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State v. Sherlock

Supreme Court of Montana

April 17, 2018

STATE OF MONTANA, Plaintiff and Appellee,
v.
DEREK GENE SHERLOCK, Defendant and Appellant.

          Submitted on Briefs: January 24, 2018

          District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDC-2016-220 Honorable Kathy Seeley, Presiding Judge

          For Appellant: Colin M. Stephens, Smith & Stephens, P.C., Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana

          Leo J. Gallagher, Lewis and Clark County Attorney, Fallon Stanton, Deputy County Attorney, Helena, Montana

          OPINION

          Laurie McKinnon, Justice.

         ¶1 Derek Gene Sherlock (Sherlock) appeals from an order of the First Judicial District Court, Lewis and Clark County, affirming the Lewis and Clark County Justice Court's judgment finding Sherlock guilty of driving while under the influence of alcohol and obstructing a peace officer. We affirm.

         ¶2 We restate the issue on appeal as:

         Did the Justice Court err in concluding that the defendant waived his right to a jury trial when he failed to appear at his jury confirmation hearing?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 The State charged Sherlock in Justice Court for driving while under the influence of alcohol and obstructing a peace officer. Sherlock, represented by private counsel, pleaded not guilty and requested a jury trial. The court sent Sherlock a notice listing the dates of his jury confirmation hearing and trial. Regarding the jury confirmation hearing, the notice stated, "The defendant, defendant's attorney and the prosecutor for the State are required to be personally present. Failure of the defendant to appear will waive the defendant's right to a jury trial." The notice further specified, "YOUR PERSONAL PRESENCE IS REQUIRED." The Justice Court held, and Sherlock attended, a jury confirmation hearing on September 28, 2015. In October, the Justice Court held Sherlock's jury trial and it ended in a mistrial.

         ¶4 The Justice Court subsequently scheduled a new trial for November 2015. In the notice setting a new trial, the court noted that the jury confirmation hearing had already occurred on September 28, 2015. About a month before trial, Sherlock's counsel moved to withdraw as counsel of record and also moved to continue Sherlock's trial. The Justice Court granted counsel's motions, approving counsel's withdrawal and rescheduling Sherlock's trial for February 2016. In its order resetting the trial date, the Justice Court also scheduled a jury confirmation hearing for February 1, 2016. The court sent a copy of the order, dated November 5, 2015, to Sherlock's recently-withdrawn counsel, but not to Sherlock. Even though he did not receive a copy of the order directly from the court, Sherlock obtained a copy of the order.

         ¶5 Sherlock failed to appear for his jury confirmation hearing on February 1, 2016. On February 2, 2016, the Justice Court issued a notice scheduling a bench trial for March. One day later, on February 3, 2016, Sherlock filed a pro se motion to reset his jury confirmation hearing. In his motion, Sherlock stated that he misread the November 5th Order resetting the trial date. He believed the case was already set for a jury trial and only calendared the trial date. Sherlock apologized for his error, recognized that "ignorance is no excuse, " and requested the court reset his jury confirmation hearing. In his motion, Sherlock reported that he had to save funds to secure new representation after his former counsel withdrew. Sherlock also stated that he contacted multiple attorneys and recently found someone able to represent him. The State opposed Sherlock's request, emphasizing the fact that Sherlock had actual notice of the hearing date and arguing that Sherlock's failure to appear at the hearing was not excused by good cause.

         ¶6 The Justice Court agreed with the State and denied Sherlock's motion to reset his jury confirmation hearing. The court conducted a bench trial and found Sherlock guilty of driving while under the influence of alcohol and obstructing a peace officer. Sherlock appealed the Justice Court's order denying Sherlock's motion to reset his jury confirmation hearing to District Court. The District Court affirmed the Justice Court's decision after considering the ...


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