Submitted on Briefs: February 21, 2018
FROM: District Court of the Sixteenth Judicial District, In
and For the County of Custer, Cause No. DC-2015-98 Honorable
Michael B. Hayworth, Presiding Judge
Appellant: Chad Wright, Appellate Defender, Koan Mercer,
Assistant Appellate Defender, Helena, Montana
Appellee:Timothy C. Fox, Montana Attorney General, Tammy K
Plubell, Assistant Attorney General, Helena, Montana Wyatt A.
Glade, Custer County Attorney, Miles City, Montana
Justice Mike McGrath
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
Philip Gribble (Gribble) appeals from a Sixteenth Judicial
District Court order based on a jury's guilty verdict,
sentencing him to a five-year commitment to the Department of
Corrections for use or possession of property subject to
criminal forfeiture, a felony.
On September 24, 2015, Miles City Police Department Officer
Pavlicek pulled over a vehicle for speeding and failing to
use a turn signal. Upon being stopped, the driver of the
vehicle opened his door and ran. Officer Pavlicek called for
backup and ran after the driver, leaving two passengers
sitting in the vehicle. Officer Pavlicek did not catch the
driver. When he returned to the vehicle, Officer Pavlicek
discovered that both passengers had also fled.
Other officers arrived at the location of the vehicle to
assist. Agent Kurkowski obtained a search warrant for the
vehicle. The officers found a number of illegal substances
inside, including marijuana and methamphetamine. They also
found a wallet in the back seat of the vehicle with $326 in
cash, a Stockman Bank Visa debit card issued to Gribble, a
cardiopulmonary resuscitation card for Gribble, a note with a
number on it, a partial receipt, and a small scrap of paper
that said "Phil is owed .135."
On November 5, 2015, the State filed a complaint against
Gribble in Justice Court. The Justice Court issued an arrest
warrant for Gribble and he was arrested on December 21, 2015.
On December 31, 2015, the State filed an Information in
District Court, charging Gribble with the same offense.
Gribble was assigned counsel on January 6, 2016, and was
arraigned on January 15, 2016. Gribble pled not guilty.
On February 26, 2016, Gribble filed a motion to dismiss,
arguing unnecessary delay for his initial appearance and due
process violations. On April 20, 2016, the District Court
denied Gribble's motion to dismiss. On April 22, 2016,
Gribble filed a second motion to dismiss, arguing the State
did not initiate charges against him within the statute of
limitations pursuant to § 45-9-206(6), MCA. The District
Court denied Gribble's second motion to dismiss on May 3,
2016. A jury trial was held and Gribble was found guilty of
use or possession of property subject to criminal forfeiture.
Gribble was subsequently sentenced to five years with the
Department of Corrections. Gribble appeals to this Court,
arguing that the District Court erred when it denied his
motions to dismiss.
This Court reviews a district court's denial of a motion
to dismiss in a criminal case de novo. State v.
Madsen, 2013 MT 281, ¶ 6, 372 Mont. 102, 317 P.3d
806. We review a district court's interpretation and
construction of a statute for correctness. Madsen,
When a person is arrested, he or she "must be taken
without unnecessary delay before the nearest and most
accessible judge for an initial appearance." Section
46-7-101(1), MCA. In State v. Strong, 2010 MT 163,
¶ 19, 357 Mont. 114, 236 P.3d 580, this Court held that
dismissal without prejudice was the appropriate remedy when
an initial appearance is unnecessarily delayed. Gribble was
arrested on December 21, 2015, and was arraigned before a
judge on January 15, 2016. T he amount of time between
Gribble's arrest and initial appearance was twenty-four
days. In the District Court, the State argued that delay was
necessary due to the Christmas and New Year's Day
holidays and because a homicide in December 2015 consumed
most of the Custer County Attorney's resources. However,
this is not "justification for unnecessarily holding
[Gribble] incommunicado, unrepresented, and without the
proceedings required by law." Strong, ¶
19. Further, it is unnecessary for a prosecutor to attend an
initial appearance in Justice Court.
The District Court erred when it held that Gribble needed to
show actual prejudice to satisfy the unnecessary delay
standard. It is unnecessary that a defendant must allege and
suffer actual prejudice to find relief under §
46-7-101(1), MCA. Strong, ¶ 19. On appeal, the
State concedes that while it "is sympathetic to the
district court's reasoning, that reasoning ...