 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-569%20(07-06-00)%20Opinion.htm




                                                               No. 99-569



                    IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                           2000 MT 177N

                                                            300 Mont. 435

                                                              4 P.3d 1201




STATE OF MONTANA,

Plaintiff and Appellant,



v.



SANDRA MATT MORIGEAU,



Defendant and Respondent.




APPEAL FROM: District Court of the Twentieth Judicial District,

In and for the County of Lake,

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-569%20(07-06-00)%20Opinion.htm (1 of 6)3/28/2007 4:05:12 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-569%20(07-06-00)%20Opinion.htm



The Honorable C. B. McNeil, Judge presiding.




COUNSEL OF RECORD:



For Appellant:



Hon. Joseph Mazurek, Attorney General; Jennifer M. Anders, Assistant Attorney General,
Helena, Montana



Deborah Kim Christopher, County Attorney; Robert J. Long, Deputy County Attorney,
Polson, Montana



For Respondent:



Larry J. Nistler, Attorney at Law, Polson, Montana




Submitted on Briefs: March 2, 2000

Decided: July 6, 2000

Filed:




 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-569%20(07-06-00)%20Opinion.htm (2 of 6)3/28/2007 4:05:12 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-569%20(07-06-00)%20Opinion.htm


__________________________________________

Clerk

Justice W. William Leaphart 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. ¶This is an appeal by the State of Montana from an order of the Twentieth Judicial
       District Court, Lake County, dismissing the felony charge of Driving Under the
       Influence (Fourth Offense) against Sandra Morigeau (Morigeau). We affirm.
    3. ¶Morigeau was arrested for driving while under the influence of alcohol in Lake
       County, Montana, in April, 1999. The State filed an Information in District Court
       charging Morigeau with DUI and alleging that it was her fourth DUI offense.
    4. ¶One of Morigeau's prior convictions occurred in January, 1990. In the 1990
       proceeding, the Justice Court ordered:

that the Defendant be punished by confinement in the Lake County Jail for a term of six
(6) months, with all suspended except twenty (20) days. The Defendant may serve said jail
sentence under house arrest if so arranged and paid for by the Defendant. The jail sentence
or house arrest must commence on or before February 11, 1990.



    1. ¶Morigeau moved to dismiss the Information on the ground that her January, 1990
        conviction was constitutionally infirm in that she should have been appointed
        counsel because a sentence of imprisonment was actually imposed. Conceding that
        Morigeau was not represented by counsel in that proceeding, the State argued that
        she was not entitled to counsel because "home arrest" is not the equivalent of actual
        imprisonment. The District Court granted Morigeau's motion to dismiss and the
        State appeals pursuant to § 46-20-103(2)(a), MCA.

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-569%20(07-06-00)%20Opinion.htm (3 of 6)3/28/2007 4:05:12 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-569%20(07-06-00)%20Opinion.htm


    2. ¶The issue on appeal is whether the Information against Morigeau was properly
         dismissed on the basis that a prior uncounseled conviction was infirm because a
         sentence of imprisonment was actually imposed. We review a district court's
         conclusions of law to determine whether they are correct. See State v. Rushton
         (1994), 264 Mont. 248, 254-55, 870 P.2d 1355, 1359.
    3.   ¶Morigeau cites § 46-8-101(3)(b), MCA, for the proposition that if the Justice Court
         desired "to retain imprisonment as a sentencing option," she was entitled to
         appointment of counsel. Obliquely she concludes that, if she had violated the terms
         of her "home arrest," the court could have sentenced her to imprisonment. Given
         this "threat" of imprisonment, she argues that her uncounseled conviction for DUI
         cannot be used to convert a subsequent charge of DUI to a felony.
    4.   ¶Morigeau's reliance on § 46-8-101(3)(b), MCA, is misplaced. The subsection that
         she invokes was added in a 1991 amendment to the statute. It was not in effect at the
         time of her 1990 Justice Court conviction.
    5.   ¶The State argues that home arrest, which allows the arrestee considerably more
         liberty than exists in a prison environment, is not the equivalent of imprisonment.
         Title 46, Chapter 18, Part 10, MCA (Home Arrest) and § 46-18-201(4)(k), MCA
         (Sentences that may be imposed) (providing for home arrest as a condition to a
         suspended or deferred sentence).
    6.   ¶We determine that we need not interpret the home arrest statutes. Regardless of
         what the legislature intended in providing for home arrest, and regardless of whether
         the Justice Court sentence comports with the above statutes, the fact is that the
         Justice Court, in sentencing Morigeau on the 1990 DUI charge, clearly intended that
         home arrest be the equivalent of imprisonment. The Justice Court sentence states:
         "The Defendant may serve said jail sentence under house arrest if so arranged and
         paid for by the Defendant."
    7.   ¶In State v. Hansen (1995), 273 Mont. 321, 903 P.2d 194, we addressed a related
         issue involving a charge of felony domestic abuse (third offense) in violation of §
         45-5-206(3), MCA. In his first two misdemeanor convictions for domestic abuse,
         Hansen received suspended jail sentences. Hansen argued and the District Court
         agreed that his first misdemeanor conviction could not be used to convert a third
         offense into a felony because he was not represented by counsel and the State had
         not shown that he knowingly waived his right to counsel. In rejecting Hansen's
         argument and reversing the District Court, we stated:

The Sixth Amendment right to counsel in misdemeanor cases is limited to those cases in
which imprisonment was actually imposed. United States v. Quemado (9th Cir. 1994), 26

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-569%20(07-06-00)%20Opinion.htm (4 of 6)3/28/2007 4:05:12 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-569%20(07-06-00)%20Opinion.htm


F.3d 920, 923. Where no sentence of imprisonment was imposed, a defendant charged
with a misdemeanor has no constitutional right to counsel. Scott v. Illinois (1979), 440 U.
S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383. Moreover, the imprisonment must be actual; a
threat of imprisonment (such as a suspended sentence) is not enough to create a
constitutional right to counsel. Scott, 440 U.S. at 373, 99 S.Ct. at 1161.



Hansen, 273 Mont. at 325, 903 P.2d at 197.



    1. ¶Since Hansen had received a suspended sentence in the prior misdemeanor
       conviction, we concluded that a sentence of imprisonment had not been imposed.
       Accordingly, under Scott, he had no right to counsel. Whether he knowingly waived
       counsel was thus irrelevant. Hansen, 273 Mont. at 325, 903 P.2d at 197. The
       Hansen decision clearly stands for the proposition that the right to counsel only
       arises where imprisonment is actually imposed and, where a sentence is suspended,
       imprisonment is not "actually imposed."
    2. ¶The present case differs from Hansen in that, although some of Morigeau's
       sentence was suspended, 20 days of the sentence was not suspended. Morigeau thus
       had a 20-day period of "imprisonment" actually imposed by the Justice Court. The
       court gave Morigeau the option of serving that imprisonment in home arrest. Thus,
       under the specific facts of this case, home arrest was an alternate form of
       imprisonment rather than an alternative to imprisonment.
    3. ¶We hold that because the Justice Court actually imposed a sentence of
       imprisonment, Morigeau was entitled to appointment of counsel. Having not had the
       benefit of counsel in the 1990 conviction for DUI, that conviction cannot be used to
       convert a subsequent charge of DUI to a felony.
    4. ¶The Judgment of the District Court is affirmed.



/S/ W. WILLIAM LEAPHART




 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-569%20(07-06-00)%20Opinion.htm (5 of 6)3/28/2007 4:05:12 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-569%20(07-06-00)%20Opinion.htm


We concur:




/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER

/S/ JAMES C. NELSON




 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-569%20(07-06-00)%20Opinion.htm (6 of 6)3/28/2007 4:05:12 PM
