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Mulkey v. Brown

Supreme Court of Montana

October 24, 2017



         By means of supervisory control, Melvin Richard Mulkey petitions this Court for relief, contending that adherence to his constitutional due process rights are lacking in his underlying proceeding in the Eighteenth Judicial District Court, Gallatin County.

         Mulkey provides most of the procedural background in his petition. He states that he was arrested for felony driving under the influence on May 11, 2017, and that he had his initial appearance in Gallatin County Justice Court on May 15, 2017. At that time, the Justice Court ordered his conditional release upon bail of $25, 000 and set the preliminary hearing for June 2, 2017, Before the hearing occurred, the State filed an affidavit and a motion for leave to file an information in the Gallatin County District Court on June 1, 2017. The District Court granted leave to file on June 7, 2017. Mulkey submitted a notice of appearance with the District Court on June 8, 2017. Mulkey appeared for his initial arraignment in District Court on June 13, 2017, and the court appointed counsel from the Office of Public Defender (OPD) for Mulkey on that day. Mulkey's notice of appearance and motion to dismiss also were filed on June 13, 2017. Following the State's response to Mulkey's motion to dismiss, the District Court issued an Order denying Mulkey's motion.

         Mulkey maintains that the District Court is proceeding under a mistake of law. Raising four issues in his petition, Mulkey ultimately seeks dismissal of the charge and his release. He claims that the District Court's Order denying his motion to dismiss, misinterprets § 46-10-105(2), MCA, by allowing a preliminary hearing determination to be excused by the State's filing of a motion for leave to file an information. He explains that the filing of the motion for leave did not occur until June 1, and that the District Court granted the motion on June 7. Citing to several Montana cases, he believes that the time span of twenty-three days from the initial appearance in Justice Court to a probable cause determination in District Court is unreasonable.

         Mulkey also argues that he was denied his fundamental right of effective assistance of counsel. He asserts that OPD received his application, which was approved on or about May 16, 2017, but that no counsel was appointed or appeared. This inaction, he adds, precipitated his filing of a notice of appearance. He mentions that he met with counsel in September, and that counsel declined to pursue his writ of supervisory control. He states that his Faretta[1] hearing has been re-set twice. His remaining issues concern prejudice based upon a lack of counsel's representation at his initial appearance and unreasonableness of bail.

         Mulkey attached a single page of the District Court's docket. We requested and reviewed the case register of his underlying proceeding. There has been much activity since the June 23, 2017 Order denying his motion to dismiss. The Gallatin County District Court held a hearing on bail modification on August 8, 2017, and reduced his bond to $5, 000. The District Court held the Faretta hearing, which Mulkey complains was twice rescheduled, on September 12, 2017, to decide whether Mulkey could proceed pro se.

         Supervisory control is an extraordinary remedy. We must find the existence of urgency or emergency factors. M. R. App. P. 14(3). "This Court will assume supervisory control of a district court to direct the course of litigation where the district court is proceeding based upon a mistake of law, which if uncorrected, would cause significant injustice for which an appeal is an inadequate remedy." Redding v. Mont, First Judicial Dist. Court, 2012 MT 144A, ¶ 18, 365 Mont. 316, 281 P.3d 189 (internal citation omitted).

         Turning to his arguments, Mulkey's remedy is not with this Court because three issues appeared resolved. An issue becomes moot when it ceases to exist because of some happening or event and the court cannot furnish relief. Cape v. Crossroads Corr. Ctr., 2004 MT 265, ¶ 25, 323 Mont. 140, 99 P.3d 171. His issue of unreasonableness of bail is moot because his bail has since been reduced and he is no longer incarcerated. Concerning his denial of effective counsel, the Justice Court referred Mulkey's matter to OPD on May 15, 2017, in its conditional release order. The District Court appointed counsel and has since heard the arguments concerning Mulkey's self-representation. Mulkey presently represents himself and has stand-by counsel. To address the amount of any delay and reasons for the delay would require a factual inquiry which is not appropriately directed to this Court. Further, Mulkey's claim of prejudice at his initial appearance without counsel lacks merit because he does not provide how he was prejudiced, and he has since sought to proceed without counsel.

         His remaining argument may not be redressable either because he has the remedy of appeal. Section 46-10-105(2), MCA, reads: "After the initial appearance, in all cases in which the charge is triable in district court, the justice's court shall, within a reasonable time, hold a preliminary examination unless ... the district court has granted leave to file an information[.]" In its June 23, 2017 Order, the District Court calculated seventeen days between his May 15th appearance and the State's June 1st filing.

         We have determined before that the statutory language of § 46-10-105, MCA, refers to the time between initial appearance and a determination of probable cause. State v. McElderry, 284 Mont. 365, 369, 944 P.2d 230, 232 (1997). While Mulkey may be correct that twenty-three days have elapsed since the District Court granted leave, the question of whether this time delay is unreasonable becomes a factual pursuit. In McElderry, we held "that a determination of 'reasonable time' pursuant to § 46-10-205, MCA, is within the discretion of the district court." McElderry, 284 Mont, at 370, 944 P.2d at 233 (citing State v. Higley, 190 Mont. 412, 419, 621 P.2d 1043, 1048 (1980)).

         Mulkey has failed to meet the criteria to persuade this Court that we should exercise our original jurisdiction. The District Court has afforded Mulkey his constitutional due process rights. The court has addressed his claims of bail, counsel, and unreasonable delay. Any record-based issues would be better addressed in the future remedy of an appeal.

         Therefore, IT IS ORDERED that the petition for a writ of supervisory control is DENIED.

         The Clerk is directed to provide a copy of this Order to the Hon. Holly Brown, Eighteenth Judicial District Court, Gallatin County; to Jennifer Brandon, the Clerk of District Court, Gallatin County; to all counsel of record; and to Melvin Richard Mulkey personally.


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