                                                                                              June 2 2015


                                          DA 14-0767
                                                                                          Case Number: DA 14-0767

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2015 MT 151



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

MATTHEW MONTGOMERY,

              Defendant and Appellant.


APPEAL FROM:           District Court of the Twenty-First Judicial District,
                       In and For the County of Ravalli, Cause No. DC-06-83
                       Honorable James A. Haynes, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Matthew Montgomery, self-represented, Glendive, Montana

                For Appellee:

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

                       William E. Fulbright, Ravalli County Attorney, Hamilton, Montana



                                                   Submitted on Briefs: April 29, 2015
                                                              Decided: June 2, 2015


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1    Matthew Montgomery appeals an order of the District Court for the Twenty-First

Judicial District, Ravalli County, denying his motion to vacate his conviction and dismiss

the charges against him. The issue on appeal is whether the District Court erred in

concluding that it had subject matter jurisdiction over the State’s case against

Montgomery.

¶2    We affirm.

                   PROCEDURAL AND FACTUAL BACKGROUND

¶3    In May 2006, Montgomery was charged with felony counts of sexual assault and

sexual abuse concerning four alleged child victims.       Following amendment of the

information to add new charges regarding the same victims, Montgomery and the State

eventually reached a plea agreement. Montgomery pleaded guilty to two counts of felony

sexual assault in exchange for the dismissal of the remaining counts and the State’s

withdrawal of the persistent felony offender notification. The District Court sentenced

Montgomery in January 2007 to twenty years in prison with ten years suspended for each

felony, to run consecutively. In addition, Montgomery’s probation in a 2003 case was

revoked, and he received an additional consecutive twenty-year prison sentence.

¶4    In October 2008, Montgomery, representing himself, filed a motion to withdraw

his guilty plea.   The District Court denied the motion and we affirmed.          State v.

Montgomery, 2010 MT 193, 357 Mont. 348, 239 P.3d 929. Montgomery then filed with

the District Court a motion for summary judgment, in which he attempted to challenge
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his plea and resurrect his earlier ineffective assistance of counsel claims. The court

denied his motion. Montgomery did not appeal.

¶5     On October 8, 2014, Montgomery filed a motion to vacate his conviction and

dismiss the charges. Montgomery claimed that the District Court lacked subject matter

jurisdiction because the charges were not brought by a grand jury process, and that

Montana law does not allow a court to obtain jurisdiction over a felony without this

process. The District Court denied the motion. Montgomery appeals.

                               STANDARD OF REVIEW

¶6     The grant or denial of a motion to dismiss in a criminal case presents a question of

law that we review for correctness. State v. Haller, 2013 MT 199, ¶ 5, 371 Mont. 86, 306

P.3d 338, citing State v. Robison, 2003 MT 198, ¶ 6, 317 Mont. 19, 75 P.3d 301.

                                      DISCUSSION

¶7     Arguing that he has a right under the United States Constitution’s Fifth

Amendment to a grand jury determination of probable cause, Montgomery asserts that

the District Court did not have subject matter jurisdiction over his felonies. He claims

that the District Court abused its discretion in its order because the court did not address

this issue of federal constitutional law. He further asserts that since the Legislature did

not codify any rule regarding indictments by grand jury, then a court must invoke

common law or the Fifth Amendment.

¶8     The State counters that the District Court has subject matter jurisdiction under

Montana’s Constitution and state law. Mont. Const. art. VII, § 4; § 3-5-302(1)(a), MCA.
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The State points out that Article VII, Section 4 of the state constitution vests sentencing

courts with original jurisdiction in felony cases. Pena v. State, 2004 MT 293, ¶ 23, 323

Mont. 347, 100 P.3d 154, overruled in part on other grounds by Davis v. State, 2008 MT

226, ¶ 23, 344 Mont. 300, 187 P.3d 654. The State argues that the determination of

probable cause is not a jurisdictional issue and that the District Court properly exercised

its subject matter jurisdiction over Montgomery’s felonies.

¶9     “[T]he Fifth Amendment’s grand jury requirement has not been construed to apply

to the states.” U.S. v. Allen, 406 F.3d 940, 942 (8th Cir. 2005). See Apprendi v. New

Jersey, 530 U.S. 466, 477 n.3, 120 S. Ct. 2348, 2355 n.3 (2000) (noting that the

Fourteenth Amendment “has not . . . been construed to include the Fifth Amendment

right to ‘presentment or indictment of a Grand Jury. . . .’”). As the State correctly

explains, Montana’s specific constitutional and statutory provisions define a district

court’s jurisdiction and provide for commencing a state prosecution. Mont. Const. art. II,

§ 20(1) and art. VII, § 4(1); §§ 3-5-301(1), -302(1)(a), and 46-11-101, MCA. “The

district court has original jurisdiction in all criminal cases amounting to felony . . . .”

Mont. Const. art. VII, § 4(1).

¶10    Montgomery incorrectly asserts that the Legislature failed to codify the process for

indictment by grand jury. Montana statutes allow for grand juries. Sections 46-11-301

through -332, MCA. This is not, however, the primary method used to commence a

prosecution. State ex rel. Woodahl v. District Court, 166 Mont. 31, 36, 530 P.2d 780,

783 (1975); § 46-11-101, MCA. Montgomery references late 19th century Montana case
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law when grand jury indictments primarily were used, but Montana courts long ago

moved away from that process. See State v. Vinn, 50 Mont. 27, 34, 144 P. 773, 775-76

(1914) (“One of the purposes . . . was to dispense with the slow, expensive, and therefore

unsatisfactory procedure by indictment, and to substitute a procedure expeditious and

inexpensive, to be availed by the prosecuting officers at their discretion, subject to

control by the court[.]”). See Woodahl, 166 Mont. at 44, 530 P.2d at 788.

¶11     Montgomery was prosecuted under § 46-11-101(3), MCA. Montana statutes offer

four methods to commence a prosecution in this state, one of which is indictment by a

grand jury. Section 46-11-101(1)-(4), MCA. A Montana statute also provides “three

different procedures by which the State can obtain the requisite probable cause

determination before filing charges in district court[.]” Haller, ¶ 8; § 46-10-105, MCA.

“[A] defendant is not entitled to any specific procedure.” Haller, ¶ 8, citing State v.

Farnsworth, 240 Mont. 328, 332, 783 P.2d 1365, 1368 (1989). The State commenced

Montgomery’s felony prosecution under Montana’s statutory scheme by filing an

application and an affidavit that identifies supporting evidence demonstrating probable

cause. Sections 46-11-101(3); 46-11-201, and 46-10-105(2), MCA. The District Court

had subject matter jurisdiction over the felonies as stated in Mont. Const. art. VII, § 4(1)

and § 3-5-302(1)(a), MCA, and the court granted leave for the prosecution to commence.

Section 46-11-101(3), MCA. Montgomery was not entitled to an indictment by a grand

jury.


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                                    CONCLUSION

¶12   The District Court’s order is affirmed.



                                                /S/ BETH BAKER


We concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER




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