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No. 99-569
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 177N300 Mont. 4354 P.3d 1201
STATE OF MONTANA,
Plaintiff and Appellant,
v.
SANDRA MATT MORIGEAU,
Defendant and Respondent.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
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The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Joseph Mazurek, Attorney General; Jennifer M. Anders, Assistant Attorney General,
Helena, Montana
Deborah Kim Christopher, County Attorney; Robert J. Long, Deputy County Attorney,
Polson, Montana
For Respondent:
Larry J. Nistler, Attorney at Law, Polson, Montana
Submitted on Briefs: March 2, 2000
Decided: July 6, 2000
Filed:
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__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
1. ¶Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but 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. ¶This is an appeal by the State of Montana from an order of the Twentieth Judicial
District Court, Lake County, dismissing the felony charge of Driving Under the
Influence (Fourth Offense) against Sandra Morigeau (Morigeau). We affirm.
3. ¶Morigeau was arrested for driving while under the influence of alcohol in Lake
County, Montana, in April, 1999. The State filed an Information in District Court
charging Morigeau with DUI and alleging that it was her fourth DUI offense.
4. ¶One of Morigeau's prior convictions occurred in January, 1990. In the 1990
proceeding, the Justice Court ordered:
that the Defendant be punished by confinement in the Lake County Jail for a term of six
(6) months, with all suspended except twenty (20) days. The Defendant may serve said jail
sentence under house arrest if so arranged and paid for by the Defendant. The jail sentence
or house arrest must commence on or before February 11, 1990.
1. ¶Morigeau moved to dismiss the Information on the ground that her January, 1990
conviction was constitutionally infirm in that she should have been appointed
counsel because a sentence of imprisonment was actually imposed. Conceding that
Morigeau was not represented by counsel in that proceeding, the State argued that
she was not entitled to counsel because "home arrest" is not the equivalent of actual
imprisonment. The District Court granted Morigeau's motion to dismiss and the
State appeals pursuant to § 46-20-103(2)(a), MCA.
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2. ¶The issue on appeal is whether the Information against Morigeau was properly
dismissed on the basis that a prior uncounseled conviction was infirm because a
sentence of imprisonment was actually imposed. We review a district court's
conclusions of law to determine whether they are correct. See State v. Rushton
(1994), 264 Mont. 248, 254-55,
870 P.2d 1355, 1359.
3. ¶Morigeau cites § 46-8-101(3)(b), MCA, for the proposition that if the Justice Court
desired "to retain imprisonment as a sentencing option," she was entitled to
appointment of counsel. Obliquely she concludes that, if she had violated the terms
of her "home arrest," the court could have sentenced her to imprisonment. Given
this "threat" of imprisonment, she argues that her uncounseled conviction for DUI
cannot be used to convert a subsequent charge of DUI to a felony.
4. ¶Morigeau's reliance on § 46-8-101(3)(b), MCA, is misplaced. The subsection that
she invokes was added in a 1991 amendment to the statute. It was not in effect at the
time of her 1990 Justice Court conviction.
5. ¶The State argues that home arrest, which allows the arrestee considerably more
liberty than exists in a prison environment, is not the equivalent of imprisonment.
Title 46, Chapter 18, Part 10, MCA (Home Arrest) and § 46-18-201(4)(k), MCA
(Sentences that may be imposed) (providing for home arrest as a condition to a
suspended or deferred sentence).
6. ¶We determine that we need not interpret the home arrest statutes. Regardless of
what the legislature intended in providing for home arrest, and regardless of whether
the Justice Court sentence comports with the above statutes, the fact is that the
Justice Court, in sentencing Morigeau on the 1990 DUI charge, clearly intended that
home arrest be the equivalent of imprisonment. The Justice Court sentence states:
"The Defendant may serve said jail sentence under house arrest if so arranged and
paid for by the Defendant."
7. ¶In State v. Hansen (1995), 273 Mont. 321,
903 P.2d 194, we addressed a related
issue involving a charge of felony domestic abuse (third offense) in violation of §
45-5-206(3), MCA. In his first two misdemeanor convictions for domestic abuse,
Hansen received suspended jail sentences. Hansen argued and the District Court
agreed that his first misdemeanor conviction could not be used to convert a third
offense into a felony because he was not represented by counsel and the State had
not shown that he knowingly waived his right to counsel. In rejecting Hansen's
argument and reversing the District Court, we stated:
The Sixth Amendment right to counsel in misdemeanor cases is limited to those cases in
which imprisonment was actually imposed. United States v. Quemado (9th Cir. 1994), 26
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F.3d 920, 923. Where no sentence of imprisonment was imposed, a defendant charged
with a misdemeanor has no constitutional right to counsel. Scott v. Illinois (1979), 440 U.
S. 367,
99 S.Ct. 1158,
59 L.Ed.2d 383. Moreover, the imprisonment must be actual; a
threat of imprisonment (such as a suspended sentence) is not enough to create a
constitutional right to counsel. Scott,
440 U.S. at 373,
99 S.Ct. at 1161.
Hansen,
273 Mont. at 325,
903 P.2d at 197.
1. ¶Since Hansen had received a suspended sentence in the prior misdemeanor
conviction, we concluded that a sentence of imprisonment had not been imposed.
Accordingly, under Scott, he had no right to counsel. Whether he knowingly waived
counsel was thus irrelevant. Hansen, 273 Mont. at 325,
903 P.2d at 197. The
Hansen decision clearly stands for the proposition that the right to counsel only
arises where imprisonment is actually imposed and, where a sentence is suspended,
imprisonment is not "actually imposed."
2. ¶The present case differs from Hansen in that, although some of Morigeau's
sentence was suspended, 20 days of the sentence was not suspended. Morigeau thus
had a 20-day period of "imprisonment" actually imposed by the Justice Court. The
court gave Morigeau the option of serving that imprisonment in home arrest. Thus,
under the specific facts of this case, home arrest was an alternate form of
imprisonment rather than an alternative to imprisonment.
3. ¶We hold that because the Justice Court actually imposed a sentence of
imprisonment, Morigeau was entitled to appointment of counsel. Having not had the
benefit of counsel in the 1990 conviction for DUI, that conviction cannot be used to
convert a subsequent charge of DUI to a felony.
4. ¶The Judgment of the District Court is affirmed.
/S/ W. WILLIAM LEAPHART
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We concur:
/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ JAMES C. NELSON
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