No. 00-594 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2002 MT 65 

STATE OF MONTANA, 

 Plaintiff and Respondent, 

 v. 

TODD ALLEN PETERSON, 

 Defendant and Appellant. 

APPEAL FROM: District Court of the Tenth Judicial District, 

 In and for the County of Fergus, 

 The Honorable John R. Christensen, Judge presiding. 

COUNSEL OF RECORD: 

 For Appellant: 

 Brian Kohn, Billings, Montana 

 For Respondent: 

Joseph P. Mazurek, Montana Attorney General, Pamela P. Collins, 

Assistant Montana Attorney General, Helena, Montana; Thomas P. 

Meissner, Fergus County Attorney, Lewistown, Montana 

Submitted on Briefs: February 1, 2001 

 Decided: April 2, 2002 

Filed: 

 __________________________________________ 

 Clerk 
Justice James C. Nelson delivered the Opinion of the Court. 

I. INTRODUCTION

1¶ Todd Peterson (Peterson) was charged by information with fourth offense driving 

under the influence, a felony, in violation of § 61-8-401 and § 61-8-731, MCA, in the 

Tenth Judicial District Court, Fergus County. Peterson collaterally challenged the felony 

status of the charge through a motion to dismiss, asserting that two of his previous 

misdemeanor convictions were constitutionally insufficient because he was not properly 

informed of his right to counsel. The District Court denied his motion, finding that 

Peterson was properly informed of his right to counsel in both instances. Peterson 

appeals the denial of his motion. We affirm the District Court on one conviction and 

remand for further findings on the other conviction. 

2¶ We address the following issue on appeal: 

Did the District Court err in finding that Peterson was informed of his right 

to counsel in two previous misdemeanor convictions for driving under the 

influence? 

II. FACTUAL AND PROCEDURAL BACKGROUND

3¶ The facts of Peterson’s most recent guilty plea to driving under the influence 

(DUI) are not at issue in this case. Therefore, we turn directly to the facts regarding 

Peterson’s guilty pleas in two of his previous convictions. In 1988, Peterson pled guilty 

to a DUI charge in front of Fergus County Justice of the Peace David L. Sather (Judge 

Sather). In 1989, Peterson pled guilty to a DUI charge in front of Lewistown City Judge 

R. D. Brassey (Judge Brassey). Peterson asserted in an affidavit attached to his motion to 
dismiss that he was not properly informed of his right to counsel in both of these 

convictions. 

4¶ The District Court held an evidentiary hearing to determine whether Peterson was 

properly advised during the entry of these two pleas and heard testimony from five 

witnesses. Sandra Coppedge, the custodian of the records for Fergus County Justice 

Court, testified regarding the documentation of Peterson’s previous pleas and these 

documents were admitted as evidence. Judge Brassey testified regarding Peterson’s 1989 

plea. Because Judge Sather passed away on July 21, 1999, Judge Brassey and Fergus 

County Justice of the Peace Jack Shields (Judge Shields) also testified regarding their 

understanding of the routine procedures Judge Sather used and would have followed in 

1988. Peterson testified regarding both pleas, and his mother Betty Schramm 

(Schramm), testified regarding the 1989 plea. 

5¶ Following the hearing, the District Court entered an Order Denying Defendant’s 

Motion to Dismiss (Order). In its Order, the court noted evidence in addition to that 

submitted at the hearing. Specifically, the court noted Judge Sather’s testimony in State 

v. Louann Rowland Petersen (Fergus County Cause No. DC 96-46), in which Judge 

Sather testified as to his routine practice. The District Court further noted that this 

testimony was consistent with Judge Brassey’s testimony of Judge Sather’s routine 

practice to inform defendants of the right to counsel and the right to appointed counsel if 

indigent. Peterson now appeals this Order. Further details of the testimony and evidence 

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are discussed below. 

III. STANDARD OF REVIEW

6¶ A rebuttable presumption of regularity, including the presumption that a defendant 

was properly informed of and waived any constitutional rights at issue, attaches to a prior 

DUI conviction used to enhance a subsequent conviction to a felony. State v. Okland

(1997), 283 Mont. 10, 17-18, 941 P.2d 431, 436. This presumption must be overcome by 

direct evidence of irregularity from the defendant. State v. Big Hair, 1998 MT 61, ¶ 16, 

288 Mont. 135, ¶ 16, 955 P.2d 1352, ¶ 16. The burden then shifts to the State to prove by 

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

defendant's rights. State v. Ailport, 1998 MT 315, ¶ 7, 292 Mont. 172, ¶ 7, 970 P.2d 

1044, ¶ 7. 

7¶ We review a trial court’s findings on the evidence regarding a prior plea to 

determine whether those findings are clearly erroneous. Ailport, ¶ 6. A finding is clearly 

erroneous if it is not supported by substantial evidence, the court misapprehended the 

effect of the evidence, or our review of the record convinces us that a mistake has been 

committed. Ailport, ¶ 6. In making its findings, the trial court may consider evidence 

offered by the State that is outside the record of the conviction at issue which 

demonstrates the conviction was constitutionally sound. Ailport, ¶ 15. Further, we have 

declined to require any specific type of evidence for the State to meet its burden. State v. 

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Brown, 1999 MT 143, ¶ 20, 295 Mont. 5, ¶ 20, 982 P.2d 1030, ¶ 20. Conflicts in the 

evidence and questions of credibility are properly resolved by the trier of fact. Brown, ¶ 

22; State v. Moga, 1999 MT 283, ¶ 14, 297 Mont. 1, ¶ 14, 989 P.2d 856, ¶ 14. Finally, 

we review a trial court’s decision to admit evidence for abuse of discretion. State v. 

Stringer (1995), 271 Mont. 367, 374, 897 P.2d 1063, 1067. 

IV. DISCUSSION

8¶ Did the District Court err in finding that Peterson was informed 

of his right to counsel in two previous misdemeanor convictions for 

driving under the influence? 

9¶ At issue in this case is a defendant’s constitutional right to counsel, State v. Craig

(1995), 274 Mont. 140, 148, 906 P.2d 683, 688, or right to court appointed counsel if 

indigent, Okland, 283 Mont. at 14, 941 P.2d at 433, whenever a sentence of 

imprisonment is imposed, State v. Hansen (1995), 273 Mont. 321, 325, 903 P.2d 194, 

197. The right to counsel may be validly waived by the defendant if the waiver is 

knowing and intelligent. Okland, 283 Mont. at 14, 941 P.2d at 433. If a prior conviction 

is invalid for failure to inform the defendant of these rights regarding counsel, it may not 

be used to enhance the penalty of a subsequent conviction. Okland, 283 Mont. at 15, 941 

P.2d at 434 (citing Lewis v. State (1969), 153 Mont. 460, 463, 457 P.2d 765, 766). 

10¶ We have reviewed the issue of collateral challenges to the validity of prior DUI 

convictions a number of times. In Okland, we upheld the district court when it prohibited 

the use of a prior DUI conviction to enhance a subsequent DUI to a felony because the 

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prior conviction record demonstrated that the defendant asked for a court appointed 

attorney but was eventually convicted without an attorney. Okland, 283 Mont. at 19-20, 

941 P.2d at 436-37. 

11¶ Further, in Moga we upheld the trial court when it allowed the use of a prior DUI 

conviction where the defendant testified that he was not informed of his right to counsel 

but the presiding judge submitted an affidavit stating that, although he could not 

remember the specific defendant, the record of the prior conviction indicated it was 

routine and it was his routine practice to properly inform defendants of the right to 

counsel, the right to court appointed counsel, and to require a valid waiver of that right. 

Moga, ¶¶ 12-15. In contrast, in Jenni, we upheld the district court when it disallowed the 

use of a prior DUI conviction when the State’s evidence consisted only of a court 

document that generally stated the defendant was advised of all his rights. State v. Jenni

(1997), 283 Mont. 21, 25-26, 938 P.2d 1318, 1321. 

12¶ In Couture we upheld the trial court when it allowed the use a prior DUI 

conviction where the defendant denied being informed of the right to counsel, but the 

court record indicated the defendant was informed even though he did not sign the 

acknowledgment forms. State v. Couture, 1998 MT 137, ¶ 15-18, 289 Mont. 215, ¶ 15-

18, 959 P.2d 948, ¶ 15-18. In Ailport, we upheld the trial court’s allowance of a prior 

DUI conviction where the court was required to consider competing affidavits regarding 

a North Dakota court’s routine practice. Ailport, ¶¶ 10-16. 

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13¶ The parties in this case agree that Peterson met his burden to show direct evidence 

of irregularity because he testified that he was not informed of his rights regarding 

counsel or appointed counsel at either conviction. See Couture, ¶ 15. Compare Big Hair,

¶ 17-18 (defendant’s statement that he couldn’t recall whether or not he was informed of 

his rights insufficient to rebut presumption of regularity of prior proceeding). Therefore, 

we must determine whether the District Court was clearly erroneous in finding that the 

State met its burden by a preponderance of the evidence to show Peterson was properly 

informed of his rights in each of his prior pleas. 

A. The 1989 Plea. 

14¶ Regarding this conviction, Peterson asserts that he was not properly informed of 

his right to counsel. The State asserts that Judge Brassey’s testimony regarding his 

routine practice to inform defendants of the right to counsel and the right to appointed 

counsel if indigent proves that Peterson was properly informed. The District Court found 

that the preponderance of the evidence demonstrated that Peterson’s prior conviction was 

valid because he was “advised of his constitutional rights, he specifically requested time 

to consult with an attorney and thereafter entered a plea of guilty upon the advice of 

counsel.” After a careful review of the record as discussed below, we conclude there is a 

conflict in the evidence that requires remand to the District Court for further findings 

regarding this plea. 

15¶ In support of his motion, Peterson testified that at his arraignment, he requested 

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time to consult with attorney Torger Oaas (Oaas). He and his mother, Schramm, both 

testified that they later met with Oaas, that Peterson and Schramm decided not to hire 

Oaas because they were unable to afford his fee, and that Oaas did not give Peterson any 

legal advice. Further, Peterson and his mother both testified that Oaas was not present 

when Peterson plead guilty. Peterson also testified that Judge Brassey did not tell him the 

court would appoint Oaas, that Oaas was not appointed by the court as his attorney, and 

that to his knowledge, Oaas never received money from the court for his representation. 

Finally, Peterson testified that he told Judge Brassey he had talked to Oaas, but that he 

did not hire Oaas. 

16¶ In support of its burden, the State introduced court documents as evidence and 

Judge Brassey testified. Two documents are relevant to the issue here. One is a Notice 

of Jury Trial and the other is a copy of Peterson’s traffic citation, both of which have 

Judge Brassey’s handwritten notes on them. The Notice of Jury Trial indicates that it was 

copied to “Defense Attorney Torger Oaas” and has Judge Brassey’s handwritten note: 

“12/7/89 on advice of attorney chg plea to guilty.” Judge Brassey’s notes on the traffic 

citation read: “requested time to consult w/atty T. Oaas - set trial after consulting 

w/attorney. . . . 12/7/89 9:05 am chg plea to guilty on advice of attorney.” Judge Brassey 

testified that although he did not remember Peterson’s case specifically, it was his routine 

practice to inform defendants of the right to counsel and the right to appointed counsel if 

indigent. 

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17¶ However, in contrast to this routine practice, Judge Brassey also testified that since 

Oaas’ name was written on the ticket, according to his routine practice, it was probably 

due to the defendant’s request for a court appointed attorney. Further, he testified that 

according to his routine practice, if a defendant had an attorney, he would never accept a 

guilty plea from that defendant without the attorney present. In addition, he testified that 

his notation “chg plea to guilty on advice of attorney” indicated to him that an attorney 

was present when Peterson plead guilty. When asked if it was possible Peterson 

appeared to plead guilty without an attorney, Brassey stated that due to his notation “on 

advice of attorney,” he “wouldn’t allow that. . . . I am sure I wouldn’t allow him to come 

in and enter a plea without his attorney once he has an attorney. That was not my 

procedure.” Finally, Judge Brassey testified that according to his routine practice and his 

notations on Peterson’s records, he was “sure [Peterson] had one [an attorney], 

absolutely. I wouldn’t have had a hearing without one.” 

18¶ The above excerpts demonstrate that an important question was left unresolved by 

the trial court--i.e. whether Peterson was or was not represented by counsel. This 

question derives from Peterson’s and Schramm’s testimony that no attorney was present 

at the guilty plea and Judge Brassey’s testimony that if he wrote “on advice of attorney” 

on the ticket, that an attorney was present. This also in turn leaves a question as to 

whether Peterson knowingly and intelligently waived his right to an attorney. Because 

the District Court found that Peterson’s conviction was valid in part on the grounds that 

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he “entered a plea of guilty upon the advice of counsel,” the court did not consider 

whether Peterson waived his right to an attorney. Yet Peterson and Schramm testified 

that Peterson did not have an attorney. Further, Judge Brassey’s testimony is inconsistent 

with a knowing and intelligent waiver of the right to appointed counsel by Peterson 

because Peterson and Schramm both assert that they did not hire Oaas as they couldn’t 

afford his fee. 

19¶ While Judge Brassey testified to a routine practice to inform defendants of the 

right to counsel if indigent at arraignment, his testimony regarding his specific routine 

practice when using the phrase “on advice of attorney” is not consistent in this case. 

Because the District Court did not address this inconsistency in Judge Brassey’s 

testimony and resolve whether Oaas actually represented Peterson, we remand for further 

proceedings and a determination of this issue. See State v. Olson (1997), 283 Mont. 27, 

32-33, 938 P.2d 1321, 1325 (remanding to trial court for further findings of fact because 

it incorrectly decided the State failed its burden to prove prior conviction valid as a 

matter of law rather than as an issue of fact.) 

B. The 1988 Plea. 

20¶ Regarding this plea, Peterson asserts the District Court erred by taking judicial 

notice of Judge Sather’s testimony in another case regarding his routine practice. 

Peterson further asserts that the District Court erred in considering testimony from two 

other judges regarding Judge Sather’s routine practice. The State asserts that Peterson 

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failed to preserve his first claim of error for appeal regarding Judge Sather’s testimony 

because he failed to object in the trial court. The State further argues that the court’s 

judicial notice of this evidence was proper. Finally, the State asserts that Peterson also 

failed to preserve for appeal his argument regarding testimony from Judges Brassey and 

Shields and that this testimony describing Judge Sather’s routine practice was also 

properly admitted. 

21¶ We agree with the State that Peterson failed to preserve his right of appeal on the 

issue of judicial notice of Judge Sather’s testimony in another case because he failed to 

object to the District Court. Rule 103(a)(1), M.R.Evid., and § 46-20-701(2), MCA, both 

provide that error may not be predicated upon a ruling unless some sort of objection 

appears on the record. Rules 201 and 202, M.R.Evid., govern judicial notice of facts and 

of law respectively. Although the parties disagree whether judicial notice of Judge 

Sather’s testimony in another case constitutes judicial notice of fact versus judicial notice 

of law, both rules contain the same subsection providing for review of the propriety of 

taking judicial notice by the trial court. This subsection reads: 

(e) Opportunity to be heard. A party is entitled upon timely request to an 

opportunity to be heard as to the propriety of taking judicial notice and the 

tenor of the matter noticed. In the absence of prior notification, the request 

may be made after judicial notice has been taken. 

This rule explicitly provides for review by the trial court upon request by a party, either 

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before or after judicial notice is taken. Peterson never made such a request in this case. 

We will not consider issues raised for the first time on appeal when the appellant had 

opportunity to make objection at the trial level. State v. Weeks (1995), 270 Mont. 63, 85, 

891 P.2d 477, 490-91. See also State v. Loh (1996), 275 Mont. 460, 478-79, 914 P.2d 

592, 603 (general objection to judicial notice insufficient to preserve issue for appeal). 

Therefore, we will not consider this issue. 

22¶ Because the District Court merely stated that Judge Sather’s testimony was 

consistent with Judge Brassey’s testimony, we must now turn to Peterson’s argument that 

the court erred in considering the testimony of Judge Brassey regarding Judge Sather’s 

routine practices. 

23¶ Peterson claims that admission of this evidence as proof of habit or routine 

practice under Rule 406, M.R.Evid., was error, but cites no authority in support of his 

argument as required under Rule 23(a)(4), M.R.App.P. Further, at trial Peterson objected 

to the evidence by arguing it was hearsay and speculative, but did not assert that it 

violated Rule 406, M.R.Evid. Rather, Peterson makes the conclusory assertion on appeal 

that admission of this evidence was error because in other cases, judges have only 

testified as to their own routine practice. The State asserts that, as a consequence of 

Peterson’s failure to properly preserve this argument for appeal and his failure to cite 

authority on appeal, we should not consider this argument on appeal. 

24¶ We agree. As mentioned, the rule is well established that this Court will not 

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address an issue raised for the first time on appeal or a party's change in legal theory on 

appeal because it is unfair to fault the trial court on an issue it never considered. State v. 

Weaselboy, 1999 MT 274, ¶ 16, 296 Mont. 503, ¶ 16, 989 P.2d 836, ¶ 16 (citation 

omitted). Further, we do not consider arguments on appeal that are unsupported by 

authority. State ex rel. Booth v. Montana Twenty-First Judicial Dist., 1998 MT 344, ¶ 

35, 292 Mont. 371, ¶ 35, 972 P.2d 325, ¶ 35. Therefore, the District Court’s finding that 

Peterson was properly informed of his right to counsel in the 1988 conviction is affirmed. 

V. CONCLUSION 

25¶ We affirm the District Court’s decision as to Peterson’s 1988 DUI conviction and 

remand for further proceedings on Peterson’s 1989 DUI conviction. 

 /S/ JAMES C. NELSON 

We Concur: 

/S/ KARLA M. GRAY 

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER 

/S/ W. WILLIAM LEAPHART

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