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State v. Schlepp

Supreme Court of Montana

January 8, 2019

STATE OF MONTANA, Plaintiff and Appellee,
v.
CASEY RYAN SCHLEPP, Defendant and Appellant.

          Submitted on Briefs: December 12, 2018

          APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. DDC 2016-504 Honorable James P. Reynolds, Presiding Judge.

          For Appellant: Palmer A. Hoovestal, Hoovestal Law Firm, PLLC, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant Attorney General, Helena, Montana, Leo J. Gallagher, Lewis and Clark County Attorney, Jeff Sealey, Deputy County Attorney, Helena, Montana

          OPINION

          MIKE MCGRATH CHIEF JUSTICE.

         ¶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 Casey Ryan Schlepp appeals from a First Judicial District order denying his motion to dismiss his felony driving under the influence (DUI) charge. We affirm.

         ¶3 On November 22, 2016, the State charged Schlepp with felony DUI in violation of § 61-8-465(1)(e), MCA, which states:

A person commits the offense of aggravated driving under the influence if the person is in violation of 61-8-401, 61-8-406, or 61-8-411 and:
(e) the person has one prior conviction or pending charge for a violation of 45-5-106, 45-5-205, 61-8-401, 61-8-406, 61-8-411, or this section within 10 years of the commission of the present offense or has two or more prior convictions or pending charges, or any combination thereof, for violations of 45-5-106, 45-5-205, 61-8-401, 61-8-406, or 61-8-411.
Schlepp previously pleaded guilty to DUI three times, twice in Gallatin County, in 2000 and 2001, and once in Silver Bow County, in 2008.

         ¶4 On April 4, 2017, Schlepp filed a motion to dismiss the felony DUI charge, alleging that his two prior convictions for DUI in Gallatin County were constitutionally infirm. He contemporaneously filed an affidavit stating he did not know he had a right to counsel and did not knowingly and intelligently waive that right in those proceedings. The State filed a response. Schlepp did not file a reply.

         ¶5 The records from Schlepp's DUI convictions in Gallatin County each contain a register of actions specifically indicating Schlepp was advised of his rights when he appeared before the respective judges and that he waived his right to an attorney. Both records contain a form, signed and dated by Schlepp, whereby Schlepp checked boxes stating, "I hereby waive my right to counsel or to have counsel appointed," and, "I hereby waive my right to a judge/ jury trial." The forms also include the statement, "I attest that I am not under the influence of alcohol or drugs and I knowingly, voluntarily, and intelligently enter a plea of guilty to the charge(s)."

         ¶6 On May 30, 2017, the District Court denied Schlepp's motion to dismiss. The District Court found that "[b]ased on [the] records of the Gallatin County proceedings . . . Schlepp has failed to carry his 'heavy burden' to show that the Gallatin County convictions are constitutionally infirm and may not be used for purposes of sentence enhancement in this matter." On February 27, 2018, Schlepp pleaded guilty to felony aggravated DUI. After reviewing the pre-sentence investigation report and holding a sentencing hearing, the District ...


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