                                                                                         December 27 2012


                                           DA 11-0611

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2012 MT 316



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

KENNETH MAYNARD NIXON,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Twenty-First Judicial District,
                        In and For the County of Ravalli, Cause No. DC 10-131
                        Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender; Kristen L. Larson, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Steve Bullock, Montana Attorney General; C. Mark Fowler, Assistant
                        Attorney General, Helena, Montana

                        William E. Fulbright, Ravalli County Attorney, Helena, Montana


                                                    Submitted on Briefs: October 10, 2012
                                                               Decided: December 27, 2012


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1     Defendant appeals from the judgment of the Twenty-First Judicial District Court,

Ravalli County, denying his motion to dismiss due to invalidity of prior DUI convictions.

We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

¶2     On September 13, 2010, Kenneth Maynard Nixon (Nixon) was charged with Driving

Under the Influence of Alcohol/Drugs (DUI) (fourth or subsequent offense).                The

Information provided that Nixon was previously convicted of qualifying DUI offenses in

March 2009, April 1999, and December 1992.

¶3     On April 25, 2011, Nixon filed a motion to dismiss due to invalidity of prior DUI

convictions. In his motion, he challenged his 1992 DUI conviction on the basis of

constitutional infirmity. Specifically, he asserted that the 1992 conviction could not be used

to enhance the current charge because the court failed to obtain a valid and express waiver of

the right to counsel prior to taking Nixon’s guilty plea. Nixon submitted an affidavit with his

motion that attested as follows:

       On December 24, 1992 I pled guilty to DUI in Ravalli County Justice Court[.]
        I was indigent and unable to retain a private attorney. I was not represented
       by a lawyer in this proceeding. Prior to entering my guilty plea on December
       24, 1992 I was not expressly advised of my right to counsel and I did not
       expressly and explicitly waive that right prior to pleading guilty.

Nixon also attached the complaint in the 1992 proceeding, as well as the docket page. The

complaint indicated that the matter was heard in Ravalli County Justice Court before Nancy

Sabo, Justice of the Peace. The docket page stated in relevant part:


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       On 12/24/92, Defendant appeared, advised of rights, and duly arraigned.
       (Daily appearance incorporated by reference.) Defendant found guilty by
       plea. Plea accepted as given voluntarily and with knowledge – Yes.

The section of the docket page reserved for the names of the attorneys included a specific

name next to “State,” but nothing next to “Defense” or “Appt’d.” Nixon was found guilty by

the Justice Court and his sentence included jail time.

¶4     The District Court held an evidentiary hearing on Nixon’s motion on May 18, 2011.

The State called Nancy Sabo to testify. Judge Sabo testified as to her practice in advising

defendants of their rights to counsel at the time of arraignment and at the time of accepting

guilty pleas. She stated that she used a daily appearance sheet that included several

questions she would ask each defendant who appeared in her court. It was her general

procedure to check off each question as it was asked and answered and to provide written

notes that would later be recorded into the docket sheet. Judge Sabo testified it was her

practice to advise defendants of their right to counsel several times throughout the

proceeding.

¶5     During her testimony, Judge Sabo reviewed the docket page of Nixon’s 1992

conviction and acknowledged that it did not reflect whether Nixon was represented by an

attorney at the hearing or specifically advised of his right to counsel. Further, she conceded

that the form did not explicitly indicate that Nixon waived his right to counsel. She

maintained, however, that this type of information would be included in her notes on the

daily appearance sheet from the hearing.

¶6     During cross-examination, Nixon admitted several exhibits that indicated Judge

Sabo’s former partner judge, Justice of the Peace Ed Sperry, presided over Nixon’s case in
                                             3
1992, and not Judge Sabo. Upon reviewing the exhibits, Judge Sabo testified that “it was

probably Judge Sperry” who took Nixon’s plea and sentenced him. Judge Sabo further

testified that she and Judge Sperry used the same courtroom, the same clerks and the same

forms.

¶7       Nixon also testified at the evidentiary hearing, stating that he believed it was Judge

Sperry who took his guilty plea for the 1992 DUI charge. He testified that at the time of his

conviction, he was unemployed and not able to afford a private lawyer to represent him.

Nixon stated that he did not specifically remember what Judge Sperry said to him at the

hearing; however, he did not remember ever being advised of his right to counsel. At one

point he testified, “I don’t believe I was advised,” and at another point stated, “I wasn’t

advised at that time.” When questioned as to whether Judge Sperry asked him before he

entered his guilty plea whether he waived his right to counsel, Nixon responded, “I don’t

believe so, no.”

¶8       On May 19, 2011, the District Court denied Nixon’s motion. The court found that

Nixon’s evidence consisted of an “ambiguous or silent record . . . and Nixon’s self-serving

statements based on his admittedly poor memory of his conviction almost 20 years ago.” It

therefore concluded that Nixon failed to meet his burden to come forward with affirmative

evidence establishing that his 1992 conviction was obtained in violation of the Constitution.

¶9       On June 8, 2011, Nixon entered a no contest plea to the felony DUI charge, reserving

his right to appeal the denial of his motion. The District Court accepted the plea and

sentenced Nixon to the Department of Corrections (DOC) for a period of thirteen months.

The court ordered that if Nixon successfully completes the WATCh program, the remainder
                                              4
of the thirteen months would be served on probation, followed by a five-year suspended

sentence to the DOC.

¶10    Nixon raises one issue on appeal, which we restate as follows:

¶11    Did the District Court err in denying Nixon’s motion to dismiss a felony charge of

DUI fourth offense based on his claim that his 1992 DUI conviction used to enhance the

sentence was constitutionally infirm?

                                STANDARD OF REVIEW

¶12    Whether a prior conviction may be used for sentence enhancement is generally a

question of law, for which our review is de novo. State v. Maine, 2011 MT 90, ¶ 12, 360

Mont. 182, 255 P.3d 64. In determining whether a prior conviction is invalid, the 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. This

Court will not disturb such findings unless they are clearly erroneous. Maine, ¶ 12.

                                       DISCUSSION

¶13    Did the District Court err in denying Nixon’s motion to dismiss a felony charge of

DUI fourth offense based on his claim that his 1992 DUI conviction used to enhance the

sentence was constitutionally infirm?

¶14    Nixon argues that the docket page, affidavit and testimony he provided at the

evidentiary hearing are affirmative evidence that he was not represented by an attorney

during his 1992 DUI conviction, not advised of his right to counsel, and did not knowingly

waive this right prior to entering a guilty plea. He therefore contends that he satisfied his

burden of proof that his 1992 conviction was constitutionally infirm, and that the State failed
                                             5
to rebut with evidence establishing the validity of the conviction. The State counters that

Nixon’s evidence presents “inconsistent positions” about his memory of the 1992

proceedings. The State argues that Nixon failed to present the necessary affirmative

evidence to overcome the presumption of regularity of his 1992 conviction and thus the

burden never shifted to the State.

¶15    A constitutionally infirm prior conviction used for enhancement purposes amounts to

sentencing based upon misinformation, which is prohibited by the Due Process Clause of

Article II, Section 17 of the Montana Constitution. State v. Haas, 2011 MT 296, ¶ 14, 363

Mont. 8, 265 P.3d 1221 (citing Maine, ¶ 28). Therefore, in Montana, it is well established

that the State cannot use a constitutionally infirm conviction to support an enhanced

punishment. Haas, ¶ 14 (citing Maine, ¶ 28). We employ a three-step framework for

evaluating collateral challenges to prior convictions offered for sentence enhancement

purposes:

       1. a rebuttable presumption of regularity attaches to the prior conviction, and we
          presume that the convicting court complied with the law in all respects;

       2. the 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; and

       3. once the defendant has done so, the State has the burden to rebut the defendant’s
          evidence. There is no burden of proof imposed on the State to show that the prior
          conviction is valid, however. The State’s burden, rather, is only to rebut the
          defendant’s showing of invalidity.

Haas, ¶ 15 (citing State v. Chaussee, 2011 MT 203, ¶¶ 12-13, 361 Mont. 433, 259 P.3d 783).

¶16    A defendant cannot “simply point to an ambiguous or silent record,” but must produce

affirmative evidence establishing that the prior conviction was constitutionally infirm. State
                                              6
v. Chesterfield, 2011 MT 256, ¶ 19, 362 Mont. 243, 262 P.3d 1109 (citing Maine, ¶ 34). We

have defined “affirmative evidence” as evidence “demonstrating 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.” Haas, ¶ 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 burdens. Haas, ¶ 16 (citing Chaussee,

¶ 18).

¶17      Nixon argues his 1992 conviction was infirm because he was not informed of and did

not waive his right to counsel prior to pleading guilty. The Sixth Amendment to the United

States Constitution and Article II, Section 24 of the Montana Constitution guarantee that in

all criminal prosecutions, the accused shall have the fundamental right to the assistance of

counsel. Haas, ¶ 20 (citing Chaussee, ¶ 4). A defendant who cannot afford an attorney is

entitled to representation by court-appointed counsel at public expense. Haas, ¶ 20 (citing

Chaussee, ¶ 4). The right to counsel in misdemeanor cases extends only to those cases in

which a sentence of imprisonment is actually imposed. Haas, ¶ 20 (citing State v. Walker,

2008 MT 244, ¶ 17, 344 Mont. 477, 188 P.3d 1069). A defendant can waive his right to

counsel only if the waiver is made voluntarily, knowingly, and intelligently. Haas, ¶ 20

(citing Chaussee, ¶ 4).

¶18      As stated above, a rebuttable presumption of regularity attaches to Nixon’s 1992 DUI

conviction; however, Nixon may overcome this presumption by affirmative evidence of

irregularity. The District Court determined that Nixon did not meet his burden and that the
                                             7
burden therefore did not shift to the State to rebut Nixon’s evidence. On appeal, Nixon relies

heavily on his affidavit to argue that the District Court overlooked “clear affirmative

evidence of constitutional infirmity,” and points to this Court’s 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, for support. In Howard and Walker, we 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.” Howard, ¶ 13

(internal citations omitted); Walker, ¶ 14 (internal citations omitted). In Howard, the

defendant filed an affidavit attesting that in her prior DUI proceeding, “I could not afford

counsel and I was not represented by counsel. 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. Similarly, in Walker, the defendant submitted an affidavit

stating that during two prior DUI proceedings she was not advised of certain rights,

including her right to an attorney if she could not afford one. Walker, ¶ 11. In both cases,

we found the defendants’ affidavits contained “unequivocal and sworn statements” that they

did not waive their rights to counsel, and held that the defendants satisfied their burdens.

Howard, ¶ 13; Walker, ¶ 14.

¶19    Nixon maintains that the evidence he brought forward to the District Court likewise

contained unequivocal statements that during the 1992 proceedings he was not represented

by an attorney, not expressly advised of his right to counsel, and did not waive that right

prior to pleading guilty. While his affidavit does contain such declarations and therefore

may serve as affirmative evidence of irregularity, as the affidavits did in Howard and
                                          8
Walker, it does not satisfy his ultimate burden of proof. In Maine, which was decided after

Howard and Walker, we acknowledged that the State has an interest in deterring habitual

offenders as well as an interest in the finality of convictions, which are difficult to defend

against collateral attacks many years after the fact. Maine, ¶ 29; accord Chaussee, ¶ 12. We

thus determined that, as the moving party, the ultimate burden of proof—which includes

both the burden of production and the burden of persuasion—shall be on the defendant, who

must prove by a preponderance of the evidence that the conviction is invalid. Maine, ¶ 34;

accord Chaussee, ¶ 12 (emphasis added).

¶20    Here, Nixon not only presented the District Court with his affidavit, but also with

evidence that undermined the probative value of his affidavit statements. His testimony from

the evidentiary hearing reveals that he does not remember what Judge Sperry said to him

during the prior proceedings. Further, it provides that he does not remember ever being

advised of his right to counsel, but does not “believe” that he was or “believe” that he waived

that right. The docket page Nixon submitted to the court does not specifically state whether

he was advised of his right to counsel or whether he waived that right. It does, however,

provide that he was “advised of rights.” Although the docket page and Judge Sabo’s

testimony indicate that there is a “daily appearance” sheet that includes additional

information about the proceedings, Nixon did not submit it to the District Court.

¶21    The weight of evidence and the credibility of witnesses are exclusively within the

province of the trier of fact, and we will not reweigh the evidence or the credibility of

witnesses. State v. Hurlbert, 2009 MT 221, ¶ 40, 351 Mont. 316, 211 P.3d 869 (citing State

v. Pitzer, 2002 MT 82, ¶ 13, 309 Mont. 285, 46 P.3d 582). It is clear from the record that the
                                             9
District Court considered all of the evidence Nixon presented in arriving at its conclusion.

We determine that the District Court’s finding that Nixon’s evidence consisted of an

ambiguous or silent record, and self-serving statements, was not clearly erroneous. We

therefore hold that the District Court correctly concluded that Nixon failed to meet his

burden to come forward with affirmative evidence and persuade the court, by a

preponderance of the evidence, that his 1992 conviction was constitutionally infirm.

                                     CONCLUSION

¶22    For the reasons stated above, we affirm the District Court’s Order denying Nixon’s

motion to dismiss.

¶23    Affirmed.

                                                 /S/ MICHAEL E WHEAT



We Concur:


/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ JIM RICE




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