09/08/2020
DA 18-0428
Case Number: DA 18-0428
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 227N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
WILLIAM MEALER,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DC-17-43C
Honorable John C. Brown, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Moses Okeyo, Assistant Appellate
Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Damon Martin, Assistant
Attorney General, Helena, Montana
Marty Lambert, Gallatin County Attorney, Bjorn E. Boyer, Deputy County
Attorney, Bozeman, Montana
Submitted on Briefs: July 29, 2020
Decided: September 8, 2020
Filed:
cir-641.—if
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), 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 In February 2017, the State charged Appellant William Mealer (“Mealer”) with
felony Driving Under the Influence of Alcohol (“DUI”). Mealer filed a Motion to Dismiss
or Amend Information, arguing that three of his prior DUI convictions were obtained in
violation of his constitutional rights and thus could not be used to enhance the present
offense to a felony.1 The District Court denied Mealer’s motion. Mealer pleaded guilty,
reserving his right to appeal. We affirm.
¶3 On August 23, 2007, Mealer pleaded guilty to three misdemeanor DUIs in
Bozeman Municipal Court for offenses occurring on April 2, April 9, and July 3 of that
year. For each charge, Mealer signed a Verification of Arraignment (“VOA”) form, a
standard form then used by the Bozeman Municipal Court. The VOA form explained
various rights afforded a criminal defendant, including the right to counsel, and stated in
relevant part:
YOU HAVE THE RIGHT TO AN ATTORNEY AT EVERY STAGE OF
THE PROCEEDINGS. IF THE CHARGES AGAINST YOU CARRY THE
POSSIBILITY OF JAIL AS A PART OF THE SENTENCE, YOU HAVE
THE RIGHT TO A COURT APPOINTED[sic] ATTORNEY, IF YOU
1
Mealer has two additional misdemeanor DUI convictions—one from Bozeman Municipal Court
in 2004 and another from Sweet Grass County Justice Court in 2011.
2
CAN’T AFFORD AN ATTORNEY. THE COURT RESERVES THE
RIGHT TO IMPOSE A MODEST FEE TO HELP OFFSET THE COST OF
ANY COURT-APPOINTED ATTORNEY. THE LESS WORK THE
ATTORNEY HAS TO DO, THE LESS IT WILL COST YOU; SO EARLY
CONSULTATION AND, WHERE APPROPRIATE, EARLY
RESOLUTION, WILL RESULT IN SAVINGS TO YOU.
¶4 Mealer hired private counsel to represent him on all three DUI charges. At the
August 2007 change of plea hearing, Mealer signed an Acknowledgment of Waiver of
Rights by Plea of Guilty (“Waiver of Rights”) form. The form stated that by pleading
“guilty” to the charges against him, Mealer was “giv[ing] up” his trial rights and his right
“to have a lawyer unless I have one now, and to have one appointed for me by the court if
I am unable to afford to pay for one.” Mealer also checked a box on the Waiver of Rights
form acknowledging, “I am satisfied with the services of my attorney and [] there has been
ample time to prepare a defense.” At the bottom of the form, Mealer stated that he believed
he was guilty of the offenses charged because: “I drove while intoxicated on April 2, 2007,
April 9, 2007, and July 3, 200[7].” Mealer pleaded guilty to all three charges. Pursuant to
a plea agreement, the State recommended, and the municipal court imposed,
three consecutive six-month sentences. Mealer did not appeal.
¶5 In January 2017, the Montana Highway Patrol arrested Mealer on suspicion of DUI
after initially stopping him for not having his taillights on. The State subsequently charged
him by information with DUI in violation of § 61-8-401, MCA. Relying on the three
2007 DUI convictions, the State charged the 2017 DUI as a felony under
§ 61-8-731(1), MCA. On August 18, Mealer moved to dismiss the felony charge or
alternatively to reduce it to a misdemeanor, arguing that the VOA’s right-to-counsel
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language rendered his 2007 DUI pleas not knowing or voluntary. Mealer filed an affidavit
a week later averring that the VOA forms misled him to believe that he would have to pay
for a court-appointed attorney; that he was unable to afford trial costs of either private or
court-appointed counsel; and that he pleaded guilty because he could not afford to pay for
the cost of going to trial.
¶6 At the hearing on his motion, Mealer testified that, as a student at Montana State
University, he did not have the funds to hire private counsel; his mother had provided him
with the funds to retain his attorney; he understood the language of the VOA forms to mean
that he would need to pay to retain a public defender; and the form told him the less work
that public defender did, the less Mealer would have to pay. Mealer further testified that
despite believing he could convince a jury he was not guilty, he did not have sufficient
funds to retain his private counsel through a trial. Therefore, Mealer said, he pleaded guilty
“because I had no more money to fight and I thought [the plea deal] was the best deal I
could possibly get based on the resources I had at my disposal.”
¶7 Mealer testified on cross-examination that he and his mother decided to retain
private counsel and that, after that point, he never spoke with his attorney about the
option of getting a public defender. He was unable to recall why be believed a jury would
find him not guilty and stated that he took his attorney’s advice to plead guilty.
Mealer also revealed that he may have initially consulted with the Public Defender’s Office
before retaining his attorney. Finally, regarding the Waiver of Rights form he signed
before accepting his plea deal, Mealer stated that at the time he understood it meant that he
could have an attorney appointed for him even if he couldn’t afford one. He
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acknowledged that the Waiver of Rights form stated that he was satisfied with the
performance of his attorney and that there had been sufficient time for him to be able to
prepare his defense.
¶8 The District Court denied Mealer’s motion to dismiss. The court noted that the
VOA form the Bozeman Municipal Court used in 2007 contained factually incorrect
language—i.e., it implied that a defendant would be required to pay for a public defender
regardless of indigence—and reasoned that this language “can be found to be coercive to
the extent it can affect a Defendant’s ability to properly waive his or her rights knowingly
and voluntarily.” The court concluded, however, that because Mealer was represented by
an attorney, the VOA’s language “did not have much of a coercive effect” on him; that any
irregularity the VOA’s legally incorrect language caused was cured by the correct
right-to-counsel language in the Waiver of Rights form; and that “even if there was an
irregularity . . . that does not render the Defendant’s plea of guilty as involuntary[.] [E]very
indication, other than the Defendant’s self-serving statements made a decade later, indicate
that the Defendant voluntarily pleaded guilty under the advice of competent, private-pay
counsel.”
¶9 Mealer argues that the District Court erred in holding that he entered knowing and
intelligent guilty pleas to his 2007 DUIs and is thus subject to felony penalties for the
2017 DUI charge.
¶10 Whether a prior conviction may be used for sentence enhancement is a question of
law that we review de novo. State v. Maine, 2011 MT 90, ¶ 12,
360 Mont. 182,
255 P.3d 64.
In determining a prior conviction’s validity, the district court may make findings of fact
5
based on oral and documentary evidence regarding the circumstances surrounding that
conviction. State v. Rasmussen, 2017 MT 259, ¶ 10,
389 Mont. 139,
404 P.3d 719. We
will disturb these findings only for clear error. Rasmussen, ¶ 10.
¶11 “The Sixth Amendment to the United States Constitution and Article II, Section 24
of the Montana Constitution guarantee that in all criminal prosecutions, the accused shall
have the fundamental right to assistance of counsel.” State v. Chaussee,
2011 MT 203, ¶ 4,
361 Mont. 433,
259 P.3d 783. An indigent defendant has the right to a court-appointed
attorney at public expense but may waive that right provided she does so voluntarily,
knowingly, and intelligently. Chaussee, ¶ 4.
¶12 “The Due Process Clause of Article II, Section 17 of the Montana Constitution
protects a defendant from being sentenced based upon misinformation.” Maine, ¶ 28.
“A constitutionally infirm prior conviction used for enhancement purposes constitutes
‘misinformation of constitutional magnitude.’” Chaussee, ¶ 9 (quoting United States v.
Tucker,
404 U.S. 443, 447,
92 S. Ct. 589, 592 (1972)). The State therefore may not enhance
punishment using a constitutionally infirm conviction. Chaussee, ¶ 9.
¶13 We apply the following framework to evaluate collateral attacks on prior
convictions offered for enhancement purposes:
1. a rebuttable presumption of regularity attaches to the prior conviction, and
we presume that the convicting court complied with the law in all respects;
2. the defendant has the burden to overcome the presumption of regularity
by producing affirmative evidence and persuading the court, by a
preponderance of the evidence, that the prior conviction is constitutionally
infirm; and
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3. once the defendant has done so, the State has the burden to rebut the
defendant’s evidence. There is no burden of proof imposed on the State to
show that the prior conviction is valid, however. The State’s burden, rather,
is only to rebut the defendant’s showing of invalidity.
State v. Nixon, 2012 MT 316, ¶ 15,
367 Mont. 495,
291 P.3d 1154 (citing State v. Hass,
2011 MT 296, ¶ 15,
363 Mont. 8,
265 P.3d 1221). See also Rasmussen, ¶ 14 (noting that
“the defendant has the ultimate burden of proof to both produce and persuade by a
preponderance of the evidence that the conviction is invalid”) (internal citations and
quotations omitted).
¶14 Presuming the regularity of Mealer’s 2007 convictions, we examine whether he
produced affirmative evidence to show by a preponderance that the prior convictions were
constitutionally infirm. Chaussee, ¶ 13. “‘Affirmative evidence’ is evidence
demonstrating ‘certain facts actually exist, or in the context of a collateral challenge, that
certain facts actually existed at some point in the past.’” Rasmussen, ¶ 14
(quoting Hass, ¶ 16). “Ambiguous documents, self-serving and conclusory inferences, and
forcing the State to prove the validity of the prior conviction, when such validity is already
presumed, do not suffice as affirmative evidence for purposes of meeting the defendant’s
burden.” Rasmussen, ¶ 14 (quoting Hass, ¶ 16). The ultimate burden—both of production
and of persuasion—rests on the defendant. Chaussee, ¶ 12.
¶15 Mealer argues that the language in the VOA forms he signed in 2007
“introduced irregularity in the proceeding” and that the “incorrect, confusing, and
threatening advisory of the VOA form made the choice [to plead guilty] for him.” The
District Court agreed that the VOA language is problematic and could “affect a
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Defendant’s ability to properly [waive his or her rights].” Mealer asserts this irregularity
is sufficient to demonstrate that his guilty plea was not made knowingly or intelligently.
To support this contention, Mealer relies on our decision in State v. Mann, 2006 MT 33,
331 Mont. 137,
130 P.3d 164.
¶16 Mann, charged with felony DUI, argued that the confusing and inaccurate language
in a VOA form rendered prior DUI convictions constitutionally infirm. The form in
question contained the following right-to-counsel language:
4). That I have a right to have legal counsel represent me, but since no
provision is made for payment of legal counsel in the lower court, I would
be required to pay for such counsel, unless I fill out such form claiming
indigency, that I would be sworn as to the truthfulness of statements, this
form would then be turned over to the County Attorney who would have an
investigation made, if statements made were found to be false I could be tried
for perjury. If found true, the Judge may or may not appoint legal counsel to
represent me at the State’s expense. [sic].
Mann, ¶ 6. Because of this language, Mann claimed that he did not request or obtain
counsel at all; he simply pleaded guilty to the misdemeanor charges after reading the
VOA form. Mann, ¶¶ 6-7.
¶17 On appeal, we concluded that the VOA contained an incorrect statement of law,
leading Mann to believe “that even after he filled out indigence forms and underwent a
criminal investigation regarding his truthfulness as to indigence, the District Court could
still choose not to appoint counsel to represent [the defendant] at the State’s expense.”
Mann, ¶ 24. We held this irregularity sufficient to demonstrate that Mann’s waiver of his
right to counsel was not knowingly given. Mann, ¶ 24. Moreover, we concluded that the
VOA language threatened additional prosecution for perjury and was generally
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“indecipherable.” Mann, ¶ 24. Accordingly, we concluded that Mann did not
knowingly, voluntarily or intelligently waive his right to counsel when he pleaded guilty.
Mann, ¶ 24.
¶18 Mealer, unlike Mann, was represented by counsel through the majority of the
proceedings against him—including during his change-of-plea hearing. Also unlike Mann,
Mealer did not make a spontaneous decision to plead guilty based upon the VOA language;
he retained counsel and, weeks later when presented with a favorable plea deal, entered his
guilty pleas in the presence of his attorney. In contrast to the VOA form at issue in Mann,
the VOA forms that Mealer signed did not threaten a criminal investigation. Nor did they
imply that Mealer would be denied a court-appointed attorney—only that the court could
impose a fee “to help offset the costs.” In sum, the key findings supporting our decision in
Mann are not present in the current matter. The fact that the VOA forms Mealer signed
contained erroneous right-to-counsel language is not enough, standing alone, to
demonstrate his pleas were not made knowingly, intelligently, or voluntarily.
¶19 Even assuming that the erroneous language in the VOA forms introduced
irregularity into the proceedings, Mealer has not convinced us that the VOA forms
“made the choice [to plead guilty] for him.” 2 Though Mealer now claims that but for the
cost of attorney’s fees he would have elected to go to trial on the DUI charges, he has
2
Mealer also contends that the District Court erred when, in its order denying his motion to
dismiss, it stated any error the VOA forms introduced was “cured” by the correct language in the
Waiver of Rights form. Because we agree that Mealer did not show by a preponderance of the
evidence that he relied on the VOA forms when entering his pleas, we do not address this
argument.
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produced no contemporaneous evidence to support his contention. On the contrary, the
Waiver of Rights form Mealer signed at his change of plea hearing not only informed him
correctly of his right to a court-appointed attorney but also contained statements affirming
his satisfaction with private counsel.
¶20 All statements and indications that Mealer “wanted to fight” the charges come from
statements he made a decade later, after being charged with a felony. These statements,
such as those contained in his affidavit, are undercut by his testimony at the motion to
dismiss hearing. Mealer averred in his affidavit that he wanted to fight the charges. But
at the hearing he could not testify why he thought he might prevail at trial. He testified
that despite wanting to go to trial, he never discussed the possibility of switching to a
public defender, or even the potential costs of a public defender, with his private attorney.
Mealer also acknowledged that he contacted the Public Defender’s Office before deciding
to hire a private attorney.
¶21 On balance, the evidence presented supports the District Court’s finding that Mealer
pleaded guilty because of the favorable plea deal his private attorney secured. Mealer
testified that “[he] took [his] attorney’s advice” to plead guilty; he understood the legally
correct right-to-counsel language in the Waiver of Rights form when he signed it; and his
attorney advised that his plea deal was “probably the best deal you are going to get.” This
testimony is inconsistent with Mealer’s affidavit that he pleaded guilty because he believed
he would have to pay for a public defender should he decide to go to trial. We agree with
the District Court that the circumstances surrounding his conviction show that Mealer made
a knowing, intelligent, and voluntary plea, under advice of competent counsel, in order to
10
secure a favorable plea agreement. Therefore, Mealer has not met his burden to
demonstrate that his prior convictions are constitutionally infirm.
¶22 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review. The District Court’s interpretation and application of the
law was correct. Its order denying Mealer’s Motion to Dismiss or Amend Information is
affirmed.
/S/ BETH BAKER
We Concur:
/S/ MIKE McGRATH
/S/ INGRID GUSTAFSON
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
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