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City of Red Lodge v. Pepper

Supreme Court of Montana

December 6, 2016

CITY OF RED LODGE, Plaintiff and Appellee,
v.
GEREMY LEE PEPPER, Defendant and Appellant.

          Submitted on Briefs: November 10, 2016

         APPEAL FROM: District Court of the Twenty-Second Judicial District, In and For the County of Carbon, Cause No. DC 14-49 Honorable Blair Jones, Presiding Judge

          For Appellant: Chad Wright, Chief Appellate Defender, Haley Connell Jackson, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Mardell L. Ployhar, Assistant Attorney General, Helena, Montana Joel Todd, Red Lodge City Attorney, Hope Freeman, Deputy City Attorney, Red Lodge, Montana

          OPINION

          Laurie McKinnon, Justice

         ¶1 Appellant Geremy Lee Pepper (Pepper) appeals from an order entered in the Twenty-Second Judicial District Court, Carbon County, denying his motion to dismiss. The issue to be determined on appeal is whether Pepper's statutory right to speedy trial guaranteed under § 46-13-401(2), MCA, was violated. We affirm.[1]

         PROCEDURAL BACKGROUND

         ¶2 Pepper was charged with two counts of theft and two counts of deceptive practices in the City Court of Red Lodge on March 26, 2014. The charges alleged that Pepper made purchases on two credit cards that did not belong to him. Pepper pleaded not guilty to the offenses on April 3, 2014, at his initial appearance.

         ¶3 The City Court issued its first scheduling order on April 25, 2014, directing the Appellee City of Red Lodge (City) to provide discovery by May 22, 2014; setting an omnibus hearing for July 3, 2014; setting a motions hearing for July 31, 2014; and a jury trial for August 15, 2014.

         ¶4 The City provided Pepper with some discovery on April 16, 2014. However, missing from that discovery was a recorded interview of Pepper, recorded interviews of several witnesses; a video that allegedly showed one of the criminal acts; written statements from Pepper and a witness; and a police report. On June 19, 2014, Pepper's counsel sent a letter to the City's attorney informing her of the several key pieces of missing discovery which had not been provided in compliance with the court's scheduling order. Pepper's counsel also communicated to the City's attorney by email that given the amount of discovery outstanding, she planned to continue the omnibus hearing, "along with other deadlines in the Scheduling Order, " and asked if there was any objection. The City's attorney did not object.

         ¶5 On July 3, 2014, Pepper filed a Motion to Vacate Scheduling Order and Reset Omnibus. The motion detailed the numerous items of discovery still not produced by the City, and requested "the Court to vacate the deadlines in the April 25, 2014 Scheduling Order and reset the omnibus hearing in this matter." Pepper's counsel indicated that "[g]iven the dearth of information currently in Defendant's possession, Defendant does not have the ability to address the issues that should be discussed during the omnibus hearing." The court granted Pepper's motion and rescheduled an omnibus hearing for August 7, 2014, but did not vacate or address any of the other dates set forth in the April 25, 2014 scheduling order.

         ¶6 On July 15, 2014, Pepper's counsel sent another email to the City's attorney and inquired, again, of the missing discovery. The City responded that the officer involved in the case had been on vacation, but that the missing discovery would be provided shortly. Pepper subsequently received the City's entire discovery on July 30, 2014. Thereafter, on August 6, 2014, Pepper filed a Motion for Scheduling Order requesting a new motions deadline; new motions hearing; and a new trial date. Pepper represented that he now had the necessary discovery to prepare his motion to suppress.

         ¶7 On August 8, 2014, the City Court issued a second scheduling order that set a motions deadline of August 21, 2014; an omnibus hearing of September 11, 2014; a final pretrial hearing of September 25, 2014; and a jury trial of September 26, 2014.

         ¶8 On September 16, 2014, the City filed a motion to continue trial, representing that one of its witnesses had moved to Arizona and that the jury trial date of September 26, 2014, did not allow sufficient time to purchase an airline ticket without being cost prohibitive. Pepper objected to any continuance. The court addressed the City's request for continuance at the motions hearing and inquired whether any party had previously moved for a continuance. In response to the City's representation that he had previously requested a continuance, Pepper maintained that he had to ask for the continuance in order to prepare his motion to suppress because the City had not complied with discovery deadlines previously imposed by the court. After considering that the City Attorney was not available for trial on dates which would have been within the six-month statutory ...


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