                                                                                               11/15/2016


                                          DA 15-0287
                                                                                           Case Number: DA 15-0287

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 288



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

MARTE ALBERT KREBS,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DC 14-442
                        Honorable Michael G. Moses, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Chief Appellate Defender, Moses Okeyo, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Melissa Schlichting,
                        Assistant Attorney General, Helena, Montana

                        Scott D. Twito, Brett D. Linneweber, Deputy County Attorney,
                        Billings, Montana



                                                    Submitted on Briefs: October 5, 2016

                                                               Decided: November 15 2016


Filed:

                        __________________________________________
                                          Clerk
Justice Beth Baker delivered the Opinion of the Court.


¶1     Marte Krebs and the State contest whether one of Krebs’s prior convictions is a

“qualifying conviction” that allowed the State to charge him with a felony for his most

recent driving under the influence (DUI) violation.          Krebs challenged the prior

conviction’s applicability, arguing that the State failed to meet its burden of showing that

the prior conviction could be used to enhance the penalty for his conviction to a felony.

The District Court disagreed and imposed a felony sentence.

¶2     We reverse because the State had the burden of demonstrating the existence of

qualifying convictions for purposes of enhancing Krebs’s penalty to a felony DUI and did

not meet it.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3     The State charged Krebs with felony DUI in June 2014. The probable cause

affidavit alleged that Krebs had three prior DUI convictions—two from North Dakota in

1988 and 2006, and one from Montana in 1991. Krebs filed a motion challenging the

1988 North Dakota conviction’s applicability, arguing that the 1988 conviction should

not qualify as a conviction sufficient to enhance the penalty for his 2014 charge to a

felony.

¶4     Krebs contended that the State bore the burden to prove that the 1988 conviction

was a qualifying conviction. Krebs maintained that it was impossible to determine

whether the 1988 conviction was a “blood alcohol concentration” (BAC) conviction or an

“under the influence” conviction because, under North Dakota’s statutory framework, the


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same statute governed both offenses. In contrast, there are distinct Montana statutes that

govern BAC convictions and “under the influence” convictions. Krebs asserted that it

was the State’s burden to prove whether the 1988 conviction was an “under the

influence” conviction or a BAC conviction.          If the 1988 conviction was a BAC

conviction, Krebs asserted that it would have been expunged under Montana law.

Alternatively, if it were an “under the influence” conviction, Krebs contended that it

could not count as a qualifying conviction pursuant to § 61-8-734, MCA, because it was

not a substantially similar offense given the differences between North Dakota’s and

Montana’s definitions of “under the influence.”

¶5     The State countered that Krebs bore the burden to prove whether the 1988

conviction was an “under the influence” or a BAC conviction. Prior to hearing Krebs’s

motion, the District Court requested supplemental information regarding the nature of the

1988 conviction. Both parties agreed that the register of actions from the North Dakota

court was the only documentation available, as the court file had been destroyed. The

register showed only that Krebs had been convicted of DUI; it did not indicate whether

the 1988 conviction was an “under the influence” or a BAC conviction.

¶6     The District Court denied Krebs’s motion following a hearing.             The court

concluded that it was Krebs’s burden to prove the nature of the 1988 conviction. Because

Krebs failed to show that the 1988 conviction was expunged from his record, the District

Court concluded that the 1988 conviction could be used to support the felony charge.

Krebs pleaded guilty to the felony, reserving his right to appeal the denial of his motion.



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                              STANDARD OF REVIEW

¶7    Whether a prior conviction may be used to enhance a criminal sentence is a

question of law that we review for correctness. State v. Burns, 2011 MT 167, ¶ 17, 361

Mont. 191, 256 P.3d 944; State v. Maine, 2011 MT 90, ¶ 12, 360 Mont. 182, 255 P.3d 64.

                                    DISCUSSION

¶8     Whether the State is required to prove the existence of a qualifying conviction in
order to treat an alleged fourth DUI offense as a felony.

¶9    The District Court treated Krebs’s motion as a motion to dismiss. The court

acknowledged that “[t]he record is inadequate to provide the Court with sufficient

information as to whether [Krebs’s 1988 conviction] was a BAC conviction or an ‘under

the influence’ conviction.” In addition, the court agreed with Krebs that if his 1988

conviction was a BAC conviction, it would have been expunged from his record and

therefore it would not count for sentence enhancement purposes. The court concluded,

however, that the burden was on Krebs to provide the court “with sufficient information

supporting any argument that his 1988 DUI conviction was a BAC conviction.” In doing

so, the court relied on the procedural framework we established in Maine to evaluate

collateral challenges to prior convictions. Because Krebs failed to meet the burden

imposed by Maine, the District Court concluded that the 1988 conviction was valid for

enhancing his 2014 charge to felony DUI.

¶10   On appeal, the State agrees that if the 1988 conviction had been a BAC conviction,

it would not qualify as a conviction for purposes of enhancing the new DUI to felony

status. Relying exclusively on Maine, the State contends that it was Krebs’s “burden to


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produce direct evidence that the prior conviction is invalid.” (Quoting Maine, ¶ 12). The

State contends further that it provided sufficient evidence of Krebs’s 1988 conviction by

introducing the North Dakota court’s register of actions. Because Krebs was the moving

party, and he “only disputed the type of DUI conviction,” the State argues that the

“burden of proof clearly” remained with him.

¶11   The District Court’s and the State’s reliance on Maine is misplaced. In Maine, the

defendant argued that a prior DUI conviction used to enhance his conviction to felony

DUI was “constitutionally infirm” and was therefore invalid. Maine, ¶ 35. Our purpose

in Maine was “to clarify the procedure on these sorts of collateral attacks on prior

convictions.”   Maine, ¶ 17 (emphasis added).       We grounded our analysis in the

well-established principle that a constitutionally infirm conviction may not be used to

support an enhanced punishment. Maine, ¶¶ 28, 33. We recognized also that the State

has an interest “in deterring habitual offenders” and “in the finality of convictions.”

Maine, ¶ 29.

¶12   Balancing these interests, we concluded that “a rebuttable presumption of

regularity attaches to [a] prior conviction, and we presume that the convicting court

complied with the law in all respects.” Maine, ¶ 33. We held therefore that when a

defendant collaterally attacks the validity of a prior conviction on the ground that the

conviction is constitutionally infirm, the defendant bears the “initial burden to

demonstrate that the prior conviction is constitutionally infirm.” Maine, ¶ 33. In other

words, under Maine, it is the defendant “who must prove by a preponderance of the

evidence that the conviction is invalid.” Maine, ¶ 34 (emphasis in original). Imposing

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the burden of proving the prior conviction’s constitutional infirmity on the defendant

does not violate due process “once [the] state proves the fact of a prior conviction.” State

v. Okland, 283 Mont. 10, 17, 941 P.2d 431, 435 (1997) (citing Parke v. Raley, 506 U.S.

20, 29, 113 S. Ct. 517, 523 (1992)) (emphasis added). We have applied the Maine

framework consistently in cases where a defendant attempts this type of collateral attack

on a prior DUI conviction. E.g., State v. Hancock, 2016 MT 21, 382 Mont. 141, 364 P.3d

1258; State v. Johnson, 2015 MT 221, 380 Mont. 198, 356 P.3d 438; State v. Nixon, 2012

MT 316, 367 Mont. 495, 291 P.3d 1154.

¶13    But here, Krebs admits that he was validly convicted in 1988.              He is not

questioning whether the North Dakota court complied with the law or violated his

constitutional rights. Rather, he is asserting that the State had the burden of proving the

fact that the 1988 conviction qualified as a predicate for the felony charge in this case.

¶14    Montana’s statutory framework establishes separate offenses for driving under the

influence and for driving with excessive blood alcohol concentration.                Sections

61-8-401, -406, MCA. After three qualifying convictions, a defendant convicted of a

fourth or subsequent offense is guilty of a felony and subject to an enhanced penalty.

Section 61-8-731(1), MCA.       Under current law, “all previous convictions,” whether

“under the influence” or BAC, “must be used for sentencing purposes” no matter when

they occurred. Section 61-8-734(1)(b)-(c), MCA.

¶15    Under the law in effect at the time of Krebs’s 1988 conviction, however, a

person’s prior BAC conviction would be “expunged from the defendant’s record” if he or

she did not receive another BAC conviction within five years.             State v. Sidmore,

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286 Mont. 218, 227, 951 P.2d 558, 564 (1997) (quoting § 61-8-722(6), MCA (1989)).

This remained true even if the person received an “under the influence” conviction within

five years of receiving a BAC conviction. Sidmore, 286 Mont. at 227, 951 P.2d at 564.

Thus, a BAC conviction that was not followed by another BAC conviction within that

five-year period could not “be counted to support [a] charge of felony DUI.” Sidmore,

286 Mont. at 227, 951 P.2d at 564; accord State v. Beckman, 284 Mont. 459, 466, 944

P.2d 756, 761 (1997); State v. Cooney, 284 Mont. 500, 508, 945 P.2d 891, 895 (1997);

State v. Brander, 280 Mont. 148, 155, 930 P.2d 31, 36 (1996).

¶16   The parties do not dispute that if Krebs’s 1988 conviction was a BAC conviction,

it could not have been used to support a felony charge under § 61-8-731, MCA, because

he did not receive another BAC conviction in the subsequent five years. The parties do

dispute, however, who bears the burden of proving whether a prior conviction qualifies as

a “conviction” that may be used to support felony enhancement.

¶17   As noted, in order to be sentenced for felony DUI, a person must have four or

more qualifying convictions.    Section 61-8-731, MCA; Sidmore, 286 Mont. at 227,

951 P.2d at 564. Analogous are the statutes governing persistent felony offenders, which

require that an offender have two or more qualifying felony convictions.          Section

46-18-501, MCA. In both instances, prior convictions are considered at sentencing.

State v. Nelson, 178 Mont. 280, 284, 583 P.2d 435, 437 (1978) (concluding that the State

had to present evidence of prior DUI convictions at sentencing, not at a defendant’s trial

for third DUI); § 46-18-502, MCA (“Sentencing of persistent felony offender”). We

have analogized sentencing procedures for multiple DUI convictions to the sentencing

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procedures for repeat felony offenders in the past. Nelson, 178 Mont. at 284, 583 P.2d

at 437.

¶18       In the persistent felony offender context, we have concluded that “in order to

present evidence of a prior conviction in a sentencing proceeding there must be

competent proof that the defendant in fact suffered the prior conviction.”       State v.

Lamere, 202 Mont. 313, 321, 658 P.2d 376, 380 (1983) (citing State v. Cooper,

158 Mont. 102, 489 P.2d 99 (1971)) (emphasis in original); accord State v. Farnsworth,

240 Mont. 328, 334, 783 P.2d 1365, 1369 (1989) (concluding that the “District Court

relied on competent evidence . . . to establish the requirements of the persistent felony

offender statute”); State v. Smith, 232 Mont. 156, 160, 755 P.2d 569, 571-72 (1988)

(agreeing that “because the Court relied on competent evidence in sentencing [the

defendant],” the court properly sentenced the defendant as a persistent felony offender).

Requiring competent proof of a prior conviction “has nothing to do with the validity of

the conviction.” Cooper, 158 Mont. at 109, 489 P.2d at 103.

¶19       As demonstrated above, Krebs is not challenging the 1988 conviction’s validity;

he is challenging whether the 1988 conviction may be used to enhance his penalty to

felony status. It is the State’s burden to “prove[ ] the fact of a prior conviction.” See

Okland, 283 Mont. at 17, 941 P.2d at 435. And the State must do so by presenting

“competent proof that the defendant in fact suffered the prior conviction.” Lamere,

202 Mont. at 321, 658 P.2d at 380. The District Court acknowledged that “[t]he record is

inadequate to provide the Court with sufficient information as to whether [Krebs’s 1988

conviction] was a BAC conviction or an ‘under the influence’ conviction.”             An

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“inadequate record” cannot be competent proof that Krebs in fact suffered a prior

conviction that would qualify to enhance his penalty to a felony.

¶20    We conclude that the State bore the burden to prove that the 1988 conviction could

be used to support its felony charge against Krebs and that the State failed to meet this

burden. Accordingly, we reverse the District Court’s order.

¶21    Because our resolution of this issue is dispositive, we need not address whether

North Dakota’s and Montana’s definitions of “under the influence” are substantially

similar.

                                    CONCLUSION

¶22    We reverse and remand to the District Court for further proceedings consistent

with this Opinion.


                                                /S/ BETH BAKER


We Concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT




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