                                                                                     03/07/2017


                                     DA 15-0322

         IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     2017 MT 52N



CITY OF LIVINGSTON

          Plaintiff and Appellee,

    v.

ETU HOLLOWAY,

          Defendant and Appellant,


CITY OF LIVINGSTON

          Plaintiff and Appellee,

    v.

JEFFERY FRANCIS WOOD,

          Defendant and Appellant,

CITY OF LIVINGSTON

          Plaintiff and Appellee,

    v.

RANDY LEE STOREY,

          Defendant and Appellant.



APPEAL FROM:      District Court of the Sixth Judicial District,
                  In and For the County of Park, Cause Nos. DC 14-59, DC 14-58, DC 14-68
                  Honorable Brenda Gilbert, Presiding Judge
COUNSEL OF RECORD:

          For Appellants:

                 Chad Wright, Chief Appellate Defender, James Reavis, Assistant
                 Appellate Defender, Helena, Montana

          For Appellee:

                 Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
                 Assistant Attorney General, Helena, Montana

                 Courtney Lawellin, Interim Livingston City Attorney,
                 Livingston, Montana



                                             Submitted on Briefs: February 22, 2017

                                                         Decided: March 7, 2017


Filed:

                 __________________________________________
                                   Clerk




                                      2
Justice Beth Baker 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     In Cause Nos. 15-0322, 15-0326, and 15-0372, Etu Williams Holloway, Jeffery

Francis Wood, and Randy Lee Storey, respectively, appeal from the April 2015 decisions

and orders of the Sixth Judicial District Court, Park County, refusing to dismiss their

misdemeanor criminal convictions. These three proceedings arise from similar facts and

involve nearly identical legal issues. Consequently, we have determined to consolidate

the three appeals under Cause No. 15-0322. We affirm.

¶3     Holloway, Wood, and Storey each were charged with misdemeanor offenses in the

Livingston City Court—a court of record. Wood’s and Holloway’s cases proceeded to

jury trials, and Storey’s case proceeded to a bench trial. All three defendants were found

guilty of the misdemeanor charges. A non-lawyer judge presided over their trials. The

defendants appealed to the District Court and moved to dismiss their cases. Each argued

that the prosecution of a criminal case before a non-lawyer judge in a court of record,

without the option of a trial de novo on appeal, violated his rights to due process and to

effective assistance of counsel guaranteed under the United States and Montana

Constitutions.

                                         3
¶4     Wood argued additionally that he should receive a new trial because the City

Court failed to record portions of the proceeding and thereby failed to capture a complete

record of the trial for appeal. The District Court granted Wood a new trial due to the lack

of a complete City Court record.

¶5     The District Court denied Holloway’s and Storey’s motions to dismiss and

rejected Wood’s arguments regarding the constitutionality of his being subject to a trial

before a non-lawyer judge. The court held that trials before a non-lawyer judge in the

City Court—even without the opportunity for a de novo appeal—did not violate the

defendants’ constitutional rights. The court reasoned in part that the defendants’ existing

rights to appeal to the District Court provided sufficient constitutional protections by

ensuring that their cases are “reviewed by a law-trained judge” and that “any alleged

errors are reviewed and subject to correction, reversal[,] and/or remand.”

¶6     These appeals concern substantially similar facts and issues as those we

considered in State v. Davis, 2016 MT 102, 383 Mont. 281, 371 P.3d 979. We stayed

consideration of Holloway’s, Wood’s, and Storey’s appeals pending Davis’s petition for

writ of certiorari to the United States Supreme Court. The Court denied certiorari on

January 17, 2017. Davis v. Montana, 2017 U.S. Lexis 724, 196 L. Ed. 2d 599. As in

Davis, we conclude that the Appellants’ trials before a non-lawyer judge, even though

trials de novo were not available on appeal, did not violate their constitutional rights to

due process or to effective assistance of counsel. The City does not contest on appeal the

District Court’s grant of a new trial to Wood, and we therefore do not address that issue.

                                         4
¶7     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, Davis resolves the issues on appeal. The District Court’s decisions and

orders are affirmed.



                                              /S/ BETH BAKER


We concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ JIM RICE




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