NO. 93-041
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Appellant,
-vs.-
GARY J. SCHNEIDERHAN,
OCT 19 1993
Defendant and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Joseph P Mazurek, Attorney General, John
Paulson, Assistant, Helena, Montana; Patrick T,.
-_
Paul, Cascade County Attorney, Michael L. Far.-.--
lni~ng,
Deputy, Great Falls, Montana
For Respondent:
Susan L. Weber, Great Falls, Montana
Submitted on Briefs: September 9, 1993
Decided: October 19, 1993
1 .,
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
This is an appeal by the State of Montana (State) from an
order of the Eighth Judicial District Court, Cascade County,
dismissing a felony sexual assault charge against the defendant on
the basis of double jeopardy. We reverse and remand with
instructions.
We restate the issues on appeal as follows:
1. Did the Justice Court err in denying the State's motion
to deny acceptance of a written guilty plea?
2. Did the Justice Court err in failing to rule on the
State's praecipe to dismiss prior to sentencing the defendant for
misdemeanor domestic abuse?
3. Was the Justice Court divested of jurisdiction upon the
filing of an information in District Court for a separate offense
arising out of the same transaction?
4. Did the District Court err in holding that misdemeanor
domestic abuse is a lesser included offense of felony sexual
assault?
We decline to recite the alleged facts in this case, as we are
remanding for further proceedings. However, we will discuss the
procedural history leading up to this appeal.
Schneiderhan was initially charged in Justice Court with
misdemeanor domestic abuse. On September 16, 1991, Schneiderhan
made his initial appearance before the Justice Court. Although
Schneiderhan indicated a desire to plead guilty, the Justice of the
2
Peace advised him that he should consult with an attorney prior to
entering a plea. Arraignment was then set for October 30, 1991.
On October 24, 1991, Schneiderhan, through his counsel, filed
a written plea of guilty to the misdemeanor domestic abuse charge.
On October 28, 1991, the State filed an information in District
Court charging Schneiderhan with felony sexual assault. That
charge arose from the same transaction as the domestic abuse
charge. On that same day, the Justice Court set Schneiderhan's
sentencing on the domestic abuse charge for November 7, 1991.
on November 5, 1991, the State filed a praecipe to dismiss the
domestic abuse charge on the basis that the State had filed a
felony charge in District Court. At the same time, the State also
filed a motion to deny acceptance of the written guilty plea in the
Justice Court. On November 7, 1991, the Justice Court held the
sentencing hearing. The State stipulated that the Justice of the
Peace could defer ruling on the motion to deny acceptance of the
written guilty plea until after the sentencing. The State did not
stipulate to a deferral of ruling on the praecipe to dismiss,
however.
The Justice of the Peace sentenced Schneiderhan to six months
in jail for domestic abuse, all suspended. On December 11, 1991,
the Justice of the Peace issued an order denying the State's motion
to deny acceptance of the guilty plea. A review of the Justice
Court file indicates that the Justice of the Peace never responded
to the State's praecipe to dismiss the domestic abuse charge.
In the meantime, on November 5, 1991, Schneiderhan plead not
3
guilty to the felony sexual assault charge in District Court. On
March 4, 1992, Schneiderhan filed a motion to dismiss the felony
charge for violation of double jeopardy. Schneiderhan alleged that
misdemeanor domestic abuse is a lesser included offense of felony
sexual assault and that the conviction in Justice Court precluded
the felony action in District court. A hearing on the double
jeopardy issue was held on August 17, 1992, and on October 6, 1992,
the District Court issued its order dismissing the case, ruling
that misdemeanor domestic abuse was a lesser included offense of
felony sexual assault and that double jeopardy attached after the
November 7, 1991, sentencing in Justice Court. From this order,
the State appeals.
Although the State appealed from the District Court order,
that order is intricately intertwined with the actions of the
Justice Court. The District Court dismissed the felony sexual
assault charge on the basis of double jeopardy, which would not
have been an issue if the Justice Court had properly dismissed the
misdemeanor domestic abuse charge. Therefore, because of the close
relationship between the Justice Court and District Court actions,
we necessarily must review this case in its entirety. This
requires a review of both the procedures leading to the Justice
Court domestic abuse conviction and the District Court's subsequent
dismissal of the felony sexual assault charge on double jeopardy
grounds.
I - WRITTEN GUILTY PLEA
In the Justice Court action, the State filed a motion to deny
4
the acceptance of the written guilty plea, for the reason that
Schneiderhan had not been arraigned as required by 5 46-12-201, MCA
(arraignment statute), which provides, in pertinent part:
(1) Arraignment must be conducted in open court and must
consist of reading the charge to the defendant or stating
to the defendant the substance of the charge and calling
on the defendant to plead to the charge. . . .
That statute then goes on to describe certain inquiries which the
court is required to make to determine the defendant's identity and
whether he or she is under any disability. The statute provides
that the defendant's presence in court for arraignment may be
satisfied either by his or her physical presence or by means of a
two-way electronic audio-visual communication, provided, however,
that subsection (5) permits the judge to order the physical
presence of the defendant in court at the arraignment.
The last sentence of subsection (5) provides that, l'[i]n a
felony case, a judge may not accept a plea of guilty from a
defendant not physically present in the courtroom." Thus, reading
together the various subsections of 5 46-12-201, MCA, it is clear
that, at the arraignment, the judge must make certain actual
communications with the defendant and that, while a judge may
accept a guilty plea from the defendant to a misdemeanor while the
defendant is physically present in the courtroom or before the
court via a two-way electronic audio-visual communication, a guilty
plea in a felony case may be accepted only when the defendant is
physically present in court.
Similarly, the State argued that the guilty plea itself was
defective, as the Justice of the Peace did not comply with § 46-17-
5
203, MCA (justice court plea statute), which provides, in pertinent
part:
Plea of guilty. (1) Before or during trial, a plea of
guilty may be accepted when: (a) the defendant enters a
plea of guilty in open court: and (b) the court has
informed the defendant of the consequences of his plea
and of the maximum penalty provided by law which may be
imposed upon acceptance of the plea. . . .
Clearly, both the arraignment statute and the justice court
plea statute require the defendant to appear in open court (as that
concept is more fully developed in the arraignment statute): that
there be actual communication between the judge and the defendant:
that the judge first make the requisite inquiries of and provide
the mandated information to the defendant; and that the plea, then,
be accepted as a part of that actual communicative process.
Importantly, there is no provision in either the arraignment
statute or the justice court plea statute that allows the judge to
accept a guilty plea from a defendant in either a misdemeanor or
felony case through the expedient of the defendant or his counsel
simply filing a written plea with the court, as was done in this
case.
We take this opportunity to express our disapproval of the
practice of courts in Montana accepting written pleas in criminal
cases from defendants or their counsel in contravention of the code
of criminal procedure. The procedural requirements for arraignment
and acceptance of pleas are clearly set forth in the statutes and
are not to be disregarded. We admonish the courts and counsel not
following the referred-to statutes to, henceforth, strictly comply
with those statutory mandates.
6
We recognize, however, that the procedural safeguards which
underpin the statutory requirements discussed above are for the
benefit and protection of criminal defendants. Section 46-l-103,
MCA, provides, in pertinent part:
(3) Any irregularity in a proceeding specified by this
title that does not affect the substantial rights of the
accused must be disregarded.
Because Schneiderhan was at all times represented by counsel who,
herself, was involved in the written plea, and because his
substantive rights were not affected, the Justice Court's
acceptance of the written guilty plea in this case will be allowed
to stand.
II - PRAECIPE TO DISMISS
At the time the State filed its motion to deny acceptance of
the written guilty plea, it also filed a praecipe to dismiss the
misdemeanor domestic abuse charge, on the basis that the State was
prosecuting Schneiderhan on a more serious charge in District
Court. The Justice of the Peace did not rule on the praecipe at
the time it was filed on November 5, 1991, but rather proceeded to
sentence Schneiderhan on November 7, 1991. We hold that the
Justice of the Peace erred in not ruling on the praecipe to dismiss
prior to sentencing.
Section 46-13-401, MCA, provides, in pertinent part:
(1) The court may, either on its own motion or upon the
application of the prosecuting attorney and '
furtherance of justice, order a complaint, infonnatioi:
or indictment to be dismissed. However, the court may
not order a dismissal of a complaint, information, or
indictment, charging a felony, unless good cause for
dismissal is shown and the reasons for the dismissal are
set forth in an order upon the minutes.
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Thus, dismissal of misdemeanor charges is allowed on the court's
own motion or on motion of the prosecutor in the furtherance of
justice. Because of the nature of prosecutorial discretion, the
State is generally given wide latitude when requesting a dismissal
of criminal charges. State ex rel. Fletcher v. District Court
(Mont. 1993), _ P.2d -, _ 50 St. Rep. 992, 995.
In Montana, a county attorney "not only directs under
what conditions a criminal action [is] commenced, but
from the time it begins until it ends his supervision and
control is complete, limited only by such restrictions as
the law imposes." . . . It is not only incumbent upon the
county attorney to determine when or when not to
prosecute a case, but when the facts of a case support a
possible charge of more than one crime, the crime to be
charged is a matter of prosecutorial discretion.
Fletcher, 50 St. Rep. at 993-94.
Here, the State sought dismissal of the misdemeanor domestic
abuse charge in Justice Court in order to pursue the more serious
felony sexual assault charge in District Court. While in order to
obtain the dismissal of a felony charge under 5 46-13-401(l), MCA,
the State must show that such dismissal is in the furtherance of
justice and for good cause, in moving for dismissal of a
misdemeanor charge, the State need only show that the requested
dismissal is in the furtherance of justice. Section 46-13-401(l),
MCA. Given the State's request that the misdemeanor charge be
dismissed because the State was prosecuting Schneiderhan on a more
serious charge in District Court, the "furtherance of justice"
requirement was met, and the Justice of the Peace was required to
rule on the State's praecipe to dismiss at the time it was filed.
While Fletcher involved the requested dismissal of felony charges
8
and, thus, required the State to demonstrate that dismissal was in
the furtherance of justice and for good cause, the rule set forth
in that case is, nevertheless, also applicable here, where the
State's only obligation was to demonstrate that the dismissal was
in the furtherance of justice. Simply stated, when the State has
met the appropriate standard of dismissal, the court may not deny
the motion to dismiss. Fletcher, 50 St. Rep. at 995. Accordingly,
the Justice of the Peace erred in proceeding to sentence
Schneiderhan with the State's praecipe to dismiss outstanding.
Under the circumstances, in failing to grant the State's praecipe
to dismiss, the Justice Court committed reversible error.
III - DIVESTITURE OF JUSTICE COURT JURISDICTION
The State also contends that the Justice Court was
automatically divested of jurisdiction after the information was
filed in the District Court, because the felony charge was based on
the same facts which served as the basis for the misdemeanor
charge. We find no support for this contention under any Montana
statutory authority, and decline to so hold.
Unless the legislature chooses to enact a statute that would
accomplish the result proposed by the State, it will continue to be
the responsibility of prosecutors, while at all times keeping in
mind the statutory and constitutional proscriptions against double
jeopardy, to coordinate and manage the filing and dismissal of
criminal charges arising out of the same factual basis and which
implicate both a court of limited jurisdiction and a district
court.
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IV - LESSER INCLUDED OFFENSE
In dismissing the felony sexual assault charge, the District
Court held that misdemeanor domestic abuse was a lesser included
offense of felony sexual assault, and therefore double jeopardy
attached at the time Schneiderhan was sentenced in Justice Court.
As we have ruled above, the misdemeanor domestic abuse charge
should have been dismissed by the Justice Court. Accordingly,
there would not have been a double jeopardy issue facing the
District Court had the Justice Court proceeded in accordance with
the law.
The result of this opinion will require the dismissal of the
misdemeanor domestic abuse charge and the remand for further
proceedings in District Court on the felony sexual assault charge.
In rendering the double jeopardy issue moot, we, therefore, decline
to rule on the lesser included offense issue.
We remand to the Justice Court for entry of an order vacating
the domestic abuse conviction and sentence and dismissing that
action pursuant to the praecipe filed by the State. Thereafter, we
remand the felony sexual assault charge to the District Court for
further proceedings consistent with this opinion.
Reversed and remanded with instructions.
We
Chief Justice
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October 19, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Hon. Joseph P. Mazurek, Attorney General
John Paulson, Assistant
Justice Bldg.
Helena, MT 59620
Patrick L. Paul, County Attorney
Michael L. Fanning, Deputy
Cascade County Courthouse
Great Falls, MT 59401
Susan L. Weber
Attorney at Law
P.O. Box 1258
Great Falls, MT 59403
Hon. Thomas McKittrick
8th Judicial District
Cascade County Courthouse, Dept. #l
Great Falls, MT 59401
ED SMITH
CLERK OF THE SUPREME COURT