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2019 Mtcity of Kalispell v. Salsgiver

Supreme Court of Montana

June 4, 2019

2019 MTCITY OF KALISPELL Plaintiff and Appellee,
v.
THOMAS SCOTT SALSGIVER, Defendant and Appellant.

          Argued: April 8, 2019

          Submitted: Decided: April 9, 2019

          APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC 15-500D Honorable David M. Ortley, Presiding Judge

          For Appellant: Nick Aemisseger, Regional Deputy Public Defender, Ryan Peabody (argued), Assistant Public Defender, Kalispell, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Brad Fjeldheim (argued), Assistant Attorney General, Helena, Montana

          Emily Von Jentzen, Kalispell City Attorney, Kalispell, Montana

          OPINION

          JAMES JEREMIAH SHEA JUSTICE

         ¶1 Appellant Thomas Scott Salsgiver appeals the Order of the Eleventh Judicial District Court, Flathead County, affirming the decision and sentence of the Kalispell Municipal Court finding Salsgiver guilty of partner or family member assault (PFMA), in violation of § 45-5-206, MCA, and criminal mischief, in violation of § 45-6-101, MCA.

         ¶2 We address the following issues on appeal:

Issue One: Whether the District Court erred by affirming the Municipal Court's Order that Salsgiver waived his right to a jury trial by failing to appear at an omnibus hearing.
Issue Two: Whether certain provisions in Salsgiver's sentencing agreement requiring him to pay fines that were not statutorily authorized are valid and legal.
Issue Three: Whether Salsgiver is entitled to receive four days of credit for jail time served, instead of two days of credit, against his sentence.

         ¶3 We affirm in part, reverse in part, and remand for further proceedings consistent with this Opinion.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶4 On March 17, 2015, the City of Kalispell (City) charged Salsgiver in Kalispell Municipal Court with PFMA and criminal mischief. On March 18, 2015, Salsgiver appeared for a video arraignment. Salsgiver pled not guilty to the charged offenses and was released on his own recognizance. As a condition of his release, Salsgiver was ordered to personally appear for all court proceedings and was warned that failing to appear would result in a waiver of jury trial. The Municipal Court also informed Salsgiver that his next scheduled court hearing would be an omnibus hearing to take place on May 5, 2015. Salsgiver signed an acknowledgement of his conditions of release.

         ¶5 On March 23, 2015, the Municipal Court issued a Notice of Omnibus. The Notice of Omnibus reiterated that Salsgiver's personal presence was required and that failure to appear would result in a waiver of jury trial.[1] On May 5, 2015, Salsgiver did not appear for the omnibus hearing, but Salsgiver's defense counsel did appear. During the omnibus hearing, the Municipal Court found that Salsgiver waived his right to a jury trial due to his failure to personally appear. The Municipal Court set a bench trial for July 9, 2015, and issued a bench warrant for Salsgiver due to his failure to appear.

         ¶6 On October 15, 2015, Salsgiver was arrested and taken into custody. On October 16, 2015, Salsgiver was arraigned and again released on his own recognizance. The Municipal Court informed Salsgiver his bench trial would take place on November 12, 2015. On October 28, 2015, Salsgiver's defense counsel filed a Motion for a Jury Trial. On November 10, 2015, the Municipal Court denied the Motion, deeming the matter waived due to Salsgiver's failure to appear at the omnibus hearing.

         ¶7 On November 12, 2015, Salsgiver appeared with his defense counsel at the bench trial. Salsgiver's defense counsel noted Salsgiver's continuing objection to the Municipal Court's finding that Salsgiver waived his right to a jury trial. At the conclusion of trial, Salsgiver was found guilty of PFMA and criminal mischief.

         ¶8 On the PFMA charge, the Municipal Court sentenced Salsgiver to 364 days of incarceration, with 362 days suspended, and gave him credit against his sentence for two days of time served in jail. The Municipal Court also ordered him to pay $300. On the criminal mischief charge, the Municipal Court sentenced Salsgiver to a 180-day suspended jail sentence, and imposed fines, fees, and surcharges in the amount of $400, including an additional $10 witness fee and $20 in court costs.

         ¶9 After Salsgiver indicated he could not pay the fine amount in full within thirty days, the Municipal Court allowed Salsgiver to pay his fines, costs, and surcharges in installments in a signed written agreement, subject to an additional $10 contract fee. [2] The Municipal Court informed Salsgiver he had to make minimum payments of $25 per month and explained that Salsgiver would be charged a ten-percent annual interest rate on the unpaid principal balance until paid in full. An additional provision in the written agreement, but missing from the oral pronouncement of sentence, provided that "[a]ll payments are due on a monthly basis and no monthly prepayments are allowed unless authorized . . . ."

         ¶10 On November 18, 2015, Salsgiver appealed his conviction to the Flathead County District Court, challenging the denial of his Motion for a Jury Trial. On June 13, 2016, the District Court affirmed the Municipal Court's decision, determining that Salsgiver validly waived his right to a jury trial under Article II, Section 26 of the Montana Constitution and under the Sixth and Fourteenth Amendments of the United States Constitution. Salsgiver appeals the District Court's Order.

         STANDARD OF REVIEW

         ¶11 We review decisions by a district court acting as an appellate court as if originally appealed to this Court. City of Missoula v. Girard, 2013 MT 168, ¶ 9, 370 Mont. 443, 303 P.3d 1283 (citing City of Bozeman v. Cantu, 2013 MT 40, ¶ 10, 369 Mont. 81, 296 P.3d 461). We examine the municipal court record independently of the district court's decision, applying the appropriate standard of review to our own examination of the record. Girard, ¶ 9 (citing Cantu, ¶ 10). We review de novo a lower court's conclusions of law and interpretations of the Constitution. Girard, ¶ 10 (citing State v. Trier, 2012 MT 99, ¶ 10, 365 Mont. 46, 277 P.3d 1230; City of Missoula v. Cox, 2008 MT 364, ¶ 5, 346 Mont. 422, 196 P.3d 452). Constitutional questions are subject to plenary review. Girard, ¶ 10 (citing Cox, ¶ 5; Trier, ¶ 10). Discretionary trial court rulings are reviewed for an abuse of discretion. Girard, ¶ 10 (citing State v. Prince, 2006 MT 79, ¶ 17, 331 Mont. 502, 134 P.3d 45).

         ¶12 When a criminal sentence is not eligible for review by the Sentence Review Division-a sentence of less than one year of incarceration-this Court reviews the sentence for both legality and an abuse of discretion. State v. Himes, 2015 MT 91, ¶ 22, 378 Mont. 419, 345 P.3d 297 (citing State v. Breeding, 2008 MT 162, ¶ 10, 343 Mont. 323, 184 P.3d 313; Cantu, ¶ 11. This Court's review for legality is confined to determining whether "the sentencing court had statutory authority to impose the sentence, whether the sentence falls within the parameters set by the applicable sentencing statutes, and whether the court adhered to the affirmative mandates of the applicable sentencing statutes." Himes, ¶ 22. "This determination is a question of law and, as such, our review is de novo." Himes, ¶ 22 (citing Breeding, ¶ 10). If a sentencing condition is legal, we review the challenged condition for an abuse of discretion. Cantu, ¶ 11. A sentencing court abuses its discretion when it acts arbitrarily without employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. Himes, ¶ 22 (citing Breeding, ¶ 10).

         DISCUSSION

         ¶13 Issue One: Whether the District Court erred by affirming the Municipal Court's Order that Salsgiver waived his right to a jury trial by failing to appear at an omnibus hearing.

         ¶14 The Sixth Amendment of the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State . . . ." The Fourteenth Amendment guarantees a right to a jury trial in criminal cases, which "were they to be tried in a federal court-would come within the Sixth Amendment's guarantee." Duncan ...


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