                                                                                              04/07/2020


                                          DA 17-0741
                                                                                          Case Number: DA 17-0741

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2020 MT 85N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

AUSTIN BOOSE,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Eleventh Judicial District,
                       In and For the County of Flathead, Cause No. DC-17-493(D)
                       Honorable Amy Eddy, Presiding Judge

COUNSEL OF RECORD:

                For Appellant:

                       Chad Wright, Appellate Defender, Deborah S. Smith, Assistant Appellate
                       Defender, Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Brad Fjeldheim, Assistant
                       Attorney General, Helena, Montana

                       Travis R. Ahner, Flathead County Attorney, Renn Fairchild, Deputy County
                       Attorney, Kalispell, Montana




                                                   Submitted on Briefs: March 11, 2020

                                                               Decided: April 7, 2020


Filed:

                                     r--6ta•--df
                       __________________________________________
                                         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     On April 17, 2016, Austin Boose (Boose) was charged with first offense driving

under the influence of alcohol, a misdemeanor. Boose entered a not guilty plea at his initial

appearance on April 29, 2016. At that appearance, the Justice Court orally ordered Boose

to personally appear at all proceedings and informed him his failure to appear would result

in a waiver of his right to a jury trial. Additionally, at that hearing the court appointed the

public defender to represent Boose and Boose signed an Acknowledgement of Rights Upon

Plea of Not Guilty, which reiterated the rights explained to him by the court and specifically

provided, “I understand that if I fail to attend either the omnibus hearing or the pretrial

conference I will give up my right to trial by jury.” Following the initial appearance, the

Justice Court served the Omnibus Hearing Notice on both Boose at the address he provided

and Boose’s counsel. In addition to providing the date and time of the omnibus hearing,

the notice ordered that Boose “must appear in person” at the omnibus hearing and informed

him that, “[i]f you fail to attend the Omnibus Hearing you will waive (give up) the right to

trial by jury.”




                                              2
¶3     Although his counsel was present, Boose did not attend the omnibus hearing on

July 5, 2016. Based on Boose’s default in appearance at the omnibus hearing, the Justice

Court set the matter for bench trial. Prior to the bench trial, Boose filed an objection to the

court’s order to waive jury trial and a motion to preserve his right to a jury trial. The Justice

Court denied the motion. Boose was convicted at bench trial, following which he appealed

the denial of his motion to preserve his right to a jury trial to District Court. The District

Court, which functioned as an intermediate appellate court, affirmed the Justice Court. See

§§ 3-5-303 and 3-10-115, MCA. Boose now appeals from both the Justice Court’s and the

District Court’s denials of his motion to preserve his right to a jury trial, determining he

waived his right to a jury trial under Article II, Section 26, of the Montana Constitution.

We affirm.

¶4     We review a district court’s appellate decision as if originally appealed to this Court.

City of Kalispell v. Salsgiver, 2019 MT 126, ¶ 11, 396 Mont. 57, 443 P.3d 504. We review

a lower court’s conclusions of law and interpretations of the Constitution de novo.

Salsgiver, ¶ 11.

¶5     The sole issue on appeal is whether the Justice Court correctly ruled Boose waived

his right to a jury trial by failing to appear at the omnibus hearing in violation of the Justice

Court’s order. In sum, Boose argues a default in appearance waiver of his right to a jury

trial must be made knowingly, intelligently, and voluntarily to be valid under the Montana

Constitution. The State asserts Boose’s argument is at odds with precedent directly

interpreting Article II, Section 26, of the Montana Constitution. We agree with the State.


                                               3
¶6    The Montana Constitution provides:

      The right of trial by jury is secured to all and shall remain inviolate. But
      upon default of appearance or by consent of the parties expressed in such a
      manner as the law may provide, all cases may be tried without a jury or before
      fewer than the number of jurors provided by law.

Mont. Const. art. II, § 26. “We have previously established that a misdemeanor defendant

may waive his or her Article II, Section 26 right to trial by jury by failing to appear as

directed by the trial court.” Salsgiver, ¶ 20; see also State v. Sherlock, 2018 MT 92,

¶¶ 17-18, 391 Mont. 197, 415 P.3d 997; City of Missoula v. Cox, 2008 MT 364, ¶ 10, 346

Mont. 422, 196 P.3d 452; and State v. Trier, 2012 MT 99, ¶ 15, 365 Mont. 46, 277 P.3d

1230. Additionally, “[i]n all cases in which the defendant is charged with a misdemeanor

offense, the defendant may appear by counsel only, although the court may require the

personal attendance of the defendant at any time.” Section 46-16-120, MCA (emphasis

added). A defendant, therefore, only “fails to appear” under § 46-16-120, MCA, “if both

the defendant and defendant’s counsel fail to appear, unless the court had previously

informed the defendant that his personal attendance was required.” State v. Clark, 2006

MT 313, ¶ 10, 335 Mont. 39, 149 P.3d 551 (emphasis added). The right to jury trial is not

unqualified, and is constitutionally subject to waiver upon “default of appearance.” Mont.

Const. art. II, § 26. See also § 46-17-311(5), MCA; Salsgiver, ¶ 20.

¶7    Here, Boose was present in court when read the conditions of his release and

informed of his continuing obligation to attend future court proceedings. The Justice Court

advised him orally that if he failed to personally appear at his omnibus hearing, he would

waive his right to a jury trial. Boose signed an acknowledgement which specifically

                                            4
provided, “I understand that if I fail to attend either the omnibus hearing or the pretrial

conference I will give up my right to trial by jury.” He was then provided additional notice

of the omnibus hearing and ordered “You must appear in person. . . . If you fail to attend

the Omnibus Hearing you will waive (give up) the right to trial by jury.” The Justice Court

had clearly and emphatically “previously informed [Boose] that [his] personal appearance

[was] required.” State v. Ziolkowski, 2014 MT 58, ¶ 13, 374 Mont. 162, 321 P.3d 816

(citations omitted). Finally, Boose gave no reason or cause as to his failure to appear and

there is nothing in the record to indicate Boose suffers any cognitive disability. Consistent

with our precedent in Cox and City of Missoula v. Girard, 2013 MT 168, 370 Mont. 443,

303 P.3d 1283, it remains within the trial court’s discretion to waive a defendant’s right to

a jury trial through “default of appearance” in accordance with the plain language of

Article II, Section 26, of the Montana Constitution. The Justice Court correctly ruled

Boose waived his right to a jury trial by failing to appear at the omnibus hearing in violation

of the court’s order.

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

Internal Operating Rules, which provides for memorandum opinions. This appeal presents

no constitutional issues, no issues of first impression, and does not establish new precedent

or modify existing precedent. 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.

¶9     Affirmed.


                                                   /S/ INGRID GUSTAFSON

                                              5
We concur:


/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JIM RICE
/S/ DIRK M. SANDEFUR




                       6
