State v. Dunsmore, 347 P.3d 1220

Michael Dunsmore pled guilty to felony failure to register as a sex offender and felony theft; plea recommended 10 years to DOC with all time suspended. Presentence investigation recommended a net 10-year MSP sentence with 5 years suspended.
Judge Robert Allison presided at sentencing. Before becoming a judge, Allison had represented Dunsmore’s daughter in an abuse-and-neglect matter in which Dunsmore was accused of incest; Allison also was presiding over a family-law matter involving Dunsmore at the time of the criminal proceedings.
At sentencing (about 13 months after charging), defense witnesses testified to Dunsmore’s rehabilitation; the ex-wife testified about alleged firearm possession and parenting concerns.
Judge Allison did not permit Dunsmore to address the court and emphasized concerns about firearm possession, prior felonies, and recent criminal history; the court imposed a net 15-year MSP sentence with 5 years suspended (longer than plea/PSI recommendations).
After sentencing but before entry of written judgment, Dunsmore filed a habeas petition raising, among other claims, ineffective assistance for failing to move to recuse Judge Allison based on his prior representation; the Montana Supreme Court dismissed the petition as premature and the direct appeal followed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Judge Allison should have been disqualified for personal knowledge from prior representation and thus whether failure to recuse violated due process	State: Dunsmore failed to timely seek recusal below and therefore waived the claim; timeliness is required under analogous federal/state authority	Dunsmore: Prior representation of his daughter gave Judge Allison personal knowledge of disputed facts (character/parenting) requiring recusal under Rule 2.12(A)(1)	Court: Review de novo; adopted a timeliness requirement for Rule 2.12 claims (except actual bias/prejudice); Dunsmore’s counsel knew the basis before sentencing and did not move to recuse, so claim waived; affirmed judgment

Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (U.S. 2009) (due process requires a fair tribunal but most disqualification claims fall short of constitutional level)
FTC v. Cement Institute, 333 U.S. 683 (U.S. 1948) (most matters relating to judicial disqualification do not rise to constitutional level)
Taylor v. United States, 179 F.2d 640 (9th Cir. 1950) (defendant cannot wait until after sentencing to seek disqualification)
United States v. Branco, 798 F.2d 1302 (9th Cir. 1986) (motion to disqualify cannot be filed after sentencing is completed)
Kolon Indus. v. E.I. du Pont de Nemours & Co., 846 F. Supp. 2d 515 (E.D. Va. 2012) (collecting federal cases requiring timely recusal motions)
In re United Shoe Machinery Corp., 276 F.2d 77 (1st Cir. 1960) (one reason for prompt recusal motions is to prevent parties from taking their chances and then seeking a new judge if dissatisfied)