July 28 2015
DA 14-0327
Case Number: DA 14-0327
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 214N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DANIEL McGRATH JR.,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and For the County of Beaverhead, Cause No. DC 13-3508
Honorable Loren Tucker, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade Zolynski, Chief Appellate Defender, James Reavis, Assistant
Appellate Defender; Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
Attorney General; Helena, Montana
Jed C. Fitch, Beaverhead County Attorney, Michael Gee, Deputy County
Attorney; Dillon, Montana
Submitted on Briefs: June 3, 2015
Decided: July 28, 2015
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by unpublished opinion and shall not be cited and does not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 Daniel McGrath, Jr. (McGrath) appeals from an order of the Fifth Judicial District
Court, Beaverhead County, denying his motion to suppress evidence and dismiss the
proceeding. McGrath was charged and convicted in Beaverhead County Justice Court of
minor in possession of alcohol, in violation of § 45-5-624, MCA, and thereafter appealed
to District Court. McGrath argues on appeal that his trial counsel rendered ineffective
assistance “by instructing the district court to apply an incorrect standard of review” to
McGrath’s appeal from Justice Court.
¶3 In Justice Court, McGrath filed a motion to suppress evidence and to dismiss the
charge. In a written order, the Justice Court denied the motion. Thereafter, McGrath
entered a guilty plea to the charge while reserving his right to appeal the denial of his
motion.1 McGrath’s notice of appeal stated, in part:
Pursuant to Mont. Code Ann. § 46-12-204(3), McGrath reserved his right to
appeal the Justice Court order dated March 28, 2013 denying his motion to
1
McGrath’s appellate briefing states that his guilty plea was entered pursuant to a plea bargain
agreement, but does not indicate whether the agreement was in written form. The record does
not contain a written agreement. The State’s briefing simply indicates that, “with the State’s
permission,” McGrath reserved his right to appeal the Justice Court’s ruling on his motion.
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dismiss and suppress evidence. Therefore, his appeal is limited to this
specific pretrial motion.
¶4 After McGrath’s initial appearance and arraignment in the District Court, the court
issued an omnibus order setting forth pre-trial procedures and a schedule, including a date
for trial. The court also issued a minute order setting an evidentiary hearing “[p]er the
request of the county attorney . . . .” However, shortly thereafter, counsel for the parties
filed a stipulated motion to vacate the hearing. The stipulation noted that the appeal had
been limited to the denial of McGrath’s motion by the Justice Court, and stated “the
parties respectfully request this Court limit this case to review of the Justice Court’s
Judgment/Order.” The parties advised that “the standard of review here is not de novo”
and stated that “the Court should respectfully review the Justice Court’s findings and
determine whether the Justice Court’s interpretation and application of the law was
correct.” The parties agreed that “neither party will be prejudiced by vacating this
hearing.”
¶5 The District Court issued an order that analyzed the necessity of an evidentiary
hearing under § 46-13-104(2), MCA, and State v. Schulke, 2005 MT 77, ¶ 28,
326 Mont.
390,
109 P.3d 744. The court held the matter would be decided on the parties’ briefs,
reasoning:
The parties ask the Court to make a decision as a matter of law.
. . .
McGrath attached the police report as an exhibit to his motion to suppress
and dismiss. McGrath does not dispute the facts recounted by the police
report. McGrath[’s] arguments only contest the legal significance of those
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facts. . . . This case almost perfectly matches Schulke. No evidentiary
hearing is necessary.
The District Court subsequently issued an order denying McGrath’s motion to suppress
and dismiss, noting again that the facts were uncontested.
¶6 On appeal, McGrath argues that his trial counsel misstated the procedure on
appeal to the District Court. McGrath takes issue with his counsel’s statements within
the stipulated motion that “the standard of review here is not de novo” and requesting the
District Court review the Justice Court’s order “for correctness,” without conducting an
evidentiary hearing. The State responds that the stipulated motion correctly explained
that McGrath had reserved a single issue for appeal and that the parties had agreed, both
in the Justice Court and District Court, that an evidentiary hearing was not necessary
because the facts as set forth in the police report were not contested. The State argues
that, even if McGrath’s counsel had performed deficiently, McGrath has not
demonstrated how he was prejudiced by not having an evidentiary hearing. In reply,
McGrath expands his argument by offering that an evidentiary hearing would have
provided trial counsel “an entirely new opportunity to present McGrath’s case,” and
explains possible factual issues that could be raised in an evidentiary hearing.
¶7 McGrath correctly argues that the District Court’s standard of review for his
reserved appeal issue was de novo. See State v. Caldwell, 1998 MT 261, ¶ 12,
291 Mont.
272,
968 P.2d 711 (“the scope of the district court’s appellate jurisdiction” of a reserved
issue is “a de novo review only of the reserved issue and not of the defendant’s entire
case”). However, although the standard of review was misstated by the parties’
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stipulated motion, that does not alter the fact that the parties permissibly presented only a
narrow legal issue before the District Court, and agreed that the factual record, consisting
of a police report, was sufficient to determine the issue. Although McGrath strains to
argue that the parties “never made any concessions” that the facts were agreed upon, the
record, as discussed above, demonstrates to the contrary: the parties neither contested the
facts nor the District Court’s characterization of the matter as factually uncontested, and
asked the District Court to address only a legal issue. Further, the District Court did not
merely conduct an appellate review for correctness of the Justice Court’s conclusions of
law. Indeed, it did not reference the Justice Court’s conclusions at all, but rather
conducted a de novo review of the matter consisting entirely of its own analysis.
Therefore, any misstatement by trial counsel regarding the standard of review did not
affect the proceeding.
¶8 McGrath’s reply brief expands the issue on appeal to a challenge of trial counsel’s
overall case strategy, criticizing counsel’s failure to contest certain facts and to pursue
“an entirely new opportunity” to present the case in the District Court. Beyond the fact
that new arguments are not permitted in a reply brief, the record here does not permit
review of counsel’s strategic decisions, which would be appropriate only in
post-conviction proceedings. See State v. Champagne, 2013 MT 190, ¶ 29,
371 Mont.
35,
305 P.3d 61 (“Post-conviction proceedings represent the appropriate avenue for relief
if the record does not fully explain ‘why’ counsel acted or failed to act”).
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¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for unpublished opinions. In the opinion of
the Court, the case presents a question controlled by settled law or by clear application of
applicable standards of review.
¶10 Affirmed.
/S/ JIM RICE
We concur:
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
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