                                      NO. 97-021

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          1997


CITY OF HELENA, STATE OF MONTANA,

          Plaintiff and Respondent,



JAMES C. MEYERS,

          Defendant and Appellant



APPEAL FROM:       District Court of the First Judicial District,
                   In and for the County of Lewis and Clark,
                   The Honorable Thomas C. Honzel, Judge presiding.


COUNSEL OF RECORD:

          For Appellant:

                   James C. Meyers, Pro Se, Helena, Montana

          For Respondent:

                   Robert J. Wood. Helena City Prosecutor,
                   Helena, Montana


                                                         Submitted on Briefs: July 17, 1997

                                                                    Decided: August 18, 1 9 9 7
Filed:
Justice Terry N.Trieweiler delivered the opinion of the Court.

        Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal

Operating Rules, the following decision shall not be ctted as precedent and shall be published

by its filing as a public document with the Clerk of the Supreme Court and by a report of its

result to State Reporter Publishing Company and West Publishing Company.

        James C. Meyers appealed to the District Court for the First Judicial District in Lewis

                                                Court of Helena for driping with a suspended
and Clark County from a conviction in the C ~ t y

license and for failure to have liability insurance. Following a jury trial, he was found guilty

of both charges and sentenced by the Dtstrtct Court. Meyers appeals. We affirm in part and

vacate in part the judgment of the Distr~ct
                                          Court, and remand for further proceedings.

        There are two issues on appeal:

        1.     Did Meyers' conviction result from bias shown by District Judges, the Clerk

of the Distrtct Court, or the attorney who represented him?

        2.     Did the District Court err when tt sentenced the defendant or assessed costs to

him'?

                                FACTUALBACKGROUND

        On September 9, 1995, Officer Mutk Ekola of the Helena Police Department stopped

Meyers' vehicle for a defective taillight. Meyers could not produce a driver's license or proof

of insurance. After Ekola learned that Meyers' driver's license had been suspended, Meyers
was cited for driving while his license was suspended and for failure to have liability

insurance, in violation of $9 61-5-212, MCA, and 61-6-301, MCA, respectively.

       Meyers was found guilty of both charges by a jury in the City Court of Helena, and

on December 27, 1995, he filed a notice of appeal to the District Court. After determining

that Meyers was indigent, the District Court appointed counsel to represent him. Meyers

filed a number of motions, seeking. among other things, to disqualify the District Court

Judge for cause, to substitnte counsel. and to remove the matter to Federal District Court.

On May 1, 1996, District Judge James Purcell conducted a hearing to determine whether

there was cause to disqualify the District Court Judge. He subsequently denied that motion.

       On October 24, 1996, Meyers withdrew his request for counsel and proceeded pro se.

Following a jury trial on November 26, 1996, Meyers was found guilty of driving while his

license was suspended and of failure to have liability insurance. The District Court sentenced

Meyers to 190 days in jail, with 188 of those days suspended. In addition, it assessed fines

in the total amount of $600, and court costs, jury costs, and charges in the amount of

$650.48.

                                          ISSUE I

       Did Meyers' conviction result from bias shown by District Judges, the Clerk of the

District Court, or the attorney who represented him?
       Meyers has alleged that due to the bias of both the District Court and Judge Purcell,

as well as the Clerk of Court and hls own attorney, he was denied effective representation,

his right to a speedy trial, due process, and his rlght to put forth a proper defense.

       From review of the record, we find no evidence to demonstrate bias against Meyers.

       Meyers' principal claim regarding the District Court (other than claims related to the

Judges' religion) are that he was denled a speedy trial and that he was precluded from

offering evidence critical to his defense, However, most delay was attributable to Meyers'

own motions and no prejudice has been shown from delay.

       Furthermore, the determination of whether evidence is relevant and admissible is left

to the sound discretion of the trial judge and wlll not be overturned absent a showing of

abuse of discretion. State v Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257. 1263.

Here, the District Court's decision that evidence pertaining to Meyers' prior convictions in

1989 and 1992 was irrelevant to the charges made against him in this proceeding was not an

abuse of discretion, and therefore, it does not indicate bias against Meyers. For these

reasons, we conclude that Meyers' conviction was not the result of bias by the District Court,

Judge Purcell, the Clerk of Court, or Meyers' attorney.

                                           ISSUE 2

       Did the District Court err when it sentenced the defendant or assessed costs to him?
       "This Court has consistently held that if a sentence is within the limits provided by

statute, it is not an abuse of discretion." State v. Lemmon (1984), 214 Mont. 121, 129?692

P.2d 355,459 (citing State v. Gurrido (1981), 190 Mont. 525,52") 621 P.2d 1105, 1108).

       Section 61-5-212, MCA, provides that a defendant convicted of driving with a

suspended license "shall be punished by i~nprisonment not less than 2 days or more than
                                                    for

6 months and may be fined not more than $500." Here, the District Court sentenced Meyers

to serve 180 days in jail, but suspended all but the two days required by the statute. In

addition, the District Court assessed a $250 fine. Each sentence is clearly within the limits

of the statute. Accordingly, we conclude that the District Court did not abuse its discretion

when it imposed Meyers' sentence for driving with a suspended license.

       Section 61-6-304, MCA, states that a second conviction for failure to have liability

insurance is "punishable by a fine of $350 2r by imprisonment in the county jail for not more

than 10 days, or both." The District Court fined Meyers $350 and sentenced him to the

maximum ten days in jail, although the jail sentence was suspended; each sentence is within

the limits of the statute. Accordingly, we conclude that the District Court did not abuse its

discretion when it imposed Meyers' sentence for failure to have liability insurance.

       In addition to the sentences imposed, the District Court required that Meyers pay a

total of $650.48 for costs and surcharges. Section 46-18-201(d), MCA, permits the District

Court to require payment of costs and jury expenses pursuant to 8 46-18-232, MCA;

5 46-18-236(l)(a), MCA, requires all courts of original jurisdiction   to assess a $15 charge

                                             5
for each misdemeanor conviction, and $ 3-1-317(1)(a), MCA, requires imposition of a $5

user surcharge for each conviction of criminal conduct. Although the District Court did not

specify these statutes as the basis for its charges, it ordered Meyers to pay $40 as surcharges

for the convictions in District Court and $40 for court costs and surcharges per violation to

the City Court. The District Court also ordered that Meyers pay District Court jury costs in

the amount of $296.48, and City Court jury costs in the amount of $234.

       There is no indication, however, that the District Court applied the other provisions

of the statutes which provide for an exception where the defendant is unable to pay. Sections

46-18-236(2) and -232(2), MCA, both provide that if the convicting court determines that

the defendant is not able to pay the costs or surcharges, those expenses n~ust waived.
                                                                             be

Section 3-1-317(2), MCA, provides that in the event a defendant is unable to pay, the

surcharge may be waived. These sections have significance in this case in which the District

Court found that Meyers was mdigent. Normally imposition of surcharges, costs, and jury

expenses pursuant to these statutes would be inconsistent with a determination of indigence.

Therefore, we vacate that part of the District Court's judgment which assessed costs and

surcharges in the combined amount of $650.48 and remand to the District Court for

determination of whether Meyers is financially able to pay that amount.

       We affim~ part and vacate part of the judgment of the District Court, and remand
               in

for further proceedings consistent wtth this opinion.
We Concur:
                                         August 18, 1997


                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:

JAMES C. MEYERS
472 RUSSELL #6
HELENA MT 59601


HON. JOSEPH P. MAZUREK, ATTORNEY GENERAL                             @
ELIZABETH GRIFFING, ASSISTANT
215 NORTH SANDERS
HELENA MT 59620

ROBERT J. WOOD
ASSISTANT CITY ATTORNEY
BOX 133
HELENA MT 59624-0133



                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
