inline"> 03/17/2020 DA 18-0574 Case Number: DA 18-0574 IN THE SUPREME COURT OF THE STATE OF MONTANA 2020 MT 61

STATE OF MONTANA,

Plaintiff and Appellees,

RODNEY HOLDER,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DC 16-431B
Honorable Rienne McElyea, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jami L. Rebsom, Jami Rebsom Law Office, P.L.L.C., Livingston, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, Jeremiah Langston, Assistant
Attorney, Helena, Montana

Martin D. Lambert, Gallatin County Attorney, Bozeman, Montana

Submitted on Briefs: February 5, 2020

Decided: March 17, 2020

Filed:

cir-641.—if
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1 Rodney Holder (Holder) appeals from the denial of his motion to strike a prior

offense, by the Eighteenth Judicial District Court, Gallatin County. We affirm and state

the issue as follows:

Did the District Court err by denying Holder’s motion to strike a prior conviction
for purposes of enhancing his current DUI charge to a felony?

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On November 26, 2016, Bozeman Police Department Officer Zachary Dorow

initiated a stop after observing Holder’s vehicle turning into the wrong driving lane and

crossing into the bicycle lane. When Dorow made contact with Holder, Holder informed

him that he had a suspended driver’s license. Dorow observed that Holder had slurred

speech and smelled of alcohol, leading Dorow to investigate and ultimately arrest Holder

for DUI. Subsequent searches revealed a pipe with what appeared to be marijuana residue

on Dorow’s person, and a bag of marijuana in his vehicle.

¶3 The State filed an Information charging Holder with Driving Under the Influence of

Alcohol, fourth or subsequent offense, a felony; Criminal Possession of Dangerous Drugs,

a misdemeanor; Driving While License Suspended or Revoked (third offense), a

misdemeanor; and Criminal Possession of Drug Paraphernalia, a misdemeanor. The State

charged the DUI as a felony based on three alleged prior DUI-related convictions,

including a January 1990 conviction in Deaf Smith County, Texas. The State subsequently

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discovered and submitted to the District Court evidence of a fourth DUI conviction out of

Spokane County, Washington.

¶4 Holder filed a motion to strike the prior convictions. As to the 1990 conviction from

Texas, Holder argued the State had not provided competent proof the conviction actually

occurred. The State argued it had done so, relying on Holder’s National Crime Information

Center (NCIC) criminal record. The record stated, among other arrests and convictions,

that Holder had been arrested on January 6, 1990 for driving under the influence of liquor,

also noted on the record as a “DWI.” The NCIC record stated the disposition of that DWI

offense as “convicted.”

¶5 At the hearing on Holder’s motion, Holder’s attorney conceded the NCIC record

stated “disposition: convicted” regarding the Texas DWI charge, but argued there was no

“conviction” as defined by Montana statute because “there is no disposition like we’d

normally see on an NCIC for a DUI. We would see an actual sentence.” The District Court

partially granted Holder’s motion, striking the 2009 Spokane County, Washington, DUI

conviction that was supported only by an email from the Spokane County Case

Management office, and which did not appear on Holder’s NCIC record. However, the

court denied the motion as to the 1990 Texas DWI conviction, reasoning:

[T]he State has met its burden by providing evidence of the fact that
Defendant has a 1990 DUI conviction out of Texas. A presumption of
regularity attaches to Defendant’s prior record and the Court presumes
Defendant was sentenced as part of his 1990 conviction. Defendant failed to
rebut that presumption by providing any evidence that Defendant did not
have a DUI sentence as part of his 1990 conviction out of the state of Texas.

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¶6 Pursuant to an oral plea agreement, Holder subsequently pled guilty to felony DUI,

misdemeanor Driving While Licensed Suspended, and misdemeanor Criminal Possession

of Drug Paraphernalia, reserving his right to challenge the denial of his motion on appeal.

STANDARD OF REVIEW

¶7 Generally, whether a prior conviction may be used to enhance a sentence is a

question of law which we review de novo. State v. Lund,

2020 MT 53

, ¶ 6, __ Mont. __,

__ P.3d __. “However, in determining whether a prior conviction is invalid, the court may

first need to make findings of fact, based on oral and documentary evidence presented by

the parties, regarding the circumstances of that conviction. We will not disturb such

findings unless they are clearly erroneous.” State v. Maine,

2011 MT 90, ¶ 12

360 Mont. 182

255 P.3d 64

 (citations omitted).

                                        DISCUSSION

¶8     Did the District Court err by denying Holder’s motion to strike a prior conviction
for purposes of enhancing his current DUI charge to a felony?

¶9     Relying on our decision in State v. Krebs,

2016 MT 288

385 Mont. 328

384 P.3d 98

, Holder argues the District Court erred by concluding the State provided competent

proof of his 1990 Texas DWI conviction because the NCIC criminal record report did not

also include information about a sentence or judgment. The State answers that the issue

requiring reversal in Krebs—uncertainty about whether the prior conviction was for DUI

or DUI “per se”—is not present here, and that the District Court properly concluded the




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State had provided competent proof of the Texas conviction under application of the

presumption of regularity, which Holder did not rebut.1

¶10    An individual convicted of DUI who also has three or more prior DUI or

DUI-equivalent convictions is guilty of a felony.              Section 61-8-731(1), MCA.           A

“conviction” is defined in the Criminal Code as “a judgment of conviction and sentence

entered upon a plea of guilty or nolo contendere or upon a verdict or finding of guilty of

an offense rendered by a legally constituted jury or by a court of competent jurisdiction

authorized to try the case without a jury.” Section 45-2-101(16), MCA. In order to use a

prior conviction for purposes of enhancing a DUI to a felony, the State must provide

“competent proof that the defendant in fact suffered a prior conviction.” Krebs, ¶ 19

(internal quotations and citations omitted). Once competent proof of a prior conviction has

been provided, “a ‘presumption of regularity’ attaches to such conviction.” See State v.

Mann,

2006 MT 33, ¶ 15

331 Mont. 137

130 P.3d 164

 (citing State v. Snell,

2004 MT 334, ¶ 25

324 Mont. 173

103 P.3d 503

). To overcome the presumption, the defendant

must provide “direct evidence of irregularity.” Mann, ¶ 15.

¶11 In Krebs, the defendant challenged the use of a 1988 North Dakota DUI conviction

as a predicate offense for the felony DUI charge against him. Krebs, ¶ 3. The defendant

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The State also contends Holder did not preserve his argued issue for appeal because, in his district
court briefing, Holder only challenged the constitutional validity of the Texas conviction, which,
as explained in Krebs, ¶¶ 11-13, is a different issue. The State acknowledges that Holder raised
the argued issue in the hearing on his motion to strike, but nonetheless argues Holder is raising a
new issue or new theory on appeal. However, in its order, the District Court “cautioned” Holder
about “changing legal theories at the last minute,” but nonetheless addressed the issue on the
merits, and we conclude the issue was preserved for appeal.
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argued the State had failed to prove the prior conviction was for DUI, and not DUI per se

(or, a “blood alcohol concentration conviction”), which would have been expunged from

the defendant’s record under Montana law. Krebs, ¶ 4. Consequently, we explained the

issue was “[w]hether the State is required to prove the existence of a qualifying conviction

in order to treat an alleged fourth DUI offense as a felony.” Krebs, ¶ 8 (emphasis added).

We held the State is so required, but had failed to do so there, because the record was

inadequate to demonstrate the prior conviction was for DUI. Krebs, ¶ 19.2

¶12 Similar to Krebs, Holder challenges the existence of a prior conviction that would

serve as a predicate offense for a felony charge. However, we conclude that the State, in

contrast to Krebs, here offered competent proof of the conviction. The NCIC criminal

record provides the disposition of the 1990 Texas DWI charge as “convicted,” which we

conclude is competent proof the prior conviction occurred.

¶13 Because the State provided competent proof of the Texas conviction, it is “presumed

to be valid absent evidence to the contrary,” Mann, ¶ 15, and is deemed to be sufficient for

purposes of enhancing the current DUI charge. At that point, the defendant must provide

direct evidence of irregularity to overcome the presumably valid conviction. See Mann,

¶ 15. Holder’s argument fails to account for the presumption, and he has pointed to no

evidence in the record that the conviction was irregular. Therefore, the District Court did

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We further explained that the issue of proving the initial existence of a prior conviction differs
from a collateral constitutional challenge to a prior conviction, for which this Court has held the
defendant bears the initial burden of proving the conviction is constitutionally infirm. Krebs, ¶ 12
(citing Maine, ¶¶ 33-34).
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not err by relying on the 1990 Texas DWI conviction for purposes of enhancing Holder’s

penalty.

¶14 Affirmed.

/S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER

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