                                                                                         July 8 2008



                                         DA 06-0141

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2008 MT 244
                                                 _________________________________

STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

SHIRLENE A. WALKER,

              Defendant and Appellant.
                                                 _________________________________

APPEAL FROM:         District Court of the Twelfth Judicial District,
                     In and For the County of Hill, Cause No. DC 2005-092
                     Honorable David G. Rice, Presiding Judge

COUNSEL OF RECORD:

              For Appellant:

                     Jeremy S. Yellin, Attorney at Law, Havre, Montana

              For Appellee:

                     Hon. Mike McGrath, Montana Attorney General; C. Mark Fowler,
                     Assistant Attorney General, Helena, Montana

                     Cyndee Peterson, Hill County Attorney; Gina Bishop, Deputy County
                     Attorney, Havre, Montana
                                                 _________________________________
                                                 Submitted on Briefs: January 31, 2007
                                                             Decided: July 8, 2008

Filed:
                               __________________________
                                         Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1     Shirlene Walker appeals her conviction in the District Court for the Twelfth

Judicial District, Hill County, of Driving Under the Influence of Alcohol (DUI), fourth or

subsequent offense, a felony. We affirm.

¶2     We address the following issue on appeal: Whether Walker’s waivers of her right

to counsel and her right to trial at the time of her 1999 DUI convictions were made

knowingly, intelligently and voluntarily.

                         Factual and Procedural Background

¶3     On July 11, 2005, Walker was charged by Information with felony DUI and four

misdemeanor counts: speeding, driving while license suspended or revoked, failure to

carry proof of insurance, and failure to use a seatbelt. Because Walker’s driving record

indicated that she had six prior DUI convictions, this latest charge of DUI was enhanced

to a felony pursuant to § 61-8-731, MCA. According to a certified copy of Walker’s

driving record, her six prior DUI convictions occurred: on August 28, 2003, in Hill

County Justice Court; on September 27, 1999, and January 6, 1999, in Harlem City

Court; on October 26, 1992, and July 10, 1992, in Browning Tribal Court; and on January

11, 1985, in Harlem City Court.

¶4     Walker filed a Motion to Dismiss Information or Complaint on December 13,

2005, alleging that four of her prior DUI convictions were constitutionally infirm because

she did not have the assistance of counsel. She further argued that the conviction that

occurred on January 11, 1985, should have been expunged because, based on the law that



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existed at that time, she did not receive another DUI within five years of that conviction.

Walker also argued that the two 1992 convictions should have been expunged under the

same premise. She maintained that even though the law changed in 1995, the law in

effect at the time of the conviction controls. Walker did not challenge her August 2003

DUI conviction.

¶5     On December 13, 2005, Walker entered into a plea agreement with the State

wherein she agreed to plead guilty to the felony DUI charge and the misdemeanor driving

without proof of insurance charge in exchange for the State dropping the rest of the

misdemeanor charges.      In addition, she expressly reserved her right to appeal any

unfavorable decision regarding her challenge to her previous DUI convictions.

¶6     At the change of plea hearing, Walker’s counsel requested that the court reserve

until sentencing taking Walker’s plea on the driving without proof of insurance charge to

allow counsel to verify whether Walker did indeed have insurance. The court agreed and

accepted Walker’s guilty plea on the felony DUI charge. The court also ordered that both

parties file briefs with the court prior to sentencing regarding Walker’s challenge to her

prior DUI convictions. In her brief, Walker argued that her 1999 DUI convictions were

infirm because she was not told that she had the “absolute and guaranteed” right to an

attorney and the right to compel the attendance of witnesses on her behalf; she was not

told of the effect of any penalty enhancement provision; and she was not told that her

right to a jury trial included having an impartial jury from the community as well as a

unanimous verdict, and that she had a right to participate in jury selection.



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¶7     On February 6, 2006, prior to sentencing, the court held a hearing on Walker’s

arguments that four of her prior DUI convictions were invalid and, thus, could not be

used to elevate her current DUI charge to a felony. In addition, the State moved to

dismiss the driving without insurance charge as Walker had provided proof of insurance.

The court determined that Walker’s 1985 and 1992 convictions would not be considered

for purposes of enhancing her sentence. The court also determined that Walker’s 1999

DUI convictions were valid and, since she had not challenged her 2003 DUI conviction,

the current charge was her fourth DUI and, thus, was a felony pursuant to § 61-8-731,

MCA.

¶8     Walker appeals the District Court’s judgment.

                                   Standard of Review

¶9     The grant or denial of a motion to dismiss in a criminal proceeding is a question of

law which we review de novo to determine whether the district court’s conclusion of law

is correct. State v. Weaver, 2008 MT 86, ¶ 9, 342 Mont. 196, ¶ 9, 179 P.3d 534, ¶ 9

(citing State v. Luckett, 2007 MT 47, ¶ 6, 336 Mont. 140, ¶ 6, 152 P.3d 1279, ¶ 6). As to

a district court’s factual findings concerning the circumstances surrounding a defendant’s

prior convictions, we review those findings under the clearly erroneous standard.

Weaver, ¶ 9 (citing State v. Burt, 2000 MT 115, ¶ 6, 299 Mont. 412, ¶ 6, 3 P.3d 597, ¶ 6).

A trial court’s findings are clearly erroneous if they are not supported by substantial

evidence, if the court has misapprehended the effect of that evidence, or if a review of the

record leaves this Court with a definite and firm conviction that a mistake has been made.



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Weaver, ¶ 9 (citing State v. Lewis, 2007 MT 295, ¶ 17, 340 Mont. 10, ¶ 17, 171 P.3d 731,

¶ 17; State v. Warclub, 2005 MT 149, ¶ 23, 327 Mont. 352, ¶ 23, 114 P.3d 254, ¶ 23).

                                        Discussion

¶10    Whether Walker’s waivers of her right to counsel and her right to trial at the time
       of her 1999 DUI convictions were made knowingly, intelligently and voluntarily.

¶11    In Walker’s effort to strike the two 1999 DUI convictions, she filed an affidavit in

the District Court stating that she was not advised that a fourth or subsequent DUI could

result in a felony; that if she chose to go to a jury trial, the verdict would have to be

unanimous; that she could compel witnesses to testify on her behalf by way of subpoena;

and that if she could not afford a lawyer, one would be appointed to represent her. She

further stated in her affidavit that she pled guilty to both of the 1999 DUI charges without

the benefit of a lawyer and that she was sentenced to jail for both offenses.

¶12    It is well settled in Montana that the State may not use a constitutionally infirm

conviction to support an enhanced punishment such as the felony DUI in the case before

us on appeal. Weaver, ¶ 11 (citing State v. Okland, 283 Mont. 10, 15, 941 P.2d 431, 434

(1997)). Moreover, a rebuttable presumption of regularity attaches to prior criminal

convictions during a collateral attack and a defendant who challenges the validity of that

prior conviction during a collateral attack has the burden of producing direct evidence of

its invalidity. Weaver, ¶ 11. In other words, a prior conviction is presumed to be valid

absent evidence to the contrary. State v. Mann, 2006 MT 33, ¶ 15, 331 Mont. 137, ¶ 15,

130 P.3d 164, ¶ 15. Once the defendant has made such a showing, the burden then shifts

to the State to produce direct evidence and to prove by a preponderance of the evidence


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that the prior conviction was not entered in violation of the defendant’s rights. Weaver,

¶ 11 (citing Okland, 283 Mont. at 18, 941 P.2d at 436).

¶13    As stated above, a rebuttable presumption of regularity attached to Walker’s 1999

DUI convictions which Walker had to overcome by direct evidence. To that end, Walker

submitted an affidavit in which she averred that she was not advised that an attorney

would be appointed to represent her if she could not afford one; that if she chose to go to

a jury trial, the verdict would have to be unanimous; that she could compel witnesses to

testify on her behalf by way of subpoena; and that a fourth or subsequent charge of DUI

would be a felony charge.

¶14    This Court has recognized that a defendant’s unequivocal and sworn statement

that the defendant did not waive the right to counsel constitutes direct evidence which

rebuts the presumption of regularity. State v Howard, 2002 MT 276, ¶ 13, 312 Mont.

359, ¶ 13, 59 P.3d 1075, ¶ 13 (citing State v. Couture, 1998 MT 137, ¶ 15, 289 Mont.

215, ¶ 15, 959 P.2d 948, ¶ 15). Here, Walker’s unequivocal and sworn statements in her

affidavit are direct evidence demonstrating that her guilty pleas may have been obtained

in violation of her constitutional rights and therefore “irregular.” Consequently, Walker

met her burden.

¶15    The burden then shifted to the State to produce direct evidence and to prove by a

preponderance of the evidence that Walker’s prior convictions were not entered in

violation of Walker’s rights. To that end, the State produced the records from Harlem

City Court relating to both of Walker’s 1999 DUI convictions. We now examine this



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evidence produced by the State to determine whether the State met its burden in proving

that Walker’s 1999 DUI convictions were valid.

                                   1. right to counsel

¶16   The right to the assistance of counsel is a fundamental right guaranteed by the

Sixth Amendment to the United States Constitution, and Article II, Section 24 of the

Montana Constitution. Okland, 283 Mont. at 14, 941 P.2d at 433 (citing Gideon v.

Wainwright, 372 U.S. 335, 342-44, 83 S. Ct. 792, 795-97 (1963); State v. Craig, 274

Mont. 140, 148, 906 P.2d 683, 688 (1995), cert. denied, 517 U.S. 1195, 116 S. Ct. 1689

(1996); see also State v. Langford, 267 Mont. 95, 99, 882 P.2d 490, 492 (1994), cert.

denied, 513 U.S. 1163, 115 S. Ct. 1128 (1995)). Indigent defendants are entitled to legal

representation by court-appointed counsel at public expense. Okland, 283 Mont. at 14,

941 P.2d at 433 (citing State v. Enright, 233 Mont. 225, 228, 758 P.2d 779, 781 (1988),

overruled in part and on other grounds by State v. Gallagher, 2001 MT 39, 304 Mont.

215, 19 P.3d 817 (2001)).

¶17   However, the fundamental right to counsel in misdemeanor cases extends only to

those cases in which a sentence of imprisonment is actually imposed and does not extend

to defendants who waive that right. Okland, 283 Mont. at 14, 941 P.2d at 433 (citing

Scott v. Illinois, 440 U.S. 367, 373-74, 99 S. Ct. 1158, 1162 (1979); State v. Hansen, 273

Mont. 321, 325, 903 P.2d 194, 197 (1995), overruled in part by Alabama v. Shelton, 535

U.S. 654, 122 S. Ct. 1764 (2002); Craig, 274 Mont. at 152, 906 P.2d at 690).




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¶18    Furthermore, courts indulge in every reasonable presumption against waiver of

fundamental constitutional rights and will not indulge in any presumption of waiver.

State v. Mann, 2006 MT 33, ¶ 13, 331 Mont. 137, ¶ 13, 130 P.3d 164, ¶ 13. Thus, for a

waiver to be effective, a defendant must waive a known right knowingly, intelligently

and voluntarily. Mann, ¶ 14.

¶19    In this case, Walker contends that she did not knowingly, intelligently and

voluntarily waive her right to counsel prior to entering her guilty pleas to the 1999 DUI

charges because she was advised at that time that counsel may be appointed to represent

her if she could not afford counsel, not that counsel would be appointed to represent her.

She maintains that a defendant must be advised that the right to counsel is absolute.

¶20    In support of her contention that her waiver of her right to counsel was not made

knowingly, intelligently and voluntarily, Walker relies on this Court’s decision in Mann

wherein we held that the defendant in that case did not enter into a knowing, intelligent or

voluntary waiver of his right to counsel when he signed the arraignment forms that were

provided for him. However, we came to that conclusion in Mann, not because of the

defendant’s interpretation of one simple word as in the case sub judice, but because the

right to counsel provision contained in the arraignment forms signed by the defendant in

Mann were “erroneous, intimidating and virtually indecipherable.” Mann, ¶ 24. These

arraignment forms advised Mann

       [t]hat I have a right to have legal counsel represent me, but since no
       provision is made for payment of legal counsel in the lower court, I would
       be required to pay for such counsel, unless I fill out such form claiming
       indigency, that I would be sworn as to the truthfulness of statements, this


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        form would then be turned over to the County Attorney who would have an
        investigation made, if statements were found to be false I could be tried for
        perjury. If found true, the Judge may or may not appoint legal counsel to
        represent me at the State’s expense.

Mann, ¶ 6 (emphasis added). We held in Mann that the language in this form was

confusing and intimidating in that it threatened additional prosecution for perjury. Mann,

¶ 24. We also determined that the final sentence in this paragraph of the form was an

incorrect statement of the law because it articulated that even after Mann filled out

indigence forms and underwent a criminal investigation regarding his truthfulness as to

indigence, the court could still choose not to appoint counsel to represent him. Mann,

¶ 24.

¶21     In the instant case, the State produced the Harlem City Court records for Walker’s

September 27, 1999, and January 6, 1999 DUI convictions to show that Walker was

properly advised of her right to an attorney. Unlike the forms in Mann, the Initial

Appearance/Arraignment documents that Walker signed after she was charged with each

offense of DUI in 1999 stated: “You have the right to have an attorney represent you. If

you cannot afford your own attorney, one may be appointed to represent you, in

accordance with MCA 46-8-101.” In these same documents, Walker indicated that she

understood her rights, that she did not desire an attorney and that she would represent

herself.

¶22     Walker also signed a “Waiver of Rights” and a “Waiver of Counsel” prior to both

of her 1999 DUI convictions wherein she acknowledged that she fully understood that

she had the right to have an attorney. In the Waiver of Counsel, Walker acknowledged


                                             9
that she had been advised of her right to counsel and that she understood that she had

“[t]he right to have an attorney and consult with an attorney before entering a plea. If I

have no funds to hire an attorney, and I QUALIFY, and [sic] attorney may be appointed.”

¶23    While Walker finds fault with the phrase “may be appointed,” in these documents,

the Initial Appearance/Arraignment documents actually stated, “may be appointed to

represent you, in accordance with MCA 46-8-101 [emphasis added].” In 1999, when

Walker entered her guilty pleas, this statute provided:

               Right to counsel. (1) During the initial appearance before the court,
       every defendant must be informed of the right to have counsel, and must be
       asked if the aid of counsel is desired.
               (2) If the defendant desires counsel, is unable to employ counsel, and
       is entitled to have counsel assigned, the court shall assign counsel to the
       defendant without unnecessary delay.
               (3) The defendant, if unable to employ counsel, is entitled to have
       counsel assigned if:
               (a) the offense charged is a felony;
               (b) the offense charged is a misdemeanor and the court desires to
       retain imprisonment as a sentencing option; or
               (c) the interests of justice would be served by assignment.

Section 46-8-101, MCA (1997) (emphasis added).

¶24    Thus, contrary to Walker’s assertions that the use of the qualifying phrase “may be

appointed,” did not advise her adequately of her absolute right to counsel, the reference to

§ 46-8-101, MCA (1997), is clear. Under that statute, a defendant’s right to have counsel

assigned is qualified, not only by a determination of indigence, but by the following three

criteria: 1) whether the offense charged is a felony; 2) whether the offense charged is a

misdemeanor and the court desires to retain imprisonment as a sentencing option; and

3) whether the interests of justice would be served by assignment.           Consequently,


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because Walker had to meet one of these three criteria in order to have counsel assigned,

the court was not in error in using the qualifying language that counsel “may be

appointed” to represent her as it had yet to determine whether Walker qualified for

counsel under the terms of § 46-8-101, MCA (1997).

                       2. right to compel the attendance of witnesses

¶25    The Initial Appearance/Arraignment documents Walker signed prior to her guilty

pleas to the 1999 DUI charges stated: “At the trial you have the right . . . to call

witnesses to testify for you . . . .” Similarly, the Waiver of Rights documents asked

Walker to acknowledge that she fully understood that “[a]t the trial, I have the right . . . to

call witnesses to testify for me.” And, the Waiver of Counsel documents asked Walker to

indicate that she had been advised of and understood that she had: “The right to call

witnesses to testify before me.”

¶26    Walker contends that she did not knowingly, intelligently and voluntarily waive

her right to trial when she signed these documents because she was only advised that she

had the right to “call” witnesses to testify on her behalf, not that she had the right to

“compel” witnesses to testify.      She maintains that “[b]eing told that one can call

witnesses to testify, and being told that one can compel or force witnesses to testify

through the power of the court are two (2) different things.”           Walker provides no

authority in support of her contention.

¶27    Contrary to Walker’s assertions, the plain meaning of the term “to call” includes

“to ask or order to come,” The Collins English Dictionary 224 (Patrick Hanks ed., 2d ed.



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Collins 1990), and “[t]o summon,” Black’s Law Dictionary 196 (Bryan A. Garner ed.,

7th ed. West 1999). Consequently, we conclude that it was sufficient for the court to

advise Walker that she had the right to call witnesses to testify in her behalf.

¶28    Moreover, the Montana Constitution does not provide that a defendant has the

right to compel witnesses to testify.        Instead, i t provides that “[i]n all criminal

prosecutions the accused shall have the right to . . . compel the attendance of witnesses in

his behalf . . . .” Mont. Const. art. II, § 24 (emphasis added). Thus, while under

Montana’s Constitution an accused can compel a witness in their behalf to attend a

proceeding, the Constitution does not state that the accused can compel them to testify.

                                   3. right to trial by jury

¶29    Walker contends that she could not have validly waived her right to a jury trial if

she was not told what the right to a jury trial included. Walker maintains that she was not

told that the verdict in a jury trial must be unanimous, that the jurors must be from the

community where the alleged crime was committed, that the jurors must be impartial, and

that the accused has a say in the jurors selected.

¶30    Article II, Section 26 of the Montana Constitution provides in relevant part: “The

right of trial by jury is secured to all and shall remain inviolate. . . . In all criminal

actions, the verdict shall be unanimous.” Moreover, Article II, Section 24 of the Montana

Constitution provides in relevant part: “In all criminal prosecutions the accused shall

have the right to . . . a speedy public trial by an impartial jury of the county or district in

which the offense is alleged to have been committed . . . .”



                                              12
¶31    The Initial Appearance/Arraignment documents Walker signed prior to her guilty

pleas to the 1999 DUI charges stated: “You have the right to have a trial by jury or a trial

by Judge. . . . You have the right to . . . have the charge(s) against you to be proven

beyond a reasonable doubt.” Similarly, the Waiver of Rights documents asked Walker to

acknowledge that she fully understood that she had “the right to be tried by a jury, or by a

judge” and that “[a]t the trial, I have the right . . . to have my guilt proven beyond a

reasonable doubt.” And, the Waiver of Counsel documents asked Walker to indicate that

she had been advised of and understood that she had: “The right to a jury trial or a trial by

judge” and the “right to have the pending charge proven beyond a reasonable doubt . . . .”

¶32    Walker asserts that these statements were insufficient to advise her of her various

trial rights. In support of her contention, she quotes the following language from United

States v. Cochran, 770 F.2d 850, 853 (9th Cir. 1985):

             Like the Sixth Circuit, we expect that adoption of a supervisory rule
       will be unnecessary and that district court [sic] will in the future follow the
       course we are once again urging. Like the Sixth Circuit we “implore”
       district courts to inform defendants that (1) twelve members of the
       community compose a jury; (2) the defendant may take part in jury
       selection; (3) jury verdicts must be unanimous; and (4) the court alone
       decides guilt or innocence if the defendant waives a jury trial. When
       district courts provide this information on the record, they help insure that
       defendants understand the basic mechanics of a jury trial before deciding
       whether to waive that right. By asking appropriate questions the district
       court will also be better able to perform its task of determining whether a
       proposed waiver is in fact being offered voluntarily, knowingly and
       intelligently. [Internal citation and footnote omitted.]

¶33    As the State points out in its brief on appeal, while the Ninth Circuit Court of

Appeals went to great lengths in Cochran to implore courts to conduct a colloquy with



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defendants to be sure they understand a jury waiver, the court underscored that no

constitutional or statutory provision requires such a colloquy. Cochran, 770 F.2d at 851

(“the failure of a district judge to conduct such an interrogation does not violate either the

Constitution . . . or Fed. R. Crim. P. 23(a); nor does it ipso facto require reversal.”).

¶34    Walker was advised that she had the right to a jury trial and the right to have her

guilt proven beyond a reasonable doubt. We conclude that, beyond that, requiring the

court to explain all of the nuances or effects of waiving the right to a jury trial is

unnecessary.

                             4. penalty enhancement provisions

¶35    Section 46-12-210(1)(a)(iii), MCA, requires that before accepting a plea of guilty,

the trial court shall determine that the defendant understands “the maximum penalty

provided by law, including the effect of any penalty enhancement provision . . .

[emphasis added].” Walker argues, in effect, that this statute requires that the enhanced

penalty for a fourth or greater DUI must be made known to a defendant prior to obtaining

that defendant’s guilty plea on a third or lesser DUI.

¶36    We disagree. Contrary to Walker’s interpretation, § 46-12-210(1)(a)(iii), MCA,

requires trial courts to advise defendants of what might happen as a result of a plea of

guilty to the specific charge at issue and not to some future crime. As the State points out

in its brief on appeal, there is no requirement under Montana law that a sentencing judge

must advise a defendant specifically regarding a crime the defendant may commit in the

future. Indeed, committing a future felony is clearly an indirect consequence over which



                                              14
Walker had complete control.

¶37    In State v. Liefert, 2002 MT 48, ¶ 21, 309 Mont. 19, ¶ 21, 43 P.3d 329, ¶ 21, cert.

denied, 537 U.S. 892, 123 S. Ct. 160 (2002), we held that because it is impossible for a

judge to inform a defendant of every possible consequence of a guilty plea, a judge is

only required to inform a defendant of the direct, rather than the collateral, consequences

of a guilty plea. We stated in Liefert that a “consequence is direct if it has a ‘definite,

immediate, and largely automatic effect’ on the defendant.” Liefert, ¶ 22 (quoting United

States v. Bouthot, 878 F.2d 1506, 1511 (1st Cir. 1989)). Conversely, a consequence is

indirect or collateral if it is not under the control of the sentencing judge or it is a

procedure under the control of a different sovereign or agency. Liefert, ¶ 22 (citing

United States v. Long, 852 F.2d 975, 979 (7th Cir. 1988)). A consequence is also indirect

or collateral if the defendant has control over whether or not the consequence occurs.

Liefert, ¶ 22 (citing Torrey v. Estelle, 842 F.2d 234, 236 (9th Cir. 1988)).

¶38    In the instant case, Walker was advised in the Initial Appearance/Arraignment

documents that she signed prior to both of her 1999 DUI convictions that “[t]here may be

indirect consequences of this plea, which may include loss of driving privileges; and the

use of this conviction against you if you are convicted of a crime in the future.”

However, the trial court was not required to advise her that a fourth or subsequent DUI

might result in a felony charge. Whether Walker committed a fourth or subsequent DUI

requiring that she receive the enhanced penalty was clearly within her sole control and

was, thus, an indirect consequence of her guilty pleas to the 1999 DUI offenses.



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                                       Conclusion

¶39   The State presented sufficient evidence in the District Court to support the

conclusion that Walker’s 1999 DUI convictions were not entered in violation of her

constitutional rights. As shown above, Walker was properly advised of her right to

counsel, her right to compel the attendance of witnesses on her behalf, and her right to a

jury trial. In addition, the District Court was not required to advise her of the indirect

consequences of her guilty pleas. On that basis, we conclude that Walker’s guilty pleas

to the 1999 DUI charges were entered knowingly, intelligently and voluntarily. We hold,

therefore, that the District Court correctly ruled that Walker’s 1999 DUI convictions

could be used to elevate her current DUI charge to a felony, and that the District Court

did not err in denying Walker’s motion to dismiss.

¶40   Affirmed.


                                                       /S/ JAMES C. NELSON


We Concur:

/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ JIM RICE




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