State v. Timothy Faber ( 2008 )

November 10 2008
DA 07-0497
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 368STATE OF MONTANA,
Plaintiff and Appellee,
v.
TIMOTHY FABER,
Defendant and Appellant.
APPEAL FROM: District Court of the Tenth Judicial District,
In and For the County of Fergus, Cause No. DC 2006-013
Honorable David G. Rice, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender, Shannon McDonald, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Hon. Mike McGrath, Montana Attorney General, Sheri K. Sprigg,
Assistant Attorney General, Helena, Montana
Thomas P. Meissner, Fergus County Attorney, Lewistown, Montana
Submitted on Briefs: July 8, 2008
Decided: November 10, 2008
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Timothy Faber (Faber) appeals his conviction in the Tenth Judicial District, Fergus
County, for felony driving under the influence of alcohol (DUI), fourth or subsequent
offense. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 At approximately 12:45 a.m. on February 18, 2006, Faber was driving his car in
Lewistown, Montana, when he was stopped by Fergus County Sheriff’s Deputy Josh Otto
(Deputy Otto). Deputy Otto, travelling in the opposite direction of Faber on Seventh
Avenue in Lewistown, noticed that Faber’s car appeared to be stopped with its headlights
on. At the time, it was roughly twenty degrees below zero and there were spots of snow
and ice on the road. Deputy Otto later testified that he was concerned for the welfare of
the driver given the weather conditions at the time. After passing Faber’s automobile, he
then turned his car around to follow it in order to make sure that the driver did not need
assistance.
¶3 Faber drove south on Seventh Avenue at a very low speed. As he did so, he
passed through three intersecting streets with stop signs. Although he stopped at each
stop sign, from Deputy Otto’s perspective Faber’s brake lights did not appear to
illuminate before, during, or after the stops. Deputy Otto testified that he then stopped
Faber in order to check the condition of his brake lights. During the traffic stop, Deputy
Otto noticed a smell of alcohol, and observed that Faber had difficulty retrieving
requested documents. Faber did not have a license as it had been previously revoked.
Deputy Otto suspected Faber was intoxicated and administered field sobriety tests.
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Deputy Otto subsequently arrested Faber for DUI and transported him to the Lewistown
Police Department. Faber subsequently provided a breath sample which showed a blood
alcohol level of .146.
¶4 On February 19, 2006, Faber was charged in Justice Court with felony DUI, fourth
or subsequent offense, driving with a suspended license, and operating a vehicle without
liability insurance. He was later convicted and appealed to the District Court. An
Information was filed in District Court on March 7, 2006. A jury trial for the DUI charge
was later set for January 4, 2007. Prior to trial, Faber filed a motion to suppress all
evidence gathered during Faber’s arrest. The motion was based in part on the grounds
that there was no particularized suspicion for the traffic stop. Faber maintained that
Deputy Otto’s report of the incident showed that he was not driving erratically, had not
committed any moving violations, and further that there was no indication that Deputy
Otto actually checked Faber’s brake lights once he stopped him. Faber also argued that a
review of the case law of this Court, as well as the convictions in city and justice courts
in Lewistown and Fergus County from 2002 to present, showed no cases where failure to
have a proper brake light formed the basis for a vehicle stop. Moreover, Faber argued
that an independent evaluation of his brake lights by an auto mechanic after his arrest
showed that they were working. Faber asserted that the reason his brake lights did not
appear to be functioning properly during the time Deputy Otto was observing him was
due to the fact that he was riding the brakes in response to the slick conditions of the
streets. The District Court denied the motion. The jury convicted Faber of DUI on
January 5, 2007.
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¶5 The State had alleged that the current DUI charges, if proven, would be Faber’s
fourth DUI per § 61-8-731, MCA, and should therefore be treated as a felony instead of a
misdemeanor. After his conviction, Faber’s attorney requested verification of Faber’s
prior offenses and was initially informed there was no record of two alleged offenses
which occurred in 2000 and 2001. Accordingly, Faber’s attorney requested that his
current conviction be treated as a second offense (a misdemeanor) instead of a fourth
offense (a felony). The State resisted Faber’s motion. The State pointed out that Faber’s
certified driving record showed the following prior convictions: (1) operating a motor
vehicle with a blood alcohol concentration of .08 or greater on February 11, 2002; (2)
DUI on April 16, 2001; and (3) DUI on July 3, 2000. Moreover, the State noted that it
requested and received documentation of these prior convictions from Justice Court. The
State argued that if Faber believed one of his prior convictions was constitutionally
infirm, it was incumbent upon him to provide direct evidence establishing that his prior
conviction was irregular, but that he had failed to do so. Accordingly, the State asked the
District Court to either deny the motion and not grant a hearing, or direct Faber to make a
showing sufficient to justify setting the matter for an evidentiary hearing.
¶6 In reply to the State’s position, Faber argued that there was in fact no record of the
proceedings relating to Faber’s 2001 DUI conviction which occurred in Justice Court in
Havre, and further, that there was no evidence he was afforded his right to an attorney
and other constitutional rights during these proceedings. Although Faber conceded that
his driving record showed a prior conviction, he argued that this was insufficient to
justify the use of the 2001 DUI conviction for sentencing enhancement purposes. Faber
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argued that the use of any prior convictions for sentencing enhancement purposes had to
meet certain constitutional standards set by this Court, and that the absence of a record
showed that this standard was not met.
¶7 To resolve this issue, the District Court held an evidentiary hearing on June 12,
2007. At the start of the hearing, Faber amended his motion to clarify that he was
challenging only the 2001 DUI offense, and that he was seeking to have his current
conviction treated as a third offense. Faber himself testified at the hearing. With respect
to the 2001 DUI proceedings, he testified that he had been picked up on the Rocky Boy
Reservation and transported to Havre for processing, but said he was never read his rights
by law enforcement or given a breathalyzer test because he was told the machine was not
working. He later had an appearance before Justice of the Peace Carol Chagnon, and was
sentenced for the DUI. He did not recall being given any documents to sign or going
through his rights with Justice of the Peace Chagnon prior to an entrance of plea or
sentencing. In contrast, Faber recalled being convicted of DUI’s in 2000 and 2002 before
the same Justice of the Peace, and recalled being read his rights at those times.
¶8 During cross examination, the State presented evidence from the 2000 and 2002
convictions showing Faber’s signature on two waiver of rights forms. However, it was
unable to produce any documentation from the 2001 DUI proceedings. Nonetheless, the
State questioned Faber’s assertion that he was not read his rights or did not realize he had
a right to an attorney at the 2001 conviction, given the documentation of the 2000 and
2002 proceedings. When questioned, Faber claimed that he did not know at the 2001
appearance that he had the right to an attorney, because he had not been given a
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breathalyzer test at the time—the implication being that Faber thought he would have a
right to counsel only if he had been given a breathalyzer test.
¶9 In light of Faber’s testimony, the District Court concluded that Faber made a direct
claim that he did not receive his rights when he pled guilty to the DUI charge in 2001,
and shifted the burden to the State to prove by a preponderance of the evidence that he
did have his rights read to him during the 2001 DUI proceedings and that those
proceedings were not constitutionally infirm. To meet its burden, the State called Justice
of the Peace Chagnon to testify. She testified that she generally recalled Faber, but did
not have a specific recollection of the instances when he appeared before her. She further
testified that it was her routine practice during the time the 2001 DUI proceedings
occurred to read all defendants their rights and have them sign the appropriate forms.
Although the State was not able to find the documentation for Faber’s 2001 DUI
conviction, it did produce and admit into evidence a document generated by the Hill
County Justice Court showing a record of the 2001 DUI conviction.
¶10 Justice of the Peace Chagnon testified concerning the usual procedures that she
would follow for defendants facing DUI charges, including advising them of their rights,
the offenses for which they were charged, and the enhanced penalties for more than one
DUI. Upon cross examination, Justice of the Peace Chagnon admitted that she had never
seen the court-generated document showing Faber’s 2001 DUI conviction, and also
admitted that information regarding Faber’s 2001 DUI citation could not be found in the
Hill County Justice Court’s records. On redirect by the State, Justice of the Peace
Chagnon explained that although she had not previously seen the citation report produced
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by the Justice Court for the hearing, it had all the information that would appear on the
citation (which is the document she would normally deal with in the original file). She
also testified that the handwriting at the top of the printout was from the clerk who
worked for her during the time in question and had been at the Justice Court for
approximately thirteen years.
¶11 After Justice of the Peace Chagnon concluded her testimony, the District Court
issued its ruling from the bench and allowed the use of the 2001 DUI conviction for
sentencing enhancement purposes. The District Court concluded that the State had
satisfied the standard for the use of prior convictions under State v. Snell, 2004 MT 334,
324 Mont. 173, 103 P.3d 503. In particular, the District Court found that Justice of the
Peace Chagnon’s testimony established that she used the same procedures during Faber’s
2000 and 2001 proceedings, and that she routinely advised defendants that they had the
right to an attorney. The evidence further established that Faber had signed a waiver of
rights form during the 2000 proceedings in which he acknowledged that a fourth or
subsequent offense would be treated as a felony. Additionally, the computer-generated
record of Faber’s conviction from Hill County showed that he was convicted of DUI in
2001 and paid a fine, and qualified as a certified driving record of his Hill County
conviction for DUI. From this, the District Court concluded that a preponderance of the
evidence established that Faber was informed of his rights prior to pleading to the 2001
DUI charge.
¶12 The District Court further observed that the question before it was whether the
lack of a record of Faber’s 2001 DUI conviction necessarily led to the conclusion that
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Faber was not advised of his rights. Under the authority of State v. Keenan, 2003 MT
190, 316 Mont. 493, 74 P.3d 1037, the District Court concluded that the certified driving
record, Faber’s testimony, and Justice of the Peace Chagnon’s testimony that she would
have read Faber his rights prior to receiving his plea, all supported the conclusion that
Faber’s 2001 DUI conviction could be used for sentencing enhancement purposes.
¶13 Faber was subsequently sentenced to a thirteen-month placement with the
Department of Corrections in an appropriate correctional facility or program. Following
this commitment, Faber was to be given a two-year suspended sentence. Additionally,
the District Court imposed a number of conditions during Faber’s suspended sentence,
including a prohibition on entering casinos or playing games of chance. Faber did not
object to any of these conditions at the time of sentencing. Faber now appeals the denial
of h i s motion to suppress, the use of his 2001 DUI conviction for sentencing
enhancement purposes, and the probation condition prohibiting him from playing games
of chance or entering casinos.
¶14 As to his contention that the probation condition must be stricken, we note that in
State v. Ashby, 2008 MT 83, 342 Mont. 187, 179 P.3d 1164, we held that a defendant
must object to an improper (as opposed to illegal) condition at or before sentencing, and
that failure to do so may result in waiver. Ashby, ¶ 22. By failing to object in the District
Court to the restriction on entering casinos and playing games of chance, we conclude
Faber has waived his right to challenge this condition on appeal. Thus, we state the
remaining issues on appeal as follows:
¶15 Issue One: Did the District Court err in denying Faber’s motion to suppress?
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¶16 Issue Two: Did the District Court err in denying Faber’s objection to the use of
his 2001 DUI conviction for sentencing enhancement purposes?
STANDARD OF REVIEW
¶17 We review a district court’s denial of a motion to suppress to determine whether
its conclusions of law are correct, and the findings of fact in support of its decision are
clearly erroneous. State v. Wing, 2008 MT 218, ¶ 25, 344 Mont. 243, ¶ 25, 188 P.3d 999,
¶ 25.
¶18 As to the use of the 2001 conviction, our review of a district court’s conclusions of
law is plenary, and we review those conclusions to determine whether they are correct as
a matter of law. Keenan, ¶ 7. Findings of fact are reviewed under the clearly erroneous
standard. Keenan, ¶ 7. In Montana, it is well settled “that the State may not use a
constitutionally infirm conviction to support an enhanced punishment, such as felony
DUI.” Snell, ¶ 25. When a defendant seeks to challenge the use of a prior conviction for
purposes of sentencing enhancement, a “presumption of regularity” attaches to that
conviction which the defendant may overcome with direct evidence of irregularity. Snell,
¶ 25. “ ‘Direct evidence’ is that which proves a fact without an inference or presumption
and which in itself, if true, establishes that fact.” Snell, ¶ 29 (citing § 26-1-102(5),
MCA). “Once a defendant produces such direct evidence, the burden then shifts to the
State to prove by a preponderance of the evidence that it did not obtain the prior
conviction in violation of the defendant’s rights.” Snell, ¶ 25.
DISCUSSION
¶19 Issue One: Did the District Court err in denying Faber’s motion to suppress?
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¶20 Faber asserts that Deputy Otto lacked particularized suspicion to support the
traffic stop. Faber maintains that Deputy Otto’s conclusion that Faber’s brake lights were
not working—which was the offered justification for the stop in the first place—was not
reasonable under the circumstances and that the District Court erred in according it
weight. Faber argues that an affidavit he submitted from an auto mechanic who
independently tested his brake lights showed that they were working during the time in
question, and that his slow rate of speed on the road simply indicated that he was driving
slowly and carefully and possibly riding his brakes.
¶21 The State maintains the District Court did not err and that Deputy Otto did have
particularized suspicion for the traffic stop. The State argues that observation of a
suspected traffic offense provides a sufficient basis for particularized suspicion, and that
particularized suspicion does not require certainty on the part of the law enforcement
officer, nor does it turn on whether a defendant is actually cited for a suspected violation.
Instead, the State asserts all that is required is objective data from which an experienced
police officer can make certain inferences, and a resulting suspicion that the occupant of
the vehicle is or has been engaged in wrongdoing. Here, the objective data was that
Faber’s brake lights did not appear to illuminate when he stopped at three stop signs.
This was confirmed by the District Court when it viewed a video shot by Deputy Otto
showing the lack of change in the brake lights at each stop sign. The suspected
wrongdoing was driving without properly functioning brake lights, a misdemeanor under
§§ 61-9-206 and -511(1), MCA.
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¶22 We agree with the State and affirm the District Court’s denial of Faber’s motion to
suppress. “Whether particularized suspicion exists to justify an investigative stop . . . is a
question of fact which depends on the totality of the circumstances. We use a two-step
test to determine whether sufficient particularized suspicion existed to justify an
investigative stop: ‘(1) objective data from which an experienced officer can make
certain inferences; and (2) a resulting suspicion that the occupant of a certain vehicle is or
has been engaged in wrong doing.’ ” In re License Suspension of Cybulski, 2008 MT
128, ¶ 20, 343 Mont. 56, ¶ 20, 183 P.3d 39, ¶ 20 (other citation omitted, quoting State v.
Loney, 2004 MT 204, ¶ 7, 322 Mont. 305, ¶ 7, 95 P.3d 691, ¶ 7). The District Court
found that Deputy Otto’s conclusion that Faber’s brake lights were not functioning
properly was based on objective data and constituted an appropriate inference from that
data. Because driving without functioning brake lights is a misdemeanor under state law,
Deputy Otto decision’s to stop Faber was supported by particularized suspicion. As
stated by the District Court,
This case is an example of a stop for failure to have proper equipment.
Even though Defendant showed that his brake lights worked, they did not
appear to work as Deputy Otto looked at them. Even Defendant admits
that the lights would have looked out of order to the deputy as he followed
him. There was ample reason for the deputy to stop Defendant to check
on his brake lights. Even though the deputy did not check them himself,
the reason for the stop was appropriate.
¶23 Faber has not demonstrated that the factual findings upon which this decision was
based were clearly erroneous, or that the legal conclusions in support of this decision
were incorrect. Thus, we affirm the District Court.
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¶24 Issue Two: Did the District Court err in denying Faber’s objection to the use of
his 2001 DUI conviction for sentencing enhancement purposes?
¶25 Faber argues that the District Court erred when it permitted the use of his 2001
DUI conviction to enhance his current conviction to a felony. He argues that his own
testimony concerning his certainty that he was not advised of his rights, combined with
the missing documentation of this conviction, established that he was not apprised of his
rights before pleading guilty to the DUI in 2001. Faber maintains the State has failed to
show that Justice of the Peace Chagnon in fact advised him of his rights at that time, and
disputes the claim that the State has demonstrated the regularity of the 2001 proceedings
by a preponderance of the evidence. Faber argues that this Court should vacate this prior
conviction and remand his current conviction for resentencing as a misdemeanor.
¶26 The State argues that the District Court did not err. First, the State argues that
Faber has not actually overcome the presumption of regularity which attaches to the 2001
proceedings because he has failed to provide direct evidence that those proceedings were
irregular. The State argues that Faber’s testimony was insufficient to shift the burden of
proof in the first place and that the District Court’s inquiry should have stopped there.
The State maintains that what Faber’s testimony truly established was his inability to
recall the details of the 2001 proceedings, and that such testimony is insufficient to
overcome the presumption of regularity.
¶27 However, assuming arguendo that Faber had shifted the burden of proof to the
State, i t argues that i t has proven the regularity of the 2001 proceedings by a
preponderance of the evidence. The State asserts that it presented evidence of the
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regularity of that conviction through Justice of the Peace Chagnon, who testified it was
her routine practice in 2001 to advise all DUI suspects of their rights, including their
rights to counsel. If a DUI suspect waived his right to counsel, it was also her practice to
have that individual sign a form which underlined his or her right, stating that “I . . .
waive my right to have an attorney represent me.” The State points out that the District
Court found Justice of the Peace Chagnon’s testimony credible and persuasive.
Moreover, Faber had signed such a form nine months before during his 2000 DUI
conviction, which was before the same Justice of the Peace. Under these circumstances,
the State argues that regularity of the proceedings was proven and that it demonstrated by
a preponderance of the evidence that Faber’s 2001 DUI conviction was not
constitutionally infirm and could be used for sentencing-enhancement purposes.
¶28 Here, the District Court arguably erred in concluding that Faber presented direct
evidence that the 2001 proceedings were irregular. In Snell, we stated that “ ‘[d]irect
evidence’ is that which proves a fact without an inference or presumption and which in
itself, if true, establishes that fact.” Snell, ¶ 29 (citing § 26-1-102(5), MCA). In State v.
Okland, 283 Mont. 10, 18, 941 P.2d 431, 436 (1997) we held that the absence of a
transcript or record was, in and of itself, insufficient to overcome the presumption of
regularity. Similarly, the inability of a defendant to recall whether he previously waived
his right to counsel, “does not constitute direct evidence sufficient to rebut the
presumption of regularity, even in the face of a silent record.” Keenan, ¶ 10. As the
State points out, during Faber’s direct examination he could only testify that he did not
recall details of the 2001 proceedings. It was not until cross-examination that he
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positively stated he was not advised of his right to counsel during those proceedings and
did not know that he had a right to an attorney. Arguably, whether this testimony
constituted “direct evidence” sufficient to shift the burden of proof is somewhat tenuous.
However, the District Court apparently determined to afford Faber the benefit of a doubt.
Because weight and credibility determinations rest with the trier of fact, we will not
disturb those determinations on appeal. See State v. Hill, 2008 MT 260, ¶ 37, 345 Mont.
95, ¶ 37, 189 P.3d 1201, ¶ 37.
¶29 With that said, the District Court’s conclusion that the State had met its burden to
prove by a preponderance that the 2001 conviction did not violate Faber’s constitutional
rights was based in large measure on a determination that Justice of the Peace Chagnon
was a credible witness, and we decline to disturb that determination as well. The District
Court had before it the following evidence: (1) a certified driving record showing all of
Faber’s convictions; (2) a signed waiver of rights form from Faber’s 2000 DUI
conviction; and (3) a signed waiver of rights form for the 2002 BAC conviction. What
was missing was any comparable record of the 2001 DUI conviction. Justice of the
Peace Chagnon’s testimony filled that gap. She testified that i t was her standard
procedure in 2001 to advise any DUI suspect of their right to counsel during proceedings.
Moreover, the record clearly indicated that this procedure was followed approximately
eight months prior, at the time of Faber’s 2000 DUI conviction.
¶30 Based upon the foregoing, we hold that the District Court did not err in
concluding, based upon the evidence before it and the credibility of Justice of the Peace
Chagnon, that the 2001 DUI conviction could be used for sentencing enhancement
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purposes. Faber has failed to demonstrate that any of the District Court’s factual findings
were clearly erroneous or that its conclusions of law were incorrect.
CONCLUSION
¶31 By failing to object to the probation restriction related to entering casinos or
playing games of chance, Faber has waived his right to challenge that probation condition
on appeal. We further conclude that the District Court did not err in denying Faber’s
motion to suppress, or in determining that Faber’s 2001 DUI conviction could be used for
sentencing enhancement purposes in his current conviction. Thus, we affirm the District
Court.
/S/ PATRICIA COTTER
We concur:
/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
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