Submitted on Briefs: December 5, 2019
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
Appellant: Chad Wright, Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana Kent M.
Sipe, Fergus County Attorney, Lewistown, Montana
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.
AND FACTUAL BACKGROUND
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.
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.
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.
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
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,
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.
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. 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
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. 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.
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.
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
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.
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.
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.
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 ...