06/29/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: PR 21-0001
PR 21-0001
FILED
STATE OF MONTANA, JUN 29 2021
Bowen Greenwooa
Clerk of Supreme Court
Plaintiff, State of Montana
vs. ORDER
CODY CLAY PETERS,
Defendant.
Defendant Cody Clay Peters, via counsel, has filed an affidavit in support
of his request to disqualify the Honorable Rienne McElyea from presiding in
Cause No. DC-2020-11 in the Sixth Judicial District Court, Sweet Grass County, pursuant
to § 3-1-805, MCA.
Section 3-1-805, MCA,provides that an affidavit for disqualification for cause must
allege facts showing personal bias or prejudice of the presiding judge. The affidavit of
Peters's counsel Jami Rebsom includes her belief that Judge McElyea determined Peters's
sentence prior to hearing. Rebsom explains that Peters pled guilty to two counts of assault
with a weapon pursuant to a plea agreement which provided that the State would request a
sentence of 10 years to the Department of Corrections with all but one year suspended
while Peters could argue for any sentence he believed appropriate, including a deferred
sentence. Rebsom asserts that prior to the sentencing hearing, she spoke to Judge
McElyea's law clerk to determine if Peters could appear in person at the Gallatin County
District Court for his sentencing hearing. The law clerk informed her that Peters would
need to appear in Sweet Grass County because he would be going into custody there.
Rebsom asked if Judge McElyea had already decided to sentence Peters to custody. The
law clerk put Rebsom on hold but Rebsom disconnected the call before the hold ended.
The law clerk called Rebsom and informed her that the law clerk had misunderstood Judge
McElyea: Peters would need to appear in Sweet Grass County because he would have
conditions there. Rebsom further asserts that at a later telephone conference, the District
Court informed the parties it had confirmed the Gallatin County Sheriff could take Peters
into custody from Gallatin County, but that Judge McElyea was willing to travel to Sweet
Grass County for the sentencing hearing.
Rebsom alleges that Judge McElyea has already determined Peters's sentence
without hearing the evidence he intends to present at sentencing and Judge McElyea should
therefore be disqualified from this case. Rebsom's allegation is purely speculative. First,
the law clerk explained he had misunderstood Judge McElyea regarding the reason for
Peters's appearance in Sweet Grass County. Second, a custodial sentence is clearly a
possibility in this case; Judge McElyea's investigation ofthe logistics oftaking Peters into
custody after the sentencing hearing does not demonstrate that she has determined to
impose a custodial sentence.
Peters has not met the requirements of § 3-1-805, MCA, and it is unnecessary to
appoint a district judge to hear this matter.
IT IS THEREFORE ORDERED that the motion to disqualify District Rienne
McElyea from Sweet Grass County Cause No. DC-2020-11 is DENIED.
The Clerk is directed to provide copies of this Order to the Clerk of the District
Court of Sweet Grass County for notification to all counsel of record in Cause No. DC-
2020-11, and to the Honorable Rienne McElyea.
DATED this /1.6'day ofJune, 2021.
Chief Justice
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