                                                                                          March 25 2014


                                          DA 12-0780

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2014 MT 81N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

DUANE MITCHELL AZURE, SR.,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Eighth Judicial District,
                       In and For the County of Cascade, Cause No. DDC 10-0309
                       Honorable Dirk M. Sandefur, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Wade Zolynski, Chief Appellate Defender; Jacob Q. Johnson, Assistant
                       Appellate Defender; Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General; Katie F. Schulz, Assistant
                       Attorney General; Helena, Montana

                       John Parker, Cascade County Attorney; Great Falls, Montana



                                                   Submitted on Briefs: March 5, 2014
                                                              Decided: March 25, 2014


Filed:

                       __________________________________________
                                         Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1     Pursuant to Section I, 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     Based upon a 2001 partner/family member assault conviction, Duane Azure, Sr.,

was required to register as a violent offender with the State of Montana. On August 12,

2010, Azure was charged in Cascade County with felony failure to provide notice of

change of residence as required for violent offenders. On June 23, 2011, he pled guilty to

the offense and the District Court sentenced him to a five-year commitment to the

Department of Corrections, with all time suspended, subject to conditions of sentence.

¶3     On April 24, 2012, the Cascade County attorney filed a petition to revoke Azure’s

suspended sentence for multiple violations of the sentence conditions. In May 2012, the

Eighth Judicial District Court appointed an attorney to represent Azure in the revocation

proceeding. In August and September 2012, Azure sent two ex parte letters to the court

expressing displeasure with his counsel. Shortly thereafter, Azure’s counsel moved for

substitution of counsel which the court granted. In October 2012, Azure sent another

ex parte letter to the District Court claiming he was receiving ineffective assistance from

his second court-appointed attorney.

¶4     The court conducted an evidentiary hearing on November 1, 2012. Upon initiation

of the hearing, Azure unexpectedly instructed his counsel to stipulate that he had violated

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a specific condition of his suspended sentence by using illegal drugs. The District Court

advised Azure regarding the rights he would be waiving if he persisted in the stipulation,

including his right to appeal. Azure stated he understood and again stipulated to the

violation. Notwithstanding the stipulation, the State requested to proceed against Azure

on the other charged allegations.

¶5     At the conclusion of the hearing, the District Court found that Azure had violated

three conditions of his suspended sentence: (1) failing to report to and fleeing from his

probation officer; (2) resisting arrest and causing injury to his probation officer; and

(3) the violation to which Azure had stipulated—illegal drug use. The court revoked

Azure’s suspended sentence and sentenced him to serve five years with a

recommendation that the time be served at Montana State Prison.            The court also

recommended that Azure have access to appropriate drug and alcohol treatment. The

District Court did not inquire into Azure’s complaints about his representation.

¶6     Four days after the evidentiary hearing, Azure filed a hand-written motion with the

court seeking removal of his counsel for ineffective assistance, appointment of counsel

for further proceedings, and a stay of execution of sentence. On November 7, 2012, the

District Court denied the motion, without prejudice, holding that Azure’s complaints

would be more appropriately raised by post-sentence appeal or a postconviction petition.

Azure appeals this order claiming the District Court abused its discretion by failing to

inquire into his complaints that his counsel was ineffective.

¶7     We affirm the District Court’s denial of Azure’s motion. While the court did not

question Azure at the hearing about his letters concerning his counsel, the court offered

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Azure an opportunity to speak on any matters about which Azure was concerned. Azure

did not avail himself of this opportunity. Moreover, Azure stated that he understood that

he was waiving other complaints and rights by stipulating to violating a condition of his

suspended sentence. It is well-established that a plea of guilty which is voluntary and

understandingly made constitutes a waiver of nonjurisdictional defects and defenses,

including claims of constitutional violations which occurred prior to the plea. Stilson v.

State, 278 Mont. 20, 22, 924 P.2d 238, 239 (1996).

¶8    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

issue in this case is legal and is controlled by settled Montana law which the District

Court correctly interpreted. The District Court did not abuse its discretion in denying

Azure’s motion to remove counsel, appoint new counsel, or stay execution of judgment.

¶9    Affirmed.

                                                /S/ PATRICIA COTTER


We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ LAURIE McKINNON




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