                                                                                               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’
                                              5
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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