APPEAL FROM: District Court of the Twelfth Judicial District, In and For the County of Hill, Cause No. DC-10-035 Honorable Daniel A. Boucher, Presiding Judge
The opinion of the court was delivered by: Patricia Cotter
Submitted on Briefs: June 19, 2012
Decided: September 5, 2012
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Chris Otto (Otto) appeals from the order entered by the Twelfth Judicial District Court of Hill County, Montana, denying his motion to dismiss his felony charge of driving under the influence of alcohol (DUI). We affirm.
¶2 The issue on appeal is:
¶3 Did the District Court correctly determine that Otto's three prior DUI-related convictions supported the enhancement of his most recent DUI to a felony?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 On October 28, 2003, Otto pled guilty in Havre City Court to DUI, a misdemeanor in violation of § 61-8-401, MCA (2003). In February 2005 in the same court, Otto was charged with a second offense violation of § 61-8-401, MCA (2003), which was amended to a charge of misdemeanor DUI per se in exchange for his plea of guilty. On October 10, 2007, Otto pled nolo contendere in Chouteau County Justice Court to misdemeanor DUI, in violation of § 61-8-401(1)(a), MCA (2005). Prior to each conviction Otto was provided with an advisement of rights form, though the content of the form differed slightly in each instance.
¶5 In the early morning hours of April 15, 2010, Otto was found by a Montana Highway Patrol Officer in a vehicle which appeared abandoned off the shoulder of U.S. Highway 2. The vehicle was damaged and Otto was in the driver's seat. He appeared intoxicated and refused sobriety tests. On April 19, 2010, Otto was charged by Information with a DUI offense. As his fourth DUI offense, the charge was enhanced to the status of a felony DUI charge. Through counsel, Otto moved to dismiss the felony charge on February 14, 2011, and filed a brief in support, arguing that his three prior convictions were constitutionally infirm and did not support the felony DUI charge. After full briefing, the District Court held a hearing on Otto's motion to dismiss on March 28, 2011, and denied the motion by written order on April 14, 2011. On August 9, 2011, appearing with counsel, Otto pled guilty to one count of DUI. As this was his fourth or subsequent offense in violation of § 61-8-401, MCA, the court, among other things, sentenced him on September 28, 2011, to thirteen months in a correctional facility or program.
¶6 Otto appeals the denial of his motion to dismiss the felony charge.
¶7 "The grant or denial of a motion to dismiss in a criminal proceeding is a question of law, which we review de novo to determine whether the district court's conclusion of law is correct." State v. Allen, 2009 MT 124, ¶ 9, 350 Mont. 204, 206 P.3d 951. We review a district court's factual findings concerning the circumstances surrounding a defendant's prior convictions for clear error. State v. Walker, 2008 MT 244, ¶ 9, 344 Mont. 477, 188 P.3d 1069. "A trial court's findings are clearly erroneous if they are not supported by substantial evidence, if the court has misapprehended the effect of that evidence, or if a review of the record leaves this Court with a definite and firm conviction that a mistake has been made." Walker, ¶ 9. "Whether a prior conviction can be used to enhance a criminal sentence is a question of law, which this Court reviews for correctness." Allen, ¶ 9.
¶8 Did the District Court correctly determine that Otto's three prior DUI-related convictions supported the enhancement ...