03/25/2020
DA 18-0497
Case Number: DA 18-0497
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 68N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JACQUELINE ANN MITCHELL,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and For the County of Butte-Silver Bow, Cause No. DC-17-48
Honorable Brad Newman, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Rachel G. Inabnit, Appellate Defender, Missoula, Montana
For Appellee:
Timothy C. Fox, Attorney General, Brad Fjeldheim, Assistant Attorney
General, Helena, Montana
Eileen Joyce, Silver Bow County Attorney, Mollie Maffei, Deputy County
Attorney, Butte, Montana
Submitted on Briefs: January 29, 2020
Decided: March 24, 2020
Filed:
cir-641.—if
__________________________________________
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 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 On July 26, 2015, Butte law enforcement responded to a report that a woman was
sleeping in her car at the intersection of Harrison Avenue and Roosevelt Avenue, and made
contact with Mitchell, who was sleeping in her Dodge Durango at the intersection. After
an investigation, Mitchell was charged with misdemeanor driving under the influence of
alcohol, in violation of § 61-8-401(1)(a), MCA. Mitchell’s jury trial in Butte City Court
was set for December 9, 2015, and, after eight continuances, Mitchell was convicted by a
jury on March 15, 2017.
¶3 Mitchell appealed to the Second Judicial District Court, Butte-Silver Bow County,
for a trial de novo, which was set for June 6, 2017. The trial order mandated that “[t]he
Defendant and counsel for both parties shall appear” at pretrial conference and the trial.
The State filed a motion to endorse an expert witness. After Mitchell objected to the State’s
motion, the District Court set an evidentiary hearing for the same time as the pretrial
conference to “reduce the burden of travel and scheduling on the Defendant and her
counsel.” The order required Mitchell to personally appear due to “the substantive nature
of the Defendant’s challenge” to the motion. On a request from Mitchell to accommodate
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a medical condition that kept her from attending, the District Court reset the evidentiary
hearing on June 23, 2017, the pretrial conference on July 13, 2017 and the trial for July 24,
2017. The order stated that Mitchell was to personally attend the pretrial conference.
¶4 Mitchell did not appear for the June 23, 2017, evidentiary hearing. Mitchell’s
counsel advised the court that Mitchell was “not here, your Honor. I did text with her just
before the hearing. I know she was having some difficulties getting a ride. She said she
had a family emergency, could not be there—here. I think she is available by phone.” The
District Court stated, “[i]ts interesting that nine minutes after we’re set for a hearing is
when we first learn that Miss Mitchell has a problem,” and expressed concerns about
proceeding without Mitchell for a critical stage of the case. The court called Mitchell and
advised her over the telephone that “[o]ne of this Court’s requirements is that you be in
court for all proceedings conducted in your case,” and that “you have not acted with
diligence to request an excuse” for not appearing. The court advised Mitchell “you need
to understand clearly, I will not put up with that kind of conduct.” The District Court
vacated the hearing and rescheduled it for June 30, 2017, with a warning to Mitchell that
“I’m telling you right now if you miss any further court proceedings without valid cause
and short of death or hospitalization, I can’t think of another cause that I’m willing to accept
based on the record,” and “[t]here will be no excuses, as I’ve indicated, save for
hospitalization or death.” The District Court also reminded Mitchell that her personal
appearance was a condition of her release on bail, which would be revoked if she failed to
appear.
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¶5 Mitchell personally appeared at the June 30, 2017 hearing. At the hearing,
Mitchell’s counsel requested that the District Court allow Mitchell to file a motion to
dismiss based on her position that the investigating officers impaired her ability to seek an
independent blood-alcohol test, and for defense counsel to file an Anders brief on that issue.
The District Court again continued the trial, and verbally set a schedule for filing the Anders
brief and Mitchell’s response. Mitchell’s counsel filed the Anders brief, but Mitchell did
not file a response as ordered, or at all. After 10 months had passed, the District Court set
the trial for June 28, 2018, noting the delays caused by Mitchell.
¶6 Mitchell failed to appear for the June 28, 2018 trial, but her counsel did appear.
Defense counsel advised the court that counsel had received an email from Mitchell the
morning of trial asking for additional time to file her response to the Anders brief, and that
she was unable to personally appear due to illness, concerns with transportation difficulties,
and a pending Child Protective Services case in Mineral County. Mitchell had not
requested a continuance prior to the trial. The State moved to dismiss the appeal, and
District Court granted the motion, remanding the case to city court for imposition of
sentence. Defense counsel objected on the grounds that Mitchell had established good
cause for her nonappearance at trial.
¶7 The sole issue on appeal is whether the District Court abused its discretion by
dismissing Mitchell’s appeal from City Court.
¶8 The Montana Constitution provides:
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The right of trial by jury is secured to all and shall remain inviolate. But
upon default of appearance or by consent of the parties expressed in such a
manner as the law may provide, all cases may be tried without a jury or before
fewer than the number of jurors provided by law.
Mont. Const. art. II, § 26. “We have previously established that a misdemeanor defendant
may waive his or her Article II, Section 26 right to trial by jury by failing to appear as
directed by the trial court.” City of Kalispell v. Salsgiver, 2019 MT 126, ¶ 20,
396 Mont.
57,
443 P.3d 504; see also State v. Sherlock,
2018 MT 92, ¶¶ 17-18,
391 Mont. 197,
415
P.3d 997; City of Missoula v. Cox,
2008 MT 364, ¶ 10,
346 Mont. 422,
196 P.3d 452; State
v. Trier,
2012 MT 99, ¶ 15,
365 Mont. 46,
277 P.3d 1230.
¶9 “Section 46-17-311, MCA, provides the exclusive statutory remedy for appeals
from courts of limited jurisdiction.” State v. Kempin,
2001 MT 313, ¶ 9,
308 Mont. 17,
38
P.3d 859. Subsection 311(5) provides:
If, on appeal to the district court, the defendant fails to appear for a scheduled
court date or meet a court deadline, the court may, except for good cause
shown, dismiss the appeal on the court’s own initiative or on motion by the
prosecution and the right to a jury trial is considered waived by the defendant.
Upon dismissal, the appealed judgment is reinstated and becomes the
operative judgment.
Section 46-17-311(5), MCA. Additionally, “[i]n all cases in which the defendant is
charged with a misdemeanor offense, the defendant may appear by counsel only, although
the court may require the personal attendance of the defendant at any time.” Section
46-16-120, MCA (emphasis added). “Section 46-16-120, MCA, necessarily applies to
§ 46-17-311(5), MCA, in the context of a misdemeanor charge, because § 46-16-120,
MCA, applies to ‘all [misdemeanor] cases.’ A defendant, therefore, only ‘fails to appear’
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under § 46-17-311(5), MCA, if both the defendant and defendant’s counsel fail to appear,
unless the court had previously informed the defendant that his personal attendance was
required.” State v. Clark, 2006 MT 313, ¶ 10,
335 Mont. 39,
149 P.3d 551 (emphasis
added).
¶10 Mitchell argues the District Court should have warned her specifically that failure
to personally appear would result in the waiver of right to a jury trial. Thus, because she
was not provided that specific caution, Mitchell argues she could not knowingly,
voluntarily, or intelligently waive right to a jury trial. However, the right to jury trial is not
unqualified, and is constitutionally subject to waiver upon “default of appearance.” Mont.
Const. art. II, § 26; § 46-17-311(5), MCA; Salsgiver, ¶ 20. Further, as delineated above,
Mitchell was warned unambiguously and repeatedly that her presence was required at the
trial, and that the court would “not put up with” Mitchell’s continuing failure to cooperate
and appear: “There will be no excuses, as I’ve indicated, save for hospitalization or death.
Ms. Mitchell, you will be here.” There simply is no question that Mitchell was adequately
warned, and the District Court did not err by concluding Mitchell had failed to appear for
her jury trial under § 46-17-311, MCA. The District Court had “previously informed the
defendant that her personal appearance [was] required.” State v. Ziolkowski,
2014 MT 58,
¶ 13,
374 Mont. 162,
321 P.3d 816. Nor is Mitchell’s argument compelling on this record
that she had “good cause” for failing to appear at trial.
¶11 Lastly, Mitchell argues that the process of waiver violated her constitutional right
to a jury trial. Mitchell did not raise this issue in the District Court, and “[w]e have
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consistently held that this Court will not consider issues raised for the first time on appeal
when the appellant had the opportunity to make an objection at the trial level.” State v.
Dahlin, 1998 MT 113, ¶ 13,
289 Mont. 182,
961 P.2d 1247 (quotation omitted). Although
Mitchell’s counsel objected to the District Court’s dismissal generally on the basis that
Mitchell had good cause for her nonappearance, this alone does not preserve a
constitutional challenge. Mitchell asks in her reply brief that we invoke the common law
plain error doctrine because the claimed error implicates Mitchell’s fundamental right to a
jury trial, but “we previously have refused to invoke the common law doctrine of plain
error review when a party raises such request for the first time in his reply brief.” State v.
Johnson,
2010 MT 288, ¶ 13,
359 Mont. 15,
245 P.3d 1113 (internal citations omitted).
We decline to do so today.
¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. This appeal presents
no constitutional issues, no issues of first impression, and does not establish new precedent
or modify existing precedent. In the opinion of the Court, the case presents a question
controlled by settled law or by the clear application of applicable standards of review.
¶13 Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
/S/ INGRID GUSTAFSON
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