                                                                                            March 4 2014


                                           DA 13-0295

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2014 MT 58



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

ANDREA D. ZIOLKOWSKI,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Twentieth Judicial District,
                        In and For the County of Lake, Cause No. DC 13-12
                        Honorable Deborah Kim Christopher, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Andrea D. Ziolkowski, Self-Represented, Hamilton, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant
                        Attorney General, Helena, Montana

                        Mitchell A. Young, Lake County Attorney, Cory Allen, Deputy Lake
                        County Attorney, Polson, Montana



                                                    Submitted on Briefs: January 22, 2014
                                                               Decided: March 4, 2014


Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1      Andrea D. Ziolkowski was convicted of four misdemeanor offenses in Lake

County Justice Court. She appealed to the Twentieth Judicial District Court, which

dismissed the appeal when Ziolkowski failed to appear for a scheduled court date.

Ziolkowski now appeals to this Court. We affirm.

¶2      The sole issue on appeal is whether the District Court abused its discretion in

dismissing Ziolkowski’s appeal from the Justice Court.

                                   BACKGROUND

¶3      Ziolkowski was charged on October 1, 2011, with obstructing a peace officer, in

violation of § 45-7-302, MCA; resisting arrest, in violation of § 45-7-301, MCA; failing

to carry motor vehicle liability insurance, in violation of § 61-6-301, MCA; and speeding,

in violation of § 61-8-309, MCA. At her initial appearance in Justice Court, Ziolkowski

indicated that she would not proceed without counsel. The Justice Court, therefore,

rescheduled the initial appearance and appointed the Office of the State Public Defender

(OPD) to represent Ziolkowski.

¶4      Ziolkowski’s initial appearance and arraignment were delayed multiple times from

October 31, 2011, to April 18, 2012. Several of the continuances were prompted by

Ziolkowski. In the meantime, OPD filed a motion to rescind the appointment of counsel

because Ziolkowski had not complied with the eligibility criteria set forth in § 47-1-111,

MCA. The Justice Court conducted a hearing and then granted the motion on March 27,

2012.




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¶5     At her initial appearance and arraignment on April 18, 2012, Ziolkowski declined

to enter a plea until she could speak with counsel. The Justice Court thus entered pleas of

not guilty and set an omnibus hearing for June 4. The omnibus hearing was continued,

on Ziolkowski’s motion, to September 10. Ziolkowski appeared at the omnibus hearing

and represented herself. The Justice Court set a jury trial for December 6 and ordered

Ziolkowski’s personal appearance. The trial was continued to December 28.

¶6     During this period, Ziolkowski filed a variety of documents in the Justice Court,

including a motion demanding that the court “read all pleadings defendant files with this

court,” a motion to dismiss for lack of jurisdiction on the ground that “the United States

is now only a corporation,” a motion demanding “to know the nature and cause of the

accusations/charges,” and a list of potential defense witnesses that included the Montana

Attorney General, a Montana Supreme Court Justice, the director of the William J.

Jameson Law Library in Missoula, and the director of the State Law Library in Helena.

In early December, Ziolkowski filed a motion to continue or dismiss on the ground that

she was not schooled in the law and needed time to formulate a defense. The Justice

Court addressed Ziolkowski’s various filings but refused to delay the trial beyond

December 28, noting that she had been given “ample opportunity” to prepare her defense.

¶7     Late in the day on December 27, 2012, Ziolkowski made a request, by telephone,

that the jury trial be vacated or continued because she remained without counsel and did

not have a reliable vehicle to travel to the courthouse. The Justice of the Peace explained

to Ziolkowski that while a person has the right to counsel, a person does not have the

right to have counsel appointed if, as here, she has not satisfied the eligibility criteria.


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The judge rejected Ziolkowski’s request for a continuance, noting again that she had been

given ample time to prepare and that her request was untimely. The judge informed

Ziolkowski that if she failed to appear, the trial would take place without her.

¶8     The case proceeded to trial on December 28, 2012. Ziolkowski did not appear,

and thus the trial was held in absentia pursuant to § 46-16-122(2)(d), MCA, which states

that if the defendant fails to appear in person at the time set for trial in a misdemeanor

case, and if the defendant is not represented by counsel, the court may proceed with the

trial after finding that the defendant had knowledge of the trial date and is voluntarily

absent. The jury returned a verdict of guilty on all four counts. The Justice Court

imposed fines and jail time. All but one day of the jail time was suspended.

¶9     Ziolkowski appealed to the District Court for a trial de novo. See §§ 25-33-301,

46-17-311, MCA. At a hearing held February 14, 2013, the District Court inquired

whether Ziolkowski had counsel. After being advised that Ziolkowski previously had

been denied appointed counsel for failure to comply with the eligibility criteria, the

District Court directed Ziolkowski (who was present at the hearing) to reapply with OPD.

The court further stated that, if she were again denied counsel, the court would hold an

indigence hearing. The court set the case for “an omnibus hearing or indigence hearing”

on February 28 at 9:00 a.m. and directed Ziolkowski to appear at that hearing. On

February 25, Ziolkowski filed a “Motion: Request for Unfettered Assistance of Counsel”

and an “Affidavit for Non Corporate Status.”

¶10    Ziolkowski did not appear at 9:00 a.m. for the February 28, 2013 hearing. An

attorney from OPD, Steven N. Eschenbacher, did appear and advised the District Court


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that Ziolkowski still had not provided the information required to determine her

eligibility for appointed counsel. The District Court moved Ziolkowski’s case to the end

of the court’s calendar that morning to see whether she would show up; however, by

10:10 a.m., Ziolkowski still was not present. The State moved to dismiss the case with

prejudice, and the District Court granted that motion pursuant to § 46-17-311(5), MCA,

which provides:

              If, on appeal to the district court, the defendant fails to appear for a
       scheduled court date or meet a court deadline, the court may, except for
       good cause shown, dismiss the appeal on the court’s own initiative or on
       motion by the prosecution and the right to a jury trial is considered waived
       by the defendant. Upon dismissal, the appealed judgment is reinstated and
       becomes the operative judgment.

Ziolkowski now appeals to this Court.

                               STANDARD OF REVIEW

¶11    Although Ziolkowski raises several issues in her briefs on appeal, the sole

question properly before this Court is whether dismissal of her appeal from the Justice

Court was permissible under § 46-17-311(5), MCA. This statute grants a district court

discretion to dismiss an appeal under the circumstances specified in the statute. An abuse

of discretion occurs when a court acts arbitrarily without the employment of

conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice.

State v. Belanus, 2010 MT 204, ¶ 15, 357 Mont. 463, 240 P.3d 1021 (citing State v.

Derbyshire, 2009 MT 27, ¶ 19, 349 Mont. 114, 201 P.3d 811). A court would necessarily

abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly

erroneous assessment of the evidence. City of Missoula v. Girard, 2013 MT 168, ¶ 10,



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370 Mont. 443, 303 P.3d 1283 (citing Wohl v. City of Missoula, 2013 MT 46, ¶¶ 28, 57,

369 Mont. 108, 300 P.3d 1119).

                                     DISCUSSION

¶12   Whether the District Court abused its discretion in dismissing Ziolkowski’s
      appeal from the Justice Court.

¶13   Under § 46-17-311(5), MCA, if the defendant “fails to appear” for a scheduled

court date, the district court may, “except for good cause shown,” dismiss the appeal.

The first question in applying this statute is whether Ziolkowski “failed to appear” for a

scheduled court date. A defendant “fails to appear” only if both she and her counsel (if

she has counsel) fail to appear, unless the court has previously informed the defendant

that her personal attendance is required. State v. Clark, 2006 MT 313, ¶ 10, 335 Mont.

39, 149 P.3d 551; State v. Hass, 2011 MT 296, ¶ 19, 363 Mont. 8, 265 P.3d 1221. Here,

Ziolkowski did not appear personally at the February 28 hearing. She also did not appear

“through counsel” at that hearing. See Clark, ¶¶ 5, 10; Haas, ¶ 19. She had requested

counsel at the February 14 hearing, and the District Court had directed her to reapply

with OPD; however, Eschenbacher advised the court on February 28 that Ziolkowski’s

application was “deficient in certain areas.” Moreover, three days before the February 28

hearing, Ziolkowski filed a motion, on her own behalf, again requesting counsel. And in

her opening brief on appeal, she expressly rejects the notion that Eschenbacher appeared

on her behalf.   Finally, even if it could be argued that Eschenbacher appeared for

Ziolkowski, the District Court stated on the record at the February 28 hearing that

“[Ziolkowski] was required to be present by this Court with regard to the hearing on the



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omnibus hearing or the indigency hearing today’s date at nine a.m.”             Ziolkowski

concedes in her opening brief that she “needed to be in the court for an omnibus hearing

on February 28.”

¶14    Accordingly, given Ziolkowski’s failure to appear, the second question is whether

there was “good cause” precluding the District Court from dismissing her appeal. Good

cause is generally defined as a “legally sufficient reason” and is referred to as the burden

placed on a litigant, usually by court rule or order, to show why a request should be

granted or an action excused. State v. Luke, 2014 MT 22, ¶ 15, 373 Mont. 398, ___ P.3d

___ (internal quotation marks omitted) (citing City of Helena v. Roan, 2010 MT 29, ¶ 13,

355 Mont. 172, 226 P.3d 601). We conclude that no such showing was made here. In

her opening brief on appeal, Ziolkowski explains that “[o]n February 28, 2013, it being a

3-hour drive from Corvallis, Montana to Polson, Montana, being without assistance of

counsel that I requested, having received no answer from the OPD, I was not about to

subject myself to the horrors of the court after my last experience in the lower court.” It

appears, therefore, that Ziolkowski simply chose deliberately not to attend the hearing—a

hearing that the District Court had scheduled specifically for the purpose of addressing

Ziolkowski’s request for counsel. Thus, there being no good cause precluding dismissal

of her appeal, we hold that the District Court did not abuse its discretion.

¶15    Affirmed.


                                                  /S/ LAURIE McKINNON




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We Concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JIM RICE




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