continuance of 

that trial and the subsequent one. Finally, Burns did not file his speedy trial motion until 

a month before his latest trial date in March 2010. 

¶26 Turning to Factor Four, a court must consider whether the defendant has been 

prejudiced by the delay. Ariegwe, ¶ 111. Here, the District Court evaluated prejudice to 

Burns in light of the interests that the speedy trial right was designed to protect: (1) 

freedom from oppressive pretrial incarceration; (2) the accused’s anxiety and concern 

caused by the presence of unresolved criminal charges; and (3) the possibility that the 

accused’s defense will be impaired by dimming memories and loss of exculpatory 

evidence. Ariegwe, ¶ 111. Considering the first interest, the District Court noted that 

Burns had been incarcerated throughout the process, but not because of the felony DUI 

charge. He was incarcerated because of a prior conviction involving the sexual abuse of 

children. Considering the second interest, the District Court found that Burns’ arguments 

that he had lost his job, home, and personal belongings because of the delay was

unpersuasive because Burns had lost his job, home, and personal belongings as a result 

of his initial incarceration, which was well before the first trial date in this matter. 

Finally, considering the third interest, the District Court concluded that Burns had 

presented no evidence or claim that his defense had actually been impaired by the delay. 
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Burns argued that “one potential defense witness” had moved from Billings without a 

forwarding address, but he failed to explain how this witness could aid in his case given 

that she was not in the car when Burns was arrested, nor was she present when Burns was 

being investigated for DUI.

¶27 After analyzing all of the factors separately, the District Court balanced them in 

the context of the specific facts of the case and the weights assigned to each factor. See 

Ariegwe, ¶ 153. The District Court concluded that Factors Two, Three, and Four 

weighed against Burns and outweighed Factor One, which favored Burns. Therefore, the 

District Court concluded that Burns had not been deprived of his right to speedy trial.

¶28 On appeal, Burns reasserts the same arguments he presented in District Court. We 

are not persuaded by these arguments because Burns has failed to allege or demonstrate 

that the District Court’s findings were clearly erroneous or its interpretations of the law 

were incorrect. A review of the record demonstrates the District Court made a 

scrupulous recitation of the procedural dates and facts and diligently applied the Ariegwe

analysis to those facts. While Burns argues that the District Court should have come to a 

different conclusion for each of the four factors, he has simply failed to meet his burden 

of proof on appeal because he has not demonstrated how the District Court erred. 

¶29 Furthermore, we conclude the District Court did not err in balancing and weighing 

the four factors and, therefore, it did not err in denying Burns’ motion. 

¶30 Issue Two: Did the District Court err in denying Burns’ motion to suppress 

evidence?
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¶31 Burns argues that he was unlawfully seized because the BPD officers did not have 

particularized suspicion to conduct an investigative stop. Therefore, he maintains, the 

District Court erred in denying his motion to suppress the observations and evidence 

obtained by the police officers during their interactions with Burns. The State argues that 

the District Court did not err in concluding that the BPD officers’ conduct was justified 

under the community caretaker doctrine. We conclude that the District Court did not err 

because, contrary to Burns’ argument that the BPD officers made no attempt to check on 

his welfare and that there were no signs of peril, this encounter between the BPD officers 

and Burns falls squarely within the community caretaker doctrine.

¶32 We set out the analysis as to the correct application of the community caretaker 

doctrine in State v. Lovegren, 2002 MT 153, 310 Mont. 358, 51 P.3d 471. As we stated 

in Lovegren, “[n]ot all contact between police officers and citizens involves the ‘seizure’ 

of a person” and “many courts recognize the existence of three categories of 

police-citizen encounters.” Lovegren, ¶ 13 (internal citations omitted). The least 

intrusive category of encounter is the community caretaker function, which recognizes 

that peace officers have a duty to investigate situations in which a citizen may be in peril 

or may need assistance from an officer. Id. at ¶¶ 16, 20. “[T]he caretaking duties that 

come under this doctrine are varied and range from assisting a driver slumped over in his 

car to stopping a man walking alongside the road.” Id. at ¶ 21 (internal citations omitted) 

(emphasis added).

¶33 Montana has a three-part test to determine if a citizen-officer encounter falls under 

the community caretaker doctrine.
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First, as long as there are objective, specific and articulable facts from 

which an experienced officer would suspect that a citizen is in need of help 

or is in peril, then that officer has the right to stop and investigate. Second, 

if the citizen is in need of aid, then the officer may take appropriate action 

to render assistance or mitigate the peril. Third, once, however, the officer 

is assured that the citizen is not in peril or is no longer in need of assistance 

or that the peril has been mitigated, then any actions beyond that constitute 

a seizure implicating not only the protections provided by the Fourth 

Amendment, but more importantly, those greater guarantees afforded under 

Article II, Sections 10 and 11 of the Montana Constitution as interpreted in 

this Court’s decisions.

Lovegren, ¶ 25. 

¶34 Applying this test here, the facts support the District Court’s conclusion that the 

BPD officers had objective, specific and articulable facts signifying that Burns may be in 

peril or in need of assistance. The BPD officers were dispatched to respond to a citizen’s 

911 call about a male driver passed out in his vehicle. Burns could have been sleeping or 

he could have been suffering from a medical condition for which he needed assistance. 

When the BPD officers arrived Burns was “passed out, slumped over & leaning on the 

center console” while his vehicle was running and the headlights were on. It was 8:30 

p.m. on a very cold December night and the roads were snow-covered and icy. As in 

Lovegren, the BPD officers had the right to investigate Burns’ welfare and to open the 

door to Burns’ vehicle after Burns did not respond to Jensen’s knock on his vehicle 

window. As we said in Lovegren, “it would have been a dereliction of [the BPD 

officers’] duties if, after knocking on the window and obtaining no response, [the BPD 

officers] walked away and continued [their] patrols.” Lovegren, ¶ 26. 

¶35 After Lawrence opened the vehicle door he had to shake Burns to awaken him. At 

that point the BPD officers saw no apparent signs of peril; however, they noticed the 
13

vodka bottle sitting on the front passenger seat. When Burns identified himself, the BPD 

officers noted signs of intoxication in Burns including extremely slurred speech, red and

glassy eyes, difficulty locating his driver’s license and maintaining his balance, and 

disorientation. These signs gave the BPD officers particularized suspicion to further 

investigate and to contact dispatch to change the call from a welfare check to a DUI 

investigation.

¶36 Burns argues that the facts of his case are “indistinguishable” from those of State 

v. Reiner, 2003 MT 243, 317 Mont. 304, 77 P.3d 210. However, even a cursory reading 

of Reiner debunks this argument. In Reiner, the defendant was asleep in his car that was 

parked on the side of the road in a place not normally used for parking. Reiner, ¶¶ 4-5. 

The investigating officer testified that he did not stop to check on Reiner’s welfare, but 

rather stopped because he thought Reiner was the potential DUI offender that had been 

called into dispatch. Reiner, ¶ 21. Here, the record clearly indicates that the BPD 

officers were dispatched to check on the welfare of Burns because a citizen reported that 

he was slumped over in his car while the car was running and the headlights were on. 

¶37 Accordingly, the District Court did not err in denying Burns’ motion to suppress.

¶38 Issue Three: Did the District Court err in denying Burns’ motion to dismiss the 

felony DUI charge on the grounds that his third prior DUI conviction was 

invalid?

¶39 Burns claims that the third of his four DUI convictions, which occurred in Billings 

Municipal Court in 1997, is constitutionally infirm in three ways: he was not given 

proper notice of the trial date; there were filing errors; and he was involuntarily absent 
14

when the 1997 trial was held in absentia. Thus, he argues that his conviction of DUI per 

se, fourth offense and a felony, must be reversed.

¶40 In Montana, the State may not use a constitutionally infirm conviction to support

an enhanced punishment, such as felony DUI. State v. Mann, 2006 MT 33, ¶ 15, 331 

Mont. 137, 130 P.3d 164 (citing State v. Snell, 2004 MT 334, ¶ 25, 324 Mont. 173, 103 

P.3d 503). A rebuttable presumption of regularity attaches to a prior criminal conviction 

that is used to enhance punishment. State v. Maine, 2011 MT 90, ¶ 33, 360 Mont. 182, 

___ P.3d ___. To overcome this presumption, the defendant, as the moving party, has the 

ultimate burden of proof—both the burden of production and the burden of persuasion—

to prove by a preponderance of the evidence that the conviction is invalid. Maine, ¶ 34. 

To meet this burden, the defendant must produce affirmative evidence that his or her 

conviction violates the Constitution. Id. The defendant “may not simply point to an 

ambiguous or silent record.” Id. Additionally, “[s]elf-serving statements by the 

defendant that his or her conviction is infirm are insufficient to overcome the 

presumption of regularity and bar the use of the conviction for enhancement.” Id. When 

and if a defendant produces evidence demonstrating that the prior conviction is infirm, 

the State then has the burden to rebut that evidence. Id. at ¶ 33. 

¶41 Because a rebuttable presumption of regularity is accorded Burns’ 1997 conviction 

we must determine whether Burns produced affirmative evidence that his constitutional 

rights were violated sufficient to meet his burden of proof. In support of his motion, 

Burns submitted an affidavit and documents from the Billings Municipal Court record. 

At the evidentiary hearing Burns did not call any witnesses. The State called Gayle 
15

Stewart, the presiding Billings Municipal Court Judge in 1997. Stewart testified at length 

regarding her regular practices, including those during an arraignment in which she 

notified defendants of their rights en masse and then set individual trial dates for each 

defendant when he or she appeared individually to enter a plea, simultaneously recording 

the trial date in her own handwriting on the docket sheet. The exhibits presented by 

Burns to the District Court during the evidentiary hearing clearly indicate Burns was 

present at his arraignment on March 13, 1997, evidenced by his signature on the waiver 

of court-appointed counsel form. At the arraignment, Burns pled not guilty and 

demanded a jury trial. As was Stewart’s regular practice, she informed Burns of his trial 

date and the pretrial conference date. This is evidenced by Stewart’s handwritten note on 

the docket sheet indicating a trial date of August 20, 1997. Moreover, Burns signed a 

time-pay agreement for his bond, upon which his trial date was written. 

¶42 Based upon the foregoing, we conclude that Burns’ self-serving affidavit was 

contradicted by the documents he submitted from the Billings Municipal Court records, 

and that he otherwise failed to prove that his 1997 conviction was invalid. Therefore, the 

District Court did not err in ruling that the 1997 conviction could be used to support a 

charge of felony DUI in this case, nor did it err in denying Burns’ motion to dismiss.

¶43 Issue Four: Did the District Court err in sentencing Burns as a persistent felony 

offender?

¶44 Finally, Burns argues that the District Court did not have discretion to sentence 

him to anything other than the statutorily mandated felony DUI Department of 

Corrections 13 month commitment followed by a suspended term of no more than five 
16

years, regardless of whether or not he is sentenced pursuant to the State’s PFO 

designation. See § 61-8-731(1), MCA. Burns recognizes that State v. Damon, 2005 MT 

218, 328 Mont. 276, 119 P.3d 1194 (Cotter & Nelson, JJ., concurring in part and 

dissenting in part), articulates the current state of the law, but argues that Damon was 

indirectly overruled by the rationale in State v. Brendal, 2009 MT 236, 351 Mont. 395, 

213 P.3d 448. He asks this Court to remand his case for sentencing in accordance with 

Brendal. The State argues that the District Court imposed a legal sentence when it 

sentenced Burns as a PFO because the sentence is well within the statutory parameters 

and is consistent with this Court’s precedent. The State argues that had we intended to 

overrule Damon in Brendal, we would have done so expressly. We agree with the State.

¶45 The defendant in Damon was convicted of felony DUI and sentenced as a PFO to 

a term in prison. On appeal, we rejected the defendant’s argument that the specific 

felony DUI sentencing provisions should prevail over the more general provisions of the 

PFO statutes and preclude enhancement of his felony DUI sentence under the PFO 

statute. Damon, ¶¶ 35, 37. We held that a district court has the authority to designate 

and sentence a PFO pursuant to § 46-18-502, MCA, “when the underlying charge meets 

the definition of a felony and the State has provided proper notice of its intent to seek 

persistent felony offender status under § 46-13-108, MCA.” Damon, ¶ 37. We 

subsequently explicitly discussed Damon at length in Brendal and confirmed that the 

holding in Damon was still valid. Brendal, ¶¶ 21-22. 

¶46 Damon is controlling law on this issue and is consistent with our recent precedent 

regarding the PFO sentencing statute, § 46-18-502, MCA. In State v. Gunderson, 2010 
17

MT 166, 357 Mont. 142, 237 P.3d 74, we explained that, regardless of the nature of the 

underlying felony, “sentences imposed based on an offender’s status as a persistent 

felony offender replace the sentence for the underlying felony.” Gunderson, ¶ 54 

(emphasis in original) (holding the PFO sentence replaces the maximum sentence for the 

underlying felony of burglary); see State v. Johnson, 2010 MT 288, ¶ 19, 359 Mont. 15, 

245 P.3d 1113 (the PFO sentence replaces the underlying felony sentence of a defendant 

convicted of felony intimidation). Further, in State v. Brooks, 2010 MT 226, 358 Mont. 

51, 243 P.3d 405, we held that a felony DUI is a legitimate trigger for a PFO designation 

and “[a]n enhanced sentence under § 46-18-502, MCA, does not supplement, but 

supplants the sentence for the underlying felony.” Brooks, ¶ 18.

¶47 Because Burns’ third DUI conviction was valid, the instant DUI per se was his 

fourth DUI conviction and, therefore, a felony. The State gave proper notice of its intent 

to seek PFO status under § 46-13-108, MCA. Accordingly, we hold that the District 

Court did not err in sentencing Burns as a PFO on the DUI per se charge because Burns’ 

sentence was within the parameters provided by statute and is consistent with this Court’s 

precedent.

CONCLUSION

¶48 For the foregoing reasons, we affirm the District Court rulings on Burns’ pretrial 

motions and its sentencing of Burns to Montana State Prison as a PFO.

¶49 Affirmed.

/S/ PATRICIA COTTER
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We concur:

/S/ MIKE McGRATH

/S/ BETH BAKER

/S/ BRIAN MORRIS

/S/ JIM RICE