NO. 96-160
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
v.
WILLIAM A. COLE,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Nels Swandal, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William A. Cole, Las Vegas, Nevada (pro se)
For Respondent:
Joseph P. Mazurek, Attorney General, Cregg Coughlin,
Assistant Attorney General, Helena, Montana; Tara
DePuy, Park County Attorney, Livingston, Montana
, , ~ t,-.w.
Submitted on.Briefs: September 26, 1996
Decided: November 7, 1996
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter a i West Publishing Company.
rd
Appellant William A. Cole (Cole) appeals the jury verdict
entered by the Sixth Judicial District Court, Park County, finding
him guilty of one count of driving a motor vehicle while his
privilege to do so was suspended or revoked and one count of
operating a motor vehicle without liability insurance.
Af firmed.
Cole was charged on November 16, 1994, with driving a motor
vehicle when his privilege to do so was suspended or revoked and
with driving a motor vehicle without liability insurance. Cole
failed to appear so trial in the Justice Court was held without him
present and he was convicted of both counts. Cole claimed that he
failed to appear because the Justice Court served him by mail at
the wrong address and, consequently, he had no notice of the
Justice Court trial. In any event, Cole appealed the Justice
Court's decision to the District Court, which scheduled a trial de
novo in the matter.
Prior to the District Court trial, Cole requested that counsel
be appointed by the court to assist him. This request was denied
and Cole proceeded to trial pro se. Cole also requested and
received a jury trial. At the end of the case, Cole presented
2
eight proposed jury instructions to the District Court, all of
which were rejected. Following the one-day trial, Cole was again
found guilty on both counts. Cole appeals.
Cole raises the following restated issues on appeal:
1. Did the Justice Court err by sending service of process in
.this matter to Cole at an incorrect address?
2. Did the District Court err by refusing to appoint counsel
to assist Cole in this case?
3. Did the District Court err by refusing to give Cole's
proposed jury instructions?
Cole first asserts that the Justice Court erred by sending
service of process to the incorrect address, thereby depriving him
of actual notice of the Justice Court trial at which he was
initially convicted. The State argues that this issue is moot
since Cole received a trial de novo in the District Court. While
the State does not concede that the Justice Court erred in mailing
service to the address that it did, the State nevertheless argues
that, even if such an error is presumed, it was cured by the trial
de novo.
Black's Law Dictionary 435 (6th ed. 1 9 9 0 ) defines a de novo
trial as "[tlrying the matter anew; the same as if it had not been
heard before and as if no decision had been previously rendered."
(Citation omitted.) Section 46-17-31'1, MCA, also provides that
'all cases on appeal from a justice's or city court must be tried
anew in the district court . . . ." This Court has repeatedly held
that a district court may not sit as a court of review over justice
court proceedings. See State ex rel. Wilson v. District Court of
the Thirteenth Judicial District (1995), 270 Mont. 449, 451, 893
P.2d 318, 319-20; City of Billings v. McCarvel (1993), 262 Mont.
96, 101, 863 P.2d 441, 444. Therefore, a party's exclusive remedy
for review of a justice court's decision is a trial de novo in the
district court, as if the justice court proceeding had never
occurred. State v. Todd (1993), 262 Mont. 108, 111, 863 P.2d 423,
426; Rickett v. City of Billings (1993), 262 Mont. 339, 340, 864
P.2d 793, 794.
Even if we were to presume that service of process was
incorrectly accomplished by the Justice Court, we fail to see how
this prejudiced Cole. By his own request, he was granted a jury
trial de novo in the District Court, where the case was presented
again in full and without regard to the earlier Justice Court
proceeding. It is undisputed that Cole received proper service of
process regarding the District Court proceeding and was present in
that court to defend himself. The matter was tried anew in the
District Court, as if the Justice Court trial had never occurred,
and Cole has failed to show how a procedural defect present at the
Justice Court proceeding prejudiced his rights at the later
District Court trial.
Cole next alleges that the District Court erred by refusing to
appoint counsel to assist him with the District Court trial. He
asserts that, pursuant to Article 11, Section 24 of the Montana
Constitution, he was entitled to the assistance of counsel.
Article 11, Section 24 of the Montana Constitution provides in
part that "[iln all criminal prosecutions the accused shall have
the right to appear and defend in person and by counsel . . . ."
However, this right of the accused does not mean that, in all
criminal cases, the State must provide counsel to the defendant.
Section 46-8-101(3), MCA, sets out the circumstances under which
the State must provide counsel:
The defendant, if unable to employ counsel, is entitled
to have counsel assigned if:
(a) the offense charged is a felony;
(b) the offense charged is a misdemeanor and the
court desires to retain imprisonment as a sentencing
option; or
(c) the interests of justice would be served by
assignment.
In this case, the offense was not a felony; the District Court did
not retain imprisonment as an option for sentencing this
misdemeanor conviction; and there was no showing that the interests
of justice mandated the appointment of counsel. Further, the
Montana Rules of Appellate Procedure require the submission of a
record sufficient to enable this Court to properly review the
issues raised, as well as citations to the record and to legal
authority in support of the arguments presented. Rules 9 and 23,
M.R.App.P. Cole has failed to meet this burden.
Cole did not include a transcript of the District Court
proceeding in his appeal even though one apparently was available.
Consequently, this Court does not have a complete record before it.
Without a complete record, Cole fails to establish that he properly
preserved this issue for appeal nor does he cite to any legal
authority in support of his argument, beyond the simple recitation
5
of the pertinent constitutional provision. Because of the lack of
factual or legal support of this argument and keeping in mind the
presumption of propriety of the District Court's decision, we
cannot ascribe error to the District Court's determination that
Cole was not entitled to the assistance of court-appointed counsel.
Lastly, Cole argues that the District Court erred by refusing
to give any of his proposed instructions to the jury at the close
of the case.
Our standard of review of discretionary trial court rulings is
whether the district court abused its discretion. The court
exercises its discretion when giving, or refusing to give, specific
jury instructions, and we will not reverse a district court on the
basis of its instructions absent an abuse of discretion. Lacock v.
4B's Restaurants, Inc. (Mont. 1996), 919 P.2d 373, 375, 53 St.Rep.
492, 493 (citations omitted). Further, it is not error for a
district court to refuse an offered instruction unless such refusal
affects the substantial rights of' the party proposing the
instruction. A party is not prejudiced by a refusal of proposed
jury instructions if the subject matter within the instructions is
not supported by the pleadings, facts, or evidence of the case.
Busta v. Columbus Hospital Corp. (Mont. 1996), 916 P.2d 122, 132,
53 St.Rep. 428, 436 (quoting King v. Zimmerman (1994), 266 Mont.
54, 64, 878 P.2d 895, 902).
In this case, the issues presented to the jury were whether
Cole was guilty of the offenses of driving without a valid license
and driving without liability insurance covering his vehicle.
Cole, however, desired to give instructions to the jury having no
relevance to the issues presented. Specifically, Cole wanted the
jury to be instructed on the following:
Rule 60 (b), M.R.Civ.P. (circumstances under which a
final judgment may be set aside);
Rules 9 (b) and 9 (c), M.R.Civ.P. (the pleading of
fraud and the pleading of conditions precedent);
Section 28-2-401, MCA (circumstances under which
'apparent consent' will be deemed not freely
given) ;
Section 28-2-402, MCA (what actions constitute
duress) ;
Section 2 8 - 2 - 4 0 3 , MCA (what actions constitutes
menace) ;
Section 28-2-409, MCA (what* constitutes a mistake
of fact)
Section 45-7-207, MCA (tampering with or
fabricating physical evidence); and
Section 45-7-208, MCA (tampering with public
records or information).
Aside from asserting that the District Court erred in refusing
these instructions, Cole does not specify why this refusal was
error or how any of the above instruction might be relevant Co his
case. All the instructions proposed by Cole were entirely
unconnected from the determination to be made by the jury as to
whether or not he was guilty of two traffic offenses.
The judgment of the District Court is affirmed.
We Concur: I/