State v. D. Rasmussen, 2017 MT 259

Background

David Rasmussen was charged with felony DUI in 2015 based on four prior DUI convictions (two in March 1996, one in Aug. 2001, one in Apr. 2008).
Rasmussen moved to dismiss enhancement, asserting the two March 1996 convictions were obtained in violation of his Sixth Amendment/right-to-counsel protections (he said he had no attorney, did not sign a waiver, and did not understand the right to counsel).
Court records for the 1996 matters were unavailable (one justice court file had been shredded); Rasmussen filed an affidavit and testified as the only witness at a hearing.
The District Court found Rasmussen’s affidavit/testimony did not constitute affirmative evidence sufficient to rebut the presumption of regularity attaching to the prior convictions and denied dismissal.
A jury convicted Rasmussen of DUI and the court imposed a felony-enhancement sentence; Rasmussen appealed the denial of his motion to dismiss.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Rasmussen)	Held
Whether a defendant’s testimony alone can rebut the presumption of regularity of prior convictions for enhancement purposes	The presumption of regularity applies; Rasmussen’s self-serving testimony was insufficient to produce affirmative evidence of constitutional infirmity	Rasmussen argued his sworn, specific testimony describing the 1996 proceedings constituted affirmative evidence sufficient to meet his burden	Held: The court affirmed—Rasmussen’s testimony did not affirmatively show the convictions were constitutionally infirm and thus failed to overcome the presumption of regularity
Whether failure to sign a waiver is affirmative evidence of denial of counsel	State: Mere absence of a signed waiver or records is not proof of denial; burden remains on defendant	Rasmussen: Not signing a waiver supports his claim he was not advised of or did not waive the right to counsel	Held: Not signing a waiver is absence of proof, not affirmative evidence of a denial of counsel; insufficient to meet defendant’s burden
Whether the District Court applied a categorical rule excluding all self-serving testimony	State: Self-serving testimony may be insufficient; credibility and probative weight are for the factfinder	Rasmussen: Court erred by treating his testimony as categorically insufficient	Held: No categorical rule was applied—the court relied on credibility and the insufficiency of the evidence before it
Whether prior Montana cases (Howard, Walker) require acceptance of defendant’s affidavit/testimony as sufficient	State: Maine and later cases clarified/shifted burden; Howard and Walker are distinguishable	Rasmussen: Howard and Walker support that unequivocal sworn testimony can suffice	Held: Howard and Walker are distinguishable; Maine requires affirmative evidence and Rasmussen’s testimony was not unequivocal or persuasive enough

Key Cases Cited

State v. Chaussee, 361 Mont. 433, 259 P.3d 783 (2011) (a constitutionally infirm prior conviction cannot be used for enhancement; defendant must produce affirmative evidence)
State v. Maine, 360 Mont. 182, 255 P.3d 64 (2011) (defendant bears burden to produce affirmative evidence and persuade by preponderance that prior conviction is invalid)
State v. Hass, 363 Mont. 8, 265 P.3d 1221 (2011) (affirmative-evidence requirement; ambiguous documents and conclusory statements insufficient)
State v. Chesterfield, 362 Mont. 243, 262 P.3d 1109 (2011) (discusses waiver of counsel standards and sufficiency of defendant’s statements)
State v. Anderson, 306 Mont. 243, 32 P.3d 750 (2001) (absence of notation of waiver on disposition form is not affirmative evidence of denial of counsel)
State v. Howard, 312 Mont. 359, 59 P.3d 1075 (2002) (defendant’s affidavit asserting lack of advice of right to counsel held direct evidence, but later distinguished)
State v. Walker, 344 Mont. 477, 188 P.3d 1069 (2008) (defendant’s affidavit that she was not told an appointed lawyer would be provided sufficed in that context)
State v. Krebs, 385 Mont. 328, 384 P.3d 98 (2016) (reiterating presumption of regularity for prior convictions)
State v. Hancock, 382 Mont. 141, 364 P.3d 1258 (2016) (defendant retains ultimate burden to produce and persuade by preponderance that conviction is invalid)
State v. Nixon, 367 Mont. 495, 291 P.3d 1154 (2012) (credibility determinations are for the trial court; appellate court will not reweigh evidence)