Submitted on Briefs: May 23, 2018
FROM: District Court of the Seventeenth Judicial District, In
and For the County of Blaine, Cause No. DC 14-27 Honorable
John C. McKeon, Presiding Judge
Appellant: Paul D. Sullivan, Measure, Sampsel, Sullivan &
O'Brien, P.C., Kalispell, Montana.
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana Kelsie
Harwood, Blaine County Attorney, Chinook, Montana.
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
Michael Cox (Cox) appeals from the October 13, 2015 order of
the Seventeenth Judicial District Court, Blaine County,
revoking his suspended sentence. We affirm.
In November 2014, Cox was sentenced to the Department of
Corrections (DOC) for five years with all but 88 days
suspended. About a year later, the State filed a petition to
revoke his suspended sentence. He was appointed counsel who
appeared at both the initial and revocation hearings. Cox
admitted some of the alleged violations at the initial
revocation appearance and the State established other
violations at the subsequent evidentiary hearing. Following
the evidentiary hearing, the District Court revoked Cox's
suspended sentence and sentenced him to the DOC for five
years with credit for 113 days already served.
Cox asserts the District Court denied his Sixth Amendment
right to counsel by proceeding with the initial hearing when
the detention center had failed to provide Cox access to
counsel. At the initial hearing, Cox's counsel advised
the District Court she had not yet had an opportunity to
review the petition with Cox. She made attempts to call Cox
at the detention facility, but he was not put on the phone
and she did not receive a call back. Counsel did not request
a continuance or even a short break to confer with Cox.
The State counters that a revocation proceeding is a civil
action such that Cox's right to counsel is grounded in
his Fourteenth Amendment right to due process rather than in
the Sixth Amendment. The State also asserts Cox's
constitutional and/or statutory right to counsel was not
infringed as counsel was appointed nearly immediately and
appeared with Cox at the initial and evidentiary hearings.
Our review of constitutional issues is plenary. State v.
White, 2014 MT 335, ¶ 12, 377 Mont. 332, 339 P.3d
We conclude Cox was not denied either a constitutional or a
statutory right to counsel. Cox was appointed counsel within
six days of receiving the petition. Counsel appeared and
represented Cox at all revocation-related proceedings. Cox
now raises, for the first time on appeal, he was denied
counsel as he did not confer with counsel prior to the
initial hearing. It is "fundamentally unfair to fault
the trial court for failing to rule on an issue it was never
given the opportunity to consider." State v.
Whalen, 2013 MT 26, ¶ 37, 368 Mont. 354, 295 P.3d
1055 (citation omitted). Additionally, we generally refuse to
review issues which were not objected to at the lower court
level. State v. Kotwicki, 2007 MT 17, ¶ 8, 335
Mont. 344, 151 P.3d 892. As Cox raises this issue for the
first time on appeal and he failed to object to proceeding
and did not seek continuance or even a short break to confer
with counsel, we conclude Cox has waived this argument for
We have determined to decide this case pursuant to Section I,
Paragraph 3(c) of our Internal Operating Rules, which
provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled ...