97-441

 No. 97-441

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

 1998 MT 61

STATE OF MONTANA, 

 Plaintiff and Respondent, 

 v.

ALOYSIUS BIG HAIR, 

 Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

 In and for the County of Big Horn, 

 Honorable Robert W. Holmstrom, Judge Presiding.

COUNSEL OF RECORD:

 For Appellant:

 James L. Vogel, Hardin, Montana

 For Respondents:

 Honorable Joseph P. Mazurek, Attorney General; John Paulson,

 Assistant Attorney General, Helena, Montana

 Christine A. Cooke, County Attorney; Curtis Bevolden, Deputy

 County Attorney, Hardin, Montana

 Submitted on Briefs: December 18, 1997

 Decided: March 20, 1998

Filed:

 __________________________________________

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 Clerk

Chief Justice J. A. Turnage delivered the Opinion of the Court. 

 

¶1 Aloysius Big Hair appeals his conviction of driving while under the influence of

alcohol (DUI), fourth offense, in the Thirteenth Judicial District Court, Big Horn 

County. 

We affirm.

¶2 The issues are whether the District Court erred in denying Big Hair's motions to

continue trial due to the unavailability of a witness and to quash reference to his 

previous

DUI convictions on grounds that he had not been properly advised of his right to 

counsel in

relation to those convictions. 

 

¶3 On April 5, 1996, Big Hair was arrested in Hardin, Montana, on a DUI charge. He

was charged under § 61-8-401, MCA (1985), with DUI, fourth offense, based on his

previous DUI convictions in 1987, 1988, and 1989. 

¶4 At the jury trial on the April 1996 charge, Big Hair and his wife testified 

that their

pickup had disappeared from their home south of Crow Agency, Montana, during a party

some time the night before his arrest. They both testified that they had caught a 

ride to

Hardin on the morning of April 5 to look for the truck. Mrs. Big Hair testified 

that she

waited for her husband with friends in a bar while he searched for the truck. Big 

Hair

testified that he walked around Hardin looking for the truck, periodically returning 

to the bar

where his wife waited for him, and finally found the truck parked in the downtown 

area. Just

as he found the truck and reached in through the window to retrieve the keys, a 

highway

patrol officer approached him and arrested him for DUI.

¶5 The highway patrol officer testified that he had received a radio transmission

concerning a possible DUI driver in a pickup truck at about 6:00 p.m. on April 5, 

1996. The

report included a description of the truck and its license plate number, and 

information that

it had three occupants. The officer did not find the truck at the reported location.

 

¶6 A few minutes later, the officer received a second radio transmission 

concerning the

location of the pickup. He made a U-turn and found the truck parked with three 

occupants

in a spot where it had not been minutes before. Big Hair was seated behind the 

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steering

wheel. The officer testified that as he approached the truck, Big Hair got out and 

began

walking across the street. The officer stated that Big Hair admitted that he had 

been driving

and that he had had "a couple beers." After administering field sobriety tests, the 

officer

arrested Big Hair and took him to the local police station, where his blood alcohol

concentration was measured at .337. 

¶7 The jury convicted Big Hair of DUI. The District Court denied Big Hair's posttrial

motions to quash reference to his prior DUI's and for new trial based on denial of 

his pretrial

motion for a continuance. 

 Issue 1

¶8 Did the District Court err in denying Big Hair's motion to continue trial due 

to the

unavailability of a witness?

¶9 Section 46-13-202, MCA, gives a district court discretion in considering a 

motion to

continue trial. At subsection (3), the statute provides that it is to be construed 

"to the end

that criminal cases are tried with due diligence consonant with the rights of the 

defendant and

the prosecution to a speedy trial." When reviewing the denial of a motion for 

continuance,

this Court determines whether the district court abused its discretion. State v. 

Haskins

(1992), 255 Mont. 202, 207, 841 P.2d 542, 545.

¶10 Big Hair moved for a continuance on the day before trial. His motion stated 

that an

eyewitness to the alleged offense, an alleged passenger in his truck who had 

previously stated

his willingness to come to court, could not be located. The defense alleged that 

this witness

would testify to Big Hair's level of intoxication and, the defense believed, that 

Big Hair was

not driving the pickup. The defense contended that "because of the relatively short 

trial

setting in this matter, [the witness] was not able to be informed thereof."

¶11 In oral argument on this motion just before voir dire of the jury, the State 

responded

that the evidence would speak for itself--the State would offer the results of the 

breath test

as to Big Hair's level of intoxication, and the testimony of the arresting officer 

as to whether

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Big Hair was driving the truck. The State objected to a continuance on grounds that 

the

arresting officer had accepted a job in Oregon and would be leaving Montana, 

resulting in

the potential expense of having him come back to Montana to testify if the 

continuance were

granted.

¶12 Big Hair's trial was set six months in advance, in April 1996, for October 7, 

1996. 

On October 11, 1996, trial was rescheduled for October 17, 1996, apparently due to 

the

court's crowded docket on October 7.

¶13 There is no record or claim that Big Hair objected to the rescheduled trial 

date when

it was set. Nor did he present any basis for his stated belief that his witness 

could be located

within a reasonable time if a continuance was granted. He provided only rather 

vague oral

representations by his counsel regarding the nature of the proposed witness's 

testimony.

¶14 The District Court denied Big Hair's October 16 motion for a continuance on 

grounds

that it was belatedly filed. After reviewing the record, we hold that the District 

Court did not

abuse its discretion in denying the motion for a continuance.

 Issue 2

¶15 Did the court err in denying Big Hair's motion to quash reference to his 

previous DUI

convictions on grounds that he had not been properly advised of his right to counsel 

in

relation to those convictions?

¶16 In Montana, a rebuttable presumption of regularity attaches to a prior DUI 

conviction

during a collateral attack such as the one Big Hair raises here. This presumption 

must be

overcome by direct evidence of irregularity by the defendant; the burden then shifts 

to the

State to prove by direct evidence that the prior conviction was not obtained in 

violation of

the defendant's rights. State v. Okland (Mont. 1997), 941 P.2d 431, 436, 54 St.Rep. 

467,

470-71.

¶17 At the hearing on the motion to quash, the District Court heard testimony from 

Big

Hair and from Judge Snively, the justice of the peace who presided at Big Hair's 

1987, 1988,

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and 1989 DUI convictions. In its written order denying the motion to quash, the 

District

Court reasoned as follows: 

 [T]he records of the lower court for each of the Defendant's three convictions

 and the testimony of Judge Snively established that the Defendant's right to

 counsel was explained to him and that he knowingly and intelligently waived

 his right prior to the entry of his plea of guilty. The Defendant did not

 controvert this evidence, he merely testified that he did not recall whether his

 rights had been explained and whether he understood them and waived them. 

 The Court concludes, under the facts of this case, that the lower court record

 was not silent and that the State of Montana sustained its burden of proving

 that the Defendant's Sixth Amendment right had been afforded to him during

 each of his prior convictions.

Big Hair argues that there was insufficient evidence that he was properly advised of 

and

waived his constitutional right to counsel in his 1987, 1988, and 1989 DUI 

convictions. 

¶18 Big Hair did not present any direct evidence in support of his claim that his

constitutional right to counsel was violated in the prior proceedings. He testified 

only that

he could not recall whether he had been advised of his right to counsel and whether 

he had

waived that right. We conclude that, like the defendants in State v. Perry (Mont. 

1997), 938

P.2d 1325, 54 St.Rep. 478, and State v. Stubblefield (Mont. 1997), 940 P.2d 444, 54 

St.Rep.

605, Big Hair has failed to rebut the presumption of regularity with any direct 

evidence that

his constitutional right to counsel was violated. Therefore, we hold that the 

District Court

did not err in denying his motion to quash.

¶19 Affirmed.

 

 /S/ J. A. TURNAGE

We concur:

/S/ JAMES C. NELSON

/S/ KARLA M. GRAY

/S/ JIM REGNIER 

Justice Terry N. Trieweiler specially concurring in part and dissenting in part.

¶20 I concur with the majority's conclusion that the defendant has failed to rebut 

the

presumption of regularity of the proceedings which led to his prior DUI convictions.

¶21 I dissent from the majority's conclusion that the District Court did not abuse 

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its

discretion when it denied the defendant's motion to continue the trial date so that 

he could

locate and produce an eyewitness to the events which were the basis for the charges 

against

him.

¶22 The majority points out that the District Court's primary basis for denying Big 

Hair's

motion to continue was that it was belatedly filed. Under the circumstances of this 

case, I

disagree. However, additional facts are necessary for an understanding of why Big 

Hair's

motion to continue was first filed the day before trial.

¶23 This case was originally set for trial as Case No. 10 on October 7, 1996. On 

appeal,

the defendant's attorney contends, and the State does not disagree, that he had been 

advised

the case would not go to trial on October 7 because of the number of other cases 

which were

set ahead of it. However, not until October 11 was the defendant advised by the 

District

Court that this case would go to trial on October 17, four working days later. 

According to

the defendant's attorney, he began his efforts to locate his eyewitness, Gilford 

Sees The

Ground, as soon as he was notified of the new trial date, but by October 16, 

realized that he

would probably be unsuccessful. 

¶24 The transcript of the hearing on October 17 to consider Big Hair's motion to 

continue

demonstrates just how unexpected the whole scheduling process had been. The 

following

conversation occurred:

 THE COURT: I looked through the file. I guess I can't tell from the it [sic]

 how this thing ended up for today.

 

 [DEFENDANT'S ATTORNEY]: I guess what I understand, Your Honor, if

 I got the dates wrong, I understand the judge reset this for trial for today 

from

 last Thursday.

 

 [STATE'S ATTORNEY]: It was last Friday. It was set -- This is actually a

 case pending before Judge Colberg, and Judge Colberg was here in Hardin last

 Friday for an eight o'clock hearing, and it was reset at that time, although no

 written record or objection was entered.

 

 [DEFENDANT'S ATTORNEY]: My understanding, we had a motion pending

 to dismiss the charge. The judge ruled on that. I believe we got the ruling on

 that motion last Wednesday.

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 THE COURT: Judge Fagg did that?

 

 [DEFENDANT'S ATTORNEY]: Yes. Essentially the matter then was

 rescheduled. Since that time we have been trying to locate a witness. The

 witness is Gilford Sees The Ground. We made quite an effort to locate him. 

 Talked to family members. Talked to others, and haven't been able to locate

 him as of yet. We believe he is critical to the defense because he was present

 at the scene and would testify as to the intoxication level of the defendant, as

 well as, I believe, testifying that the defendant was not driving the pickup, 

and

 those are two of the three elements that have to be proven for this offense. He

 is an eyewitness to that. We believe he is very important to the defense in 

this

 matter. He has indicated a willingness to testify, but he just doesn't know 

about

 it. We haven't had time to locate him. For that reason, we filed our motion to

 continue. We believe, with additional time, we could locate him, and that he

 would be important to the defense in this matter.

 

¶25 Not only was Big Hair's motion to continue as timely as possible under the

circumstances, the unavailable witness was critical to his defense. As pointed out 

in the

majority opinion, Big Hair and his wife denied that he had ever operated his motor 

vehicle

in the condition in which he was found. It was their testimony that the vehicle had 

been

taken from his home the night before and that just prior to the time he was observed 

by the

arresting officer, he had located the vehicle and removed the keys. He was not 

observed

operating the vehicle by the arresting officer.

¶26 Obviously no affidavit could be produced from Sees The Ground prior to trial 

because

he was unavailable. However, in an affidavit filed in support of the defendant's 

motion for

a new trial, Sees The Ground made the following statements under oath:

 2. That the undersigned recalls the events of April 5, and did

 observe the arrest of Aloysius Big Hair when the highway patrol took him into

 custody for an alleged DUI.

 

 3. That the undersigned did observe Aloysius Big Hair immediately

 before the arrest, and observed that he was not driving just prior to the time 

the

 officer did take him into custody.

 

 4. That the undersigned did observe Aloysius Big Hair in the time

 immediately prior to the arrest, and was aware that Aloysius Big Hair was

 looking for his pickup, which was missing from his place of residence since

 earlier that day.

 

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 5. That immediately prior to his arrest, Aloysius Big Hair did find

 his pickup, and had just retrieved the keys therefrom when the officer took him

 into custody.

 

 6. That the undersigned has been willing to testify on behalf of

 Aloysius Big Hair regarding this matter, but was not available at the time this

 matter was set for trial in October.

 

¶27 Based on the circumstances in which the defendant's attorney found himself at 

the

time of the rescheduled trial, there was no legitimate basis for denying his motion 

to continue

the trial. The State's only objection was that the investigating officer was 

leaving the state

at the end of the month; however, the State also pointed out that he could return to 

the state

for trial. At most, the disadvantage to the State was the travel expense of having 

the

investigating officer return. That amount of additional expense was not a 

significant factor

when balanced against the unavailability of an eyewitness who was willing to testify 

on the

defendant's behalf.

¶28 I conclude that the defendant's motion to continue the trial date was not 

belated. The

continuance was necessary in order to assure that the defendant receive a fair 

trial, and when

the District Court denied the motion for a continuance based on its stated reason, 

the District

Court abused its discretion.

¶29 For these reasons, I dissent from the majority opinion which affirms the 

District

Court's denial of the defendant's motion for a continuance. I would reverse the 

defendant's

conviction and remand to the District Court for a new trial.

 /S/ TERRY N. TRIEWEILER

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