                                                                                            January 26 2016


                                          DA 14-0596
                                                                                            Case Number: DA 14-0596

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 21



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.


ANTHONY PHILLIP HANCOCK,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. ADC-13-214
                        Honorable Gregory G. Pinski, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Haley Connell, Assistant Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Brenda Elias, Assistant
                        Attorney General, Helena, Montana

                        John Parker, Cascade County Attorney, Ryan Ball, Deputy County
                        Attorney, Great Falls, Montana



                                                    Submitted on Briefs: October 7, 2015

                                                               Decided: January 26, 2016


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1      Anthony Phillip Hancock appeals from the order of the Montana Eighth Judicial

District Court, Cascade County, denying his motion to dismiss his 1999 DUI conviction

for constitutional infirmity. We affirm but remand for correction of a clerical error in the

judgment.

¶2      We address the following issues:

¶3      Issue one: Did the District Court err by denying Hancock’s motion to dismiss a
        DUI conviction based on his claim that his 1999 DUI conviction, used to support
        the felony charge, was constitutionally infirm?

¶4      Issue two: Did the District Court err by stating that Hancock was convicted of a
        DUI rather than a DUI per se?

                  PROCEDURAL AND FACTUAL BACKGROUND

¶5      On May 22, 2013, the State charged by Information Anthony Phillip Hancock

(“Hancock”) with driving under the influence of alcohol fourth or subsequent offense

(“DUI”), a felony. Section 61-8-731, MCA. The Information provided that Hancock had

been convicted of DUI offenses on three previous occasions, once in 1999 and twice in

2004.

¶6      On August 19, 2013, Hancock filed a motion to dismiss the 1999 DUI conviction

in Great Falls Municipal Court, alleging that his constitutional right to counsel was

violated in that proceeding. In addition to his brief, Hancock filed an affidavit in which

he represented that at the initial appearance, he pled not guilty and informed the

municipal court that he would retain private counsel. The affidavit also states that at a


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later date Hancock returned to court and requested court-appointed counsel, which he

was denied because it was too late. On the day set for trial, June 2, 1999, Hancock pled

guilty to the DUI charge.

¶7     The District Court conducted a hearing on October 21, 2013, to assess Hancock’s

assertions regarding the 1999 DUI conviction. Both Hancock and the Hon. Nancy Luth,

who presided over Hancock’s 1999 trial, testified. The 1999 proceeding was set in

municipal court, which was not a court of record at the time. However, there was a

docket sheet with minutes from the initial appearance; Judge Luth explained that the

docket sheet indicated that Hancock was advised of his rights. Hancock confirms that he

declined a court-appointed attorney at that appearance. There is no record that Hancock

requested an attorney following the initial appearance. Judge Luth testified that it was

her general practice to grant a request for a court-appointed attorney unless the request

was made on the day of trial and thereby requiring that the trial be postponed.

¶8     On November 7, 2013, the District Court denied Hancock’s motion to dismiss the

1999 DUI conviction.        Hancock pled guilty to the offense of “operation of

noncommercial vehicle by person with alcohol concentration of 0.08 or more,” pursuant

to § 61-8-406, MCA, reserving his right to appeal the denial of his motion to dismiss.

                              STANDARD OF REVIEW

¶9     The issue concerning the use of prior convictions to support a felony charge of

DUI is a question of law and is reviewed de novo. State v. Maine, 2011 MT 90, ¶ 12, 360




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Mont. 182, 255 P.3d 64. The district court’s factual findings regarding the validity of a

prior conviction are reviewed under the clearly erroneous standard. Maine, ¶ 12.

                                     DISCUSSION

¶10   Issue one: Did the District Court err by denying Hancock’s motion to dismiss a
      DUI conviction based on his claim that his 1999 DUI conviction, used to support
      the felony charge, was constitutionally infirm?

¶11   The State may not rely on a constitutionally infirm conviction for sentence

enhancement purposes because doing so violates a defendant’s due process rights. State

v. Haas, 2011 MT 296, ¶ 14, 363 Mont. 8, 265 P.3d 1221 (internal citations omitted). In

State v. Okland, 283 Mont. 10, 941 P.2d 431 (1997), we outlined a procedural framework

for assessing collateral challenges to previous convictions. Okland, 283 Mont. at 18, 941

P.2d at 436. The framework establishes that a “presumption of [validity] attaches to a

prior conviction during a collateral [challenge]” and a defendant who raises the

constitutional validity of the prior conviction “has the burden of producing direct

evidence of its invalidity.” Okland, 283 Mont. at 18, 941 P.2d at 436.

¶12   In State v. Howard, 2002 MT 276, ¶ 3, 312 Mont. 359, 59 P.3d 1075, and State v.

Walker, 2008 MT 244, ¶ 14, 344 Mont. 477, 188 P.3d 1069, we held that an unequivocal

statement in the form of a sworn affidavit is sufficient direct evidence to overcome the

presumption of validity. Nevertheless, the defendant has the ultimate burden of proof to

both produce and persuade “by a preponderance of the evidence that the conviction is

invalid.” Maine, ¶ 12. Consequently

      to meet his or her burden of proof, [he or she] may not simply point to an
      ambiguous or silent record, but must come forward with affirmative


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       evidence establishing that the prior conviction was obtained in violation of
       the Constitution. Self-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.


Maine, ¶ 34. A defendant’s affidavit merely alleging the unconstitutionality of a previous

conviction is not sufficient to rebut the presumption of validity of the conviction. State v.

Nixon, 2012 MT 316, ¶ 19, 367 Mont. 495, 291 P.3d 1154.

¶13    The District Court correctly applied this standard in considering Hancock’s 1999

DUI conviction.    The District Court held an evidentiary hearing during which both

Hancock and Judge Luth testified about events prior to the 1999 DUI conviction. In

1999, the Municipal Court in Great Falls was not a court of record. The District Court

had to rely on the credibility of the witnesses testifying about the events that occurred 14

years earlier.

¶14    Hancock testified that he saw Judge Luth prior to trial and requested

court-appointed counsel. However, according to Hancock, his request for counsel was

denied because he was too late in making the request. Judge Luth testified that she had

no recollection of Hancock but she presented what she considered the likely course of

events based on her experience and custom as municipal court judge for 25 years.

Hancock does not dispute that he was advised of his rights and that he initially declined a

court-appointed attorney. There are no court records that suggest that he, at a later time,

requested an attorney. Judge Luth testified that it is unlikely that he appeared prior to his

trial date to request an attorney, and that it is her common practice to appoint counsel if

requested prior to the date of trial. In light of Judge Luth’s testimony, we are not


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convinced by Hancock’s assertions in his affidavit and testimony that he timely requested

appointment of counsel. Hancock has not satisfied his burden of proof. Nixon, ¶¶ 20-21.

Given the testimony and evidence presented by Hancock to the District Court at the

hearing, we cannot conclude that the court’s factual findings constitute clear error.

¶15    Issue Two: Did the District Court err by stating that Hancock was convicted of a
       DUI rather than a DUI per se?

¶16    Pursuant to § 46-20-703, MCA, this Court may “modify the judgment or order”

that originated the appeal. We have in the past directed the district court to correct

clerical errors in the record. State v. Goff, 2011 MT 6, ¶¶ 32-33, 359 Mont. 107, 247

P.3d 715. In this case, we note that there is a difference between the offense to which

Hancock pled and the offense stated in the District Court’s judgment. Although it has no

bearing upon the integrity of the felony conviction pursuant to § 61-8-731, MCA,

Hancock technically pled to a DUI per se pursuant to § 61-8-406, MCA, as his fourth

offense. Thus, to avoid any confusion and future litigation, we remand this cause to the

District Court with instructions to amend the judgment so that it states the correct offense

for which Hancock was convicted.

¶17    We affirm the order of the District Court and remand for further proceedings

consistent with this Opinion.

                                                   /S/ MIKE McGRATH

We Concur:

/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA


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