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                                                                No. 99-327

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             2000 MT 351N

                                                      STATE OF MONTANA,

                                                      Plaintiff and Respondent,

                                                                      v.

                                                     DELBERT IRA MORSE,

                                                     Defendant and Appellant.

                         APPEAL FROM: District Court of the Sixteenth Judicial District,

                                                 In and for the County of Custer,

                                         The Honorable Gary Day, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                                     Brian Kohn, Attorney at Law, Billings, Montana

                                                            For Respondent:

                          Hon. Joseph P. Mazurek, Attorney General; Cregg W. Coughlin,

                                        Assistant Attorney General, Helena, Montana

                        Garry P. Bunke, Custer County Attorney; Coleen I. Magera, Deputy

                                            County Attorney, Miles City, Montana

                                            Submitted on Briefs: January 27, 2000
                                               Decided: December 21, 2000

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                                                                    Filed:

                                    __________________________________________

                                                                     Clerk



Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number, and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 Delbert Ira Morse (Morse) appeals from the judgment and sentence entered by the
Sixteenth Judicial District Court, Custer County, on his guilty pleas to the charges of
felony driving under the influence of alcohol (DUI) and misdemeanor driving while his
license was suspended or revoked. Specifically, he appeals from the District Court's denial
of his motion to dismiss or reduce the felony DUI charge, having reserved the right to do
so.

¶3 The sole issue on appeal is whether the District Court erred in concluding that a prior
DUI conviction could be used to enhance Morse's sentence.

                                                           BACKGROUND

¶4 On July 9, 1998, the State of Montana (State) charged Morse by information with
felony DUI, based on three prior DUI convictions in 1991 and 1993, and misdemeanor
driving while his license was suspended or revoked. Morse pled not guilty and
subsequently moved to dismiss or reduce the felony DUI charge, contending that two of
the earlier DUI convictions were constitutionally infirm for purposes of the current felony
charge. In supporting affidavits, Morse stated that he had pled guilty to DUI charges on
April 29, 1991, and April 12, 1993, without the benefit of legal advice and without being
"offered a chance to speak with a court-appointed attorney . . . ." The State responded that
court records from the referenced DUI cases established that Morse had been apprised of--
and waived--his right to an attorney.

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¶5 After a hearing at which Morse testified, the District Court found he had been advised
of and waived his right to an attorney in the two earlier cases and denied the motion to
dismiss or reduce the felony DUI charge. Morse ultimately pled guilty to the 1998 felony
DUI charge and the misdemeanor driving charge pursuant to a plea agreement,
specifically reserving his right to appeal the denial of his motion. The District Court
entered judgment and sentence and stayed execution of the judgment pending appeal.
Morse appeals from the District Court's determination that the 1991 DUI charge can be
used to enhance his sentence.

                                                   STANDARD OF REVIEW

¶6 A district court's determination that a prior conviction may be used to enhance a
criminal sentence is a conclusion of law. State v. Ailport, 1998 MT 315, ¶ 6, 292 Mont.
172, ¶ 6, 970 P.2d 1044, ¶ 6. We review a district court's conclusions of law to determine
whether the conclusions are correct. State v. Okland (1997), 283 Mont. 10, 14, 941 P.2d
431, 433. We review the findings of fact on which conclusions are based to determine if
they are clearly erroneous. Okland, 283 Mont at 14, 941 P.2d at 431. A court's findings are
clearly erroneous if they are not supported by substantial evidence, the court has
misapprehended the effect of the evidence, or our review of the record convinces us that a
mistake has been committed. Ailport, ¶ 6 (citation omitted).

                                                             DISCUSSION

¶7 Did the District Court err in concluding that Morse's 1991 DUI conviction could
be used to enhance his sentence?


¶8 The Sixth Amendment to the United States Constitution and Article II, Section 24 of
the Montana Constitution guarantee an accused the fundamental right to the assistance of
counsel, but the right extends only to cases in which a sentence of imprisonment is
actually imposed. Okland, 283 Mont. at 14, 941 P.2d at 433 (citations omitted). An
accused may waive the right to counsel, but only by a "knowing and intelligent
relinquishment of a known right." Okland, 283 Mont. at 14, 941 P.2d at 433 (citations
omitted).

¶9 It is well established in Montana that the State may not rely on a constitutionally infirm
conviction to support an enhanced punishment. Okland, 283 Mont. at 15, 941 P.2d at 434

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(citation omitted). In this regard, a rebuttable presumption of regularity attaches to a prior
DUI conviction during a collateral attack, but a defendant may rebut the presumption by
introducing direct evidence that a prior conviction is constitutionally invalid. In that event,
"the burden then shifts to the State to produce direct evidence and prove by a
preponderance of the evidence that the prior conviction was not entered in violation of the
defendant's rights." Okland, 283 Mont. at 18, 941 P.2d at 436.

¶10 In the present case, Morse contended in his written motion to dismiss--and at the
hearing--that his affidavit and testimony were sufficient to rebut the presumption of
regularity under Okland, thus placing the burden of presenting direct evidence establishing
the constitutional validity of the 1991 DUI conviction on the State. The State agreed and
the District Court clarified at the hearing that the burden was on the State.

¶11 In its oral ruling from the bench, the District Court determined that the State met its
burden and that, under the totality of the circumstances, the record indicated Morse had
been advised of his rights--and chose to proceed with a guilty plea--in the 1991 DUI
proceeding. In a subsequent written order "intended to memorialize" its oral ruling, the
court first recounted its previous denial of Morse's motion based on a finding that the
documentation presented by the State indicated Morse was properly informed of his
constitutional rights regarding representation and made a knowing waiver. It also
"specifically finds that under State v. Okland . . . , [Morse] did not overcome the rebuttable
presumption of regularity . . . ." (Emphasis added.)

¶12 On their face, the District Court's rulings are inconsistent with regard to whether the
rationale for its denial of the motion to dismiss was Morse's failure to meet his burden of
rebutting the presumption of regularity or the State's meeting of its burden thereafter. This
is exacerbated by the State's concession--and the District Court's recognition at the
hearing--that Morse rebutted the presumption of regularity. For those reasons, we assume
arguendo in this case that Morse did meet the initial Okland requirement of rebutting the
presumption of regularity, and proceed to determine whether the District Court's
determination that the totality of the circumstances supports a finding that Morse was
advised of--and waived--his constitutional rights regarding an attorney during the 1991
DUI proceeding was clearly erroneous.

¶13 Morse's affidavit states that he pled guilty to the 1991 DUI without benefit of counsel
and was not offered a chance to speak with a court-appointed attorney before his plea was
accepted. He testified he did not recall the justice of the peace advising him of his rights,

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the maximum penalty for the DUI charge, or, more specifically, his right to counsel. In
addition, "I don't believe [the justice of the peace advised of the right to counsel]. It was a
long time ago."

¶14 The State relies on the "Court Minutes" from the 1991 DUI proceeding, which consist
of a partially filled in form on the reverse of Morse's DUI ticket and complaint. The typed
portion of that form indicates the "defendant appeared [and] was advised of his
constitutional rights. . . ." The signature of the justice of the peace appears thereafter,
followed by "Understands Rights __," "Understands Charge __," and "Waived Rights Yes
__ No __ [.]" Each of the first two blanks is checked and "Yes" is marked following
"Waived Rights." The guilty plea "Yes" blank appearing immediately thereafter also is
checked. The State argues that this record is direct evidence establishing Morse was
advised of, and waived, his right to counsel prior to entering his guilty plea.

¶15 Morse, on the other hand, relies on subsequent portions of the "Court Minutes." The
sentencing information appears next on the form, followed by a signature line for the
justice of the peace which is not filled in. The next portion of the "Court Minutes" reads "I
understand I have the right to an attorney and I waive that right[,]" followed by a signature
line which is not signed. According to Morse, the absence of his signature indicates "that
he did not understand he had a right to counsel before a finding of guilt and that he was
waiving that right by pleading guilty at his arraignment." He also observes that the final
signature line, for the justice of the peace to certify the form, is blank. Thus, according to
Morse, the State has not met its burden of establishing the constitutional validity of his
1991 DUI conviction and, as a result, the District Court erred in concluding the conviction
could be used to enhance his sentence in the current proceeding. We disagree.

¶16 We rejected similar arguments in State v. Couture, 1998 MT 137, 289 Mont. 215, 959
P.2d 948, and State v. Brown, 1999 MT 143, 295 Mont. 5, 982 P.2d 1030. In Couture, the
defendant and his spouse presented affidavits in district court stating he was not advised of
his right to counsel in earlier DUI cases. The defendant also alleged the judge had merely
marked an "X" in front of the lines on the acknowledgment of rights form where he was
expected to sign. Couture, ¶ 15. The State then produced acknowledgment of rights forms
from the prior cases indicating that the defendant was advised of and waived his right to
counsel. It argued the district court could give more weight to the forms than to the
defendant's affidavits and the court did so, ultimately concluding the prior DUI
convictions could be used in sentencing. Couture, ¶¶ 16, 18. We affirmed the district court
based on our recognition in State v. Olson (1997), 283 Mont. 27, 32-33, 938 P.2d 1321,

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1325, that

         the weight of the evidence and the credibility of the witnesses are exclusively within
         the province of the district court and when the evidence conflicts, the district court is
         in the best position to make the necessary inferences and determine which evidence
         is more persuasive.


Couture, ¶¶ 17-18.

¶17 Similarly, the defendant in Brown testified he did not recall being informed of his
right to counsel and did not sign a waiver of that right before pleading guilty to prior DUI
charges. Brown, ¶ 6. The State responded by introducing into evidence, among other
things, several "Initial Appearance and Advisement of Rights" forms signed by the judge,
but not signed by the defendant. Handwritten checkmarks appeared next to each specific
right, including the right to counsel, indicating the defendant had been advised. Brown, ¶¶
7-8. The district court concluded the State had met its burden and the defendant appealed,
arguing that the lack of a signed advisement of rights and acknowledgment of waiver of
rights form established the constitutional infirmity of the prior convictions. Brown, ¶¶ 18-
19. We disagreed, again holding that the district court is in the best position to weigh
conflicts in the evidence. Brown, ¶ 22. We also expressly declined to hold that the
omission of a defendant's signature on an advisement or acknowledgment of rights form is
conclusive evidence of constitutional infirmity. While the defendant's signature on an
acknowledgment and waiver of rights form is the best evidence of an understanding and
voluntary waiver of rights, it is but one factor to be considered in the totality of the
circumstances. Brown, ¶¶ 19-20.

¶18 In the present case, as in Couture and Brown, the District Court was in the best
position to determine the credibility of the witnesses and to weigh and resolve conflicts in
the evidence. We conclude the District Court's finding that the totality of the
circumstances established that Morse was advised of--and waived--his constitutional
rights to an attorney during the 1991 DUI proceeding is supported by substantial credible
evidence and is not otherwise clearly erroneous. Therefore, we hold the District Court did
not err in concluding that Morse's 1991 DUI conviction could be used to enhance his
sentence.

¶19 Affirmed.


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                                                     /S/ KARLA M. GRAY

                                                              We concur:

                                                       /S/ J. A. TURNAGE

                                              /S/ W. WILLIAM LEAPHART

                                                        /S/ JIM REGNIER

                                               /S/ TERRY N. TRIEWEILER




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