                                                                                               07/14/2020


                                          DA 19-0705
                                                                                           Case Number: DA 19-0705

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2020 MT 180N



CITY OF DARBY,

               Plaintiff and Appellee,

         v.

AUSTIN W. GRAUBERGER,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Twenty-First Judicial District,
                       In and For the County of Ravalli, Cause No. DC-19-79
                       Honorable Howard F. Recht, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Austin W. Grauberger, Self-represented, Corvallis, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Ben Eckstein, Assistant
                       Attorney General, Agency Legal Services Bureau, Helena, Montana




                                                   Submitted on Briefs: June 17, 2020

                                                               Decided: July 14, 2020


Filed:

                                 cir-641.—if
                       __________________________________________
                                         Clerk
Justice Ingrid Gustafson 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     Defendant and Appellant Austin Grauberger (Grauberger) appeals from the Darby

City Court Sentencing Order issued April 30, 2019, and the subsequent October 1, 2019

Order Dismissing Appeal and Remanding to City Court issued by the Twenty-First Judicial

District Court, Ravalli County. We affirm.

¶3     On May 19, 2018, Grauberger was cited for two misdemeanors—assault and driving

a vehicle during a suspension period. He appeared at his arraignment on May 22, 2018.

At that time, he signed a Notification and Acknowledgment of Rights form and a

Conditions of Release form. He was provided copies of these documents along with the

City Court’s Trial Management Order for each of the charges. The Trial Management

Order directed Grauberger to “personally appear for all proceedings on the case or forfeit

his/her right to a jury trial.” At the original Omnibus Hearing, the City Court consolidated

Grauberger’s offenses for trial. Thereafter, the City Court mailed to Grauberger a Notice

of Jury Confirmation Hearing and Notice of Jury Trial and also mailed such to his

counsel—each notice indicating Grauberger’s personal appearance was required.

Grauberger appeared at the Jury Confirmation hearing on August 14, 2018, with counsel
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and advised the City Court no plea deal had been reached and he was ready to proceed to

trial. The City Court then set a trial date. Thereafter, by way of multiple continuances—

some requested by Grauberger and some by the prosecution—trial was ultimately reset for

January 8, 2019, with the Jury Confirmation Hearing set for December 11, 2018. With

each continuance the City Court again mailed the Notice of Jury Trial directly to

Grauberger, as well as to his counsel, advising of the date of the jury confirmation hearing

and the trial date and the requirement of Grauberger’s personal appearance at all

proceedings.

¶4     Grauberger failed to appear on December 11, 2018, for his Jury Confirmation

Hearing. The City Court determined, despite Grauberger’s non-appearance at this and

other prior proceedings, he could potentially have a valid reason for his non-appearance.

As such, the court vacated the jury trial and scheduled a bench trial for January 8, 2019.

Notice of the bench trial was mailed directly to Grauberger as well as to his counsel on

December 13, 2018. Thereafter, additional continuances were sought by the prosecution

and granted. Again, notices of the trial date were mailed directly to Grauberger as well as

to his counsel. Ultimately, trial was scheduled for March 20, 2019, with notice of such

being again sent to Grauberger and separately to his counsel.1




1
 City Judge Burnsides even attempted to call Grauberger personally to advise of the trial date, but
did not reach him.

                                                3
¶5        On March 20, 2019, Grauberger failed to appear for his trial and was tried in

absentia. At the completion of the trial, the City Court issued a warrant for Grauberger’s

arrest.     Following several continuances, sentencing was held on April 30, 2019.2

Grauberger was arrested March 25, 2019, on the outstanding warrant. At the detention

facility, he was given a Notice to Appear in City Court within 10 days of his release.

Grauberger then appeared with his counsel at sentencing on April 30, 2019. At that time,

the City Court entered a verdict with respect to the bench trial of March 20, 2019,

conducted a contempt of court proceeding with respect to Grauberger’s failure to appear

for the December 11, 2018 jury confirmation hearing and the March 20, 2019 bench trial,

and imposed sentence on Grauberger with respect to all charges. At that proceeding

Grauberger admitted he received the mail at his address on record with the court but did

not have time to review his mail even though he understood missing his trial could result

in a conviction resulting in jail and a fine. Based on his testimony, Grauberger was held in

contempt of court for his failures to appear and was also sentenced to serve a total of 65

days in jail and pay fines totaling $900.

¶6        Grauberger now asserts his convictions should be reversed due to ineffective

assistance of counsel (IAC). He asserts his counsel rescheduled court dates without




2
 Again, notice was mailed to each Grauberger and his counsel as to the date of sentencing. Each
notice advised Grauberger of the requirement to personally appear.

                                              4
notifying him and his attorney provided incorrect dates and times for various proceedings.

These issues he raises for the first time on appeal.

¶7     Generally, we do not consider issues raised for the first time on appeal unless plain

error review is appropriate.3 State v. Akers, 2017 MT 311, ¶ 10, 389 Mont. 531, 408 P.3d

142 (citing State v. Favel, 2015 MT 336, ¶ 13, 381 Mont. 472, 362 P.3d 1126). Grauberger

has failed to carry his burden to establish the requisite threshold for finding plain error such

that Grauberger has waived appeal with regard to his IAC claims against his trial counsel

for alleged scheduling and notice deficiencies.

¶8     Grauberger also asserts his counsel was ineffective for failing to timely file an

appeal brief.

¶9     Claims of IAC are mixed questions of law and fact that we review de novo. State

v. Jefferson, 2003 MT 90, ¶ 42, 315 Mont. 146, 69 P.3d 641. When defendants raise IAC

claims on direct appeal, prior to consideration of the two-pronged test for IAC set forth in

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), we first determine whether

the claims are more appropriately addressed in a postconviction relief proceeding. State v.

Kougl, 2004 MT 243, ¶ 14, 323 Mont. 6, 97 P.3d 1095. If we cannot answer from the

record “the question ‘why’ counsel did or did not take the actions constituting the alleged




3
 We note the State argues this point in its Response Brief and then cites a non-cite opinion as
authority on this point. Given the vast volume of citable cases which reference this point, we are
compelled to point out the inappropriateness of citing a non-cite case. Non-cite cases should not
be cited in appellate briefs.

                                                5
ineffective assistance, the claims are better raised by a petition for post-conviction relief

where the record can be more fully developed, unless ‘no plausible justification’ exists for

the defense counsel’s actions or omissions[.]” State v. Sartain, 2010 MT 213, ¶ 30, 357

Mont. 483, 241 P.3d 1032 (quoting Kougl, ¶¶ 14-15) (internal citation omitted). “A record

that is silent about the reasons for counsel’s actions or omissions seldom provides sufficient

evidence to rebut the ‘strong presumption’ that counsel’s actions fell ‘within the wide range

of reasonable professional assistance.’” State v. Cheetham, 2016 MT 151, ¶ 35, 384 Mont.

1, 373 P.3d 45 (citations omitted).

¶10    Here, the record is entirely silent as to why counsel did not file an appeal brief and

thus, not subject to direct appeal. Grauberger’s claim his counsel was ineffective for failing

to file an appeal brief must be raised through postconviction relief, if at all.

¶11    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, the case presents a question controlled by settled law or by the clear application of

applicable standards of review.

¶12    Affirmed.


                                                   /S/ INGRID GUSTAFSON

We concur:

/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
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