September 17, 2013
ROWLAND MEDICINE HORSE, Petitioner,
LEROY KIRKEGARD, Respondent.
Petitioner Rowland Medicine Horse (Medicine Horse) filed a Petition for Writ of Habeas Corpus claiming his Fourteenth Amendment rights were violated when he was convicted of felony Driving Under the Influence (DUI) based upon invalid predicate offenses. We required the Attorney General to file a response, and a supplemental response setting forth Medicine Horse's prior record of convictions for DUI. The record is now complete and we conclude that Medicine Horse's Petition for Writ of Habeas Corpus must be dismissed.
In June of 2011, Medicine Horse appeared in the Yellowstone County District Court where he entered a guilty plea to fourth or subsequent DUI, a felony. The court determined that Medicine Horse understood his legal and constitutional rights and had voluntarily entered his guilty plea. The District Court declared Medicine Horse a persistent felony offender (PFO) pursuant to § 46-18-501-502, MCA, and imposed a five-year commitment to the Department of Corrections (DOC) and $1, 000 fine, with credit of $70 per day for each day served. Medicine Horse did not appeal from the conviction or sentence.
Medicine Horse argues that his prior DUI convictions from Florida cannot serve as a predicate offense for his current conviction in Montana because the Florida DUI statute varies substantially from Montana's DUI statute. He also contends that his sentence to DOC is ambiguous and improperly exaggerates his past criminal record because he has a non-violent history and only prior misdemeanor convictions. Additionally, Medicine Horse argues that his five-year DOC commitment exceeds the maximum sentence for a felony DUI. Finally, he claims that he received erroneous advice from his counsel which he alleges supports a claim of ineffective assistance of counsel.
The Attorney General asserts the procedural bar in § 46-20-104(2), MCA, requires a timely objection during trial, the absence of which constitutes waiver of review. Further, when afforded the opportunity for a direct appeal, grounds that were or could have been raised on appeal may not be considered in a petition for postconviction relief. Section 46-21-105(2), MCA.
Failure of Medicine Horse to object in the District Court to his perceived variance between Florida's DUI statute and Montana's DUI statute constitutes a waiver of review of the objection by this Court. In State v. Pavey, 2010 MT 19, 349 Mont. 81, 201 P.3d 804, we clarified that "[a] defendant waives the right to appeal all nonjurisdictional defects upon voluntarily and knowingly entering a guilty plea, including claims of constitutional violations which may have occurred prior to the plea." Pavey, ¶11 (citing State v. Violette, 2009 MT 19, ¶ 16, 349 Mont. 81, 201 P.3d 804). After entry of the guilty plea, Medicine Horse maintained only the right to attack the voluntary and intelligent character of the plea, any jurisdictional defects, and any pretrial rulings reserved for appeal. Medicine Horse's contention regarding improper use of prior convictions as predicate offenses was an issue that should have been raised in the District Court and potentially advance on appeal. We will not consider Medicine Horse's claim that the statutes are not similar in a habeas corpus proceeding.
Medicine Horse's criminal record (contained within the PSI filed with the Attorney General's supplemental response) is extensive, and includes convictions for several violent crimes in addition to four prior DUI convictions from Florida. Two of the Florida DUIs were felonies. We consider this information, without rebuttal or any other indication the convictions are invalid, conclusive as to Medicine Horse's current sentence. Section 61-8-731(3), MCA, is instructive regarding the parameters of a legal sentence for a felony DUI in Montana:
If a person is convicted of a violation of 61-8-401 or 61-8-406, the person has either a single conviction under 45-5-106 or any combination of four or more prior convictions under 45-5-104, 45-5-205, 61-8-401, 61-8-406, or 61-8-465, and the offense under 45-5-104 occurred while the person was operating a vehicle while under the influence of alcohol, a dangerous drug, any other drug, or any combination of the three, as provided in 61-8-401(1), and the person was, upon prior conviction, placed in a residential alcohol treatment program under subsection (2), whether or not the person successfully completed the program, the person shall be sentenced to the department of corrections for a term of not less than 13 months or more than 5 years or be fined an amount of not less than $1, 000 or more than $10, 000, or both. (Emphasis added.)
Thus, Medicine Horse's sentence of five years confinement imposed by the District Court was within the statutory parameters of a legal sentence because he had at least four prior convictions for DUI. Additionally, the District Court found that Medicine Horse was a persistent felony offender and imposed sentence pursuant to § 46-18-502, MCA. Section 46-18-502, MCA, provides that "a persistent felony offender shall be imprisoned in the state prison for a term of not less than 5 years or more than 100 years . . . ." Upon determining Medicine Horse was a persistent felony offender, the District Court was similarly authorized—indeed required—to impose a five-year sentence pursuant to § 46-18-502, MCA.
Lastly, § 61-8-734(l)(b), MCA, specifies the manner in which prior convictions are to be included for purposes of sentencing:
An offender is considered to have been previously convicted for the purposes of sentencing if less than 5 years have elapsed between the commission of the present offense and a previous conviction, unless the offense is the offender's fourth or subsequent offense, in which case all previous convictions must be used for sentencing purposes. (Emphasis added.)
Medicine Horse finds himself in the latter situation and consequently may not argue that his prior DUI convictions should not be used to impose a five-year sentence.
Medicine Horse's claim that his sentence is ambiguous and "falsely magnifys [sic] his past criminal" record lacks merit. The penalty he received is consistent with both Montana statutory law and constitutional precedent. In State v. Burns, 2011 MT 167, 361 Mont. 191, 256 P.3d 944, this Court held that "a felony DUI is a legitimate trigger for the PFO designation and '[a]n enhanced sentence under § 46-18-502, MCA, does not supplement, but supplants the sentence for the underlying felony.' " Burns, ¶ 46 (citing State v. Brooks, 2010 MT 226, ¶ 18, 358 Mont. 51, 243 P.3d 405).
IT IS ORDERED that the Petition for Writ of Habeas Corpus is DISMISSED. The Clerk is directed to provide a copy hereof to counsel of record and to Rowland Medicine Horse.