                                          No. 02-067

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2003 MT 27


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

MICHAEL KVISLEN,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Thirteenth Judicial District,
                     In and For the County of Yellowstone, Cause No. DC-01-0128
                     Honorable Gregory R. Todd, Judge Presiding


COUNSEL OF RECORD:

              For Appellant:

                     Gary E. Wilcox, Attorney at Law, Billings, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Mark W. Mattioli, Assistant
                     Attorney General, Helena, Montana

                     Dennis Paxinos, County Attorney; Rod Souza, Deputy County Attorney,
                     Billings, Montana



                                                  Submitted on Briefs: May 9, 2002

                                                            Decided: February 19, 2003

Filed:

                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1    Michael Kvislen (Kvislen) appeals from his conviction in the Thirteenth Judicial

District Court for felony DUI. We reverse.

¶2    The following issues are raised on appeal:

¶3    (1) Whether the District Court erred by denying Kvislen’s

motion to dismiss without holding an evidentiary hearing concerning

Kvislen’s claim that one of his prior convictions was obtained

unconstitutionally; and

¶4    (2) Whether this case should be remanded to the District Court for an evidentiary

hearing regarding Kvislen’s claim or, conversely, whether Kvislen’s felony conviction

should be reversed and the case dismissed.

                  FACTUAL AND PROCEDURAL BACKGROUND

¶5    On February 6, 2001, Kvislen was charged with Felony Driving

While Under the Influence of Alcohol and/or Drugs.                      Pursuant to

§§ 61-8-714(4) and 61-8-722(4), MCA, the information charged the

offense as a felony because Kvislen had been convicted of DUI on

three other occasions in 1990, 1998, and 2000.                    Prior to trial in

Yellowstone      County,      Kvislen        filed   a   motion    to   dismiss   the

information on grounds that the 1990 DUI conviction in the Billings

City Court was entered in derogation of his constitutional rights

and could not be used to elevate the 2001 charge to a felony.

Kvislen submitted an affidavit in which he averred that he never

received notice of his 1990 trial, and that he was not informed of

his right to court-appointed counsel during those proceedings.                     The

affidavit provides as follows:

                                              2
       I, Michael Kvislen, being first duly sworn, upon oath, depose and say:

       ....

       3. In 1989, I was charged in Billings City Court with Driving Under the
       Influence of Alcohol . . . and was convicted after a trial in absentia. I did not
       receive notice of that trial.

       4. . . . I could not afford an attorney and I was not advised of my right to a
       court-appointed attorney.

       5. I did not waive my right to a court-appointed attorney.

       6. I was convicted without the assistance of an attorney.

       7. I was incarcerated as a result of the conviction that I received without an
       attorney.

¶6     The State opposed Kvislen’s motion to dismiss, and argued that Kvislen’s affidavit

lacked sufficient detail to rebut the presumption of regularity associated with the 1990

conviction. As an indication that Kvislen was advised of his rights, the State provided the

District Court with the City Court docket sheet, which contained a check mark next to the

phrase “Advise of Rights.” The State also noted, in its Brief in Response to Defendant’s

Motion to Dismiss, that former Billings City Court Judge, Gayle Stewart, who presided over

the 1990 proceedings against Kvislen, would testify that she routinely advised all defendants

of their constitutional rights. In response to Kvislen’s second claim that he was never

notified of the 1990 trial, the State observed that during the arraignment in that case, Kvislen

received a notice that the trial was set for April 16, 1990.

¶7     Without conducting an evidentiary hearing to weigh Kvislen’s

affidavit against the assertions made by the State, the District

Court denied the motion to dismiss, and concluded that Kvislen had

                                               3
not   sufficiently        rebutted       the        presumption     of    regularity       that

attaches to prior convictions.                 The court cited, as evidence of the validity of the

1990 conviction, the Billings City Court docket sheet, as well as the State’s claim that

Kvislen had received notice of the 1990 trial during the arraignment in that case. The court

sentenced Kvislen to thirteen months imprisonment followed by four years of probation and

stayed the execution of Kvislen’s sentence pending this appeal.

                                         DISCUSSION

                                                I

¶8     We first consider whether the District Court erred by denying

Kvislen’s motion to dismiss without holding an evidentiary hearing

to    determine      whether       his    1990        DUI   conviction        was    obtained

unconstitutionally.            Kvislen argues that he presented to the District Court direct

evidence that the 1990 conviction was unconstitutional, and that because the State failed to

meet its burden of countering the evidence, the District Court erroneously determined that the

conviction was obtained constitutionally. Kvislen maintains that the District Court should

have held an evidentiary hearing to weigh Kvislen’s testimony against any evidence the State

might have provided showing that the 1990 conviction was constitutionally sound. Kvislen

also asserts that because the 1990 conviction was invalid, the State lacked the requisite three

prior DUI convictions to elevate the 2001 DUI offense to felony status. He concludes,

therefore, that the 2001 conviction should be reversed and the case dismissed.

¶9     When we review a trial court’s conclusions of law, the standard of review is plenary,

and we must determine whether the court’s conclusions are correct as a matter of law. State

                                               4
v. Rushton (1994), 264 Mont. 248, 254-55, 870 P.2d 1355, 1359; State v. Sage (1992), 255

Mont. 227, 229, 841 P.2d 1142, 1143. When we review a trial court’s findings of fact, the

standard of review is whether those findings are clearly erroneous. Daines v. Knight (1995),

269 Mont. 320, 324, 888 P.2d 904, 906.

¶10    We observe, as we did in State v. Jenni (1997), 283 Mont. 21,

938 P.2d 1318, that (1) a rebuttable presumption of regularity

attaches to prior convictions; (2) the presumption may be overcome

by direct evidence of irregularity; and (3) once direct evidence of

irregularity is offered by the defendant, the burden shifts to the

State to prove, by direct evidence, that the prior conviction was

not obtained in violation of the defendant’s rights.                          Jenni, 283

Mont. at 25, 938 P.2d at 1320 (citing State v. Okland (1997), 283

Mont. 10, 18, 941 P.2d 431, 436).
¶11    Pursuant to this procedural framework, we note that Kvislen

presented      direct     evidence      in   support       of   his   claim    that    his

constitutional rights were violated in a prior proceeding.                        Kvislen

submitted an affidavit which stated that he did not receive notice

of his trial and that he was not advised of his right to a court-

appointed attorney in the event that he could not afford one.                          The

affidavit is direct evidence of a constitutional infringement in

the 1990 proceedings, and is sufficient to rebut the presumption of

regularity and to shift the burden of proof to the State.

¶12    We further note that the State failed to meet this burden.

The   State     countered      Kvislen’s         motion,   and   his    affidavit,       by

advising the District Court that the docket sheet contained a check



                                             5
mark next to the phrase “Advise of Rights,” indicating that Kvislen

was, at least, advised of his rights.     As we stated in Jenni, a

record indicating “in general terms that [a defendant] was informed

of the charges filed against him and of his rights, do[es] not

delineate the specific rights of which the defendant was advised.”

 283 Mont. at 25, 938 P.2d at 1321.     Applying this standard, we

have held that “in determining whether the State has met its burden

of proving the constitutional validity of a defendant’s prior

conviction, the defendant’s signature on the advisement of rights

form and the existence of an acknowledgment of waiver of rights

form signed by the defendant are but factors to be considered in

the totality of the circumstances.”   State v. Brown, 1999 MT 143, ¶

20, 295 Mont. 5, ¶ 20, 982 P.2d 1030, ¶ 20.      The docket sheet,

here, does not establish that the District Court advised Kvislen of

his right to an attorney, or that he waived that right.   The State

concedes these points in its brief, commenting that Kvislen’s

averments met the technical definition of direct evidence and

shifted the burden of proof to the State, a burden which the State

failed to meet.   The State further contends that because it relied

on insufficient evidence, the appropriate avenue for assessing

Kvislen’s claims was to hold an evidentiary hearing.
¶13   In light of the State’s concessions, and based on the record,

we conclude that: (1) Kvislen presented direct evidence that he was

convicted without the assistance of counsel;        (2) the burden

shifted to the State to present direct evidence that Kvislen’s

prior convictions were not entered in violation of his right to



                                 6
counsel; and (3) the State failed to meet its burden.      The evidence

before the District Court included Kvislen’s affidavit and the

docket sheet notation indicating that Kvislen was advised of his

rights.   Since the notation did not establish that Kvislen was

specifically advised of his right to counsel, it cannot be said

that the District Court was presented with any evidence that would

warrant a denial of Kvislen’s motion to dismiss.     In light of the

State’s reliance on insufficient evidence to meet its burden of

proving that the 1990 DUI conviction was not obtained in violation

of Kvislen’s rights, we conclude that the District Court erred when

it denied Kvislen’s motion to dismiss.
                                  II

¶14   We next consider whether the case should be remanded to the

District Court for an evidentiary hearing regarding Kvislen’s

claims or, conversely, whether Kvislen’s felony conviction should

be reversed and the case dismissed.

¶15   The State argues that the District Court erred by denying

Kvislen’s motion to dismiss without holding an evidentiary hearing,

and that the case should, therefore, be remanded to the District

Court for an evidentiary hearing at which the State intends to

offer testimony from Judge Gayle Stewart that she advised Kvislen

of his right to counsel during the 1990 proceedings.    In support of

this argument, the State contends that it is entitled to an

opportunity to refute Kvislen’s allegation that he was never

advised of his right to court-appointed counsel during the 1990

proceedings.     According   to   the   State,   Kvislen    alleged   a



                                  7
constitutional infirmity but never actually proved that his 1990

conviction was invalid.         The State concludes that only a hearing

will enable the District Court to weigh Kvislen’s affidavit against

the testimony of Judge Stewart, and that Kvislen will not be

prejudiced by a remand because the District Court stayed the

execution of his sentence pending the outcome of this appeal.

¶16   We have, on at least one occasion, remanded a case for further

consideration of     evidence presented by the State in response to a

defendant’s collateral attack against a prior conviction.             In State

v. Peterson, 2002 MT 65, ¶ 19, 309 Mont. 199, ¶ 19,            44 P.3d 499, ¶

19, we held that the State had presented inconsistent evidence

regarding the defendant’s waiver of his right to counsel.                    The

State, in Peterson, attempted to defeat the defendant’s motion to

dismiss with testimony from the judge who had presided over the

defendant’s prior conviction.        On appeal, we determined that this

judge’s testimony regarding his routine practice of informing

defendants of their right to counsel was inconsistent.            Because the

trial court failed to address the inconsistency in its denial of

the defendant’s motion to dismiss, we remanded the case for a

determination of whether the defendant had actually waived his

right.   Peterson, ¶ 19.
¶17   In the present case, the District Court’s premature denial of

Kvislen’s   motion   to    dismiss   effectively     denied    the   State    an

opportunity   to   prove   by    direct   evidence   that     Kvislen’s   1990

conviction was not obtained in violation of his rights.              The State

asserts now, as it did then, that if the presumption of regularity



                                      8
is set aside, it is prepared to refute Kvislen’s affidavit through

additional evidence, namely the testimony of Judge Stewart.                               The

State indicated to the District Court that it could produce direct

evidence      of    the     constitutional         validity       of    Kivslen’s        1990

conviction if such evidence was requested.                        This was an implied

request for an evidentiary hearing, made conditional upon the

District Court’s determination that the burden had shifted to the

State to defend the prior conviction.

¶18    The dissent contends, that in remanding for an evidentiary hearing, we have rewritten

our prior decisions in State v. Okland and State v. Jenni. Our decisions in Jenni and Okland

are distinguishable from the present case in that the District Court in those cases correctly

determined that the defendant had rebutted the presumption of regularity and that the burden

then shifted to the State to prove that the convictions were not entered in violation of the

defendant’s constitutional rights. See Okland, 283 Mont. at 20, 941 P.2d at 437; Jenni, 283

Mont. at 26, 938 P.2d at 1321. In both cases, the court determined that the State failed to

meet that burden and thus granted the defendant’s motion to dismiss. The State then

appealed the orders of dismissal. See Okland, 283 Mont. at 12, 941 P.2d at 432; Jenni, 283

Mont. 22, 938 P.2d at 1319. Here, in contrast, the defendant is appealing from a denial of his

motion to dismiss and a subsequent conviction. Neither Jenni nor Okland involved a

situation where, as here, due to the District Court’s erroneous holding that the burden had not

shifted to the State, there was no evidentiary hearing at which the State could present its

direct testimony on the question of fact; that is, whether Kvislen waived his right to counsel.

In neither Jenni nor Okland was there an argument by the State that it was precluded from

                                              9
presenting its evidence due to lack of an evidentiary hearing. There is nothing in the Rules of

Criminal Procedure that requires the State, when opposing a motion to dismiss, to forego an

evidentiary hearing and rely solely on affidavits or court records.

                                       CONCLUSION

¶19    In summary we hold that because Kvislen presented direct evidence rebutting the

presumption of regularity, the District Court, instead of denying his motion to dismiss,

should have shifted the burden to the State to prove that the conviction was not obtained in

violation of Kvislen’s constitutional rights. The State is entitled to present the testimony of

Judge Steward in its attempt to establish that Kvislen’s 1990 conviction was valid.

Accordingly, we remand for a hearing consistent with this opinion.


                                                          /S/ W. WILLIAM LEAPHART


We concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JIM RICE




                                              10
Justice Terry N. Trieweiler concurring and dissenting.

¶20    I concur with the majority's conclusions that the Defendant, Michael Kvislen,

presented direct evidence that his 1990 conviction for driving under the influence of alcohol

was constitutionally infirm, that by doing so the burden shifted to the State of Montana to

produce direct evidence that Kvislen's 1990 conviction was not entered in violation of his

right to counsel and that because it did not do so, the District Court erred when it denied

Kvislen's motion to dismiss. However, I dissent from the majority's conclusion that because

the State failed to meet its burden the first time around, this case should be remanded to the

District Court so that the State can be given a second opportunity to do so.

¶21    The majority Opinion ignores prior case law, it excuses the fact that no hearing was

ever requested by the State in the District Court and gives rise to endless opportunities for

parties to prove their cases once it has been determined as a matter of law that they have not

initially done so.

¶22    The majority cites State v. Peterson, 2002 MT 65, ¶ 19, 309 Mont. 199, ¶ 19, 44 P.3d

499, ¶ 19, as precedent for further consideration of evidence presented by the State in

response to a collateral attack against a prior conviction. However, the distinction is that in

Peterson, we remanded for further consideration of contradictory evidence that had been

presented but not resolved by the finder of fact. In this case, the majority has chosen to

remand for evidence that has never been presented even though the State had a prior

opportunity to do so. That's a big difference.




                                              11
¶23    Buying into the State's meritless argument and Justice Rice's proposed dissent to the

majority's originally proposed opinion, the current majority Opinion states in ¶ 17 that the

District Court "effectively denied the State an opportunity to prove by direct evidence that

Kvislen's 1990 conviction was not obtained in violation of his rights." Nothing could be

more incorrect. However, based on that erroneous premise, the majority concludes that

because the District Court erred, the burden never shifted to the State to produce any

evidence. In doing so, the majority has completely rewritten prior decisions in State v.

Okland (1997), 283 Mont. 10, 941 P.2d 431, and State v. Jenni (1997), 283 Mont. 21, 938

P.2d 1318. Based on those decisions and the nearly identical facts in this case, the State's

burden in response to Kvislen's motion to dismiss and supporting affidavit was abundantly

clear. As a result of this decision, the procedure for resolving motions of this type is now

completely obscured.

¶24    In Okland, we held that an affidavit in support of a motion to dismiss felony DUI

charges which established that at the time of a prior conviction, the defendant 1) could not

afford to hire an attorney; 2) was not provided a court-appointed attorney; 3) was convicted

without the assistance of counsel; and 4) was actually imprisoned for his uncounseled

conviction, was direct evidence of the constitutional infirmity of the prior conviction. See

Okland, 283 Mont. at 19, 941 P.2d at 437. That's the same evidence produced by Kvislen in

support of his motion to dismiss.

¶25    Next, in Okland, we held that once a defendant has made such a showing, "the burden

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


                                            12
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. Here, even though the burden clearly shifted to

the State to prove that Kvislen's previous rights had not been violated, it offered no evidence.

The county attorney simply submitted a brief which included his own inadmissible

representations, in which he argued that Kvislen had not successfully rebutted the

presumption of regularity, even though he clearly had, and stated that if the District Court felt

otherwise, the State was "able to produce direct evidence that the prior conviction was not

entered in violation of defendant's rights." In addition, the State offered a city court record

indicating, without explanation, that "advise of rights" had been checked. At the time the

document was submitted, however, we had clearly said four years earlier in Jenni that these

types of records ". . . do not affirmatively establish that Jenni was advised of his constitu-

tional right to an attorney or that he knowingly and intelligently waived that right." Jenni,

283 Mont. at 25-26, 938 P.2d at 1321. We held that evidence of general advice of rights was

insufficient to refute direct evidence that a defendant had not previously been advised of his

right to counsel. There was no excuse for the county attorney to think that the same type of

evidence was adequate in this case to rebut Kvislen's direct evidence.

¶26    In the State's response to Kvislen's motion to dismiss, the county attorney alleged that

". . . the state can produce direct evidence demonstrating that defendant's 1990 conviction is

not infirm." However, it did not do so. It was not prevented from doing so. And, it did not

request an opportunity to do so by way of an evidentiary hearing. 1 The State clearly did not


       1
           In another example of this Court's recent result-oriented approach to criminal law,

                                               13
satisfy the burden clearly established by our decisions in Okland and Jenni and the District

Court should have, as the district courts did in those two cases, granted Kvislen's motion to

dismiss. This Court has erred by not simply reversing the District Court's mistake and

ordering that Kvislen's motion be granted.

¶27    In its conclusion, the majority states that once Kvislen rebutted the presumption of

regularity, "[t]he District Court . . . should have shifted the burden to the State." Here the

majority demonstrates a complete misunderstanding of procedural law. Courts do not create

or "shift" the burden of proof–the law does! The law did so in this case just as plainly as it

did in Jenni and Okland, notwithstanding the majority's tap dance around those cases.

¶28    The majority's decision does create a lot of new opportunities for unsuccessful

litigants. For example, in response to motions for judgment as a matter of law following

submission of the State's evidence, the State should now have an opportunity to reopen its

case in the event the Court concludes that its case has not been proven. In the civil context, if

a party moves for summary judgment and supports its motion by affidavit or direct evidence



the majority concludes that by indicating that it "could produce direct evidence," there "[w]as
an implied request for an evidentiary hearing made conditional upon the District Court's
determination that the burden had shifted to the State to defend the prior conviction." This
"implied request" is, of course, created out of whole cloth to achieve the desired result, as is
defense counsel's new and greater responsibilities which were created in State v. Hoffman,
2003 MT 26, ___ Mont. ___, ___ P.3d ___.




                                               14
that it is entitled to judgment as a matter of law, and the opposing party produces no

contradictory evidence but its attorney simply makes conclusory arguments to the contrary,

we should no longer decide the issue on appeal based on the record presented. Those cases

should in the future all be remanded to the district court to give the unsuccessful litigant

another opportunity to produce contradictory evidence.

¶29    Contrary to the majority's conclusion, the District Court's premature denial of

Kvislen's motion did not deny the State an opportunity to prove by direct evidence that

Kvislen's 1990 conviction was not obtained in violation of his rights. The State simply chose

not to offer the evidence it was required to offer pursuant to our prior decisions and the

District Court mistakenly excused its omission. Allowing the State repeated opportunities to

satisfy its burden is sloppy practice and bad policy. The District Court should simply be

reversed. I dissent from the majority's refusal to do so.



                                                            /S/ TERRY N. TRIEWEILER




                                             15
