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