Montana Criminal Appeals

For Montana criminal cases taking place in district court, there is no intermediate court of appeals. Instead, all appeals are taken to the Montana Supreme Court. The Montana Code Annotated outlines when a defendant in a criminal case may appeal at § 46-20-104(1). It states that:

An appeal may be taken by the defendant only from a final judgment of conviction and orders after judgment which affect the substantial rights of the defendant.

A final judgment essentially means conviction. Generally, if a person is found not-guilty there is little reason to appeal. The rule also covers orders which affect the substantial rights of the defendant. In these cases, you don’t need to wait until the completion of trial to file the appeal.

The Montana Rules of Appellate Procedure require that such an appeal be taken within 60 days after entry of the judgment which is the basis for the appeal. This is an important, and hard deadline. Although the rules allow for out-of-time appeals, they are only to be granted “in the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage of justice.” M.R.App.P. 6. File your appeal on time. If you plan on hiring an appellate attorney, contact him quickly – ideally before the trial has concluded. You should never plan on being granted an extension on your appeal.

The appeal is initiated by filing a notice of appeal with the Clerk of the Supreme Court in Helena. A copy of the notice must be filed with the Clerk of the District Court where the case originated and on all parties. This is a relatively simple step which can be accomplished fairly quickly once the decision to appeal has been made. All the more reason to comply with the time limits.

Posted in Appellate Procedure, Criminal Law, Criminal Procedure, SCOMONT | Leave a comment

Amicus Curiae Briefs in Montana

Amicus Curiae is latin for “friend of the court” and refers to someone who is not a party, but volunteers to provide a brief to assist the court. An amicus brief does not make the party an intervenor, it merely gives the author (or more commonly the author’s client) a voice in the case. Often, advocacy groups will file a brief in appeals where it is not a party but has an interest in the subject matter. Where a case has broad implications, these briefs are a way to introduce varied concerns and make the court aware of the possible effects of its decision.

In Montana, amicus briefs are governed by Rule 12(7) of the Montana Rules of Appellate Procedure. The rule states:

Brief of amicus curiae. A brief of an amicus curiae may be filed only opon invitation or leave of the supreme court granted on motion. A motion for leave shall identify the interest of the applicant, state the reasons why a brief of an amicus curiae is desirable, identify the party whose position amicus supports, provide the date upon which the briefs can be field, and indicate whether the other party consents to the request.

Interestingly, no reference is made in the Montana rules regarding what sort of content is acceptable from amicus. The U.S. Supreme Court has promulgated Rule 37(1) on this topic, stating:

An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.

While I have no hard data on the topic, my assumption would be that amicus briefs are much more common at the U.S. Supreme Court than in Helena. This may explain the lack of guidance in the Montana rules regarding proper content. And perhaps SCOMONT assumes that Montanans have enough common sense to obviate the need.

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Baxter v. State – 2009 MT 449

Because neither Montana case law nor statutory law demonstrate a public policy against allowing physician aid in dying, the consent exception to homicide would apply to a physician who prescribed a lethal dose of medicine and provided it to a terminally ill patient who then took the medicine and ended his own life.

Baxter, four physicians, and Compassion & Choices brought an action in District Court challenging the constitutionality of the application of the Montana homicide statutes to physicians who provide aid in dying to terminally ill patients. Baxter wanted the option of ingesting a lethal dose of medication prescribed by his physician and self-administered at the time of Mr. Baxter’s own choosing. The District Court granted summary judgment in favor of Baxter holding that the Montana constitutional rights of individual privacy and human dignity encompass the right of a competent, terminally ill patient to die with dignity. The State appealed.

The Montana Supreme Court affirmed the grant of summary judgment, but vacated the District Court’s ruling on the constitutional issues – instead finding a statutory basis for the ruling.

Justice Leaphart wrote the opinion for the majority, joined by Justices Cotter, Warner, and Morris. Justice Warner also filed a concurring opinion encouraging the legislature to examine the issue. Justice Nelson wrote a special concurrence in which he joined the majority’s reasoning regarding the statutory basis for the decision, but argued that the Montana constitution also protected physician aid in dying. Justice Rice dissented and was joined by Hon. Joe D. Hegel (the District Court judge sitting for Chief Justice McGrath who had been involved with the case prior to joining the Court).

Despite the District Court’s reliance on the constitution, SCOMONT declined to address the constitutionality of the issue and instead found adequate statutory grounds for its decision.

Because suicide is not a crime under Montana law, the only person who might be prosecuted is the physician who prescribes a lethal dose of medication. MCA § 45-2-211(1) establishes consent as a defense to homicide stating that the “consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense.” There are 4 statutory exceptions to this defense, codified at MCA § 45-2-211(2). Because the first 3 are fact based, the Court focused on the fourth exception: when the conduct or resulting harm is against public policy.

In State v. Makrill, 2008 MT 297, the only Montana case to address the public policy exception to consent, SCOMONT held that the consent of a victim is not a defense to the charge of aggravated assault. Mackrill, ¶ 33. However, in Baxter the Court clarified that the “against public policy” exception to consent applies to conduct that disrupts public peace and physically endangers others. In this case, the majority believes that “the act of a physician handing medicine to a terminally ill patient, and the patient’s subsequent peaceful and private act of taking the medicine, are not comparable to the violent, peace-breaching conduct that this Court and others have found to violate public policy.” Baxter, ¶ 21.

The Court went on to acknowledge that the “against public policy” exception is not limited to violent breaches of the peace, but held that nothing in Montana case law facts or analysis suggests that a patient’s private interaction with his physician, and subsequent decision regarding whether to take medication provided by a physician, violate public policy.

The majority next examined Montana statutes and review of the Montana Rights of the Terminally Ill Act and the homicide statute lead the Court to conclude that physician aid in dying is not against public policy.

A person commits the offense of deliberate homicide, under MCA § 45-5-102, if the person purposely or knowingly causes the death of another human being. Because the physician is only making the medication available, and not administering it, the statute does not apply and, therefore, does not signify public policy against physician aid in dying.

The Court also thoroughly examined the Montana Rights of the Terminally Ill Act and held that it confers on terminally ill patients a right to have their end of life wishes followed, even if it requires direct participation by a physician through withdrawing or withholding treatment. “Nothing in the statute indicates it is against public policy to honor those same wishes when the patient is conscious and able to vocalize and carry out the decision himself with self-administered medicine and no immediate or direct physician assistance.” Baxter, ¶ 30.

In sum, because neither Montana case law nor statutory law demonstrate a public policy against allowing physician aid in dying, the consent exception to homicide would apply to a physician who prescribed a lethal dose of medicine and provided it to a terminally ill patient who then took the medicine and ended his own life.

In a separate issue, SCOMONT also overturned the District Court’s award of attorney’s fees to Baxter because the basis of the decision was no longer constitutional, meaning that the private attorney general doctrine was now inapplicable.

Posted in Criminal Law, Summary Judgement | Leave a comment

Hamilton v. State – 2010 MT 25

First off, please excuse the mess that this site has become. We are attempted to change a variety of things on this site and have several good resources to help with these changes, including some advanced design tutorials and some more basic ones like How to Change Your Text Size and Color in WordPress. Rest assured, we are working on making this much more readable!

In what I believe is his first written opinion since joining the Court, Justice Wheat, authored the majority opinion in State v. Hamilton. Here, Hamilton claimed ineffective assistance of counsel following his conviction for eight counts of incest. The District Court denied Hamilton’s petition, denied his request for an evidentiary hearing on the issue, and dismissed his claims for failure to make a prima facie showing of entitlement to relief and for failure to state a claim for relief. Hamilton appealed, challenging the District Court’s refusal to hold an evidentiary hearing and its dismissal of his petition.

A petition for post-conviction relief must show, by a preponderance of the evidence, that the facts justify the relief. The petition must identify all facts supporting the grounds for relief set forth in the petition and have attached affidavits, records, or other evidence establishing the existence of those facts. A court may dismiss a petition for post-conviction relief without holding an evidentiary hearing if the petition fails to satisfy this procedural threshold. Also, the District Court may dismiss a petition for post-conviction relief without ordering a response if the petition, files, and records conclusively show that the petitioner is not entitled to relief. Or, the court may order a response and, after reviewing the response, dismiss the petition as a matter of law for failure to state a claim for relief – or it may proceed to determine the issue.

Claims of inadequate assistance of counsel are examined under the two-prong test from Strickland v. Washington, 466 U.S. 668 (1984). The defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense and deprived the defendant of a fair trial. The first prong is whether counsel’s conduct fell below an objective standard of reasonableness measured under prevailing professional norms and in light of the surrounding circumstances. There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance and was based on sound trial strategy. The second prong requires the defendant to establish prejudice by demonstrating that, but for counsel’s errors, there is a reasonable probability that the result would have been the different.

Hamilton made five allegations of ineffective assistance of counsel, all five of which were dismissed by the District Court. After applying the above framework to each claim, SCOMONT affirmed the District Court’s decision. The Court concluded that Hamilton’s petition failed to show that the facts justified the relief, and that his ineffective assistance of counsel claims failed to overcome the presumption of competency.

Posted in Criminal Law, Post Conviction | Leave a comment

State v. Shepard – 2010 MT 20

In 2003, Shepard was charged with multiple offenses including deliberate homicide, burglary, and aggravated kidnapping. She entered into a plea agreement and pled guilty to deliberate homicide and burglary in exchange for the State’s motion to dismiss the remaining charges. The agreement provided that the State was free to recommend any sentence permitted by law, excluding death and the State agreed to recommend that any sentence imposed for the burglary offense would be served concurrently with the sentence imposed for deliberate homicide. The State honored its commitments.

At sentencing, the District Court made Shepard ineligible for parole, which resulted in Shepard petitioning to the Sentence Review Division. At the sentence review hearing, the State appeared, contradicted the factual background given by Shepard and opposed her request that the parole restriction be removed from her sentence.

Over a year later, Shepard filed a motion to withdraw her guilty pleas, asserting that the State’s statements at the sentence review constituted breach of the plea agreement. The District Court denied the motion and Shepard appealed.

On appeal, the Montana Supreme Court initially addressed the issue of the proper standard of review, deciding that because a plea agreement is a contract and subject to contract law standards, State v. Hill, 2009 MT 137, ¶ 49, it is a question of law and reviewed de novo.

As to the merits of the appeal, SCOMONT ruled that although a plea agreement could be negotiated in such a way to restrict the State’s actions before the Sentence Review Division or otherwise impose continuing obligations on the State, the agreement at issue here did not. The Court ruled that “the plea agreement was drafted to unambiguously apply to the sentencing process before the District Court and that court’s disposition of the case. It did not contemplate later proceedings, and thus, the State did not violate an express provision of the plea agreement.” ¶ 14.

SCOMONT also noted that the State could, theoretically, have undermined, and therefore violated, the plea agreement by arguing for a different or harsher sentence before the Sentence Review Division. However, the Court believed that this was not the case here and affirmed the District Court.

Posted in Criminal Law, SCOMONT, Sentencing | Leave a comment

State v. Cooper – 2010 MT 11

Cooper was arrested after a traffic stop in which she failed field sobriety tests and was cited for DUI. A motion to suppress evidence gathered after the traffic stop on the basis that the trooper who stopped her lacked particularized suspicion, was denied. Cooper appealed and SCOMONT sustained.

After pulling her over, the trooper told Cooper that the reason he had initiated the stop was because snow obstructed the view of her license plate. However, he testified to many other factors including that:

  • he pickup truck did not come to a stop before entering the highway, but “abruptly” pulled out onto the highway in front of Kloster, forcing him to take evasive action to avoid a possible crash;
  • Cooper crossed the fog line and performed a U-turn; and
  • Cooper was driving incredibly slowly

SCOMOT ruled that “[the trooper’s] articulable facts included his observation of Cooper’s truck pulling into oncoming traffic, nearly causing a collision; Cooper leaving the parking lot of a bar hosting a special event known to serve alcohol; Cooper driving incredibly slow; and Cooper’s truck traveling over the fog line.” This justified a particularized suspicion and legitimized the stop making the evidence obtained admissible.

Justice Nelson concurred to note that the obscured license plate alone would not have justified sufficient particularized suspicion for detaining Cooper. Nelson argued that snow obscuring a plate is not sufficient to justify a traffic stop in Montana during the winter, arguing that reading MCA § 61-3-301(1)(a) in this fashion would produce an absurd result and, therefore, should be avoided. However, given the additional reasons for the stop, Nelson concurred.

Posted in Criminal Law, Montana Law, SCOMONT, Statutory Construction | Leave a comment


According to the Flathead Beacon, Mike Wheat will seek reelection for the SCOMONT seat he was recently appointed to by Governor Schweitzer. What replaced Justice Warner. Meanwhile, Justice Leaphart has stated that he will not run for his seat again. Leaphart has served on the Court since 1994.

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A Tale of Two Wells

Sudan Drilling, Inc. v. Anacker – 2009 MT 14

The Anackers entered into a verbal contract with Sudan to drill a well.  Sudan began drilling the well where Anacker’s subcontractor had prepared a flat pad for the equipment.  After drilling was partially complete, Anacker noticed the well was too close to the neighbor’s drain field.  Sudan was notified and directed to abandon the first well and drill a second, which he did.

Sudan filed a complaint to foreclose on a construction lien for the amount of drilling the first well: $3,970.  After depositions, the District Court granted summary judgment for Anacker based on two grounds: 1) failure by Sudan to complete the first well defeated his lien; and 2) Sudan breached the contract by not drilling the well in a workmanlike manner.

Because the parties had entered a contract to drill a well.  A well was completed, the second well, and thus the contract work was substantially performed.  As such, Justice Nelson ruled that the district court’s first rational was unfounded.

Regarding the second issue, some deposition testimony supported the assertion that Sudan drilled in the wrong location, while some indicated that the location of the first well was Anacker’s mistake.  Therefore, a genuine issue of material fact exists as to whether the abandonment of the first well was a change order or a breach, rendering summary judgment improper.

Justice Cotter wrote a concurring opinion stating she agreed that the decision was in keeping with SCOMONT’s precedents on construction lien disputes, but wrote to express her belief that cases such as this “confound the purpose underlying the construction lien statutes.” Sudan, ¶ 18.

Download Sudan v. Anacker

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Business Income Definition Includes Transaction and Functional Tests

Gannett Satellite Information Network, Inc.  v. Montana Dep’t of Revenue  - 2009 MT 5

In a dispute over the proper test for determining “business income,” under § 15-31-301(1), MCA, SCOMONT concluded that the statute includes both a transactional test and a separate function test.  This determination was based on the statutory language and extrinsic aids, such as the relevant act’s statutory history, and the act’s goals of promoting uniformity among states in the taxation of corporations.

Download Gannett Satellite Information Network, Inc. v. State Dep’t of Revenue

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Federal Exploitation Conviction a Bar to State Rape Charges

State v. Neufeld – 2009 MT 235

Around 2002, then 28 year old Neufeld began having sexual intercourse with then 13 year old K.B.  Neufeld videotaped himself with K.B. and photographed the girl in sexual poses and performing sexual acts.  K.B.’s father discovered some of the photos, contacted the police, and Neufeld was arrested.  He was charged with sexual intercourse without consent in state District Court, and with sexual exploitation of children, receipt of child pornography, and possession of child pornography in federal court.  He pled guilty to the federal charges of sexual exploitation of children and possession of child pornography, and received a sentencing enhancement because the offense involved the commission of a sexual act on a minor.

After his federal conviction, Neufeld moved to dismiss the state charges based on § 46-11-504(1), MCA, which provides in pertinent part:

When conduct constitutes an offense within the jurisdiction of any state or federal court, a prosecution in any jurisdiction is a bar to a subsequent prosecution if:

(1) the first prosecution resulted in an acquittal or in a conviction and the subsequent prosecution is based on an offense arising out of the same transaction:

The majority ruled that “the prohibited conduct in this case [sexual exploitation of children] necessarily included sexual intercourse with a minor.”  Neufeld, ¶ 17.  And that “under the facts of this case the offenses of sexual exploitation of children and sexual intercourse without consent are equivalent.”  Id. at ¶ 17.

Justice Rice concurred, noting his belief that only the sentencing enhancement triggered the provisions of § 46-11-504, MCA, arguing that the federal offense of sexual exploitation of children did not necessarily include sexual intercourse.

Download State v. Neufeld

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