97-465
No. 97-465
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 113
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DAVID MAURICE DAHLIN, JR.,
Defendant and Appellant.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable John R. Christensen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kirk S. Bond, Attorney at Law; Seattle, Washington
For Respondent:
Hon. Joseph P. Mazurek, Attorney General;
John Paulson, Assistant Attorney General;
Helena, Montana
Thomas P. Meissner, Fergus County Attorney;
Lewistown, Montana
Submitted on Briefs: March 26, 1998
Decided: May 5, 1998
Filed:
__________________________________________
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Clerk
Justice Jim Regnier delivered the opinion of the Court.
¶1 David Maurice Dahlin, Jr., was charged by information on January 15,
1997, with the offenses of felony driving under the influence of alcohol,
misdemeanor driving without a valid driver's license, and misdemeanor failure
to have liability protection in effect. The Tenth Judicial District Court, Fergus
County, conducted a nonjury trial and found Dahlin guilty of driving under the
influence of alcohol, fourth offense, and driving without a valid driver's
license. The District Court sentenced Dahlin to a term of four years, with two
years suspended upon certain conditions, on the charge of felony driving under
the influence of alcohol, and to a concurrent term of six months on the driving
without a valid driver's license charge. Dahlin appeals from the sentence and
the judgment of the District Court. We reverse.
¶2 The sole issue on appeal is whether the District Court erred by allowing
Dahlin to waive his right to a jury trial without filing a written waiver.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On January 15, 1997, Dahlin was charged by information in the Tenth
Judicial District Court, Fergus County, with violations of: (1) § 61-8-401,
MCA, DUI, a fourth lifetime offense, a felony; (2) § 61-5-102, MCA, driving
without a valid driver's license, a misdemeanor; and (3) § 61-6-301, MCA,
failure to have liability protection in effect, a misdemeanor. These charges
stem from an investigatory stop of Dahlin's vehicle on January 3, 1997, in
Lewiston, Montana.
¶4 Dahlin, represented by attorney Torger S. Oaas, appeared in court on
January 21, 1997, and entered pleas of not guilty to the charges. An omnibus
hearing was held on February 25, 1997, and a jury trial was set for May 2,
1997.
¶5 On May 2, 1997, the court conducted a bench trial on the charges
against Dahlin. A minute entry dated May 2, 1997, notes:
Non-Jury Trial commenced at 9:10 a.m. with Judge John R.
Christensen presiding. . . . Attorney Torger S. Oaas present with
the Defendant, David Maurice Dahlin. Attorney Oaas states
Defendant has waived the right to Jury Trial and is ready to
proceed with a Non-Jury Trial at this time.
The District Court record does not contain a written waiver of a jury trial and
consent to nonjury trial.
¶6 The court proceeded to hear testimony and consider the evidence
presented. At the end of the day, the court found Dahlin guilty of driving
under the influence of alcohol and driving without a valid driver's license. The
court found Dahlin innocent of failure to have liability insurance in effect.
The court entered an order setting forth its findings on May 12, 1997.
¶7 A sentencing hearing was held on June 10, 1997. In an order filed on
June 13, 1997, the District Court sentenced Dahlin to the Department of
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Corrections for a term of four years with two years suspended for felony
driving under the influence of alcohol. For the charge of driving without a
valid driver's license, Dahlin was sentenced to a concurrent term of six months
in the county jail.
¶8 On June 18, 1997, Dahlin filed a notice of appeal. Dahlin appeals from
the sentence and judgment of the District Court.
DISCUSSION
¶9 Did the District Court err by allowing Dahlin to waive his right to a jury
trial without filing a written waiver?
¶10 The standard of review of a district court s conclusions of law is
whether the court s interpretation of the law is correct. State v. Rushton
(1994), 264 Mont. 248, 254-55, 870 P.2d 1355, 1359. When we review a
district court's findings of fact, the standard of review is whether those
findings are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324,
888 P.2d 904, 906.
¶11 On appeal, Dahlin argues that the District Court erred by convicting
him in a bench trial without obtaining a written waiver of jury trial signed by
him and the prosecution as required under § 46-16-110(3), MCA. That statute
provides: "Upon written consent of the parties, a trial by jury may be waived."
Section 46-16-110(3), MCA. Therefore, Dahlin contends that the court could
not rely upon the oral representation of his counsel that he had waived his
right to a jury trial and proceed to convict him in a bench trial.
¶12 The State points out that Dahlin did not raise his right to jury trial or
the issue of a lack of a written waiver of jury trial in the District Court before,
during, or after the trial. He did not ask the District Court for any relief, nor
did he make any objection with regard to a nonjury trial or the lack of written
consent at any time during the proceedings.
¶13 We have consistently held that "[t]his Court will not consider issues
raised for the first time on appeal when the appellant had the opportunity to
make an objection at the trial level." State v. Weeks (1995), 270 Mont. 63, 86,
891 P.2d 477, 491. The contemporaneous objection rule at § 46-20-104,
MCA, and the limitations set forth at § 46-20-701, MCA, preclude appellate
consideration of alleged errors unless a timely objection was made at trial, or
unless certain statutory criteria are met. Dahlin does not assert that he made
a timely objection, nor does he contend that this claim falls within one of the
narrow statutory exceptions found at § 46-20-701, MCA.
¶14 Therefore, review of Dahlin's right to jury trial or a lack of written
waiver claim by this Court can only be conducted pursuant to the common law
plain error doctrine. We will discretionarily review alleged errors that
implicate a criminal defendant's fundamental constitutional rights, even if no
contemporaneous objection is made and notwithstanding the inapplicability of
the criteria set forth in § 46-20-701(2), MCA, where failing to review the
alleged error would either: (1) result in a manifest miscarriage of justice; (2)
leave unsettled the question of the fundamental fairness of the trial or
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proceedings; or (3) compromise the integrity of the judicial process. State v.
Finley (1996), 276 Mont. 126, 137, 915 P.2d 208, 215.
¶15 In order for the plain error doctrine to be invoked, this Court must first
determine whether the error alleged by Dahlin implicates fundamental
constitutional rights. See State v. Sullivan (1996), 280 Mont. 25, 927 P.2d
1033. Dahlin argues that the District Court's failure to obtain written consent
of Dahlin's waiver of right to a jury trial violated his right to trial by jury under
Article II, Sections 24 and 26, of the Montana Constitution. Article II, Section
24, of the Montana Constitution provides in relevant part that "[i]n all criminal
prosecutions the accused shall have the right to . . . a speedy public trial by an
impartial jury." Article II, Section 26, of the Montana Constitution provides
that:
The right of trial by jury is secured to all and shall remain
inviolate. But upon default of appearance or by consent of the
parties expressed in such manner as the law may provide, all
cases may be tried without a jury or before fewer than the
number of jurors provided by law. In all civil actions,
two-thirds of the jury may render a verdict, and a verdict so
rendered shall have the same force and effect as if all had
concurred therein. In all criminal actions, the verdict shall be
unanimous.
Undeniably, the right to a jury trial is a fundamental constitutional right,
clearly provided for in the Montana Constitution. Given the importance of the
legal issue raised, and notwithstanding Dahlin's failure to contemporaneously
object or claim error pursuant to § 46-20-701(2), MCA, failure by this Court
to review Dahlin's claim would leave unsettled a question as to the
fundamental fairness of his trial.
¶16 Having concluded that Dahlin's claim affects fundamental constitutional
rights, we must next determine whether the lack of written consent waiving his
right to a jury trial violated his right to a trial by jury under Article II, Section
26, of the Montana Constitution. Dahlin argues that the District Court erred
by allowing him, through the oral representation of his attorney, to waive his
right to a jury trial and consent to a nonjury trial without the filing of a written
waiver and consent signed by both parties pursuant to § 46-16-110(3), MCA.
¶17 The State responds that although Dahlin has a constitutional right to a
jury trial, that right may be waived by a criminal defendant during the course
of the proceedings. In this case, the State contends that Dahlin should be
bound by the oral representation of his attorney that he had given consent to
waive his right to a jury trail. Furthermore, the State argues that strict
compliance with the writing requirements of § 46-16-110(3), MCA, is
unnecessary in this case to show that Dahlin knowingly and voluntarily waived
his right to a jury. Rather, the States relies on State v. McCartney (1978), 179
Mont. 49, 585 P.2d 1321, to argue that this Court should continue to determine
the existence of a waiver pursuant to § 46-16-110(3), MCA, by examining the
totality of the circumstances.
¶18 As stated above Article II, Section 26, of the Montana Constitution
provides that a jury trial is guaranteed in all criminal cases unless waived in
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the manner provided by law. We have held that under the language of Article
II, Section 26, of the Montana Constitution, the Legislature is free to set forth
the procedure for waiver of trial by jury in criminal cases. See State ex rel.
Nelson v. Ninth Judicial Dist. Court (1993), 262 Mont. 70, 863 P.2d 1027.
The Legislature has clearly done so by enacting § 46-16-110, MCA.
¶19 As stated above, § 46-16-110(3), MCA, provides that "[u]pon written
consent of the parties, a trial by jury may be waived." When the language of
a statute is clear and unambiguous, we look no further than to the plain
meaning of the statute for its interpretation. State v. Long (1995), 274 Mont.
228, 237, 907 P.2d 945, 950. We conclude that the language of § 46-16-110(3),
MCA, is clear and unambiguous.
¶20 Under § 46-16-110(3), MCA, both parties must consent and sign a
written waiver before a defendant may waive his right to a jury trial. In this
case, both Dahlin and the State agree that no written waiver was ever filed
with the District Court. The only evidence that Dahlin may have waived his
right to a jury trial is the court's minute entry dated May 2, 1997, which
provides, in relevant part, "Attorney Oaas states [Dahlin] has waived his right
to Jury Trial and is ready to proceed with a Non-Jury Trial at this time." We
determine that this minute entry, or an oral representation by Dahlin's attorney,
is not sufficient under § 46-16-110(3), MCA, for Dahlin to have waived his
right to a jury trial.
¶21 Furthermore, we decline to follow our decision in McCartney. In
McCartney, the defendant, like Dahlin, argued that his waiver of a jury trial
was ineffective because it was not reduced to writing and signed by both
parties as required by statute. At the time, we determined that the statutory
requirement of written consent was not such a mandate that failure to comply
would render the trial a nullity. McCartney, 179 Mont. at 55, 585 P.2d at
1325. Rather, we concluded that under the situation at hand, we should
examine the totality of the circumstances to determine whether the defendant
did, in fact, make a voluntary and intelligent waiver. McCartney, 179 Mont.
at 56, 585 P.2d at 1325. In McCartney, we noted that our decision was clearly
at odds with § 95-1901(d), RCM (1947), a predecessor statute to § 46-16-110(3),
MCA, which also provided that a right to a jury trial in a criminal case
may be waived upon written consent of the parties. McCartney, 179 Mont. at
56, 585 P.2d at 1325.
¶22 The Legislature has expressly set forth in § 46-16-110(3), MCA, the
manner in which the constitutional right to a jury trial in a criminal case may
be waived. That statute allows a criminal defendant to waive his right to a jury
trial only upon written consent of the parties. In the absence of written
consent, the statute does not allow this Court to review the totality of the
circumstances to determine whether a defendant has knowingly and voluntarily
waived his right to a jury trial.
¶23 After a review of § 46-16-110(3), MCA, and mindful of the
constitutional protections afforded criminal defendants, including the right to
a trial by jury, we now hold that in order for a criminal defendant to waive his
right to a jury trial, that waiver must be in writing with the consent of both
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parties and filed with the district court. Consequently, State v. McCartney
(1978), 179 Mont. 49, 585 P.2d 1321, and any other case that has held that a
criminal defendant may waive his right to a jury trial without written consent
signed by both parties, is hereby overruled to that extent.
¶24 In the present case, the record affirmatively demonstrates that Dahlin
did not file a written consent signed by both parties waiving his right to a jury
trial pursuant to § 46-16-110(3), MCA. Therefore, we hold that Dahlin's right
to a jury trial was violated and conclude that the District Court erred in
conducting a bench trial and convicting him.
¶25 Reversed.
/S/ JIM REGNIER
We Concur:
/S/ J. A. TURNAGE
/S/ WILLIAM E. HUNT, SR.
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
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