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State v. Rasmussen

Supreme Court of Montana

October 31, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
DAVID DERELL RASMUSSEN, Defendant and Appellant.

          Submitted on Briefs: August 30, 2017

         APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 2015-237 Honorable John W. Larson, Presiding Judge

          Chad Wright, Chief Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena, Montana For Appellant:

          Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana

          Kirsten H. Pabst, Missoula County Attorney, Karla Painter, Deputy County Attorney, Missoula, Montana For Appellee

          Justice Beth Baker

         ¶1 David Rasmussen was arrested in Missoula for driving under the influence of alcohol (DUI). The State charged him with felony DUI because Rasmussen had four prior DUI convictions. Rasmussen moved to dismiss, arguing that two of his prior convictions were obtained in violation of his constitutional right to counsel. The District Court held a hearing on the motion at which Rasmussen testified as the only witness. After the hearing, the court denied Rasmussen's motion to dismiss on the ground that he had not met his burden of rebutting the presumption of regularity that attached to the prior convictions. Rasmussen appeals that ruling. We affirm.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶2 Rasmussen was arrested in April 2015 and charged with felony DUI under § 61-8-401(1)(a), MCA. The State based its felony enhancement on the fact that Rasmussen had four prior qualifying DUI convictions: on March 4, 1996, March 25, 1996, August 9, 2001, and April 3, 2008.

         ¶3 Rasmussen moved to dismiss the charge. He asserted that the State had obtained the two March 1996 convictions in violation of his constitutional right to counsel and that these convictions could not be used for felony DUI enhancement purposes. Rasmussen submitted an affidavit with his motion to dismiss. As to the proceedings for the March 4, 1996 conviction, Rasmussen asserted that "he did not have an attorney and that he did not sign a waiver of his right to an attorney and he did not understand that he had a right to an attorney." As to the March 25, 1996 proceedings, Rasmussen's affidavit stated that "he did not have an attorney and did not sign any document waiving his right to an attorney."

         ¶4 The District Court held a hearing in September 2015 on Rasmussen's motion to dismiss. The parties agreed that there were no records in existence of Rasmussen's 1996 DUI proceedings, other than an e-mail from the Missoula Justice Court clerk advising that that court's file on Rasmussen's March 4, 1996 conviction had been shredded and including some coding notes from the court's "old system." Rasmussen was the only witness at the hearing. His testimony on direct examination essentially repeated his statements in the affidavit. As to the March 4, 1996 proceedings, he testified that he did not have an attorney, that he did not sign a waiver of his right to an attorney, and that he did not understand that he had a right to an attorney. With regard to the March 25, 1996 proceedings, he testified that he did not have an attorney and did not sign a waiver of his right to an attorney.

         ¶5 At the conclusion of Rasmussen's direct examination, the State argued that Rasmussen had failed to meet his burden to rebut the presumption of regularity in the 1996 convictions. The District Court asked for cross-examination, noting that it was "reserving [its] decision" on whether Rasmussen had satisfied his burden until a more complete record could be developed.

         ¶6 On cross-examination, Rasmussen testified that he knew at the time he executed his affidavit that no court records existed for the 1996 convictions that could contradict his affidavit. Rasmussen confirmed that his attorney had secured court records for the August 2001 conviction, that the records showed that Rasmussen was represented by counsel in those proceedings, that the 2001 case was the first time he "ever did need an attorney, " and that he was not challenging the validity of that conviction. Rasmussen acknowledged that challenging a prior DUI conviction had "worked for [him] in the past" in a separate case. He agreed that he was previously convicted of multiple jailable, traffic-related offenses prior to 1996 and that he was arrested for DUI in 1983. Rasmussen testified that he remembered the judge, he remembered "not signing any waiver" of his right to counsel, and he remembered that he did not have an attorney in the 1996 proceedings.

         ¶7 The prosecutor asked specifically, "Do you agree with me that that's a pretty specific memory, right, that you were never advised of the right to an attorney? That's pretty specific." Rasmussen replied, "I -- well, I was never asked to sign anything for an attorney." The prosecutor asked Rasmussen for other details about the 1996 proceedings. Rasmussen stated what he recalled about the presiding judges and then responded, "This has been 20-some years ago." When the prosecutor remarked to Rasmussen that it was "curious" that he remembered specifically that he did not sign a waiver of his right to counsel but that he could "not remember anything else" from the proceedings, Rasmussen responded, "I do remember not signing anything." The prosecutor again asked, "As to your 1996 justice court conviction, in your affidavit, you assert that you were never advised of your right to an attorney; is that right?" Rasmussen responded, "Correct." She continued, "You never signed any waiver of your right to an attorney." ...


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