                                                                                                10/31/2017


                                           DA 16-0403
                                                                                            Case Number: DA 16-0403

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 259



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

DAVID DERELL RASMUSSEN,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC 2015-237
                        Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Chief Appellate Defender, Koan Mercer, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
                        Assistant Attorney General, Helena, Montana

                        Kirsten H. Pabst, Missoula County Attorney, Karla Painter, Deputy
                        County Attorney, Missoula, Montana



                                                    Submitted on Briefs: August 30, 2017

                                                                Decided: October 31, 2017


Filed:

                        __________________________________________
                                          Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     David Rasmussen was arrested in Missoula for driving under the influence of

alcohol (DUI). The State charged him with felony DUI because Rasmussen had four

prior DUI convictions. Rasmussen moved to dismiss, arguing that two of his prior

convictions were obtained in violation of his constitutional right to counsel. The District

Court held a hearing on the motion at which Rasmussen testified as the only witness.

After the hearing, the court denied Rasmussen’s motion to dismiss on the ground that he

had not met his burden of rebutting the presumption of regularity that attached to the

prior convictions. Rasmussen appeals that ruling. We affirm.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶2     Rasmussen was arrested in April 2015 and charged with felony DUI under

§ 61-8-401(1)(a), MCA.      The State based its felony enhancement on the fact that

Rasmussen     had   four   prior   qualifying    DUI     convictions:   on   March 4, 1996,

March 25, 1996, August 9, 2001, and April 3, 2008.

¶3     Rasmussen moved to dismiss the charge. He asserted that the State had obtained

the two March 1996 convictions in violation of his constitutional right to counsel and that

these convictions could not be used for felony DUI enhancement purposes. Rasmussen

submitted an affidavit with his motion to dismiss. As to the proceedings for the March 4,

1996 conviction, Rasmussen asserted that “he did not have an attorney and that he did not

sign a waiver of his right to an attorney and he did not understand that he had a right to an

attorney.” As to the March 25, 1996 proceedings, Rasmussen’s affidavit stated that “he

did not have an attorney and did not sign any document waiving his right to an attorney.”


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¶4     The District Court held a hearing in September 2015 on Rasmussen’s motion to

dismiss. The parties agreed that there were no records in existence of Rasmussen’s 1996

DUI proceedings, other than an e-mail from the Missoula Justice Court clerk advising

that that court’s file on Rasmussen’s March 4, 1996 conviction had been shredded and

including some coding notes from the court’s “old system.” Rasmussen was the only

witness at the hearing. His testimony on direct examination essentially repeated his

statements in the affidavit. As to the March 4, 1996 proceedings, he testified that he did

not have an attorney, that he did not sign a waiver of his right to an attorney, and that he

did not understand that he had a right to an attorney. With regard to the March 25, 1996

proceedings, he testified that he did not have an attorney and did not sign a waiver of his

right to an attorney.

¶5     At the conclusion of Rasmussen’s direct examination, the State argued that

Rasmussen had failed to meet his burden to rebut the presumption of regularity in the

1996 convictions. The District Court asked for cross-examination, noting that it was

“reserving [its] decision” on whether Rasmussen had satisfied his burden until a more

complete record could be developed.

¶6     On cross-examination, Rasmussen testified that he knew at the time he executed

his affidavit that no court records existed for the 1996 convictions that could contradict

his affidavit. Rasmussen confirmed that his attorney had secured court records for the

August 2001 conviction, that the records showed that Rasmussen was represented by

counsel in those proceedings, that the 2001 case was the first time he “ever did need an

attorney,” and that he was not challenging the validity of that conviction. Rasmussen


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acknowledged that challenging a prior DUI conviction had “worked for [him] in the past”

in a separate case. He agreed that he was previously convicted of multiple jailable,

traffic-related offenses prior to 1996 and that he was arrested for DUI in 1983.

Rasmussen testified that he remembered the judge, he remembered “not signing any

waiver” of his right to counsel, and he remembered that he did not have an attorney in the

1996 proceedings.

¶7    The prosecutor asked specifically, “Do you agree with me that that’s a pretty

specific memory, right, that you were never advised of the right to an attorney? That’s

pretty specific.” Rasmussen replied, “I -- well, I was never asked to sign anything for an

attorney.” The prosecutor asked Rasmussen for other details about the 1996 proceedings.

Rasmussen stated what he recalled about the presiding judges and then responded, “This

has been 20-some years ago.” When the prosecutor remarked to Rasmussen that it was

“curious” that he remembered specifically that he did not sign a waiver of his right to

counsel but that he could “not remember anything else” from the proceedings,

Rasmussen responded, “I do remember not signing anything.” The prosecutor again

asked, “As to your 1996 justice court conviction, in your affidavit, you assert that you

were never advised of your right to an attorney; is that right?” Rasmussen responded,

“Correct.” She continued, “You never signed any waiver of your right to an attorney.”

Rasmussen again replied, “Correct.” Rasmussen confirmed his assertion that, despite

having eight prior jailable offenses before 1996, he never knew that he had the right to

counsel.




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¶8    The day after the hearing, the District Court denied Rasmussen’s motion to

dismiss. In a brief, written order denying the motion, the court summarized Rasmussen’s

and the State’s arguments.    The court then stated that, “[b]ased on the contents of

[Rasmussen’s] Affidavit and his own testimony during the hearing,” Rasmussen had not

met his burden to rebut the presumption of regularity in his 1996 convictions.

¶9    A Missoula County jury subsequently found Rasmussen guilty of DUI. The court

imposed a felony DUI sentence of thirteen months in the Department of Corrections’

WATCh program, followed by a five-year suspended commitment to the Department.

Rasmussen appeals.

                             STANDARDS OF REVIEW

¶10   Whether a prior conviction may be used for sentence enhancement is a question of

law that we review de novo. State v. Maine, 2011 MT 90, ¶ 12, 360 Mont. 182, 255 P.3d

64. However, in determining whether a prior conviction is invalid, a district court may

first need to make findings of fact, based on oral and documentary evidence presented by

the parties, regarding the circumstances of that conviction. Maine, ¶ 12. We will not

disturb such findings unless they are clearly erroneous. Maine, ¶ 12.

                                     DISCUSSION

¶11   Rasmussen contends that the District Court erred in denying his motion to dismiss.

He argues that the court erred as a matter of law by making a “categorical ruling” that a

defendant’s “self-serving” testimony is never sufficient to satisfy the defendant’s burden

to overcome the presumption of validity that attaches to prior convictions. Rasmussen

contends that a defendant’s testimony is categorically insufficient only if it is both


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self-serving and conclusory. His testimony, although self-serving, was not conclusory in

his view because it described the facts and circumstances of his 1996 convictions. He

asserts that his testimony therefore constituted “affirmative evidence” sufficient to satisfy

his burden.

¶12    The Due Process Clause of Article II, Section 17, of the Montana Constitution

“protects a defendant from being sentenced based upon misinformation.”               State v.

Chaussee, 2011 MT 203, ¶ 9, 361 Mont. 433, 259 P.3d 783 (citing State v. Phillips,

2007 MT 117, ¶ 17, 337 Mont. 248, 159 P.3d 1078). “A constitutionally infirm prior

conviction used for enhancement purposes constitutes ‘misinformation of constitutional

magnitude.’”     Chaussee, ¶ 9 (quoting United States v. Tucker, 404 U.S. 443, 447,

92 S. Ct. 589, 592 (1972)). The State therefore “may not use a constitutionally infirm

conviction to support an enhanced punishment.” Chaussee, ¶ 9 (quoting State v. Okland,

283 Mont. 10, 15, 941 P.2d 431, 434 (1997)).

¶13    Article II, Section 24, of the Montana Constitution guarantees that in all criminal

prosecutions, the accused shall have the right to the assistance of counsel.            “The

fundamental right to counsel in misdemeanor cases extends only to those cases in which a

sentence of imprisonment is actually imposed.”         State v. Hass, 2011 MT 296, ¶ 20,

363 Mont. 8, 265 P.3d 1221 (citing State v. Walker, 2008 MT 244, ¶ 17, 344 Mont. 477,

188 P.3d 1069).1



1
  There is no evidence in the record revealing whether Rasmussen was sentenced to jail for his
1996 DUI convictions. The Presentence Investigation Report indicates the disposition simply as
“Convicted per driving history.”


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¶14    “[A] rebuttable presumption of regularity attaches to [a] prior conviction, and we

presume that the convicting court complied with the law in all respects.” State v. Krebs,

2016 MT 288, ¶ 12, 385 Mont. 328, 384 P.3d 98 (citation and internal quotations

omitted). “[T]he defendant has the burden to overcome the presumption of regularity by

producing affirmative evidence and persuading the court, by a preponderance of the

evidence, that the prior conviction is constitutionally infirm.”           Chaussee, ¶ 13.

“Affirmative evidence” is evidence showing “that certain facts actually exist or, in the

context of a collateral challenge, that certain facts actually existed at some point in the

past—e.g., that an indigent defendant actually requested the appointment of counsel but

counsel was actually refused.” Hass, ¶ 16. “Ambiguous documents, self-serving and

conclusory inferences, and forcing the State to prove the validity of the prior conviction,

when such validity is already presumed, do not suffice as affirmative evidence for

purposes of meeting the defendant’s burden.” Hass, ¶ 16 (citing Chaussee, ¶ 18). If the

defendant satisfies his burden, the burden shifts to the State to rebut the defendant’s

evidence. Chaussee, ¶ 10. “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.’” State v. Hancock, 2016 MT 21, ¶ 12, 382 Mont. 141, 364 P.3d 1258 (quoting

Maine, ¶ 12).

¶15    We do not agree with Rasmussen’s assertion that the District Court “made a

categorical ruling” in this case. Rasmussen relies on the following statement from the

District Court’s order: “[T]he State argues that the Montana Supreme Court has stated

that ‘[s]elf-serving statements by the defendant that his or her conviction is infirm are


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insufficient to overcome the presumption of regularity and bar the use of the conviction

for enhancement.’” (Quoting State v. Chesterfield, 2011 MT 256, ¶ 27, 362 Mont. 243,

262 P.3d 1109) (emphasis added). Contrary to Rasmussen’s assertion, this statement is

not an expression of the court’s rationale for its decision. Rather, it is part of the court’s

summary of the arguments.        The court’s order did not adopt the State’s reasoning.

Instead, following its summary, the court explained:

       During the September 14, 2015, hearing Defendant restated the contents of
       his Affidavit and the State had the opportunity to cross-examine Defendant
       regarding his Affidavit’s contents. Based on the contents of Defendant’s
       Affidavit and his own testimony during the hearing, this Court has
       determined that Defendant has not met his burden to overcome the
       “presumption of regula[rity] by producing affirmative evidence and
       persuading the Court, by a preponderance of the evidence, that the prior
       convictions are constitutionally infirm.”

(Quoting Chesterfield, ¶ 20). The plain language of the order demonstrates that the court

based its decision on the evidence before it and not on a categorical rule that a

defendant’s testimony could never satisfy the burden to rebut the presumption of

regularity.

¶16    We are not convinced from the evidence that the court clearly erred in finding that

Rasmussen failed to satisfy his burden.       Rasmussen testified that he knew prior to

executing his affidavit that no court records existed from his 1996 convictions that could

contradict his assertions of constitutional violations. His testimony established that he

remembered certain details of the 1996 proceedings—namely, that he did not sign a

waiver of his right to counsel—but that he could not remember other details of the

proceedings. Although Rasmussen asserted that he did not know at the time of his March



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4, 1996 proceedings that he had a right to an attorney, he acknowledged that he had an

extensive criminal history prior to those proceedings that included jailable offenses—for

which he may have had a right to counsel. Rasmussen’s affidavit and testimony could

have led the court reasonably to question his credibility and the probative force of his

statements. It was “exclusively within the province” of the District Court to determine

Rasmussen’s credibility, and “we will not reweigh the evidence or the credibility of

witnesses.” State v. Nixon, 2012 MT 316, ¶ 21, 367 Mont. 495, 291 P.3d 1154.

¶17   Even more, Rasmussen did not specifically allege that he did not waive his right to

counsel. Rasmussen asserted only that he did not sign a waiver of his right to counsel. In

State v. Anderson, 2001 MT 188, 306 Mont. 243, 32 P.3d 750, Anderson claimed in part

that he had been denied his right to counsel in a prior DUI proceeding. He submitted as

evidence a copy of a disposition form that failed “to make any notation or indication that

[he] at any time waived his right to counsel.” Anderson, ¶ 21. We explained,

      The fact that the disposition form fails to show that [Anderson] waived his
      right to counsel . . . is not direct evidence that Anderson was denied his
      right to an attorney . . . it is not proof of anything. It is absence of proof.
      And it is wholly insufficient to shift the burden of proof to the
      State . . . Simply submitting a document that does not prove regularity does
      not meet this burden [of showing irregularity].

Anderson, ¶ 22. We have explained similarly that “the lack of evidence showing that the

prior conviction is valid is not proof, by affirmative evidence, that the conviction is

invalid.” Chaussee, ¶ 25.

¶18   Rasmussen’s testimony that he did not sign a waiver of his right to counsel does

not show that he did not waive his right to counsel. Although a defendant may waive his



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right to counsel only if such waiver is made “voluntarily, knowingly, and intelligently,”

Chesterfield, ¶ 16, there is no requirement that a defendant sign a document affirming his

waiver of this right. Asserting that he did not sign a waiver of his right to counsel “is not

proof of anything. It is absence of proof.” Anderson, ¶ 22. Rasmussen’s testimony that

he did not sign a waiver of his right thus does not constitute “affirmative evidence” “that

the prior conviction is constitutionally infirm.” Chaussee, ¶ 13.

¶19    Finally, Rasmussen argues that our holdings in State v. Howard, 2002 MT 276,

312 Mont. 359, 59 P.3d 1075, and State v. Walker, 2008 MT 244, 344 Mont. 477,

188 P.3d 1069, establish that his “unequivocal” sworn testimony is sufficient to satisfy

his burden of rebutting the presumption of regularity in his 1996 convictions. In Howard,

we held that the defendant’s prior conviction was constitutionally infirm in part because

the defendant asserted in an affidavit, “I was not advised of my right to court-appointed

counsel before I entered my plea of guilty, nor did I waive my right to court-appointed

counsel.” Howard, ¶¶ 4, 18. We held that these statements constituted “direct evidence”

sufficient to satisfy the defendant’s burden. Howard, ¶ 13. In Walker, the defendant

filed an affidavit stating that she was not advised “that if she could not afford a lawyer,

one would be appointed to represent her.” Walker, ¶ 11. We held that Walker met her

burden of showing that her prior convictions were “irregular.” Walker, ¶ 14.

¶20    Our decision in Maine expressly modified the framework of analysis applied in

Howard and Walker by imposing the burden on the defendant to prove by affirmative

evidence that the prior conviction was constitutionally infirm. Maine, ¶ 34. Unlike the

defendants in Howard and Walker, Rasmussen did not make “unequivocal” statements


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that he was not advised of his right to counsel or that he did not waive that right.

Howard, ¶ 13; Walker, ¶ 14. Rasmussen asserted only that he was not aware of his right

to counsel during the March 4, 1996 proceedings and that he did not sign a waiver of that

right in either of the proceedings. He reiterated on direct examination that, as to the

March 4, 1996 proceedings, he did not “understand that [he] had a right to an attorney.”

Although he answered affirmatively to one of the prosecutor’s questions misquoting a

statement in his affidavit, his allegations do not amount to “unequivocal” testimony

sufficient to overcome the presumption of validity that attached to his prior convictions.

Howard, ¶ 13; Walker, ¶ 14. Howard and Walker are therefore distinguishable.

¶21   The District Court based its decision on the evidence before it, and that evidence

did not show affirmatively that the 1996 convictions violated Rasmussen’s constitutional

right to counsel. The court’s finding that Rasmussen had not satisfied his evidentiary

burden to rebut the presumption of regularity in his 1996 convictions was not clearly

erroneous. See Maine, ¶ 12. Its determination that those convictions could be used for

felony enhancement purposes was correct.

                                    CONCLUSION

¶22   The District Court’s judgment is affirmed.

                                                /S/ BETH BAKER
We Concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ JIM RICE


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