State v. Johnson, 2015 MT 221 (Aug. 4, 2015) (Shea, J.; Rice, J., concurring) (5-0, aff’d)
Issue: Whether Johnson was entitled to have the district court consider her affidavit but refuse to testify as to its contents.
Short Answer: No.
Facts: In November 2012, the state charged Johnson with DUI and criminal endangerment. In its motion for leave to file an information, the state asserted Johnson had three prior convictions – DUI in 2003 in Park County, DUI per se in April 2009 in Carbon County, and DUI in February 2010 in Carbon County. As a result, the state charged her with a fourth-offense felony and a felony charge of criminal endangerment, and later added a charge of DUI per se.
The district court granted the state’s motion to dismiss the criminal endangerment charge, held a bench trial on August 19, 2013, and found Johnson guilty of DUI per se, fourth offense, a felony. Before sentencing, Johnson moved to dismiss the felony DUI charge, or alternatively to amend the charge to a misdemeanor. Her supporting affidavit asserted that her 2003 conviction was constitutionally infirm because she had not been advised of her right to counsel if she could not afford one.
Procedural Posture & Holding: The district court held an evidentiary hearing on Johnson’s motion. The only evidence Johnson presented was her affidavit. The state called Johnson to testify, and her counsel objected, citing her right to remain silent. The district court overruled the objection and held the state had the right to cross-examine Johnson on the affidavit she submitted, although limited to the contents of the affidavit. Johnson testified, the state introduced records from the 2003 proceedings, and the district court denied Johnson’s motion to dismiss or amend. Finding her guilty of DUI per se, a felony, the court sentenced her to a 13-month commitment to the DOC, a three-year suspended DOC commitment to run consecutively, and a $1,000 fine. Johnson appeals the denial of her motion to dismiss or amend, and the Supreme Court affirms.
Reasoning: Johnson argues that an affidavit is distinguishable from actively testifying in court, and did not waiver her right to remain silent. Under the facts of this case, the Court holds that there is no functional distinction between sworn statement submitted by affidavit and sworn statements given through oral testimony. The district court had the option of either compelling Johnson to testify, or striking her affidavit, which would result in denial of her motion. Because Johnson’s motion would have been denied either way, she suffered no prejudice.
Justice Rice’s Concurrence: Johnson’s challenge to her 2003 conviction is a postconviction collateral attack, which is civil in nature. She bore the burden of proof on her motion, and was subject to examination about her civil claim as a litigant and witness without the protections afforded defendants in a criminal proceeding. He concurs in the decision but would rely on this analysis.