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 Genera l, Helena, Montana; Thomas P. Meissner, Fergus County Attorney, Lewistown, Montana

Submitted on Briefs: February 1, 2001 Decided: April 2, 2002 Filed:

__________________________________________ ClerkJustice 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 co llaterally challenged the felony status of the charge through a motion to dismiss, asserti ng that two of his previous misdemeanor convictions were constitutionally insufficient be cause he was not properly informed of his right to counsel. The Dist rict Court denied his motion, finding that Peterson was properly informed of his righ t to counsel in both instances. Peterson appeals the denial of his motion. We affi rm 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 wa s informed of his right to counsel in two previous misdemea nor convictions for driving under the influence? II. FACTUAL AND PROC EDURAL BACKGROUND 3¶ The facts of Peterson’s most recent guilty plea to drivi ng under the influence (DUI) are not at issue in this case. Therefor e, 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 fro nt of Lewistown City Judge R. D. Brassey (Judge Brassey). Peterson asserted in an affida vit attached to his motion todismiss 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 determin e whether Peterson was properly advised during the entry of thes e two pleas and heard testimony from five witnesses. Sandra Coppedge, the custodian of the records for Fergus County Justice Court, testified regarding the documentati on of Peterson’s previous pleas and these documents were admitted as ev idence. Judge Brassey testif ied 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) al so testified regarding their understanding of the routine pr ocedures Judge Sather used and would have followed in 1988. Peterson testified regarding both pleas, and his mother Betty Schramm (Schramm), testified rega rding the 1989 plea. 5¶ Following the hearing, the District C ourt 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 Sath er’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 Brasse y’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

3are 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 s ubsequent conviction to a felony. State v. Okland (1997), 283 Mont. 10, 17-18, 941 P. 2d 431, 436. Th is 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 13 52, ¶ 16. The burden then sh ifts to the State to prove by a preponderance of evidence that the prior conviction was not ob tained in violation of the defendant's rights. State v. Ailport , 1998 MT 315, ¶ 7, 292 M ont. 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 findi ngs are clearly erroneous. Ailport , ¶ 6. A finding is clearly erroneous if it is not supported by substant ial evidence, the court misapprehended the effect of the evidence, or our review of the record convince s 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 speci fic type of evidence for the State to meet its burden. State v.

4Brown , 1999 MT 143, ¶ 20, 295 Mont. 5, ¶ 20, 982 P.2d 1030, ¶ 20. Conflicts in the evidence and questions of credibility are pr operly 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 fi nding that Peterson was informed of his right to counsel in two pr evious misdemeanor convictions for driving under the influence? 9¶ At issue in this case is a defe ndant’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, 9 41 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 defendan t 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

5prior conviction record demonstrated that the defendant asked for a court appointed attorney but was even tually convicted wit hout 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 te stified that he was not inform ed of his right to counsel but the presiding judge submitted an affida vit stating that, alth ough 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 appoi nted 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 ev idence consisted only of a court document that generally stated the defe ndant 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 defe ndant 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.

613¶ The parties in this case agree that Pete rson 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 Cour t was clearly erroneous in finding that the State met its burden by a preponderance of th e 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 asse rts 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 defe ndants 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 hi s arraignment, he requested

7time to consult with attorney Torger Oaas (Oaas). He and his mother, Schramm, both testified that they later met with Oaas, th at Peterson and Schramm decided not to hire Oaas because they were unable to afford his fee, and that Oaas di d not give Peterson any legal advice. Further, Peterson and his mother both testified that Oaas was not present when Peterson plead guilty. Peterson also tes tified 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 co urt 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 in troduced court documents as evidence and Judge Brassey testified. Two documents are re levant to the issue he re. 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 Br assey’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 gu ilty on advice of attorney.” Judge Brassey testified that although he di d 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.

817¶ However, in contrast to this routine prac tice, Judge Brassey also testified that since Oaas’ name was written on the ticket, accordin g to his routine prac tice, it was probably due to the defendant’s request for a court appo inted attorney. Furthe r, he testified that according to his routine practice, if a defenda nt had an attorney, he would never accept a guilty plea from that defendant with out 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 “would n’t allow that. . . . I am sure I wouldn’t allow him to come in and enter a plea without hi s attorney once he has an attorney. That was not my procedure.” Finally, Judge Brassey testified th at according to his ro utine 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 demonstr ate that an important quest ion 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 in telligently waived his right to an attorn ey. Because the District Court found that Peterson’s conv iction was valid in part on the grounds that

9he “entered a plea of guilty up on the advice of counsel,” the court did not consider whether Peterson waived his right to an a ttorney. Yet Peterson and Schramm testified that Peterson did not have an attorney. Further, Judge Bra ssey’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 hi re Oaas as they couldn’t afford his fee. 19¶ While Judge Brassey testified to a rout ine 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 addre ss this inconsistency in Judge Brassey’s testimony and resolve whether Oaas actually represented Pe terson, 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 Stat e 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, Pete rson asserts the District C ourt erred by taking judicial notice of Judge Sather’s testimony in anot her 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

10failed to preserve his first claim of error for appeal regarding Judge Sather’s testimony because he failed to object in the trial cour t. 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 argumen t 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 fa iled to preserve his right of appeal on the issue of judicial notice of Judge Sather’s te stimony 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 un less some sort of objection appears on the record. Rules 201 and 202, M.R. Evid., govern judicial notice of facts and of law respectively. Althoug h the parties disagree whether judicial notice of Judge Sather’s testimony in another cas e constitutes judicial notice of fact versus judicial notice of law, both rules contain the same subsecti on providing for review of the propriety of taking judicial notice by the trial c ourt. This subsection reads: (e) Opportunity to be hear d. A party is entitled up on timely request to an opportunity to be heard as to the prop riety 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

11before or after judicial notice is taken. Pete rson never made such a re quest in this case. We will not consider issues raised for the first time on appeal when the appellant had opportunity to make objec tion 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 st ated 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 erro r, but cites no authority in support of his argument as required under Rule 23(a)(4), M.R.Ap p.P. Further, at tr ial Peterson objected to the evidence by arguing it was hearsay and sp eculative, but did not assert that it violated Rule 406, M.R.Evid. Rather, Peters on 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 asse rts that, as a consequence of Peterson’s failure to properly pr eserve this argument for app eal 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

12address an issue raised for th e first time on appeal or a part y'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, th e District Court’s finding that Peterson was properly informed of his right to co unsel in the 1988 convic tion is affirmed. V. CONCLUSION 25¶ We affirm the District Court’s decisi on as to Peterson’s 19 88 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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