No. 81-521
IN THE SUPREME COURT OF THE STATE OF MON'I'ANA
1982
STATE OF MONTANA,
Plaintiff and Respondent,
VS .
JAMES BERT DIEZIGER,
Defendant and Appellant.
Appeal from: District Court of the Third Judicial District,
In and for the County of Powell
Honorable Robert Boyd, Judge presiding.
Counsel of Record:
For Appellant:
C. F. Mackay argued, Anaconda, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Chris Tweeten argued, Assistant Attorney General,
Helena, Montana
Ted Mizner, County Attorney, Deer Lodge, Montana
Submitted: June 28, 1982
Decided: September 10, 1982
SEI' " j
Filed:
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
Defendant was charged by information with aggravated
assault and possession of a weapon by a prisoner. The
information was filed, and the defendant made his initial
appearance on July 2, 1980, approximately 42 days after the
offenses allegedly occurred. After a jury trial, defendant
was convicted of both counts and sentenced to consecutive
terms of 10 and 15 years.
On appeal, defendant contends that the trial court
erred in refusing to dismiss the charges because of unnecessary
delay between the time of the alleged offense and the filing
of the information, initial appearance and arraignment.
Defendant also contends that he was entitled to dismissal
because he was denied counsel at his initial appearance. In
affirming defendant's conviction, we find that defendant has
failed to show any unnecessary delay, and that appointed
counsel is not required at the initial appearance.
On May 19, 1981, while incarcerated at ?4ontana State
Prison at Deer Lodge, the defendant attacked a guard with a
"homemade baton" and a knife. He was not served with an
arrest warrant and no charges were filed until July 21 1981.
On that date, the defendant appeared in court and was
advised of the nature of the charges, the possible penalties,
and his right to counsel. At the defendant's request, the
court appointed a public defender to represent him and
scheduled arraignment for July 9, 1981. At the arraignment,
the defendant pleaded not guilty to both counts.
The defendant moved to dismiss the charges on the
grounds that he was not brought before a magistrate without
unnecessary delay and the court failed to provide counsel at
e v e r y s t a g e of t h e p r o c e e d i n g s . The motion w a s d e n i e d and
t h e c a s e was s e t f o r j u r y t r i a l . T r i a l was h e l d on October
27, 1981. The d e f e n d a n t c a l l e d no w i t n e s s e s , and p r e s e n t e d
no c a s e a t t r i a l . The d e f e n d a n t ' s c o u n s e l d i d n o t p r e s e n t
a n argument b e f o r e t h e c a s e w a s s u b m i t t e d t o t h e j u r y .
The j u r y c o n v i c t e d d e f e n d a n t , and he a p p e a l s t h e t r i a l
c o u r t ' s j udgment .
Defendant c o n t e n d s t h a t h i s r i g h t s w e r e v i o l a t e d by
p r i s o n and c o u n t y o f f i c i a l s b e c a u s e h e was n o t b r o u g h t
b e f o r e a m a g i s t r a t e w i t h o u t u n n e c e s s a r y d e l a y a s r e q u i r e d by
s e c t i o n 46-7-101(2), MCA. H e a r g u e s t h a t t h e p r o p e r remedy
f o r t h i s v i o l a t i o n i s d i s m i s s a l of t h e c h a r g e s .
S e c t i o n 46-7-101 ( 2 ) , MCA p r o v i d e s :
"Any p e r s o n making a n a r r e s t w i t h o u t a w a r r a n t
s h a l l t a k e t h e a r r e s t e d person without unnecessary
d e l a y b e f o r e t h e n e a r e s t o r most a c c e s s i b l e judge
i n t h e same c o u n t y , and a c o m p l a i n t s t a t i n g t h e
c h a r g e s a g a i n s t t h e a r r e s t e d p e r s o n s h a l l be f i l e d
forthwith."
The purpose o f t h i s s t a t u t o r y r e q u i r e m e n t i s t o p r o t e c t
t h e d e f e n d a n t from b e i n g j a i l e d f o r a p r o t r a c t e d t i m e and
p r e v e n t e d from a s s i s t i n g i n h i s own d e f e n s e . S t a t e v.
Nelson ( 1 9 6 1 ) , 139 Mont. 180, 362 P.2d 224. The d e f e n d a n t
h e r e , however, w a s a l r e a d y i n t h e c u s t c d y o f t h e s t a t e
prison. Consequently, an a r r e s t was u n n e c e s s a r y , and t h e
need t o b r i n g him b e f o r e a m a g i s t r a t e t o p r e v e n t u n j u s t
incarceration did not exist.
T h e r e f o r e , d e f e n d a n t i s u n a b l e t o show any p r e j u d i c e
from t h e d e l a y .
F i n a l l y , t h e p r o p e r remedy f o r a v i o l a t i o n o f s e c t i o n
46-7-101 i s s u p p r e s s i o n of i m p r o p e r l y o b t a i n e d e v i d e n c e . See
S t a t e v. Benbo ( 1 9 7 7 ) , 174 Mont. 252, 570 P.2d 894. Here,
t h e d e f e n d a n t made no motion t o s u p p r e s s and no s u p p r e s s i ~ n
hearing was ever held. As a result of this, we have no
evidentiary record upon which to review defendant's claims.
Therefore, dismissal is an inappropriate remedy.
Next, defendant contends that he was denied his right
to effective assistance of counsel. This claim is based on
the fact that he was not provided with counsel at his initial
appearance. The United States Constitution requires the
appointment of counsel for indigent defendants at all critical
stages of the prosecution. Mempa v. Rhay (1967), 389 U.S.
128, 88 Sect. 254, 19 L.Ed.2d 336. A "critical stage" is
any step of the proceeding where there is potential substantial
prejudice to the defendant. See United States v. Wade
(1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. The
policy basis of the righ,t is to allow the defendant to
intelligently exercise his rights and prepare a defense, and
to counterbalance the trained advocate of the State.
The initial appearance is not a "critical stage" of the
prosecution in Montana. There was no potential for substantial
prejudice to the defendant's rights. The defendant was
merely made aware of the charges against him and informed of
his constitutional rights. We therefore hold that the
defendant's right to effective assistance of counsel was not
violated.
A£ f irmed.
We Concur:
Chief ~ust'ice