State v. Lynn Lewis Schwab , 153 Idaho 325 ( 2012 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 38797
STATE OF IDAHO, )
) 2012 Opinion No. 36
Plaintiff-Respondent, )
) Filed: June 28, 2012
v. )
) Stephen W. Kenyon, Clerk
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.
Judgment of conviction for felony driving under the influence, affirmed.
James K. Ball of Manweiler, Breen, Ball & Hancock, PLLC, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
General, Boise, for respondent. Mark W. Olson argued.
________________________________________________
PERRY, Judge Pro Tem
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
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reserved his right to appeal the district court’s denial of his motion in limine. 1 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 collaterally attack his Montana conviction based on denial of the
right to counsel.
1
The state also charged Schwab with driving without a license and failure to provide proof
of insurance. Schwab’s plea agreement included these charges, but they are not at issue on
appeal.
2
In Warren, the defendant was charged with eluding a police officer and a persistent
violator sentence enhancement. Pursuant to a plea agreement, Warren entered a guilty plea to
eluding a police officer and the state dismissed the persistent violator enhancement. Prior to
sentencing, Warren moved to withdraw his guilty plea. Warren asserted that he pled guilty based
on his counsel’s advice that he could not collaterally attack his prior conviction for ineffective
assistance of counsel in the prior proceeding for purposes of defending against a subsequent
persistent violator enhancement. The district court denied Warren’s motion. On appeal, this
Court reasoned that, by attempting to challenge the prior conviction, Warren was asking a district
court to deprive a prior state court judgment of its normal force and effect in a proceeding that
had an independent purpose other than to overturn that prior judgment. We then cited the United
States Supreme Court’s decision in Custis v. United States, 511 U.S. 485, 496 (1994) in which
the Court held that a defendant’s due process right to collaterally attack a conviction used for
sentencing enhancement purposes in a later proceeding is limited to the constitutional defect of
failure to appoint counsel. Warren, 135 Idaho at 840, 25 P.3d at 863.
This Court further noted the policy considerations of ease of administration and finality
of judgments supporting the Court’s decision in Custis. Warren, 135 Idaho at 840, 25 P.3d at
863. In Custis, the Court reasoned:
Custis invites us to extend the right to attack collaterally prior convictions
used for sentence enhancement beyond the right to have appointed counsel
established in Gideon [v. Wainwright, 372 U.S. 335 (1963)]. We decline to do so.
We think that since the decision in Johnson v. Zerbst, [304 U.S. 458 (1938)] more
than half a century ago, and running through our decisions in Burgett [v. Texas,
389 U.S. 109 (1967)] and [United States v. Tucker, 404 U.S. 443 (1972)], there
has been a theme that failure to appoint counsel for an indigent defendant was a
unique constitutional defect. Custis attacks his previous convictions claiming the
denial of the effective assistance of counsel, that his guilty plea was not knowing
and intelligent, and that he had not been adequately advised of his rights in opting
for a “stipulated facts” trial. None of these alleged constitutional violations rises
to the level of a jurisdictional defect resulting from the failure to appoint counsel
at all. Johnson v. Zerbst, supra.
Ease of administration also supports the distinction. As revealed in a
number of the cases cited in this opinion, failure to appoint counsel at all will
generally appear from the judgment roll itself, or from an accompanying minute
order. But determination of claims of ineffective assistance of counsel, and
failure to assure that a guilty plea was voluntary, would require sentencing courts
to rummage through frequently nonexistent or difficult to obtain state-court
transcripts or . . . records that may date from another era, and may come from any
one of the 50 States.
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. . . . The interest in promoting the finality of judgments provides
additional support for our constitutional conclusion. As we have explained,
“[i]nroads on the concept of finality tend to undermine confidence in the integrity
of our procedures” and inevitably delay and impair the orderly administration of
justice. United States v. Addonizio, 442 U.S. 178, 184, n.11, 99 S. Ct. 2235, 2240,
n.11, 60 L. Ed. 2d 805 (1979). We later noted in Parke v. Raley, 506 U.S. 20, 113
S. Ct. 517, 121 L. Ed. 2d 391 (1992), that principles of finality associated with
habeas corpus actions apply with at least equal force when a defendant seeks to
attack a previous conviction used for sentencing. By challenging the previous
conviction, the defendant is asking a district court “to deprive [the] [state-court
judgment] of [its] normal force and effect in a proceeding that ha[s] an
independent purpose other than to overturn the prior judgmen[t].” Id., at 30, 113
S. Ct., at 523.
Custis, 511 U.S. at 496-97.
This Court also considered Warren’s assertion that he was entitled to greater protection
under Article I, Section 13 of the Idaho Constitution. We reasoned that Warren could attack the
validity of his prior conviction on direct appeal and through post-conviction relief proceedings.
Therefore, we concluded that no other mechanism for attacking the validity of Warren’s prior
conviction was necessary, especially one that deprived the prior state court judgment of its
normal force and effect on grounds asserted by Warren in a proceeding with an independent
purpose other than to overturn that prior judgment. Warren, 135 Idaho at 841, 25 P.3d at 864.
Accordingly, we held that Warren could not collaterally attack his prior conviction for
ineffective assistance of counsel in the prior proceeding for purposes of defending against a
subsequent persistent violator enhancement. Id.
Shortly after Warren, in Weber, 140 Idaho 89, 90 P.3d 314, the Idaho Supreme Court
addressed the scope of a defendant’s right to collaterally attack the validity of misdemeanor DUI
convictions offered by the state to support a charge of felony DUI pursuant to I.C. §§ 18-8004
and 18-8005. Weber challenged the validity of his prior convictions on the basis that his guilty
pleas were obtained in violation of I.C.R. 11(c) and constitutional standards intended to ensure
that guilty pleas are knowing and voluntary. The Court first noted the United States Supreme
Court’s holding in Custis that, with the sole exception of convictions obtained in violation of the
right to counsel, a defendant in a federal sentencing proceeding has no constitutional right to
collaterally attack the validity of previous state convictions used to enhance a sentence. Weber,
140 Idaho at 92-93, 90 P.3d at 317-18. The Court also highlighted the policy considerations of
ease of administration and finality of judgments that supported the holding in Custis. Weber,
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140 Idaho at 93, 90 P.3d at 318. The Court concluded that Weber had no right under the United
States Constitution to collaterally attack the validity of his misdemeanor DUI convictions
because his attack was based on grounds other than the denial of counsel. Id. at 94, 90 P.3d at
319.
The Court also noted that, while Weber had not cited a provision in the Idaho
Constitution to establish a greater right than that afforded by the United States Constitution, the
Court had never set forth a distinction between the rights afforded a defendant prior to entering a
guilty plea under the Idaho Constitution and those afforded by the United States Constitution.
The Court further noted that it had never set forth any distinction regarding the respective
burdens of proof for a constitutional challenge to a prior conviction used to enhance a DUI from
a misdemeanor to a felony. The Court explained that a survey of case law from other
jurisdictions indicated that other states declined to extend the right to collaterally attack prior
convictions beyond what is mandated by the United States Constitution or specifically provided
for by statute. Id. The Court stated that a defendant in Weber’s position may challenge the
validity of his or her conviction through direct appeal and post-conviction relief proceedings.
The Court concluded that Idaho trial courts are not required to conduct a preliminary hearing into
the validity of a prior conviction offered to prove felony DUI unless an attack regarding such
validity is provided by statute or is a constitutional attack premised on a denial of counsel. Id. at
96, 90 P.3d at 321. Finally, the Court overruled two prior decisions to the extent that those
decisions appeared to provide a basis for a defendant to collaterally attack the validity of prior
DUI convictions on grounds other than denial of the right to counsel. Id. Accordingly, pursuant
to Idaho law, Schwab cannot collaterally attack the validity of the Montana conviction used to
enhance his DUI in this case from a misdemeanor to a felony unless such attack is provided by
statute or based on denial of the right to counsel.
B. Constitutional Challenges
Schwab asserts that his Montana conviction was obtained in violation of his right to
counsel and that this Court should read the Idaho Constitution to allow him to collaterally attack
his conviction based on denial of the right to be present at trial. When a violation of a
constitutional right is asserted, we accept the trial court’s factual findings unless they are clearly
erroneous, but freely review whether constitutional requirements have been satisfied in light of
the facts found. State v. Hooper, 145 Idaho 139, 142, 176 P.3d 911, 914 (2007); State v.
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Bromgard, 139 Idaho 375, 380, 79 P.3d 734, 739 (Ct. App. 2003). Also, this Court will not
substitute its view for that of the trier of fact as to the credibility of the witnesses, the weight to
be given to the testimony, and the reasonable inferences to be drawn from the evidence. State v.
Flowers, 131 Idaho 205, 207, 953 P.2d 645, 647 (Ct. App. 1998). In State v. Coby, 128 Idaho
90, 92, 910 P.2d 762, 764 (1996), the Idaho Supreme Court set forth the respective burdens for a
constitutional challenge to a prior conviction used to enhance a DUI charge from a misdemeanor
to a felony. The state bears the burden of making a prima facie showing of the validity of a prior
conviction used to enhance a pending crime. Id. Thus, the state must first establish the existence
of the prior convictions on which the state is relying for enhancement purposes. Id. This burden
requires only that the state produce the judgments of conviction or other evidence of the
existence of the convictions. Id. Once the state meets that burden, the burden of going forward
with proof that the conviction was constitutionally defective is placed on the defendant. Id.
Accordingly, the defendant must produce evidence establishing a constitutional challenge to the
validity of the judgments on which the state relies. Id. The state must then prevail on its claim
of the validity of the prior judgments. Id.
Here, Schwab does not allege that the state failed to establish a prima facie showing of
the existence of Schwab’s Montana conviction. The district court determined, and the state
admits that, by an affidavit Schwab filed in support of his motion in limine, he met his burden to
establish a constitutional challenge to the validity of such conviction. Accordingly, the burden
shifted to the state to prevail on its claim of the validity of Schwab’s Montana conviction.
After a hearing on Schwab’s motion in limine, the district court determined that
Schwab’s Montana conviction was valid. In the order denying Schwab’s motion, the district
court explained that the factual basis for the decision was based on the Montana court records,
Schwab’s affidavit, an affidavit filed by the Montana prosecuting attorney assigned to Schwab’s
case, and records of the Idaho Department of Transportation. These documents show that, when
Schwab was arrested in Montana for DUI, he did not have a valid driver’s license and provided
the officer with an address in Fairfield, Idaho. After his bond was posted, Schwab appeared at
his arraignment. Schwab signed a statement of constitutional rights that indicated he had the
right to be represented by an attorney at every critical stage of the proceedings and that, if he was
unable to hire an attorney, one would be appointed to represent him if he qualified. Schwab
averred that, at the arraignment, he informed the trial court of his desire to hire a private attorney,
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received permission from the trial court to leave Montana for work purposes, and provided the
trial court with his address in Fairfield. However, in the affidavit filed in support of the state’s
objection to Schwab’s motion in limine, the Montana prosecuting attorney averred that, at the
arraignment, Schwab specifically provided the trial court with an address in Boise. This Boise
address appears on the notice to appear and complaint. While Schwab averred that he believed
the Boise address was the address on his driver’s license, the certified copies of Schwab’s Idaho
driving records submitted by the state do not indicate a Boise address.
Schwab further averred that, after the arraignment, he contacted three attorneys, but
discovered he could not afford to hire any of them. There is no evidence that Schwab
subsequently contacted the Montana court to request appointment of counsel or indicate that he
intended to proceed pro se. However, Schwab also averred that, after he realized he could not
afford an attorney, the prosecuting attorney called him and offered to reduce the DUI charge to
inattentive driving if Schwab would plead guilty to such charge. Schwab averred that the
prosecuting attorney told him if he agreed, he would not have to travel back and forth to
Montana and she would take care of the paperwork. Schwab also averred that he agreed to the
plea deal and asked the prosecuting attorney to mail any official paperwork to his address in
Fairfield. Based on the information Schwab received from the prosecuting attorney, Schwab
averred that he believed his case was resolved and he continued to work outside of Montana.
However, the prosecuting attorney averred that she did not contact Schwab to offer him a plea
deal and would not have done so. Specifically, the prosecuting attorney averred that Montana
does not have a charge for inattentive driving, she did not have discovery materials when
Schwab claimed she contacted him and would not have considered an offer until receipt of such,
and she would not tell Schwab not to appear in court because the judge in Schwab’s case would
not allow a change of plea without a defendant’s personal contact with the judge.
In this case, the district court found that a Montana bench warrant had been issued for
Schwab’s arrest because he failed to appear at his omnibus hearing--the equivalent of a pretrial
hearing--as ordered by the court. The district court also found that a notice of trial was sent to
Schwab’s Boise address informing Schwab of his trial date and that his personal presence was
required. Thereafter, Schwab failed to appear at his trial, which proceeded without the presence
of Schwab or counsel, and Schwab was found guilty of DUI. The district court in this case
further determined that the Montana notice of trial was returned to the trial court with a stamp
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indicating that the premises were vacant and the notice could not be forwarded. Schwab averred
that he did not receive notice of his trial date at the Fairfield address he provided to the trial court
and, had he known of the trial date, he would have appeared in person and asked that counsel be
appointed to represent him. Finally, Schwab averred that he never waived his right to be
represented by counsel or asked to proceed pro se.
1. Right to be present at trial
In the order denying Schwab’s motion in limine, the district court first addressed
Schwab’s claim that he was denied the right to be present at trial. The district court explained
that the Ninth Circuit and the Montana Supreme Court have held that a criminal defendant may
waive his or her right to be present at trial by conduct. See United States v. Houtchens, 926 F.2d
824 (9th Cir. 2001); State v. Weaver, 179 P.3d 534 (Mont. 2008). In Weaver, the state sought to
use a prior DUI conviction to enhance Weaver’s DUI charge to a felony. Weaver acknowledged
that, in Montana, a trial court may try a defendant in absentia on a misdemeanor charge only
after finding that the defendant had knowledge of the trial date and was voluntarily absent.
Weaver asserted that there was no such finding in the record. Weaver also argued that use of the
prior conviction was unconstitutional because he had been tried in abstentia in violation of his
right to be present at the proceedings and that any waiver of that right had to be knowing,
voluntary, and specific. On direct examination, Weaver testified that he did not have notice of
the trial date related to his prior conviction and, therefore, the burden shifted to the state to
provide direct evidence that the prior conviction was not entered in violation of Weaver’s rights.
In determining that the state met its burden, the Montana Supreme Court found that the
evidence showed Weaver either knew of the trial date and was willfully absent or kept himself
deliberately ignorant of the trial date. The Weaver court agreed with the sentiment expressed by
the Ninth Circuit in Houtchens, 926 F.2d at 827-28 that, where a defendant’s failure to know of a
continued trial date is directly attributable to his or her efforts to keep deliberately ignorant of
that date, he or she will not be heard later to complain about a lack of knowledge. Weaver, 179
P.3d at 540. The Weaver court also noted that the trial court ultimately found Weaver’s
assertions concerning his lack of knowledge not to be credible. Thus, the Weaver court
concluded that, because the district court’s determination that Weaver waived his right to be
present at trial by willful absence or deliberate ignorance of the trial date was not clearly
erroneous, the prior conviction could be used to support a charge of felony DUI. Id. at 540-41.
8
The district court in this case found that Schwab intentionally provided an incorrect
mailing address to the trial court because, while Schwab averred that he never provided the Boise
address to the trial court and the address must have come from his driver’s license, the state
showed through Schwab’s driving records that no Boise address was ever listed on his license.
Further, the district court determined that it was reasonable to conclude that the only way the
Montana trial judge could have obtained the Boise address was from Schwab’s initial appearance
and, therefore, when the Montana court mailed notice of the trial date, Schwab did not receive it
because he intentionally provided a false address. Thus, the district court in this case concluded
that Schwab’s failure to know of his trial date was directly attributable to his efforts to keep
himself deliberately ignorant by providing a false address. The district court found that
Schwab’s credibility was undermined by the affidavit of the Montana prosecuting attorney and
that Schwab’s claim was unpersuasive that he did not further appear in Montana because he was
offered a plea deal. Therefore, the district court concluded that, by keeping himself deliberately
ignorant of his trial date, Schwab waived his right to be present at trial.
We conclude that the Idaho Constitution provides no right for Schwab to collaterally
attack his Montana conviction for violation of his right to be present at trial. Schwab could have
challenged the validity of his Montana conviction through direct appeal or post-conviction relief
proceedings in Montana. No additional mechanism for attacking the validity of Schwab’s
Montana conviction is therefore necessary, especially one that deprives the Montana court
judgment of its normal force and effect in a proceeding with an independent purpose other than
to overturn that prior judgment. See Weber, 140 Idaho at 96, 90 P.3d at 321; Warren, 135 Idaho
at 841, 25 P.3d at 864. The policy considerations of ease of administration and finality of
judgments support this determination. See Custis, 511 U.S. at 497.
Even assuming we could consider Schwab’s claim that he was denied the right to be
present at his Montana trial, we agree with the district court’s determination that, in accordance
with case law from the Ninth Circuit and Montana Supreme Court, a criminal defendant may
waive his or her right to be present at trial and such waiver may be made by a defendant’s efforts
to remain deliberately ignorant of a trial date. Accordingly, because the district court found that
Schwab’s averments lacked credibility and that Schwab kept himself deliberately ignorant of his
trial date by providing a false mailing address to the Montana court, Schwab waived his right to
be present at his Montana trial. Thus, the district court did not err by concluding that Schwab
9
could not challenge the validity of his Montana DUI conviction on the ground that he was denied
the right to be present at trial.
2. Right to counsel
Schwab further asserts that he was denied the right to counsel because he did not have
knowledge of his Montana trial date. Schwab alleges that he was convicted in an uncounseled
trial in which he never waived his right to counsel and was never informed of the dangers of self-
representation. The district court in this case noted that courts have recognized the
constitutionality of allowing a defendant to waive such right by conduct. See Jackson v. State,
868 N.E.2d 494 (Ind. 2007); State v. Roberson, 675 S.E.2d 732 (S.C. 2009). In Jackson, the
defendant appeared at a scheduling conference, advised the court he would be hiring an attorney,
and was given a trial date. When he failed to appear for trial, he was tried in abstentia. The
court determined that Jackson waived his right to counsel because he repeatedly disregarded
scheduled events, failed to appear at trial, failed to notify the court of his inability to retain
counsel, and failed to request a continuance. Jackson, 868 N.E.2d at 499. The court also
determined that Jackson waived his right to be advised of the dangers of self-representation
because he never gave the court any indication that he intended to proceed pro se. Id. at 497-98.
In Roberson, the defendant was arrested, advised of his trial date, signed a bond form stating he
was advised of the trial date, was sent two notices to appear for court, but never appeared for
trial. The court inferred that Roberson waived his right to counsel by disregarding the
instructions of the court and his inexcusable absence from trial. Roberson, 675 S.E.2d at 733.
After citing to Jackson and Roberson, the district court in this case reiterated that Schwab
was informed at his arraignment of his right to counsel and that, if he was unable to hire an
attorney, one would be appointed to represent him if he qualified. Based on the Montana bench
warrant, the district court found that Schwab failed to appear at his omnibus hearing as ordered
by the Montana court. The district court further found that Schwab failed to appear at his trial
after the Montana court sent notice of the trial date to the false address Schwab provided. The
district court also found that Schwab never returned to the trial court to inform the trial judge that
he did not have private counsel or could not afford one. Additionally, the district court
determined that, because Schwab never gave the Montana court any indication that he intended
to proceed without counsel, the trial court was relieved of its duty to inform Schwab of the risks
10
of proceeding pro se. Thus, the district court concluded that Schwab’s Montana conviction was
not obtained in violation of his right to counsel.
We agree with the district court’s determination that a defendant may waive the right to
counsel by conduct and also relieve the trial court of its duty to inform a defendant of the risks of
proceeding pro se. While the Sixth Amendment guarantees a defendant the right to counsel, and
court-appointed counsel if indigent, a defendant cannot use this right to play a cat-and-mouse
game with the court or by ruse or stratagem fraudulently seek to have the trial judge placed in a
position where, in moving along the business of the court, the judge appears to be arbitrarily
depriving the defendant of counsel. United States v. Murphy, 469 F.3d 1130, 1135 (7th Cir.
2006); United States ex rel. Davis v. McMann, 386 F.2d 611, 618-19 (2d Cir. 1967); see also
Relerford v. United States, 309 F.2d 706, 708 (9th Cir. 1962) (noting that the constitutional
guarantee of the right of a defendant to have the assistance of counsel cannot be turned into a
weapon whereby a defendant can prevent his or her case from ever being brought to trial).
By providing a false address to the Montana court, failing to contact the trial court when
he discovered he could not afford private counsel and failing to appear at the omnibus hearing
and trial as ordered, Schwab disregarded scheduled events and instructions of the trial court,
failed to notify the trial court of his inability to retain counsel, and was inexcusably absent from
trial. Schwab undertook a fraudulent stratagem to place the Montana court in a position where,
by proceeding with trial, Schwab gained the ability to attack his conviction on the basis of an
apparent denial of counsel. By such conduct, Schwab waived his right to counsel at trial. Also,
the Montana trial court was relieved of its duty to inform Schwab of the dangers of self-
representation because, as in Jackson, Schwab did not inform the trial court that he intended to
proceed pro se. Therefore, the district court did not err by concluding that Schwab could not
challenge the validity of his Montana DUI conviction on the ground that he was denied the right
to counsel at trial.
III.
CONCLUSION
Schwab may not attack the validity of his 2008 Montana DUI conviction used to enhance
his DUI in this case from a misdemeanor to a felony unless such attack is provided by statute or
based on denial of the right counsel. Schwab cites to no statute to support such an attack. Even
assuming that Schwab could collaterally attack his Montana conviction based on denial of the
11
right to be present at trial, Schwab waived such right by his conduct. Schwab also waived his
right to counsel at trial by his conduct. Accordingly, the district court did not err by concluding
that Schwab’s Montana conviction was not entered in violation of his constitutional rights and,
therefore, by denying Schwab’s motion in limine. Schwab’s judgment of conviction for felony
DUI is affirmed.
Chief Judge GRATTON and Judge LANSING, CONCUR.
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