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State v. Cummings

Supreme Court of Montana

July 3, 2018

STATE OF MONTANA, Plaintiff and Appellee,
v.
CHRISTY ANN CUMMINGS, Defendant and Appellant.

          Submitted on Briefs: June 6, 2018

          APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 15-163 Honorable James A. Manley, Presiding Judge.

          For Appellant: Chad Wright, Appellate Defender, Alexander H. Pyle, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Kirsten H. Pabst, Missoula County Attorney, Karla Painter, Deputy County Attorney, Missoula, Montana

          OPINION

          LAURIE MCKINNON JUSTICE.

         ¶1 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 Montana Reports.

         ¶2 Christy Ann Cummings appeals from a judgment of conviction for theft by threat or deception entered by the Fourth Judicial District Court, Missoula County. We affirm.

         ¶3 In 2008, Cummings applied to receive Section 8 housing assistance from the United States Department of Housing and Urban Development (HUD) in coordination with the Missoula Housing Authority (MHA). The program pays landlords a portion of a qualifying recipient's rental payments. Recipients must obey certain enumerated rules; relevant here, "The family must use the assisted unit for residence by the family. The unit must be the family's only residence." Cummings acknowledged and signed these rules in March 2012, and thereafter the program contributed towards Cummings's rental payments for an apartment she lived in with her child, for whom she had partial custody, on California Street. Later, Cummings added her sister as an additional occupant of the unit.

         ¶4 Throughout the period relevant to this appeal, Cummings was on probation for an unrelated offense and provided her probation officers with monthly probation reports. The reports asked her to identify her address. In various reports, Cummings listed an address on Rustic Road, her boyfriend's home, sometimes in conjunction with the California Street address. Probation officers visiting the California Street address several times noted that Cummings, her personal items, her child, and her child's personal items were not there and that it appeared as though only Cummings's sister and sister's boyfriend lived in the apartment.

         ¶5 In May 2014, Cummings represented to the MHA that she was moving from California Street and began accepting housing assistance for an apartment on Foothills Road. Cummings never listed the Foothills Road address on her probation reports nor did Cummings disclose to the MHA that her boyfriend owns the apartment unit on Foothills Road. Cummings's brother, who is also on probation, listed both the California Street and the Foothills Road addresses in his own monthly probation reports. Cummings's brother reported that no one lived with him in the Foothills Road apartment, but that his other sister (not Cummings) occasionally stayed with him.

         ¶6 Beginning on June 3, 2014, Cummings served a period of intensive supervision or "house arrest," wherein she wore a GPS tracking device. Cummings served this period at Rustic Road, the only address she listed on several of her preceding monthly probation reports. On June 25, 2014, probation officers visited Cummings at Rustic Road and noted that there were weapons and ammunition on the property. The terms of Cummings's supervision prohibited her from residing on property where weapons or ammunition were located. The probation officers notified her that she either needed to move or that the weapons needed to be removed from the property. Although Cummings was accepting housing assistance for the Foothills Road apartment, on June 26, 2014, she filed a motion to maintain her residence at Rustic Road despite the presence of weapons. In her motion, Cummings represented that she had been living at Rustic Road for "over 2 years" and that if she were forced to move, she would be homeless. On July 9, 2014, the MHA ceased providing housing assistance to Cummings.

         ¶7 Thereafter, the State charged Cummings with theft by threat or deception, a felony, for fraudulently accepting housing assistance for apartments she admittedly lived in only part-time and allowing her sister and brother to live in them instead. The MHA provided benefits to Cummings from approximately April 2012 until July 2014. The MHA determined Cummings ceased residing, or never resided, in the California Street apartment and never resided in the Foothills Road apartment and that, because of Cummings's misrepresentations that she and her child lived only in those residences, it provided assistance of approximately $18, 600 for the California Street apartment and $2, 200 for the Foothills Road apartment. A jury found Cummings guilty of felony theft and the District Court sentenced her as a persistent felony offender to five years of commitment with the Department of Corrections, $17, 787 in restitution, and $1, 778.70 in fees. Cummings appeals.

         ¶8 First, Cummings argues the State violated her right to a speedy trial and that the District Court erred by denying her motion to dismiss. Speedy trial challenges are analyzed using a four-factor balancing test that considers: (1) the length of the delay; (2) the reason for the delay; (3) the assertion of the right; and (4) the prejudice to the defendant. State v. Ariegwe, 2007 MT 204, ¶ 34, 338 Mont. 442, 167 P.3d 815. Under factor one, we first count the length of the delay measured by the interval between accusation (the date the State charged the defendant) and trial (or projected trial date). Ariegwe, ¶¶ 37-43. If the interval is less than 200 days, the delay was insufficient and our analysis ends. Ariegwe, ¶ 41. If a trial ends in mistrial, the speedy trial clock resets and thereafter begins on the date the court declared mistrial. Ariegwe, ¶ 42 n.3 (stating, "[W]hen a mistrial is declared, the speedy trial clock is reset and begins to run from the date of the mistrial") (quoting State v. Olmsted, 1998 MT 301, ¶ 61, 292 Mont. 66, 968 P.2d 1154, overruled on other grounds by Ariegwe, ¶ 102 n.9).

         ¶9 Here, the State charged Cummings by complaint on March 5, 2015. After numerous delays, the District Court tried Cummings on January 7, 2016. That trial ended in mistrial. Cummings and the State stipulated to mistrial and agreed that Cummings's stipulation would not waive her right to move for dismissal based on a speedy trial violation. On February 1, 2016, Cummings moved to dismiss the State's proceeding, arguing the State violated her right to a speedy trial. Before ruling on her motion, the District Court ...


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