                                                                                             July 28 2015


                                          DA 14-0327
                                                                                          Case Number: DA 14-0327

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2015 MT 214N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

DANIEL McGRATH JR.,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Fifth Judicial District,
                       In and For the County of Beaverhead, Cause No. DC 13-3508
                       Honorable Loren Tucker, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Wade Zolynski, Chief Appellate Defender, James Reavis, Assistant
                       Appellate Defender; Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
                       Attorney General; Helena, Montana

                       Jed C. Fitch, Beaverhead County Attorney, Michael Gee, Deputy County
                       Attorney; Dillon, Montana



                                                   Submitted on Briefs: June 3, 2015
                                                              Decided: July 28, 2015


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice 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Rules, this case is decided by unpublished opinion and shall not be cited and does not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     Daniel McGrath, Jr. (McGrath) appeals from an order of the Fifth Judicial District

Court, Beaverhead County, denying his motion to suppress evidence and dismiss the

proceeding. McGrath was charged and convicted in Beaverhead County Justice Court of

minor in possession of alcohol, in violation of § 45-5-624, MCA, and thereafter appealed

to District Court. McGrath argues on appeal that his trial counsel rendered ineffective

assistance “by instructing the district court to apply an incorrect standard of review” to

McGrath’s appeal from Justice Court.

¶3     In Justice Court, McGrath filed a motion to suppress evidence and to dismiss the

charge. In a written order, the Justice Court denied the motion. Thereafter, McGrath

entered a guilty plea to the charge while reserving his right to appeal the denial of his

motion.1 McGrath’s notice of appeal stated, in part:

       Pursuant to Mont. Code Ann. § 46-12-204(3), McGrath reserved his right to
       appeal the Justice Court order dated March 28, 2013 denying his motion to


1
 McGrath’s appellate briefing states that his guilty plea was entered pursuant to a plea bargain
agreement, but does not indicate whether the agreement was in written form. The record does
not contain a written agreement. The State’s briefing simply indicates that, “with the State’s
permission,” McGrath reserved his right to appeal the Justice Court’s ruling on his motion.
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       dismiss and suppress evidence. Therefore, his appeal is limited to this
       specific pretrial motion.

¶4     After McGrath’s initial appearance and arraignment in the District Court, the court

issued an omnibus order setting forth pre-trial procedures and a schedule, including a date

for trial. The court also issued a minute order setting an evidentiary hearing “[p]er the

request of the county attorney . . . .” However, shortly thereafter, counsel for the parties

filed a stipulated motion to vacate the hearing. The stipulation noted that the appeal had

been limited to the denial of McGrath’s motion by the Justice Court, and stated “the

parties respectfully request this Court limit this case to review of the Justice Court’s

Judgment/Order.” The parties advised that “the standard of review here is not de novo”

and stated that “the Court should respectfully review the Justice Court’s findings and

determine whether the Justice Court’s interpretation and application of the law was

correct.”    The parties agreed that “neither party will be prejudiced by vacating this

hearing.”

¶5     The District Court issued an order that analyzed the necessity of an evidentiary

hearing under § 46-13-104(2), MCA, and State v. Schulke, 2005 MT 77, ¶ 28, 326 Mont.

390, 109 P.3d 744. The court held the matter would be decided on the parties’ briefs,

reasoning:

       The parties ask the Court to make a decision as a matter of law.

                                        .    .    .

       McGrath attached the police report as an exhibit to his motion to suppress
       and dismiss. McGrath does not dispute the facts recounted by the police
       report. McGrath[’s] arguments only contest the legal significance of those
                                             3
          facts. . . . This case almost perfectly matches Schulke. No evidentiary
          hearing is necessary.

The District Court subsequently issued an order denying McGrath’s motion to suppress

and dismiss, noting again that the facts were uncontested.

¶6        On appeal, McGrath argues that his trial counsel misstated the procedure on

appeal to the District Court. McGrath takes issue with his counsel’s statements within

the stipulated motion that “the standard of review here is not de novo” and requesting the

District Court review the Justice Court’s order “for correctness,” without conducting an

evidentiary hearing. The State responds that the stipulated motion correctly explained

that McGrath had reserved a single issue for appeal and that the parties had agreed, both

in the Justice Court and District Court, that an evidentiary hearing was not necessary

because the facts as set forth in the police report were not contested. The State argues

that, even if McGrath’s counsel had performed deficiently, McGrath has not

demonstrated how he was prejudiced by not having an evidentiary hearing. In reply,

McGrath expands his argument by offering that an evidentiary hearing would have

provided trial counsel “an entirely new opportunity to present McGrath’s case,” and

explains possible factual issues that could be raised in an evidentiary hearing.

¶7        McGrath correctly argues that the District Court’s standard of review for his

reserved appeal issue was de novo. See State v. Caldwell, 1998 MT 261, ¶ 12, 291 Mont.

272, 968 P.2d 711 (“the scope of the district court’s appellate jurisdiction” of a reserved

issue is “a de novo review only of the reserved issue and not of the defendant’s entire

case”).     However, although the standard of review was misstated by the parties’
                                             4
stipulated motion, that does not alter the fact that the parties permissibly presented only a

narrow legal issue before the District Court, and agreed that the factual record, consisting

of a police report, was sufficient to determine the issue. Although McGrath strains to

argue that the parties “never made any concessions” that the facts were agreed upon, the

record, as discussed above, demonstrates to the contrary: the parties neither contested the

facts nor the District Court’s characterization of the matter as factually uncontested, and

asked the District Court to address only a legal issue. Further, the District Court did not

merely conduct an appellate review for correctness of the Justice Court’s conclusions of

law.   Indeed, it did not reference the Justice Court’s conclusions at all, but rather

conducted a de novo review of the matter consisting entirely of its own analysis.

Therefore, any misstatement by trial counsel regarding the standard of review did not

affect the proceeding.

¶8     McGrath’s reply brief expands the issue on appeal to a challenge of trial counsel’s

overall case strategy, criticizing counsel’s failure to contest certain facts and to pursue

“an entirely new opportunity” to present the case in the District Court. Beyond the fact

that new arguments are not permitted in a reply brief, the record here does not permit

review of counsel’s strategic decisions, which would be appropriate only in

post-conviction proceedings. See State v. Champagne, 2013 MT 190, ¶ 29, 371 Mont.

35, 305 P.3d 61 (“Post-conviction proceedings represent the appropriate avenue for relief

if the record does not fully explain ‘why’ counsel acted or failed to act”).




                                              5
¶9     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for unpublished opinions. In the opinion of

the Court, the case presents a question controlled by settled law or by clear application of

applicable standards of review.

¶10    Affirmed.



                                                 /S/ JIM RICE

We concur:

/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA




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