Argued: April 8, 2019
Submitted: Decided: April 9, 2019
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
Appellant: Nick Aemisseger, Regional Deputy Public Defender,
Ryan Peabody (argued), Assistant Public Defender, Kalispell,
Appellee: Timothy C. Fox, Montana Attorney General, Brad
Fjeldheim (argued), Assistant Attorney General, Helena,
Von Jentzen, Kalispell City Attorney, Kalispell, Montana
JEREMIAH SHEA JUSTICE
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.
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.
We affirm in part, reverse in part, and remand for further
proceedings consistent with this Opinion.
AND FACTUAL BACKGROUND
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.
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. 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.
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
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.
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
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.  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 . . . ."
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.
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).
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).
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
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 ...