96-659




                                                                                No. 96-659

                                                  IN THE SUPREME COURT OF THE STATE OF MONTANA


                                                                                 1997



                                                                    STATE OF MONTANA,

                                                                      Plaintiff and Respondent,

                                                                                         v.

                                                               KENNETH STUBBLEFIELD,

                                                                       Defendant and Appellant.




                      APPEAL FROM:                  District Court of the First Judicial District,
                                                       In and for the County of Lewis and Clark,
                                                   The Honorable Jeffrey Sherlock, Judge presiding.


                                                                   COUNSEL OF RECORD:

                                                                                 For Appellant:

                                                            Edmund F. Sheehy, Jr., Cannon & Sheehy,
                                                                        Helena, Montana

                                                                                For Respondent:

                                                        Hon. Joseph P. Mazurek, Attorney General;
                                                     Cregg W. Coughlin, Assistant Attorney General;
                                                                     Helena, Montana

                                                     Mike McGrath, Lewis and Clark County Attorney;
                                                          Mike Menahan, Deputy County Attorney;
                                                                     Helena, Montana



                                                                               Submitted on Briefs: May 29, 1997

                                                                               Decided: June 24, 1997
                                                                               Filed:



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                                                          __________________________________________
                                                                           Clerk

                     Justice Terry N. Trieweiler delivered the opinion of the Court.

      The defendant, Kenneth Stubblefield, was charged by information, filed in the
District Court for the First Judicial District in Lewis and Clark County, with the
offense
of driving under the influence of alcohol, in violation of    61-8-401(1)(a), MCA.
Based
on his four prior convictions for DUI, the information charged him with a felony,
pursuant to    61-8-714(4), MCA. He moved the District Court to dismiss the felony
DUI
charge against him. The court, however, denied his motions. He appeals the judgment
of the District Court. We affirm.
      The issue on appeal is whether the District Court erred when it denied Kenneth
Stubblefield's motions to dismiss the felony DUI charge against him.
                        FACTUAL BACKGROUND
      On November 29, 1995, Stubblefield moved the District Court to dismiss the
felony DUI charge against him on the ground that    61-8-714(4), MCA, is, on its face,
unconstitutionally vague. The District Court denied that motion.
      On May 2, 1996, Stubblefield pled guilty to the offense of DUI. He contended,
however, that the court records of his prior DUI convictions do not affirmatively
establish
that he voluntarily waived his right to counsel in those prior proceedings and that,
therefore, the District Court cannot consider his prior DUI convictions for purposes
of
determining whether he is guilty of the pending felony DUI charge. On that basis, he
again moved the District Court to dismiss the felony DUI charge against him.
       The State maintained that a presumption of regularity attaches to
Stubblefield's
prior convictions and, therefore, that the burden of proof is, at least initially, on
Stubblefield to prove that his prior convictions were entered in violation of his
constitutional right to counsel. The State submitted as evidence the court records of
Stubblefield's prior convictions and presented the testimony of: (1) Thomas Pouliot,
East
Helena City Judge; and (2) Wallace Jewell, Lewis and Clark County Justice of the
Peace.
They both testified that, although they do not specifically remember Stubblefield's
appearance in their respective courts, they always advise defendants regarding the
right
to counsel.
      Stubblefield did not submit any evidence to establish that his rights were
violated
during the prior proceedings. In fact, he did not even assert that his prior
convictions
were invalid. Rather, he contended that it is the State's burden to affirmatively
prove the
validity of his prior convictions.
      After a hearing, the District Court concluded that Stubblefield's prior DUI
convictions are presumptively valid and that he failed to rebut the presumption.

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Accordingly, the court: (1) denied his motion to dismiss the felony DUI charge
against
him; (2) took into consideration his prior DUI convictions for purposes of
determining
whether the current DUI charge can be increased to a felony; and (3) sentenced him,
pursuant to    61-8-714(4), MCA, to a ten-year term of imprisonment, with five years
suspended on conditions, for the offense of felony DUI.
                            DISCUSSION
     Did the District Court err when it denied Kenneth Stubblefield's motions to
dismiss
the felony DUI charge against him?
     When we review a district court's conclusions of law, the standard of review is
plenary and we must determine whether the district court's conclusions are correct
as a
matter of law. State 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
district 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.
                             Vagueness
     In Montana, a fourth or subsequent DUI is punishable as a felony. The applicable
sentencing statute is    61-8-714, MCA, which provides, in relevant part, as follows:
          (4) On the fourth or subsequent conviction, the person is guilty
     of a felony offense and shall be punished by imprisonment for a term of not
     less than 1 year or more than 10 years and by a fine of not less than $1,000
     or more than $10,000. . . .
          . . . .
          (6) For the purpose of determining the number of convictions
     under this section, "conviction" means a final conviction, as defined in
     45-2-101, in this state . . . . 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.

Section 61-8-714(4), (6), MCA.
     Stubblefield moved the District Court to dismiss the felony DUI charge against
him
on the ground that   61-8-714(4), MCA, is, on its face, unconstitutionally vague. On
appeal, he contends that the District Court erred when it denied that motion.
Specifically,
he asserts in his brief that   61-8-714(4), MCA, is facially void for vagueness
"because
it does not define the conduct that is prohibited with sufficient definitiveness and
does not
establish minimal guidelines to govern law enforcement."
     It is well established that "if the challenged statute is reasonably clear in
its
application to the conduct of the person bringing the challenge, it cannot be
stricken on
its face for vagueness." State v. Lilburn (1994), 265 Mont. 258, 270, 875 P.2d 1036,

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1044 (citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982),
455
U.S. 489, 494-95, 102 S. Ct. 1186, 1190-91, 71 L. Ed. 2d 362, 369). In other words,
as the United States Supreme Court succinctly stated, "[o]ne to whose conduct a
statute
clearly applies may not successfully challenge it for vagueness." Parker v. Levy
(1974),
417 U.S. 733, 756, 94 S. Ct. 2547, 2562, 41 L. Ed. 2d 439, 458.
      We conclude that   61-8-714(4), MCA, clearly applies to Stubblefield's conduct.
It is undisputed that he was convicted of DUI in the East Helena City Court on August
16, 1993; in the Lewis and Clark County Justice Court on August 26, 1993; in the
Helena City Court on May 6, 1994; and again in the Helena City Court on July 13,
1994.
The DUI charge alleged in this case, therefore, constitutes his fifth DUI offense.
On that
basis, we conclude that Stubblefield does not have standing to bring a facial
vagueness
challenge to    61-8-714(4), MCA.
      We, therefore, hold that the District Court did not err when it denied
Stubblefield's
motion. Accordingly, that part of the District Court's judgment is affirmed.
               The District Court's Consideration of
               Stubblefield's Prior DUI Convictions

          On appeal, Stubblefield contends that the records of his prior DUI convictions
do
not establish that he waived his right to counsel and, therefore, that the District
Court
erred when it considered his prior DUI convictions for purposes of determining
whether
the current DUI charge can be increased to a felony. On that basis, he maintains
that the
District Court erred when it denied his motion to dismiss the felony DUI charge
against
him.
      In essence, Stubblefield asserts that the District Court erred when it: (a)
concluded
that a presumption of regularity attaches to his prior convictions; (b) did not
require the
State to affirmatively establish the constitutional validity of his prior
convictions; and
instead (c) placed the burden of proof on him to establish that his right to counsel
was
violated during the prior proceedings.
      The State, however, maintains that a presumption of regularity attaches to prior
convictions and, therefore, that the burden of proof is on a defendant to prove that
his
or her rights were violated during a prior proceeding. Moreover, the State asserts
that,
in this case, Stubblefield failed to offer any evidence that his rights were
violated during
the prior proceedings and that he did not even assert that any such violations

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occurred.
      The State's position and the District Court's decision are consistent with our
recent
decision in State v. Okland (Mont. May 29, 1997), No. 96-362. In that case, we held
that:
[W]e conclude that [Parke v.] Raley [(1992), 506 U.S. 20, 113 S. Ct. 517,
121 L. Ed. 2d 391,] is persuasive and that, in Montana, a presumption of
regularity attaches to prior convictions during a collateral attack.
Therefore, 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.

     We further conclude that the presumption of regularity is a rebuttable
presumption. Accordingly, while this presumption does operate, at least
initially, to establish the validity of a prior conviction, it can be rebutted by
a defendant who produces direct evidence that his constitutional rights were
violated in a prior proceeding. 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 evidence that the prior conviction was not entered
in violation of the defendant's rights.

Okland, No. 96-362, slip op. at 11-12.
      After a review of the record, we conclude that Stubblefield failed to present
any
direct evidence to establish that his constitutional rights were violated in a prior
proceeding. We therefore conclude that Stubblefield failed to rebut the presumption
of
regularity and that, for that reason, the State had no further burden of proof
regarding
the regularity of his prior convictions. On that basis, we hold that the District
Court
neither erred when it denied Stubblefield's motion nor when it considered his prior
DUI
convictions for purposes of determining whether the current DUI charge can be
increased
to a felony. Accordingly, the District Court's judgment is affirmed.

                                                                       /S/       TERRY N. TRIEWEILER


We Concur:

/S/       KARLA M. GRAY
/S/       JAMES C. NELSON
/S/       WILLIAM E. HUNT, SR.
/S/       JIM REGNIER




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