                                           No. 03-665

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 44N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

CARL EDWARD KERN,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Fourth Judicial District,
                     In and For the County of Missoula, Cause No. DC 2002-270,
                     Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Christopher Daly, Attorney at Law, Missoula, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Carol E. Schmidt,
                     Assistant Attorney General, Helena, Montana

                     Fred Van Valkenburg, County Attorney; Dale Mrkich, Deputy
                     County Attorney, Missoula, Montana



                                                        Submitted on Briefs: April 13, 2004

                                                                   Decided: February 22, 2005


Filed:


                     __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), of the Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It 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     Carl Edward Kern (Kern) appeals from the order of the Fourth Judicial District Court,

Missoula County, denying his motion to reduce the felony charge of driving under the

influence (DUI) to a misdemeanor. We affirm.

¶3     We address the following issue on appeal:

¶4     Did the District Court err in denying Kern’s motion to reduce the felony DUI charge

to a misdemeanor?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶5     On July 6, 2002, Kern was charged with a DUI, a fourth or subsequent offense, which

is a felony pursuant to § 61-8-401, MCA. Accordingly, Kern was charged by Information

in the District Court and pleaded not guilty at his arraignment on October 10, 2002.

Subsequently, Kern filed a motion to reduce the felony to a misdemeanor, asserting the

present DUI charge was only his third offense for purposes of a felony designation. On April

23, 2003, the District Court issued an order denying Kern’s motion to reduce the felony

charge to a misdemeanor. The District Court relied on information from the National

Criminal Information Center (NCIC) and the Presentence Investigation Report (PSI)


                                             2
concerning Kern’s previous DUI convictions. Those reports listed Kern’s prior DUI

convictions as follows:

      NCIC
      8-10-78       Kelso, WA
      7-18-87       Billings, MT
      1-19-88       Billings, MT
      11-18-91      Missoula, MT

      PSI
      8-26-83       Billings, MT
      7-1-87        Billings, MT
      7-30-87       Billings, MT
      8-1-87        Columbus, MT
      1-19-88       Billings, MT
      8-22-91       Missoula, MT
      11-18-91      Missoula, MT

The District Court relied on State v. Cooney (1997), 284 Mont. 500, 945 P.2d 891, wherein

this Court discussed the history of § 61-8-714, MCA, and subsequent amendments thereto

beginning with the 1981 version of § 61-8-714(5), MCA, which provided:

      An offender is considered to have been previously convicted for the purposes
      of this section if less than 5 years have elapsed between the commission of the
      present offense and a previous conviction. If there has been no additional
      conviction for an offense under this section for a period of 5 years after a prior
      conviction hereunder, then such prior offense shall be expunged from the
      defendant’s record. [Emphasis added.]

In 1989, the Montana Legislature amended § 61-8-714(5), MCA, to provide that if a

defendant has no additional DUI convictions after five years, the defendant’s records and

data relating to prior DUIs would become confidential justice information and would no

longer be expunged. See also State v. Brander (1996), 280 Mont. 148, 152, 930 P.2d 31, 33-

34. The 1995 Montana Legislature amended § 61-8-714, MCA, to impose a felony sanction


                                              3
for repetitive DUI offenders and also revised § 61-8-714(6), MCA, to address the use of prior

DUI offenses for purposes of the felony DUI offense. As we have explained:

       An offender is considered to have been previously convicted for the purposes
       of sentencing if less than 5 years have elapsed between the commission of the
       present offense and a previous conviction, unless the offense is the offender’s
       fourth or subsequent offense, in which case all previous convictions must
       be used for sentencing purposes. If there has not been an additional
       conviction for an offense under this section for a period of 5 years after a prior
       conviction under this section, then all records and data relating to the prior
       conviction are confidential criminal justice information []. [Emphasis added.]

Cooney, 284 Mont. at 503-04, 945 P.2d at 893.

¶6     Applying the pre-1989 version of § 61-8-714, MCA, the District Court concluded that

Kern’s August 10, 1978, DUI conviction should be expunged because Kern’s next alleged

DUI occurred over five years later in Billings, Montana, on August 26, 1983. Next, the

District Court noted that the NCIC and PSI showed four convictions in 1987 that occurred

within a period of one month. Of these four DUIs, the District Court opted to count only the

July 30, 1987, DUI conviction, concluding it was reasonable to presume that the multiple

reports of a DUI offense within the same time period indicated a single offense. Moreover,

Kern had reported that the Clerk of the Municipal Court in Billings found a DUI conviction

on record for July 30, 1987. The District Court also decided to count the January 19, 1988,

and November 18, 1991, DUI convictions, which are reported in both the NCIC and PSI

reports, pursuant to the rebuttable presumption of regularity explained in State v. Okland

(1997), 283 Mont. 10, 941 P.2d 431. In sum, the District Court’s conclusions as to Kern’s

prior DUI convictions were as follows:



                                               4
       NCIC
       8-10-78       Kelso, WA (expunged)
       7-18-87       Billings, MT (not counted)
       1-19-88       Billings, MT (counted)
       11-18-91      Missoula, MT (counted)

       PSI
       8-26-83       Billings, MT
       7-1-87        Billings, MT (not counted)
       7-30-87       Billings, MT (counted)
       8-1-87        Columbus, MT (not counted)
       *1-19-881     Billings, MT
       8-22-91       Missoula, MT
       *11-18-91     Missoula, MT

Although the District Court did not specifically address the status of the August 26, 1983,

and August 22, 1991, DUI convictions in determining the number of Kern’s prior

convictions, it nonetheless found that, “at a minimum,” three DUI convictions could be

recognized, thereby justifying the conclusion that the July 2, 2002, DUI charge was a fourth

or subsequent violation.

¶7     Consequently, on June 12, 2003, Kern withdrew his plea of not guilty and entered

a

guilty plea and waiver of rights, but conditioned the guilty plea upon his right to appeal the

District Court’s denial of his motion to reduce the felony to a misdemeanor. On July 2,

2003, the District Court accepted Kern’s guilty plea and sentenced him to thirteen months

in the Department of Corrections for enrollment in the WATCH program, ordered Kern to




       1
        The asterisk signifies those dates listed in both the NCIC and PSI reports.

                                              5
register as a violent offender, and suspended Kern’s sentence on the terms and conditions

listed in the judgment.

¶8     On August 26, 2003, Kern filed a notice of appeal.

                                STANDARD OF REVIEW

¶9     A district court has broad discretion in determining whether evidence is relevant and

admissible. State v. McCaslin, 2004 MT 212, ¶ 15, 322 Mont. 350, ¶ 15, 96 P.3d 722, ¶ 15.

We review a district court’s evidentiary rulings to determine whether the district court abused

its discretion. State v. DuBray, 2003 MT 255, ¶ 67, 317 Mont. 377, ¶ 67, 77 P.3d 247, ¶ 67.

An abuse of discretion occurs when a district court acts arbitrarily without conscientious

judgment or exceeds the bounds of reason. State v. Russette, 2002 MT 200, ¶ 7, 311 Mont.

188, ¶ 7, 53 P.3d 1256, ¶ 7. Absent a showing of abuse of discretion, we will not overturn

a court’s evidentiary determination. McCaslin, ¶ 15.

                                       DISCUSSION

¶10    Did the District Court err in denying Kern’s motion to reduce the felony DUI

charge to a misdemeanor?

¶11    Kern claims that the felony charge should have been reduced to a misdemeanor DUI

because the District Court improperly counted his previous DUIs. He argues that the District

Court improperly counted the January 19, 1988, DUI, because he was in prison during the

trial of that conviction, was not represented by counsel, and was not adequately advised of

his rights. Hence, Kern explains that, similar to the defendant in Okland, his prior




                                              6
convictions should not be used against him in counting toward a fourth DUI necessary for

a felony charge.

¶12    The State first states that the January 19, 1988, conviction was properly counted

because it was reported in both the PSI and NCIC reports, and the Clerk in Billings also had

a record of this conviction. Moreover, the State contends that Kern’s challenge based on

Okland is misplaced. In Okland, this Court concluded that “even in the absence of a

transcript or record, a prior conviction is presumptively valid and a defendant who challenges

the validity of his prior conviction during a collateral attack has the burden of producing

direct evidence of its invalidity.” Okland, 283 Mont. at 18, 941 P.2d at 436 (emphasis

added). The State contends Kern did not produce direct evidence to attack the validity of the

January 19, 1988, DUI conviction, and therefore did not overcome the presumption of

regularity. Thus, the State contends the January 19, 1998, DUI conviction was properly

counted.

¶13    In State v. Kvislen, 2003 MT 27, 314 Mont. 176, 64 P.3d 1006, we concluded, as we

did in Okland, 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. Kvislen, ¶ 10 (citing Okland, 283 Mont. at 18, 941 P.2d at 436).

¶14    Applying these principles to Kern’s motion to reduce his charge to a misdemeanor,

the District Court reasoned as follows:


                                              7
       Kern notes that he was in prison during the trial and suggests that “mabey [sic]
       he had a valid defense but was prevented by the prison authorities from
       appearing to contest it.” However, there is a rebuttable presumption of
       regularity. State v. Okland (1997), 283 Mont. 10. There, the Court stated,
       “even in the absence of a transcript or record, a prior conviction is
       presumptively valid and a defendant who challenges the validity of his prior
       conviction during a collateral attack has the burden of producing direct
       evidence of its invalidity.” Clearly, a speculative suggestion that Kern may
       have had a valid defense does not overcome the presumption. Therefore the
       Court will count the January 1988 conviction.

In essence, the District Court counted the disputed conviction because of the failure of Kern

to offer a legitimate argument supported by evidence to challenge the conviction. Kern’s

mere suggestion, which the District Court accurately described as being “speculative,” that

“mabey [sic] he had a valid defense” was not sufficient, pursuant to our holdings in Okland

and Kvislen, to satisfy his burden of offering direct evidence that he was deprived of his right

to be represented by counsel, which was necessary to overcome the presumption of validity

attached to the January 19, 1988, DUI conviction. Therefore, the conviction was properly

counted.

¶15    Additionally, Kern suggests that he presented overwhelming evidence sufficient to

show “total confusion” as to his previous DUIs thereby leading to improper calculation of

his previous DUIs. Kern contends he: (1) presented clear discrepancies between the NCIC

and PSI reports that, including convictions and dismissals, showed eleven DUIs but only two

were in common between the two reports; and (2) showed that there was no record in the

Justice Court of Yellowstone County or the Municipal Court of Billings of the existence of

five of the DUIs. Thus, Kern contends that this evidence is sufficient to shift the burden to

the State pursuant to Kvislen. However, upon review of the record, we conclude that, despite

                                               8
some conflicts in the evidence, the District Court’s findings were supported by substantial

evidence, and further, the court took pains to avoid counting any of Kern’s prior convictions

more than once.

¶16    Kern alternatively contends the January 19, 1988, conviction should have been

expunged pursuant to this Court’s analysis in Cooney, 284 Mont. at 508, 945 P.2d at 895,

where we held that any DUI conviction prior to the October 1, 1989, amendment to the

statute was automatically eligible for expungement if the elements of the expungement

provision of § 61-8-714(5), MCA, were satisfied. This argument, however, fails because the

“elements of expungement” require that a prior DUI may be expunged only if more than five

years passed since the previous DUI. The only conviction, followed by a five-year period,

prior to 1989, that would allow for expungement of previous DUIs would be Kern’s first

DUI on August 10, 1978, which was followed by his DUI on August 26, 1983, a period of

five years and five days, and is the reason the District Court did not count the August 10,

1978, conviction. This argument is without merit with regard to the January 19, 1988,

conviction.

¶17    Affirmed.


                                                  /S/ JIM RICE

We Concur:

/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ JOHN WARNER


                                             9
