                                                                                          September 24 2013


                                          DA 13-0107

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2013 MT 275N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

BRYAN LEE SIMPSON,

              Defendant and Appellant.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, Cause No. BDC 2012-64
                        Honorable Jeffrey M. Sherlock, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        J. Mayo Ashley, Attorney at Law, Helena, Montana

                For Appellee:

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

                        Leo J. Gallagher, Lewis and Clark County Attorney; Jeff Sealey, Deputy
                        County Attorney; Helena, Montana


                                                    Submitted on Briefs: August 28, 2013
                                                               Decided: September 24, 2013



Filed:

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

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     Bryan Lee Simpson (Simpson) appeals his sentence from the judgment of the First

Judicial District Court, Lewis and Clark County. We affirm.

¶3     Simpson was charged with and pled guilty to his fourth charge of driving under the

influence (DUI). At sentencing, the District Court considered two previous DUI convictions

in Montana wherein Simpson had been tried in absentia. Simpson’s plea reserved for appeal

the District Court’s consideration of the previous convictions.

¶4     In both of his contested convictions, Simpson was advised of the procedure for trial in

absentia. That procedure requires that, “[i]n a misdemeanor case, if the defendant fails to

appear in person. . . and if the defendant’s counsel is authorized to act on the defendant’s

behalf, the court shall proceed with the trial unless good cause for continuance exists.”

Section 46-16-122(1), MCA. Simpson never attended trial for the charges, and was tried in

the presence of his attorney, Robert Olson. After hearing evidence presented by witnesses to

the incident, Simpson was convicted of the charges. Simpson now argues that the trial in

absentia may not have been valid, as the record reflects no evidence that he knew of or

voluntarily did not appear at those trials.



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¶5     We review de novo whether a prior conviction may be used for sentence

enhancement. State v. Maine, 2011 MT 90, ¶ 12, 360 Mont. 182, 255 P.3d 64. A rebuttable

presumption of regularity attaches to the District Court’s use of a prior conviction for

sentence enhancing purposes. State v. Hass, 2011 MT 296, ¶ 15, 363 Mont. 8, 265 P.3d

1221. The defendant can only overcome this presumption by showing that his prior

conviction was constitutionally infirm by a preponderance of the evidence. Hass, ¶ 15. This

presumption is not overcome when a defendant simply points to an ambiguous or silent

record. Maine, ¶ 34.

¶6     The District Court reviewed the trial transcripts in Simpson’s prior convictions and

found that the Judge there expressly stated “THIS PROCEDURE HAD BEEN EXPLAINED

TO DEFENDANT BY THE JUDGE BEFORE HE LEFT SHELBY.” Simpson offers no

affirmative evidence showing that he was uninformed of procedure or was not represented by

counsel, and relies only on ambiguity in the record as to whether he was advised of the trial

procedure. This absence of evidence does not affirmatively demonstrate the constitutional

infirmity of his prior convictions, so it does not overcome the presumption of regularity in

considering these convictions at sentencing. The District Court’s findings of fact were

supported by substantial evidence and the legal issues are controlled by settled Montana law,

which the District Court correctly interpreted.

¶7     We have determined to decide this case pursuant to Section I, Paragraph 3(d), of our

Internal Operating Rules, which provides for noncitable memorandum opinions.



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¶8   Affirmed.

                          /S/ MICHAEL E WHEAT



We concur:

/S/ MIKE McGRATH
/S/ BRIAN MORRIS
/S/ BETH BAKER
/S/ LAURIE McKINNON




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