                                                                                        August 31 2010
                                         DA 09-0516
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2010 MT 194N


STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

NIEL KELLY MULLARKEY,

              Defendant and Appellant.



APPEAL FROM:          District Court of the First Judicial District,
                      In and For the County of Lewis and Clark, Cause No. CDC 2008-136
                      Honorable Kathy Seeley, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Eli M. Parker, Office of the State Public Defender; Missoula,
                      Montana

                      Joslyn Hunt, Chief Appellate Defender; Eileen Larkin, Assistant
                      Appellate Defender; Helena, Montana

               For Appellee:

                      Steve Bullock, Montana Attorney General; Jonathan M. Krauss,
                      Assistant Attorney General; Helena, Montana

                      Leo J. Gallagher, Lewis and Clark County Attorney; Melissa Broch,
                      Deputy County Attorney; Helena, Montana


                                                 Submitted on Briefs: July 14, 2010

                                                             Decided: August 31, 2010


Filed:

                      __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2006, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court, and its case title, Supreme Court 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     A Lewis and Clark County jury convicted Neil Mullarkey for three counts of

assault on a peace officer and one count of obstructing a peace officer. Mullarkey

appeals and argues that the District Court should have dismissed the charges because his

commitment to the Montana State Hospital (MSH) (for a psychological examination)

violated statutory time limits and, therefore, due process.1

¶3     The facts underlying Mullarkey’s arrest and subsequent conviction are not central

to the issue on appeal and may be briefly summarized. Mullarkey lay in the bed of his

pickup, which was parked at a Helena-area gas station. Due to an earlier incident, the gas

station manager wanted him to leave and had called the police. Four officers responded,

one immediately drew his gun and placed it behind his back. Mullarkey then drew a

pocket knife and opened the blade. The officers, noticing the knife, immediately and

repeatedly tased Mullarkey, causing him to drop the knife. They arrested him. The State




1
  Mullarkey raised three other issues in his opening brief that he expressly withdrew in his reply
brief.


                                                2
subsequently charged Mullarkey with three counts of assault on a peace officer and one

count of obstruction of a peace officer.

¶4      Prior to trial, Mullarkey was evaluated by a clinical psychologist, to determine

whether he was competent to stand trial. The psychologist did not offer an opinion as to

whether Mullarkey was fit to proceed and recommended that he be transferred to MSH

for further proceedings. Mullarkey’s counsel subsequently moved the court pursuant to

§ 46-14-221, MCA, to order a competency examination at MSH.2                    Consistent with

defense counsel’s request, the District Court ordered the examination pursuant to § 46-

14-221, MCA. Mullarkey was transported to MSH for examination. Shortly thereafter,

Mullarkey’s counsel moved to continue the trial date on account of the hospitalization,

noting his expectation that “Defendant will remain hospitalized for up to 90 days.”

¶5      The MSH doctors filed a report, concluding that Mullarkey was unfit to proceed to

trial. However, after a hearing at which Mullarkey testified to his own fitness, the

District Court concluded that Mullarkey was fit to proceed to trial and ordered him to be

transported back to the Lewis and Clark County Jail. All told, Mullarkey spent 99 days at

MSH.3




2
   Mullarkey’s counsel apparently intended to cite § 46-14-202(2), MCA, which provides for
fitness examinations “for a period not exceeding 60 days or a longer period that the court
determines to be necessary.” Tacitly acknowledging this mix-up, Mullarkey’s counsel
eventually moved (as we note later) to dismiss on the basis that the District Court did not follow
the procedure outlined in § 46-14-202(2), MCA.
3
   He was admitted to MSH on July 30, 2008, and the Lewis and Clark County Sheriff’s Office
returned him to Helena on November 5, 2008, to attend the hearing on his fitness to proceed.
The Defense tallies 103 days, while the State tallies 98.


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¶6    Approximately one month after the court determined him to be fit for trial,

Mullarkey moved to dismiss the charges against him. Mullarkey premised his motion on

§ 46-14-202(2), MCA, which limits the period of a criminal defendant’s commitment to

MSH for a fitness examination to 60 days unless a district court determines that more

time is needed.      Mullarkey argued that his commitment at MSH in excess of the

statutorily permitted 60 days violated his right to due process, requiring dismissal. In

support of this argument, Mullarkey cited State v. Tison, 2003 MT 342, 318 Mont. 465,

81 P.3d 471.

¶7    In response, the State conceded that Mullarkey had been committed at MSH in

excess of statutorily allowed limits. However, the State argued that this excess period of

commitment was reasonable because Mullarkey did not cooperate with MSH personnel

who conducted the examination. Therefore, the commitment did not violate Mullarkey’s

right to due process. The State also suggested that Mullarkey was at fault for not

challenging the length of his commitment until he was released from MSH and filed his

motion to dismiss.

¶8    The District Court denied Mullarkey’s motion. The court distinguished Tison as

being limited to cases when a criminal defendant is committed to MSH under § 46-14-

221(3), MCA, after being determined to be unfit.

¶9    A Lewis and Clark County jury subsequently convicted Mullarkey on all counts

and the court sentenced him. Mullarkey appeals the denial of his motion to dismiss.

¶10   We review de novo a district court’s ruling on a motion to dismiss in a criminal

case. State v. Giddings, 2009 MT 61, ¶ 42, 349 Mont. 347, 208 P.3d 363.


                                            4
¶11       It is well settled that “a person charged by a State with a criminal offense who is

committed solely on account of his incapacity to proceed to trial cannot be held more

than the reasonable period of time necessary to determine whether there is a substantial

probability that he will attain that capacity in the foreseeable future.” Jackson v. Ind.,

406 U.S. 715, 738, 92 S. Ct. 1845, 1858 (1972). Here, Mullarkey’s counsel initially

supported Mullarkey’s commitment for 90 days. Thus, the question is whether

Mullarkey’s commitment for the nine extra days was so unreasonable as to offend due

process. We conclude that it does not. The report of the MSH doctors indicates that

Mullarkey’s uncooperativeness hampered the doctors’ examination of him.4 In light of

this, we conclude that Mullarkey’s short period of commitment beyond the amount of

time recommended by his counsel was not unreasonable.5



4
    The report reads in part:

        He [Mullarkey] has been only minimally cooperative with efforts to elicit
        personal information which might contribute to the evaluation process. He has
        consistently refused to sign releases of information to allow staff to obtain
        background information from friends and family members. He refused to sign his
        treatment plan. He refused to sign a simple document acknowledging that he had
        been advised of his rights. He has refused recommended medical lab testing, a
        recommended CAT scan, and recommended medication “because I’m here
        illegally.” He has steadfastly maintained that he is not mentally ill and would
        have no legal problems if he could afford to pay for a better lawyer.
5
   We reject the State’s argument that Mullarkey did not timely raise his objection. The State
cites no authority for this proposition, merely its own say-so. Because Mullarkey filed his
motion to dismiss with the District Court and the District Court ruled on the motion, Mullarkey
is not asking this Court to address an issue on which the District Court did not have the
opportunity to rule. See D.R. Four Beat Alliance, LLC v. Sierra Prod. Co., 2009 MT 319, ¶ 43,
352 Mont. 435, 218 P.3d 827 (“It is a well-established principle of Montana law that claimed
errors must generally be raised in the district court before this Court will consider them on
appeal, because it is fundamentally unfair to fault the district court for failing to rule on an issue
it did not have the opportunity to consider.”). Absent any authority in statute or precedent, we


                                                  5
¶12    We have decided to determine this case pursuant to Section I, Paragraph 3(d) of

our 1996 Internal Operating Rules, as amended in 2006, which provides for

memorandum opinions. It is manifest on the record before us that the District Court did

not err in its disposition of this matter. We therefore affirm.



                                                              /S/ W. WILLIAM LEAPHART


We concur:


/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ JIM RICE
/S/ BRIAN MORRIS




decline the State’s invitation to erect an arbitrary procedural barrier to the vindication of criminal
defendants’ constitutional rights.


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