NO. 95-526
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
APPEAL FROM: District Court of the Twenty-First Judicial
District, In and for the County of Ravalli,
The Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William W. Roche, Pro Se,
Victor, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Kathy Seeley, Assistant Attorney General,
Helena, Montana
T. Geoffrey Mahar, Assistant Hamilton City
Attorney, Hamilton, Montana
Submitted on Briefs: May 9, 1996
Decided: June 20, 1996
Filed:
Justice Charles E. Erdmann delivered the opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following 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 State Reporter Publishing Company and West Publishing
Company.
Defendant William W. Roche (Roche) appeals from the judgment
entered by the Twenty-First Judicial District Court, Ravalli
County, which adopted the jury verdict convicting him of four
counts of driving without a driver's license and two counts of
driving without liability insurance. We affirm.
The issues on appeal are as follows:
1. Did the officer have probable cause to cite Roche?
2. Did Roche properly move for substitution of the District
Court Judge?
3. Did the District Court preclude testimony from Judge
Martha Bethel and improperly exclude a juror?
4. Did the District Court err in sentencing Roche, including
ordering him to pay jury costs?
FACTS
On July 14, 1994, while leading a parade in his patrol car,
Hamilton police officer Joseph Birkeneder observed Roche in his
vehicle stopped at a stop sign. Birkeneder had earlier been
informed by another officer that Roche did not possess a driver's
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license. Birkeneder continued with the parade but later confirmed
the fact that Roche did not have a valid Montana driver's license.
Birkeneder went to Roche's home at approximately 11:OO a.m. on
July 14 but no one was home. He returned to the home at around
2:30 p.m. the same day and spoke with Roche who acknowledged he did
not have a Montana driver's license. Roche was also unable to
produce proof of automobile liability insurance. Birkeneder then
issued Roche citations for driving without a driver's license and
driving without liability insurance.
On the morning of July 19, 1994, Birkeneder was responding to
an unrelated criminal mischief complaint and observed Roche driving
his car. After completing the criminal mischief call, Birkeneder
verified the fact that Roche still had no driver's license.
Birkeneder then discussed the matter with the Chief of Police who
instructed him to issue citations for this incident. Later that
day Roche appeared in City Court to respond to the July 14
citations and Birkeneder cited him for driving without a license
and driving without liability insurance based on the incident
earlier that day. Birkeneder warned Roche at that time not to
drive. Roche left the building, got into his car, and drove away.
At around 11:30 a.m. on July 19 1994, Birkeneder was outside
a restaurant eating his lunch when he saw Roche drive northbound on
Highway 93. Birkeneder subsequently submitted a report to the City
Attorney's office concerning the second and third time he had
witnessed Roche driving on July 19--the second when leaving City
Court, and the third during the lunch hour. The City Attorney
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served Roche with a summons and complaint charging him with two
additional counts of driving without a license as a result of those
incidents.
On December 5, 1994, following a bench trial in Hamilton City
Court, Roche was convicted of four counts of driving without a
driver's license and two counts of driving without liability
insurance. Roche appealed his convictions to the District Court.
On September 14, 1995, jury trial was conducted and Roche was
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convicted on all six counts. On October 12, 1995, the District
Court entered its judgment and sentence and this appeal followed.
ISSUE 1
Did the officer have probable cause to cite Roche?
Roche argues that Birkeneder did not have probable cause to
issue the citations. He claims that Birkeneder came to his home on
July 14 and issued him two citations under orders from City Court
Judge Martha Bethel. Roche further maintains that Birkeneder
stalked him in an effort to tlstack" citations against him. Roche
does not allege that the two counts brought by the City Attorney
lacked probable cause.
We have previously held that a showing of mere probability
that the defendant committed the crime is sufficient to establish
probable cause to file a criminal charge. State v. Thompson
(1990), 243 Mont. 28, 30, 792 P.2d 1103, 1105. In the present
case, Birkeneder was aware Roche did not have a driver's license
and personally witnessed him driving a motor vehicle on each
occasion for which a citation was issued. Furthermore, it cannot
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be said that Birkeneder was stalking Roche while leading a parade,
responding to an unrelated criminal mischief report, or while
eating lunch outside a restaurant.
Birkeneder asked Roche to produce proof of liability insurance
on July 14 and he could not do so. When Birkeneder observed Roche
driving five days later and confirmed that he still had no driver's
license, there was a good probability that Roche also had no
liability insurance. We therefore conclude there was probable
cause for Birkeneder to issue citations to Roche.
ISSUE 2
Did Roche properly move for substitution of the District Court
Judge?
On February 6, 1995, Roche filed a document with the District
Court entitled "Motion for Change of Venue/Motion for Change of
Jurisdiction." The motion stated:
The Defendant, William W. Roche presently has legal
action ensuing against JUDGE JEFFREY LANGTON in the U.S.
Ninth Circuit Court of Appeals in San Francisco, CA.
USCA Docket # 95-35061
Therefore, an automatic CONFLICT OF INTEREST does
present itself in recusing Judge Jeffrey Langton from
presiding over this case. The Defendant could not hope
to receive a fair trial with Judge Langton presiding over
the proceedings.
In past cases, Judge Langton has brought in his
friend, Judge John Warner from Havre, Mt. to sit in on
cases dealing with the Defendant. This will also be
challenged, as Judge Warner has played the political game
with Langton, and four cases went unlawfully against the
Defendant, William W. Roche. The Court has many judges
to choose from in Montana.
The District Court denied the motion, holding that Roche had failed
to follow the procedures provided for substitution or
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disqualification of a judge and that he did not allege any facts
which would necessitate recusal. The District Court stated:
Simply having been on the opposite side of a completed
case from Mr. Roche prior to assuming office is not
evidence of personal bias or prejudice. Nor is the fact
that Mr. Roche has unsuccessfully attempted to join the
undersigned to litigation in federal court. Roarers v.
Wilkins, 275 S.C. 28, 267 S.E.2d 86 (1980). Moreover,
public criticism of a judge does not require that the
judge disqualify himself in further cases involving the
critic. Amidon v. State, 604 P.2d 575 (Alaska 1979).
Section 3-l-804, MCA, requires that a specific procedure must
be followed in filing a motion to substitute a judge and that the
motion must be made within thirty days after the judge is assigned
to the case. Any motion for substitution which is not timely filed
is void for all purposes. Section 3-1-804(e), MCA. Section
3-l-805, MCA, requires that an affidavit and certificate of counsel
by the moving party must be filed to disqualify a district court
judge for cause
1n the present case, Roche's motion was not timely filed and
it did not comply with the statutory procedures outlined in
§§ 3-l-804 and -805, MCA. We therefore conclude that Roche did not
properly move for substitution of the District Court Judge.
Furthermore, we find nothing in the record which would have
required Judge Langton to recuse himself from the case.
ISSUE 3
Did the District Court preclude testimony from Judge Martha
Bethel and improperly exclude a juror?
The City of Hamilton filed a motion in limine seeking an order
directing Roche not to elicit testimony from any witness, including
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himself, that would relate to incidents, facts, or circumstances
concerning the litigious history between Roche and City Court Judge
Martha Bethel. The City sought the order to prevent Roche from
attempting to prove that his traffic citations were issued in
retaliation for his litigious relationship with Bethel.
The District Court refused to rule on the motion, stating as
follows:
The Court is unable to make any ruling on the City's
motion in advance of trial due to the lack of any offer
of proof by either party with respect to Judge Bethel's
expected testimony.
The court further noted that if Bethel testified at trial, Roche
would be entitled "to some latitude in cross-examination to attempt
to impeach the witness by any accepted means, including evidence of
bias, partiality, or interest in the outcome, to show the witness's
motivation for testifying."
Roche argues that in ruling on the City's motion the District
Court eliminated Bethel from the subpoena list and curtailed his
ability to ask her questions. There is no factual basis for this
allegation.
The record is clear that the District Court did not rule on
the City's motion and specifically addressed the possibility of
Bethel testifying. The court explained its ruling to Roche prior
to trial and explained that even though Roche would not be allowed
to examine Bethel about irrelevant matters, the court was not
preventing Bethel from being called as a witness by the defense or
from being examined by Roche.
The record indicates that Roche never called Bethel to testify
at trial and we therefore conclude there is no basis for Roche's
contention that the District Court eliminated Bethel from the
subpoena list or prevented him from examining her at trial.
Roche further claims that the District Court excluded a juror
"before the jury had even been drawn, on the word of the key
witness Officer Joseph Birkendeder [sic] .'I However, there is
nothing in the record or Roche's brief on appeal to support such a
claim. We have previously held that where the defendant fails to
cite authority to support his allegations of error, this Court is
not called on to answer the contention. Rule 23(a) (4), M.R.App.P.;
State v. Steffes (1994), 269 Mont. 214, 233, 887 P.2d 1196, 1208.
Accordingly, we will not address this allegation of error.
ISSUE 4
Did the District Court err in sentencing Roche, including
ordering him to pay jury costs?
Roche was convicted of four counts of driving a motor vehicle
without a driver's license pursuant to 5 61-5-102, MCA. Each of
those offenses was a misdemeanor punishable by a fine of not more
than $500 or by imprisonment for not more than six months or by
both fine and imprisonment. Section 61-5-307, MCA.
Roche was also convicted of two counts of operating a motor
vehicle without liability insurance pursuant to 5 61-6-301, MCA.
Conviction of a first offense is punishable by a fine of not less
than $250 or more than $500 or by imprisonment for not more than
ten days, or both. A second conviction is punishable by a fine of
$350 or by imprisonment for not more than ten days, or both.
Section 61-6-304(l).
The District Court sentenced Roche as follows:
1. For the first count of driving without a license, 180
days in the Ravalli County jail with 177 of those days suspended
for a period of one year, plus a fine of $100.
2. For the second count of driving without a license, 180
days in the Ravalli County jail with 174 of those days suspended
for a period of one year, plus a fine of $200.
3. For the third count of driving without a license, 180
days in the Ravalli County jail with 171 of those days suspended
for a period of one year, plus a fine of $400.
4. For the fourth count of driving without a license, 180
days in the Ravalli County jail with 168 of those days suspended
for a period of one year, plus a fine of $500.
5. For the first count of driving without insurance, five
days in the Ravalli County jail, plus a fine of $350.
6. For the second count of driving without insurance, ten
days in the Ravalli County jail, plus a fine of $500.
The District Court ordered the separate sentences to run
consecutive to one another for a total of 735 days jail with all
but forty-five days of the sentence suspended. The District Court
also ordered Roche to pay the costs of the jury trial in the sum of
$476.43 as a condition of the suspended portion of his sentence.
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Roche argues that the sentence imposed by the District Court
was contrary to Montana law and that the court erred in ordering
him to pay for his own jury.
We have stated that "[tlrial judges are granted broad
discretion to determine the appropriate punishment." State v.
Henry (1995), 271 Mont. 491, 498, 898 P.2d 1195, 1199 (quoting
State v. Hembd (1992), 254 Mont. 407, 411, 838 P.2d 412, 415). We
do not review a sentence for inequity or disparity, but determine
whether the sentence is within the statutory guidelines. Henrv,
898 P.2d at 1199. If sentencing is within the statutory guidelines,
this Court will not disturb a district court's sentencing decision
absent a showing that the court abused its discretion. Henry, 898
P.2d at 1199 (citing State v. Blanchard (19951, 270 Mont. 11, 15,
889 P.2d 1180, 1182).
In the present case, the length of the jail sentences imposed
by the District Court was within the statutory guidelines.
Furthermore, the court's imposition of consecutive sentences for
the six counts is expressly authorized by 5 46-18-401(4), MCA,
which provides that "[sleparate sentences for two or more offenses
must run consecutively unless the court otherwise orders." Here,
the District Court specifically ordered the sentences to run
consecutively and such an order is consistent with the statutory
mandate.
However, § 46-18-201(l) (b), MCA, allows a court to suspend
execution of a sentence for six months or for a period equal to the
maximum sentence allowed, whichever is greater. Thus, the District
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Court erred as a matter of law in suspending for one year a portion
of each sentence for driving without a driver's license. The
maximum possible jail sentence for each of the charges is six
months and therefore execution of each of the sentences for driving
without a license may only be suspended for six months.
In addition, § 61-6-304, MCA, authorizes a maximum fine of
$350 for the second offense of operating a motor vehicle without
liability insurance. The District Court therefore erred as a
matter of law in ordering Roche to pay a $500 fine for his second
offense of driving without insurance.
This Court may review any sentence imposed in a criminal case
if it is alleged that such sentence is illegal or exceeds statutory
mandates, even if no objection is made at the time of sentencing.
State v. Nelson (Mont. 19951, 906 P.2d 663, 667, 52 St. Rep. 1069,
1072. While Roche failed to object at trial or on appeal to the
specific errors noted above, § 46-20-703(4), MCA, allows this Court
to reduce the punishment imposed by the trial court. It is
apparent that the District Court intended that the maximum possible
sentence and periods of suspension apply in this case, and
therefore, in the interest of judicial economy we hereby reduce the
fine for the second offense of driving without insurance to $350
and reduce the suspended portion of the sentences for driving
without a license to six months.
Finally, we address Roche's contention that the District Court
abused its discretion in ordering him to pay jury costs. In
suspending execution of a sentence, § 46-18-201(l) (b), MCA, allows
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the judge to impose any of the reasonable restrictions or
conditions listed in subsection (1) (a). Section 46-18-
201(l) (a) (vi), MCA, states that such reasonable restrictions or
conditions may include "payment of costs as provided in 46-18-232
and 46-18-233." Payment of costs expressly includes "costs of jury
service." Section 46-18-232(l), MCA. The court may not sentence
a defendant to pay costs unless the defendant is or will be able to
pay them. Section 46-18-232(2), MCA.
The District Court inquired of Roche regarding his financial
resources and his ability to pay the fines and costs. The
following exchange took place:
THE COURT: Is there anything else you wish to make known
in regard to your ability to pay fines or costs?
MR. ROCHE: NO, just that I would simply make every
effort to pay the fines or the costs that are incurred on
me. This is -- this is the way it is.
We conclude that the District Court did not abuse its discretion in
ordering Roche to pay the costs of the jury trial as a condition of
his suspended sentence
Affirmed with amendments to sentence contained herein.
Justice
We concur:
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