May 27 2014
DA 13-0291
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 138N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
FREDERICK CALHOUN PICKENS,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC 11-473
Honorable Robert L. Deschamps, III, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Johnna K. Baffa; Van de Wetering & Baffa, P.C.; Missoula,
Montana
For Appellee:
Timothy C. Fox, Montana Attorney General; Tammy A. Hinderman,
Assistant Attorney General; Helena, Montana
Fred R. Van Valkenburg, Missoula County Attorney; Jason Marks,
Deputy County Attorney; Missoula, Montana
Submitted on Briefs: April 30, 2014
Decided: May 27, 2014
Filed:
__________________________________________
Clerk
Justice Patricia Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section 1, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Frederick Calhoun Pickens (Pickens) appeals from an order of the Fourth Judicial
District Court, Missoula County, denying his motion to dismiss for lack of speedy trial,
and from his conviction for driving under the influence of alcohol. We affirm.
¶3 On March 18, 2011, Pickens was charged by citation with four misdemeanors:
driving under the influence of alcohol, first offense; driving without a valid driver’s
license; displaying license plates assigned to another vehicle; and operating a vehicle
with an expired registration. Pickens entered pleas of not guilty to the charges on
March 21, 2011. On May 4, 2011, the Missoula Justice Court held an omnibus hearing
during which the matter was continued until June 1, 2011. In his notes from the hearing,
the justice of the peace noted: “6/1/11 at 10:00 am” and “Δ’s request.”1 Apparently, the
State’s notes from the hearing also indicate that Pickens requested a continuance. At the
June 1 omnibus hearing, the matter was rescheduled for hearing in July; there are no
notes in the record indicating why this hearing was continued. During a July 6, 2011
1
It is common practice in Missoula justice courts to use the symbol for delta to refer to a
defendant.
2
hearing, Pickens confirmed that he desired a jury trial. The trial was set for
September 22, 2011.
¶4 On September 21, 2011, Pickens orally moved to dismiss the charges against him,
alleging that his right to a speedy trial had been violated. The acting justice of the peace
denied Pickens’s motion, finding Pickens had requested a continuance on May 4, 2011,
and concluding he was responsible for the delay. On September 22, 2011, Pickens was
convicted on all four counts after a jury trial.
¶5 Pickens timely appealed to the District Court and moved to dismiss for lack of a
speedy trial. 2 Pickens asserted that a factual issue existed as to whether he had requested
the continuance; however, he did not request an evidentiary hearing. The District Court
expressed concern that an evidentiary hearing would be necessary to establish some of
the facts cited by the parties in their briefs on the motion. The court specifically told
Pickens: “there’s [sic] notations in the justice court file that I can draw inferences from,
but the justice court isn’t a court of record. And so, do you need an evidentiary hearing
on the speedy trial issues?” Pickens asked if the District Court would make inferences
from the Justice Court notations and said “[t]hat’s absolutely okay.” Pickens later filed a
notice of issue indicating that the matters raised in his motion were ready for ruling by
the District Court.
2
Pickens raised several other grounds for dismissal, but the speedy trial motion is the only
motion at issue on appeal.
3
¶6 The District Court denied the motion to dismiss on July 24, 2012. The District
Court referenced the Justice Court’s findings that the May 4, 2011 continuance was based
upon Pickens’s motion, and that the 27-day delay between May 4 and June 1, 2011, was
thus attributable to Pickens. The District Court noted that Pickens did not request an
evidentiary hearing on the motion, and that “[t]here are no affidavits or other evidence to
contradict the records of the Justice Court and the County Attorney, as well as the
September 21, 2011 finding of fact by the Justice Court [that the delay was attributable to
Pickens].” The court concluded that because the 27-day delay was attributable to
Pickens, the September 22, 2011 trial was timely. On January 30, 2013, Pickens was
convicted of all four offenses after a district court trial. Pickens timely appealed.
¶7 We first address Pickens’s argument that the District Court erred in denying his
motion to dismiss because it failed to conduct a de novo review of the record. Not only
did Pickens fail to request an evidentiary hearing on his motion in the District Court, he
affirmatively told the District Court that he did not want a hearing and that the court
could rely on the Justice Court’s notations. This Court has consistently held that it will
not consider issues raised for the first time on appeal. In re T.E., 2002 MT 195, ¶ 20,
311
Mont. 148,
54 P.3d 38 (citations omitted). By failing to raise an objection in the District
Court regarding de novo review, Pickens has failed to properly preserve this issue for
appeal and has waived his right to have the issue considered by this Court.
¶8 Pickens concedes that he failed to object in the District Court or to raise the plain
error doctrine in his initial brief, but he argues in his reply brief that this Court should
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nevertheless use plain error review. We invoke plain error review only “where failing to
review the claimed error may result in a manifest mischarge of justice, may leave
unsettled the question of the fundamental fairness of the trial or proceedings, or may
compromise the integrity of the judicial process.” In re J.S.W., 2013 MT 34, ¶ 15,
369
Mont. 12,
303 P.3d 741 (citations and internal quotation marks omitted). Pickens has
failed to persuade this Court that there is any error to review, let alone that a failure to
review the alleged error would result in a manifest miscarriage of justice, leave unsettled
the question of the fundamental fairness of the trial or proceedings, or compromise the
integrity of the judicial process. Therefore, we decline to exercise plain error review.
¶9 We next turn to Pickens’s argument that his conviction should be overturned
because there was insufficient evidence to support it. This Court views the facts in a light
most favorable to the State when reviewing whether evidence was sufficient to support a
criminal conviction. State v. Hocevar,
2000 MT 157, ¶ 23,
300 Mont. 167,
7 P.3d 329.
“The standard of review is whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Hocevar, ¶ 23 (citation and
internal quotation marks omitted). Section 61-8-401(1)(a), MCA, sets forth the elements
of driving under influence of alcohol, namely that “a person who is under the influence of
alcohol” is “[driving] or [] in actual physical control of a vehicle upon the ways of this
state open to the public.”
¶10 Our review of the record indicates there was sufficient evidence for a rational trier
of fact to find the elements of driving under the influence of alcohol beyond a reasonable
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doubt. There were several empty 24-ounce beer cans in the vehicle, as well as an open
24-ounce beer can. Pickens presented no evidence that someone else had driven the
vehicle or consumed the alcohol in the vehicle that day.3 The Montana Highway Patrol
trooper testified that Pickens smelled of alcohol and had bloodshot and glassy eyes.
Pickens admitted he had been drinking before he drove the car, and his wife testified that
he “drank some beers” and passed around a bottle of liquor not long before he began
driving. We decline to reverse Pickens’s conviction as there was sufficient evidence to
support it.
¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our internal Operating Rules, which provides for noncitable memorandum opinions. The
District Court’s findings of fact are supported by substantial evidence, and the legal
issues are controlled by settled Montana law, which the District Court correctly
interpreted. We therefore affirm the District Court’s order denying Pickens’s motion to
dismiss and also affirm Pickens’s conviction.
/S/ PATRICIA COTTER
We concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JIM RICE
3
This case involves a complicated factual scenario in which Pickens was driving the vehicle
when he ran out of gasoline and parked on the side of the road. Pickens left for gasoline and the
vehicle was unattended for somewhere between 15 and 60 minutes. When he returned to the
vehicle, the state trooper was already at the scene.
6
