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State v. Lynn Lewis Schwab

June 28, 2012

STATE OF IDAHO, PLAINTIFF-RESPONDENT,
v.
LYNN LEWIS SCHWAB,
DEFENDANT-APPELLANT.



Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Darla S. Williamson, District Judge.

The opinion of the court was delivered by: Perry, Judge Pro Tem

2012 Opinion No. 36

Stephen W. Kenyon, Clerk

Judgment of conviction for felony driving under the influence, affirmed.

Lynn Lewis Schwab appeals from his judgment of conviction entered on his guilty plea to felony driving under the influence. For the reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

In 2010, the state charged Schwab with felony driving under the influence (DUI) because Schwab had two prior DUI convictions within the previous ten years. I.C. §§ 18-8004, 18- 8005(6). Schwab filed a motion in limine to prohibit the state from using his 2008 DUI conviction in Montana to enhance his DUI in this case from a misdemeanor to a felony. Following a hearing, the district court entered an order denying Schwab's motion. Pursuant to an I.C.R. 11 plea agreement, Schwab entered a conditional guilty plea to felony DUI and reserved his right to appeal the district court's denial of his motion in limine.*fn1 The district court sentenced Schwab to a unified term of seven years, with a minimum period of confinement of two years; suspended the sentence; and placed Schwab on probation for seven years. Schwab appeals.

II.

ANALYSIS

A. Idaho Law

Idaho Code Section 18-8005(6) provides that any person who pleads guilty to or is found guilty of a DUI violation, who also pled guilty to or was found guilty of two such violations within the previous ten years, is guilty of felony DUI. Schwab argues that the state should not have been allowed to use his 2008 Montana DUI conviction to enhance his DUI in this case from a misdemeanor to a felony because he did not have knowledge of his Montana trial date and, therefore, was convicted in an uncounseled trial in which he never appeared, waived his right to counsel, or was informed of the dangers of self-representation. Thus, Schwab asserts that his Montana conviction was obtained in violation of his constitutional rights to counsel and to be present at trial.

Schwab acknowledges that the Idaho Supreme Court's decision in State v. Weber, 140 Idaho 89, 90 P.3d 314 (2004) contains language that has been read to foreclose a collateral attack on a prior conviction under the United States Constitution on any ground other than denial of the Sixth Amendment right to counsel. However, Schwab submits that this Court should read the Idaho Constitution to allow him to also attack his Montana conviction based on denial of the right to be present at trial. Specifically, Schwab cites Article I, Section 13 of the Idaho

Constitution which provides that, in all criminal prosecutions, the party accused shall have the right to appear and defend in person and with counsel. In response, the state asserts that, pursuant to Weber and this Court's decision in State v. Warren, 135 Idaho 836, 25 P.3d 859 (Ct. App. 2001), Schwab can only ...


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