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,
. 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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