ORDER REMANDING FOR HEARING
Appellant Lionel Scott Ellison (Ellison) was charged in Yellowstone County Justice Court with misdemeanor Partner Family Member Assault (PFMA). Ellison was convicted following a bench trial. Counsel Penelope S. Strong (Strong) represented Ellison at trial.
Ellison retained new counsel and appealed his conviction to the Thirteenth Judicial District Court. He challenged a local court rule that provides the right to a jury trial is waived if a defendant does not demand a jury trial within a certain time. He also attempted to allege Strong was ineffective because he requested a jury trial but she failed to demand one on his behalf. The District Court denied Ellison's appeal, noting that his ineffective assistance of counsel (IAC) claim would be more properly raised in a petition for postconviction relief. Ellison appealed his conviction to this Court, on other grounds. We affirmed.
Ellison filed a petition for postconviction relief with the District Court. Relevant here, he alleged Strong was ineffective because he did not consent to waive his right to a jury trial and she did not demand a jury trial on his behalf as he had requested. The District Court denied the petition without having a hearing. Ellison appealed to this Court.
To show Ellison waived his right to a jury trial, the State relies on a signed "Memorandum Omnibus Hearing" acknowledging the requirement to make a jury demand within 20 days of the memorandum. The form includes a box that may be checked if "defendant's failure to appear as ordered effected a waiver of right to a jury trial." That box is not checked. Ellison relies on the fact that box is not checked to assert he did not waive his right to a jury trial. Ellison claims he requested a jury trial. He and his parents stated in affidavits that they believed he would be having a jury trial. The record contains no express, written waiver of his right to a jury trial. Strong implied in an affidavit that she strategically decided against a jury trial because "after extensive interactions with the Ellison, I did not believe that his particular mannerisms and personality would make a favorable impression with a jury, and a bench trial would be a better option."
Section 46-21-201(5), MCA, provides that a District Court, at its discretion, may "order the petitioner brought before the court for the hearing." We conclude an evidentiary hearing is necessary in this case because the facts in the record before us do not conclusively show whether Ellison consented to waive his right to a jury trial.
THEREFORE IT IS ORDERED that this case is remanded to the Thirteenth Judicial District Court, Yellowstone County, to hold, within 60 days of the date of this order, an evidentiary hearing on the question of whether Ellison waived his right to a jury trial; and that the District Court enter written findings of fact and conclusions of law as to whether Strong's assistance was ineffective for failing to request a jury trial on his behalf The District Court may, within its discretion, request additional briefing on Ellison's IAC for failure to request a jury trial claim. Since we are remanding this for a hearing, the District Court may wish to consider appointing counsel to represent Ellison.
IT IS FURTHER ORDERED that Ellison's appeal is dismissed without prejudice. If Ellison decides to file a new appeal, he may do so with no filing fee.
IT IS FURTHER ORDERED that the Clerk of this Court return the District Court Record to the Clerk of the District Court and give notice of this Order by mail to all counsel of ...