STATE OF MONTANA, Plaintiff and Respondent, v. RONALD ALLEN CLARK, Defendant and Appellant.
No. 03-780
STATE OF MONTANA
June 29, 2005
2005 MT 169 | 327 Mont. 474 | 115 P.3d 208
For Respondent: Honorable Mike McGrath, Attorney General; Jennifer Anders, Assistant Attorney General, Helena; Paul Luwe, City Attorney; Susan L. Wordal, Deputy City Attorney, Bozeman.
¶1 Ronald Allen Clark (Clark) appeals from an order entered by the Eighteenth Judicial District Court, Gallatin County, on August 19, 2003, affirming the Bozeman Municipal Court‘s decision to conduct his trial in absentia. We affirm.
¶2 We address the following issue:
¶3 Did the District Court err in affirming the Municipal Court‘s decision to conduct Clark‘s trial in absentia pursuant to
FACTUAL AND PROCEDURAL BACKGROUND
¶4 On December 5, 2001, Clark was arrested for careless driving, resisting arrest, obstructing a peace officer, operating a motor vehicle with no liability insurance, operating a motor vehicle while privilege suspended, theft by possession of stolen property, operating a motor vehicle with plates assigned to another, obscuring the identity of a machine, and negligent endangerment.
¶5 At arraignment on December 13, 2001, Clark entered pleas of not guilty to all offenses, and the Municipal Court scheduled a trial date for either May 7, 2002, or May 17, 2002, with May 7 subsequently being confirmed as the trial date. On April 16, 2002, Clark provided notice to the court that he was prepared to proceed to trial on May 7, 2002. However, on May 2, 2002, Clark requested a continuance, citing pain and discomfort from the gout that was affecting his foot and leg. The State objected, arguing that Clark had a history of continuing trials on the basis of a physical ailment. The following day, the
¶6 On May 7, 2002, the day of trial, Clark checked himself into the Bozeman Deaconess Hospital, complaining of chest pains. The Honorable Patricia Carlson (Judge Carlson), who presided over the trial, was advised by her law clerk, Megan Lundberg (Lundberg), that a nurse had called the court regarding Clark‘s admission, that hospital staff had been unable to verify his physical complaints, and that he would be released. The nurse, who had inquired what to advise Clark about reporting to court, was told by Lundberg, as instructed by Judge Carlson, to advise Clark to do whatever he wanted, as he knew when the trial was, and that it was now progressing. The court held a sidebar conference with counsel to inform them of this development, whereupon Clark‘s attorney Peter Ohman (Ohman) had a private telephone conversation with Clark. Following the conversation and before jury selection, Judge Carlson put the subject of Clark‘s absence on the record, and decided to proceed with the trial in absentia.
¶7 The jury returned guilty verdicts on all but two charges. Subsequently, the court pronounced sentence and issued an arrest warrant for Clark. On May 21, 2002, Clark filed a Notice of Appeal and requested a stay of sentence, which the Municipal Court denied. Clark was released on his own recognizance, with conditions, on June 4, 2002, by the District Court. On August 19, 2003, the District Court entered an order affirming the Municipal Court‘s decision to continue the trial in absentia. Clark appeals therefrom.
STANDARD OF REVIEW
¶8 Appeals to district court from municipal court are limited to record reviews and questions of law. A “district court may affirm, reverse, or amend any appealed order or judgment....”
DISCUSSION
¶9 Did the District Court err in affirming the Municipal
¶10 In the District Court, Clark argued that the Municipal Court‘s decision to try him in absentia should be reversed and the matter remanded for a trial wherein he would have an opportunity to be present.
(1) In a misdemeanor case, if the defendant fails to appear in person, either at the time set for the trial or at any time during the course of the trial and if the defendant‘s counsel is authorized to act on the defendant‘s behalf, the court shall proceed with the trial unless good cause for continuance exists.
(2) If the defendant‘s counsel is not authorized to act on the defendant‘s behalf as provided in subsection (1) or if the defendant is not represented by counsel, the court, in its discretion, may do one or more of the following:
(a) order a continuance;
(b) order bail forfeited;
(c) issue an arrest warrant; or
(d) proceed with the trial after finding that the defendant had knowledge of the trial date and is voluntarily absent.
¶11 The parties agree that Ohman was not authorized to act on Clark‘s behalf, and, therefore,
¶12 Noting a criminal defendant‘s constitutional right of confrontation under Article II, Section 24, of the Montana Constitution, and the Sixth Amendment to the United States Constitution, Clark contends a trial court should exercise its discretion under
¶13 The State responds that the Municipal Court was not required pursuant to
¶14 For the trial court to proceed with a trial in the absence of the defendant, the court must find “that the defendant had knowledge of the trial date and is voluntarily absent.”
¶15 We note initially that a defendant can waive this fundamental right to be present at trial in two ways: (1) failing to appear, or (2) through an express personal waiver, State v. McCarthy, 2004 MT 312, ¶ 32, 324 Mont. 1, ¶ 32, 101 P.3d 288, ¶ 32 (citing State v. Tapson, 2001 MT 292, ¶ 24, 307 Mont. 428, ¶ 24, 41 P.3d 305, ¶ 24). Here, the court found that Clark waived his fundamental right to be present by admitting himself to the hospital unnecessarily and not appearing in court.
¶16 Although Clark argues the Municipal Court should have conducted an on-the-record inquiry into the factual basis of Clark‘s absences, neither
¶17 We conclude that the District Court did not err by affirming the Municipal Court‘s decision to proceed with the trial in absentia pursuant to
¶18 Affirmed.
CHIEF JUSTICE GRAY, JUSTICES NELSON, COTTER and WARNER concur.