                                                                                              11/29/2016


                                          DA 15-0570
                                                                                         Case Number: DA 15-0570

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2016 MT 314N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

RICHARD NORMAN KAMPF,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DC 12-436
                        Honorable David M. Ortley, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Chief Appellate Defender, James Reavis, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
                        Assistant Attorney General, Helena, Montana

                        Ed Corrigan, Flathead County Attorney, Caitlin Overland, Deputy County
                        Attorney, Kalispell, Montana


                                                    Submitted on Briefs: September 14, 2016
                                                               Decided: November 29, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon 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     Richard Kampf (Kampf) appeals from his conviction in Flathead County Justice

Court and the ruling in his subsequent appeal to the Eleventh Judicial District Court.

After he received multiple misdemeanor citations on December 12, 2006, Kampf never

appeared to answer for the charges in Justice Court—despite the court issuing a bench

warrant—until he was arrested for Partner or Family Member Assault in 2012, and the

previous warrant was uncovered. He filed a motion to dismiss the 2006 citations on

Montana and United States Constitutional speedy trial grounds on September 18, 2012,

which the Justice Court denied. The court concluded that § 46–13—402(2), MCA, which

governs, among other things, speedy trial standards for misdemeanor prosecutions, had

not been satisfied because not more than six months had elapsed between the defendant’s

initial appearance to enter a plea and his subsequent trial. However, approximately six

years had passed since the county had issued the initial complaint against him and his

trial. The Justice Court held, and the District Court affirmed on appeal, that Article II,

Section 24, of the Montana Constitution does not apply to misdemeanor offenses, leaving

the six month window between appearance and trial in § 46–13–402(2), MCA, as the




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standard and sole basis of analysis for an alleged speedy trial violation in a misdemeanor

prosecution in Justice Court. We affirm.

¶3    We restate the issue for review as follows: Whether Article II, Section 24, of the

Montana Constitution, and the framework of analysis promulgated in State v. Ariegwe

2007 MT 204, 338 Mont. 442, 167 P.3d 815, apply to misdemeanor prosecutions.

¶4    Trooper David Mills cited Kampf on December 12, 2006 for driving while

suspended (§ 61–5–212, MCA); failing to carry proof of insurance (§ 61–6–302, MCA);

and following too closely (§ 61–8–329, MCA) in the aftermath of an accident. All of the

charges for which the citations were issued were misdemeanors. The citations required

Kampf to appear personally in Flathead County Justice Court on December 22, 2006.

Kampf did not appear before the court on December 22, and did not heed the court’s

warning letter sent on January 5, 2007. The Justice Court suspended his license on

January 29, 2007, and issued a bench warrant on March 6, 2007 for his failure to appear.

That warrant remained in effect until July 16, 2012, when Kampf was arrested on charges

of Partner or Family Member Assault (PFMA). He appeared in Justice Court on July 17,

2012, to answer for the PFMA charge and his misdemeanor citations. He pled not guilty

to all charges, but failed to appear at his omnibus hearing on August 28, 2012. In his

absence, the court set trial for his 2006 misdemeanor charges for October 16, 2012.

¶5    Through assigned counsel, Kampf moved to dismiss his misdemeanor charges on

Montana and United States constitutional speedy trial grounds on September 18, 2012,

but the Justice Court denied his motion by order on October 5, 2012. In his motion for

dismissal, Kampf argued that the delay between the filing of the complaint against him


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and his trial date, a span of approximately six years, violated his right to a speedy trial

under the United States and Montana Constitutions. In its order denying the motion, the

Justice Court reasoned that this Court’s decision in Ariegwe, the controlling framework

for constitutional speedy trial claims in Montana, did not apply to misdemeanor

violations. Rather than following Ariegwe by conducting a speedy trial hearing, the

Justice Court held that Ariegwe did not apply, and § 46–13–401(2), MCA, instead

controlled the analysis.

¶6     Less than six months had passed between Kampf entering a plea on July 17, 2012,

and his motion to dismiss being filed on September 18, 2012. Since the Justice Court

recognized § 46–13–401(2), MCA, as the only controlling authority, the court concluded

Kampf had not been denied his speedy trial right. Kampf did not appear at his bench trial

on October 16, 2012 and was convicted on all counts in absentia. Kampf appealed to the

Eleventh Judicial District Court, where the Justice Court’s rationale underlying the denial

of his motion to dismiss was upheld, and his convictions were affirmed.

¶7     On appeal from Justice Court, the District Court functions as an intermediate

appellate court. See §§ 3–5–303 and 3–10–115, MCA. On appeal to this Court, we

review the case as if the appeal had been filed originally in this Court. City of Bozeman

v. Cantu, 2013 MT 40, ¶ 10, 369 Mont. 81, 296 P.3d 461; State v. Ellison, 2012 MT 50,

¶ 8, 364 Mont. 276, 272 P.3d 646 (citing Stanley v. Lemire, 2006 MT 304, ¶ 26, 334

Mont. 489, 148 P.3d 643). “We examine the record independently of the district court’s

decision, reviewing the trial court’s findings of fact under the clearly erroneous standard,




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its discretionary rulings for abuse of discretion, and its legal conclusions and mixed

questions of law and fact under the de novo standard.” Ellison, ¶ 8.

¶8     We have previously held that while “Ariegwe has no application in a statutory

speedy-trial claim,” a defendant is not precluded from pursuing both his statutory right to

a speedy trial and his constitutional right to a speedy trial in the same matter. City of

Helena v. Heppner, 2015 MT 15, ¶¶ 13, 18, 378 Mont. 68, 341 P.3d 640. A statute may

not abrogate a constitutional provision, so a defendant is free to pursue constitutional

protections for a speedy trial when his claims under statutory protections fail or are

otherwise not available. Heppner, ¶ 18.

¶9     The Justice Court denied Kampf’s speedy trial claim on the grounds that Article II,

Section 24, of the Montana Constitution, and the Ariegwe framework do not apply to

misdemeanors. Rather than apply Ariegwe’s four factors and conduct a balancing test,

the court constrained its application of law to the provisions of § 46–13–401(2), MCA.

Additionally, it concluded that Kampf’s arraignment was the trigger date for a speedy

trial analysis, not the date the complaint was filed. Although the court was correct that

the date of Kampf’s arraignment was the trigger date for the misdemeanor statutory

speedy trial protections in § 46–13–401(2), MCA, it erred by not conducting a separate

constitutional speedy trial right analysis under Ariegwe.

¶10    Section 24 and Ariegwe do indeed apply to misdemeanor violations, but

misdemeanor defendants often times will be better served by moving to dismiss under the

smaller threshold window of six months, granted by the statutory protection of

§ 46-13-401(2), MCA. Although Kampf did not meet the statutory threshold of six


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months between arraignment and trial, he did meet Ariegwe’s threshold of 200 days

between complaint and trial.     Kampf’s motion to dismiss on constitutional grounds

therefore should have been heard before the Justice Court, and analyzed consistent with

our ruling in Ariegwe: the Justice Court should have issued findings of fact, conclusions

of law, and conducted a balancing test of the four factors.

¶11    However, just as we may determine, in the absence of the Justice Court

conducting an Ariegwe analysis, that the threshold 200 days has been satisfied and

triggers a constitutional analysis, so too may we determine that Kampf’s avoidance of the

several hearing dates culminating in the issuance of a warrant outstanding for six years

conclusively establishes that he had not asserted and did not want his right to a speedy

trial. Factor (3) of the Ariegwe constitutional speedy trial analysis requires the court to

determine whether the accused asserted his right to a speedy trial.        Ariegwe, ¶ 20.

Although we recognize that Ariegwe requires the trial court to enter findings of fact and

conclusions of law as to each factor, Ariegwe, ¶ 117, remand under the facts present here

would be an exercise in futility. Kampf never appeared to answer the charges despite

having been provided notice to personally appear. Kampf also did not appear after the

Justice Court’s warning letter sent on January 5, 2007. Further, despite the suspension of

Kampf’s license for six years and an outstanding bench warrant for an equal amount of

time, Kampf continued to avoid trial until he was arrested for a new offense and the

outstanding warrant was discovered. Even then, Kampf failed to appear at his omnibus

hearing and was ultimately tried in absentia on October 16, 2012.




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¶12    Based on these facts, we have no difficulty concluding that although the Justice

Court erred in not conducting a constitutional speedy trial analysis, the record clearly

establishes Kampf did not want or assert his right to a speedy trial. Indeed, the record

demonstrates Kampf did everything he could to avoid a speedy resolution of these

proceedings.

¶13    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 relevant standards of review.

¶14    Affirmed.


                                                   /S/ LAURIE McKINNON


We Concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ JIM RICE




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