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State v. Marquart

Supreme Court of Montana

January 7, 2020

STATE OF MONTANA, Plaintiff and Appellee,
MICHAEL CRAIG MARQUART, Defendant and Appellant.

          Submitted on Briefs: December 5, 2019

          APPEAL FROM: District Court of the Tenth Judicial District, In and For the County of Fergus, Cause No. DC-2015-87 Honorable E. Wayne Phillips, Presiding Judge

          For Appellant: Chad Wright, Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Kent M. Sipe, Fergus County Attorney, Lewistown, Montana


          Beth Baker, Justice

         ¶1 Following a bench trial, the Tenth Judicial District Court convicted Michael Craig Marquart of burglary, theft, and violating an order of protection. The court imposed deferred sentences on all counts. Marquart appeals, arguing that the District Court: (1) denied his fundamental right to be present at all critical stages of his criminal proceedings when it held a hearing that he did not attend; and (2) denied him the right to represent himself when he unequivocally waived his right to counsel. We hold that Marquart waived his right to be present and that the record supports the District Court's conclusion that Marquart did not unequivocally assert his right to represent himself. We therefore affirm.


         ¶2 This case arises from an order of protection that Marquart's estranged wife Crissy obtained against him in June 2015 following their separation. The order of protection required Marquart to stay 300 feet away from her residence. The procedural history is dense, complicated by multiple substitutions of court-appointed attorneys, two substitutions of judge after Marquart filed civil suits against the first two judges, and the District Court's orders for psychological evaluations on the State's motions. We summarize the facts relevant to the issues on appeal.

         ¶3 On December 24, 2015, Crissy came home to find Marquart's truck parked on her property. Crissy called the police and waited in her car while Marquart carried boxes from the shop building to his truck. Once Marquart had left the property, she went into the shop and noticed items of property were missing. On January 4, 2016, the State charged Marquart with burglary, a felony, along with violating an order of protection and theft, both misdemeanors.

         ¶4 The court convened the initial appearance on January 8, 2016. Marquart's first court-appointed attorney was present, but because Marquart failed to appear, the court rescheduled the hearing. In a January 10, 2016 letter to the Clerk of the District Court, Marquart, who had served in law enforcement for nearly twenty years, indicated that he had met with his attorney and resolved to represent himself moving forward. The State's response to Marquart's letter indicated it planned to request a mental health evaluation and believed that Marquart required standby counsel. Marquart's attorney filed a motion to withdraw on January 14, 2016.

         ¶5 Marquart and his court-appointed attorney appeared at the January 20 rescheduled initial appearance. The court inquired whether Marquart still wished to represent himself, explaining that his court-appointed attorney could serve on a standby basis. Marquart confirmed he was waiving his right to counsel and exercising his right to act as his own attorney. The court dismissed his attorney over the State's objections.

         ¶6 The District Court then explained Marquart's constitutional rights, the charges against him, and the potential penalties. After confirming that he understood his rights and the charges against him, Marquart entered not guilty pleas to all three charges. Before adjourning, the court urged Marquart to check his mail diligently to avoid missing any upcoming hearings. Two days later, the court issued an order setting an omnibus hearing for February 22, 2016.

         ¶7 On January 26, 2016, County Attorney Thomas Meissner filed a Motion for Mental and Physical Examination of Marquart, questioning his fitness to proceed and indicating the State's plan to offer testimony at a mental competency hearing. Meissner filed a Notice of Hearing for Friday, February 16, 2016, at 3:00 p.m., and served Marquart with both the motion and notice on January 26, 2016.

         ¶8 On February 12, four days before the competency hearing, Marquart emailed Clerk of District Court Phyllis Smith, asking whether there was another court-ordered hearing between then and the February 22 omnibus.[1] Clerk Smith informed Marquart that the County Attorney's request was sufficient and no court order was necessary. Meissner, whom Marquart had copied, responded via email, "You have been provided with notice of the hearing scheduled for Tuesday, February 16th at 3:00. You need to be there." A lengthy email exchange between Marquart, Meissner, and Clerk Smith ensued. Marquart objected to the hearing on the grounds that Meissner lacked authority to set a hearing and require Marquart's presence. He requested an order from the District Court setting the February 16 hearing, stating he would comply with a court order. Meissner responded that it is standard practice for counsel to "notice up" hearings. He further warned, "If you are not there, I will ask the Court to either proceed without you or issue an arrest warrant. The hearing is for a significant issue. You need to be there." In one follow-up email, Clerk Smith informed Marquart: "If you fail to show up on Tuesday, February 16, the Judge will issue a Warrant for your arrest I am sure. You need to show up on Tuesday and the Judge will explain to you the process and that you did have proper notice." Meissner subsequently emailed Clerk Smith, asking her to request the District Judge to issue an order setting the hearing, but neither Clerk Smith nor the court responded.

         ¶9 Marquart did not attend the February 16 hearing on the State's motion for a mental health examination. Because the court had granted his request to proceed pro se and discharged his first court-appointed attorney, no counsel appeared on his behalf. The court conducted the hearing in Marquart's absence. Meissner requested that the court issue a warrant for Marquart's arrest. He then called three witnesses: Marquart's mother Edna Bergstrom, Crissy, and the Marquarts' daughter Carley. Edna, Crissy, and Carley testified to recent changes they perceived in Marquart's stability and mental health. The District Court ruled that Marquart must undergo both mental health and physical evaluations.[2] The court also granted Meissner's specific request that Dr. Dee Woolston conduct the evaluation; issued a warrant for Marquart's arrest pursuant to Meissner's request; and ordered that the email correspondence between Marquart, Clerk Smith, and Meissner be lodged in the court file. The court followed up with a written order the next day, explaining:

The defendant was not present. . . . The record shows that the defendant was served with an Amended Notice of Hearing on January 28, 2016, setting the hearing on the State's Motion for a Physical and Mental Examination. The court was advised that the defendant had been in e-mail communication with the Clerk of Court about this hearing. In this e-mail communication, the defendant acknowledged the date and time of the hearing, and was advised by Ms. Smith that he needed to attend the hearing. However, the defendant advised Ms. Smith that he would not attend the hearing, because the hearing was not set by way of Court order, signed by the undersigned, but instead was set by the County Attorney by way of a Notice of Hearing.
It is standard practice in this jurisdiction and many others that hearings are called before the Court by issuance of notices of hearing, signed by counsel. Simply because this court did not set the hearing, by signing an order, is no excuse or justification for the defendant's refusal to attend the hearing.

         ¶10 Marquart was arrested and detained at the Fergus County Jail on February 20. Dr. Dee Woolston conducted the court-ordered psychological evaluation of Marquart in the county jail on February 26. Dr. Woolston concluded that Marquart did not require a medical examination and that he presented no imminent danger to himself or others. Dr. Woolston opined that Marquart "may be diagnosed as having Delusional Disorder, Persecutory Type," a condition characterized by well-organized but rigid false beliefs that may interfere with the person's day-to-day functioning. He concluded, however, that "there are no indications of active psychosis that might interfere with his judgment[]" and opined that Marquart was fit to proceed.

         ¶11 On March 28, 2016, the State moved to have counsel appointed, arguing that standby counsel alone was not "tenable because the defendant suffers from a mental disorder." Marquart reasserted his right to self-representation via handwritten motions, ex parte letters to the court, and during two court hearings on March 25 and April 28. During the March 25 hearing, after confirming that Marquart still wished to represent himself, the District Court addressed Marquart, stating, "[Y]ou're sort of wearing two hats being the defendant and acting as your own counsel." During the April 28 hearing, the court engaged Marquart in the following colloquy:

MR. MARQUART: I wanted to object to the standby counsel. . . .
COURT: All right on January 20th Mr. Marquart you may remember that this Court informed you of your right to counsel is that correct?
MR. MARQUART: Yes sir.
COURT: And . . . the Court at that time discussed with you the perils of representing yourself. Did the Court do that?
MR. MARQUART: Yes. . . .
COURT: Well I want to go through that one more time because representation by counsel is a fundamental right under the U.S. Constitution and the Montana Constitution. When you waive that right you are taking on some very, very difficult responsibilities. . . . Given all that you do still wish to proceed without an attorney, even standby attorney, which just means that they would be sitting there and if you or the Court felt that it was important for you to get some guidance you could get it? Do you still want to proceed without standby counsel?
MR. MARQUART: I do Your Honor. . . . I knowingly with the knowledge of what you just told me in terms of the perils of what I'm doing I knowingly waive my right to counsel and I want to represent myself.

         ¶12 Meissner responded that, because "Dr. Woolston thinks that there is an underlying mental health issue," the court should "overrule [Marquart's] wishes and appoint counsel to represent him" despite his "proclamations that he feels he's competent and he understands all of the dangers[.]" The District Court granted the State's motion for appointment of counsel. In its order, the court expressed concern that, "though obviously intelligent, [Marquart's] delusional thinking prohibited him from making rational choices." Marquart represented himself for the duration of the omnibus hearing.

         ¶13 From March to December 2016, Marquart was represented by counsel, but he continued to file pro se documents and request substitution of counsel. After one filing in June, in which Marquart argued that he had ineffective counsel, he again stated that he had the right to represent himself but also protested that the court had forced him to proceed without counsel at the omnibus hearing. Marquart moved to strike the omnibus hearing record and schedule a new hearing with counsel present and sufficient time in advance to consult with counsel. The District Court held a hearing the following month at which Marquart's counsel appeared with him. In response to the court's direct inquiry at the outset of the hearing, Marquart stated that he accepted counsel's representation of him at the hearing.

         ¶14 On December 8, 2016, the week before the scheduled trial, the District Court held a hearing on Marquart's motion to conduct his own defense with the assistance of a new court-appointed attorney as co-counsel. The following colloquy took place:

COURT: Mr. Marquart is it your intention to want to represent yourself in this matter?
MR. MARQUART: Your Honor it's not my intention to represent myself, but it's my intention to have another attorney. I'm not happy with Mr. Harris and my representation that I'm getting from him. . . .
COURT: Just what is your intention today? Now you communicated that you wanted to represent yourself, now you are telling me that you're dissatisfied with your attorney which is it?
MR. MARQUART: It's a combination of both. In my motion or letter to you Judge I said to you that I was not happy with Mr. Harris in essence I wanted to represent myself and I wanted to have an attorney that ...

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