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IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 242N
CITY OF MISSOULA,
Plaintiff and Respondent,
Defendant and Appellant.
The District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC 2004-515,
Honorable Douglas G. Harkin, Presiding Judge
COUNSEL OF RECORD:
William A. Douglas, Douglas Law Firm, Libby, Montana
Judith L. Wang, Assistant City Attorney, Missoula County
Attorney’s Office, Missoula, Montana
Submitted on Briefs: March 22, 2006
Decided: September 26, 2006
Justice Patricia O. Cotter delivered the Opinion of the Court.
Pursuant to Section 1, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. Its case title, Supreme Court cause number and disposition shall be
included in this Court’s quarterly list of noncitable cases published in the Pacific
Reporter and Montana Reports.
In April 1996, Kristine Davenport (Davenport) received a citation for attempted
misdemeanor theft after leaving a Missoula grocery store with merchandise for which she
did not pay. The following day, she entered a plea of not guilty. However, in August
1997, Davenport, through appointed counsel, entered an Alford1 plea. In October 1997,
she paid the prescribed fine and surcharge. In 2004, Davenport moved the Missoula
Municipal Court to set aside her 1997 theft conviction. The Municipal Court denied her
motion. She appealed the denial to the Fourth Judicial District Court for Missoula
The District Court affirmed the Municipal Court.
Davenport appeals the
District Court’s denial. We affirm.
Davenport raises numerous procedural issues on appeal, but the dispositive issue
before us is whether the District Court was legally correct in affirming the Municipal
Court’s denial of her motion to set aside her conviction.
STANDARD OF REVIEW
North Carolina v. Alford, 400 U.S. 25 (1970).
When a defendant appeals a district court’s denial of a motion to withdraw a guilty
plea, we review the trial court’s findings of fact to determine if they are clearly
erroneous, and conclusions of law to determine if they are correct.
State v. Leitheiser,
2006 MT 70, ¶ 12, 331 Mont. 464, ¶ 12, 133 P.3d 185, ¶ 12.
FACTUAL AND PROCEDURAL BACKGROUND
On April 11, 1996, Davenport received a citation for attempted misdemeanor theft
after leaving a Missoula grocery store with $81.12 worth of merchandise for which she
did not pay. The following day she appeared in Missoula Municipal Court and entered a
plea of not guilty and requested a jury trial. Attorney Morgan Modine was appointed to
represent her. In August 1997, Davenport entered an Alford plea, through her counsel.
On or about October 7, 1997, she paid $270.00 in fines and surcharges.
This sparse background information is documented in the record but no further
record of the original proceeding is available. According to the Missoula Attorney’s
Office, due to limited storage space, the hard copy of the City’s file, including
correspondence between counsel, motions to continue, plea bargain negotiations and
Davenport’s consent to enter a plea, were all purged from the City’s files before August
On August 30, 2004, approximately seven years after the entry of her Alford plea,
Davenport, with news counsel, filed a motion to set aside the 1997 conviction. It does
not appear that she requested an evidentiary hearing or sought to obtain Modine’s file.
She raised numerous procedural issues before the Municipal Court; however, the court
denied her motion to set aside her conviction on the grounds that “[t]he payment of the
fine is a clear indication despite her affidavit to the contrary that she was aware of the
entry of the Alford plea.” The Municipal Court also stated that there was no reason to
grant Davenport’s requested relief “more than five years after she paid the fine.”
Davenport subsequently appealed the Municipal Court’s ruling to the Fourth
Judicial District Court for Missoula County. The District Court affirmed the Municipal
Court. Acknowledging the absence of the underlying record, the court relied on the
sparse existing record showing entry of an Alford plea, exact payment of the fine and
surcharge, and sentencing conditions.
It noted that while Davenport acknowledged
payment of money to the Municipal Court in 1997, she denied it was for her fine and
surcharge; however, she provided no reasonable explanation for such payment. The court
concluded, therefore, that it was not error for the Municipal Court to determine that her
payment of the exact amount of the fine constituted knowledge of the Alford plea and the
The District Court also posited that were it to interpret Davenport’s motion to set
aside her conviction as a request for withdrawal of a guilty plea, the seven-year lapse of
time between the Alford plea and Davenport’s motion “weighs heavily against” her. The
court, relying on State v. Enoch, 269 Mont. 8, 887 P.2d 175 (1994), determined that
Davenport’s request was not made within a reasonable time.
¶10 Was the District Court legally correct in affirming the Municipal Court’s denial of
Davenport’s motion to set aside her conviction?
It appears that both the Municipal Court and the District Court analyzed and
decided this case on two grounds: 1) a presumption of regularity, and 2) timeliness. In a
brief submitted to the Municipal Court, the City of Missoula advised the court that it was
Judge Louden’s (the original presiding judge) standard practice to fully inform
defendants of their constitutional rights, the available plea alternatives and the
consequences of those alternatives.
The Municipal Court was also informed that
Attorney Modine, a long-time criminal defense attorney, always carefully informed his
clients of their constitutional rights and the consequences of entering a guilty plea, and
that he required his clients to sign a consent form before changing a plea.
Based on this information, the few remaining documents from the arrest and plea
entry, and the undisputed payment of the fine and surcharge, the Municipal Court
presumed the regularity of the proceeding and concluded that Davenport was informed
and aware of her actions at the time. It also concluded that given more than five years
had lapsed between the entry of the Alford plea and the motion to set aside her
conviction, there was no reason to grant Davenport’s request. The District Court agreed
with the analysis of the Municipal Court.
First, we note that Montana law does not offer a provision that allows a court to
vacate a conviction simply upon the motion of a defendant. State v. Howard, 282 Mont.
522, 524, 938 P.2d 710, 711 (1997). As a result, both the Municipal Court and the
District Court based their analyses on their construction of her motion as one seeking to
withdraw a guilty plea.
Under Howard, this was not an erroneous approach to
Davenport’s motion. Moreover, under Enoch, the District Court correctly considered the
specific circumstances of this case and determined that the motion was untimely.
Second, the courts correctly recognized that a rebuttable presumption of regularity
attaches to prior convictions. In the case before us, Davenport failed to present any direct
evidence of irregularity that would overcome the presumption. State v. Kvislen, 2003 MT
27, 314 Mont. 176, 64 P.3d 1006. Based upon the record and the proceedings herein
described, we conclude the District Court did not err in affirming the Municipal Court.
We have decided this case pursuant to Section 1, Paragraph 3(d) of our 1996
Internal Operating Rules, as amended in 2003, which provides for memorandum
opinions. It is manifest on the face of the briefs and the record that the appeal is without
For the foregoing reasons, we affirm the judgment of the District Court.
/S/ PATRICIA COTTER
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE