City of Helena v. Frankforter, DA 15-0801

Citation423 P.3d 581,392 Mont. 277,2018 MT 193
Decision Date07 August 2018
Docket NumberDA 15-0801
Parties CITY OF HELENA, Plaintiff and Appellee, v. Ryan Scot FRANKFORTER, Defendant and Appellant.
CourtUnited States State Supreme Court of Montana

For Appellant: Chad Wright, Appellate Defender, Danny Tenenbaum, Assistant Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana Thomas Jodoin, Helena City Attorney, Iryna O'Conner, Deputy City Attorney, Helena, Montana.

Justice Laurie McKinnon delivered the Opinion of the Court.

¶ 1 Ryan Scot Frankforter appeals a decision of the First Judicial District Court, Lewis and Clark County, affirming two convictions of partner or family member assault (PFMA) from Helena Municipal Court. We reverse one PFMA conviction and clarify our jurisprudence regarding jurisdiction and venue in criminal cases, addressing the following issues:

1. Does a defendant waive his right to object to the county in which a charge is filed if he fails to object before the first witness is sworn at trial?
2. Does a defendant waive his right to object to the prosecution's failure to establish jurisdiction of the trial court?
FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 On the evening of August 26, 2014, Frankforter's wife contacted the police, reporting that Frankforter assaulted and injured her. An officer responded to the call and noted injuries—bruising and abrasions—consistent with assault. At that time, Frankforter's wife also had a cast on her hand. She told the officer that Frankforter previously injured her hand by grabbing her arm and twisting it.

¶ 3 The City of Helena (City) charged Frankforter with two counts of PFMA: one count stemming from the August 26, 2014 incident, and the other count stemming from the previous incident leading to the hand injury. The case proceeded to a bench trial in April 2015. At trial, Frankforter's wife recanted her earlier statement regarding her hand injury, stating she actually injured her hand in a boating accident on Canyon Ferry Reservoir. Frankforter testified that his wife injured her hand while boating near White Sandy Beach, which is at Hauser Lake. The officer testified regarding Frankforter's wife's statements to him on the evening of August 26, 2014—that Frankforter previously injured her hand by grabbing and twisting it during an argument. He stated he did not know where the alleged incident occurred.

¶ 4 The Municipal Court found Frankforter guilty of both PFMA charges and Frankforter subsequently appealed his convictions to the District Court, raising two issues—speedy trial and sufficiency of the evidence. The District Court affirmed Frankforter's convictions and he now appeals to this Court, arguing the City failed to prove the Municipal Court was a proper venue for, or had jurisdiction over, the second charge.

STANDARD OF REVIEW

¶ 5 On appeal from a municipal court, the district court acts as an intermediate appellate court. City of Helena v. Broadwater , 2014 MT 185, ¶ 8, 375 Mont. 450, 329 P.3d 589. When reviewing the district court's decision in such an appeal, we review the case as if the appeal was originally filed in this Court, applying the appropriate standard of review. City of Billings v. Nelson , 2014 MT 98, ¶ 15, 374 Mont. 444, 322 P.3d 1039. We review a lower court's legal conclusion regarding venue de novo. State v. Patterson , 2012 MT 282, ¶ 22, 367 Mont. 186, 291 P.3d 556.

DISCUSSION

¶ 6 On appeal, Frankforter argues the Municipal Court improperly convicted him of the second PFMA charge—the one stemming from his wife's previous hand injury—because the City failed to establish proper venue in Helena Municipal Court beyond a reasonable doubt. Citing cases from this Court stating that venue is a "jurisdictional fact" the prosecution must prove at trial beyond a reasonable doubt, Frankforter notes there is insufficient evidence in the record regarding where Frankforter's wife's hand injury occurred. The City responds, urging this Court to overrule our precedent requiring venue to be established beyond a reasonable doubt. Instead, the City reasons we should follow the plain language of § 46-3-111(2), MCA, regarding waiver of venue objections. Therefore, the City argues Frankforter waived his objection to venue because he failed to raise the issue before trial.

¶ 7 1. Does a defendant waive his right to object to the county in which a charge is filed if he fails to object before the first witness is sworn at trial?

¶ 8 This Court has long distinguished between jurisdiction and venue. In re Support Obligation of McGurran , 2002 MT 144, ¶ 12, 310 Mont. 268, 49 P.3d 626 (citing Stanton Trust & Sav. Bank v. Johnson , 104 Mont. 235, 235, 238, 65 P.2d 1188, 1189 (1937) ("[T]here is an obvious distinction between ‘venue’ and ‘jurisdiction.’ ") ). Jurisdiction encompasses a court's adjudication power—its authority to hear and determine a case. McGurran , ¶ 12. Venue, on the other hand, refers to the place where the case may be heard—it "relates to the place where judicial authority may be exercised and is intended for the convenience of the litigants." Black's Law Dictionary 1790 (Bryan A. Garner ed., 10th ed. 2014) (quoting Charles Alan Wright, The Law of Federal Courts § 42, 257 (5 th ed. 1994) ); see also McGurran , ¶¶ 13-14 (quoting the same from the Seventh Edition of Black's Law Dictionary ). Jurisdiction and venue are not interchangeable, as it "is possible for jurisdiction to exist though venue in a particular district is improper, and it is possible for a suit to be brought in the appropriate venue though it must be dismissed for lack of jurisdiction." Black's Law Dictionary 1790 (Bryan A. Garner ed., 10 th ed. 2014); McGurran , ¶ 14.

¶ 9 While we generally make the important distinction between jurisdiction and venue, we have done so insufficiently in criminal cases, particularly in light of our criminal procedure statutes. An accused person has a constitutional right to "a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed, subject to the right of the state to have a change of venue for any of the causes for which the defendant may obtain the same." Mont. Const. art. II, § 24. Title 46, MCA, provides the statutory guidelines for criminal procedure in Montana. Chapter 2, entitled "Jurisdiction," contains statutes regarding jurisdiction, and Chapter 3, entitled "Venue," contains statutes regarding venue.

¶ 10 The venue statutes are consistent with Article II, Section 24, of the Montana Constitution, and explain that "[i]n all criminal prosecutions, the charge must be filed in the county where the offense was committed unless otherwise provided by law." Section 46-3-110(1), MCA. Thereafter, a criminal defendant's trial "must be in the county where the charge is filed unless otherwise provided by law." Section 46-3-111(1), MCA. However, just as a defendant may choose to waive his right to a jury trial, see , e.g. , State v. Dahlin , 1998 MT 113, ¶ 18, 289 Mont. 182, 961 P.2d 1247 (citing Mont. Const. art. II, § 26 ), a defendant waives "[a]ll objections that a charge is filed in the improper county" unless he objects "before the first witness is sworn at the time of trial." Section 46-3-111(2), MCA. Accordingly, based on the plain language of § 46-3-111(2), MCA, we conclude a defendant waives his right to object to the county in which a charge is filed if he fails to object before the first witness is sworn at trial.

¶ 11 Unfortunately, our previous case law fails to recognize the difference between jurisdiction and venue when it comes to the venue-waiver provisions of § 46-3-111(2), MCA. This failure is likely due to oversight of changes to the venue statutes, which occurred in 1967. Before 1967, we continually held that venue, while not an element of the crime charged, was still a "jurisdictional fact" the prosecution needed to prove beyond a reasonable doubt. See , e.g. , State v. Williams , 122 Mont. 279, 280, 202 P.2d 245, 245-46 (1949) ; State v. Cates , 97 Mont. 173, 189, 33 P.2d 578, 581 (1934) ; State v. Ducolon , 60 Mont. 594, 597, 201 P. 267, 267 (1921) ; State v. Keeland , 39 Mont. 506, 515, 104 P. 513, 517 (1909). See also State v. Smith , 57 Mont. 563, 588, 190 P. 107, 116 (1920).

¶ 12 In 1967, the Montana Criminal Law Commission (the Commission) proposed amendments to the criminal procedure statutes. The Commission noted that "[u]nder the proposed code, venue is completely separated from jurisdiction . Venue is a constitutional right of the defendant which may be waived , while jurisdiction is the power of the court to act and may not be waived." Section 46-3-111, MCA, comm. cmt. (1967) (stating, further, that the proposed amendments would bring "[t]he concept of venue in a criminal case ... into agreement with the view of venue and jurisdiction found in civil cases" (citing Stanton , 104 Mont. at 238, 65 P.2d at 1189 ) ) (emphasis added). The Commission reasoned a defendant's failure "to object to the venue before trial should be construed as a waiver," and noted such waiver is constitutionally permissible because a defendant's right to venue is not an absolute right—instead, "[v]enue falls within that class of constitutional rights of the defendant which may be waived either by affirmative action, or through failure to object at the proper time." Section 46-3-111, MCA, comm. cmt. (1967).

¶ 13 The Commission rejected our pre-1967 venue reasoning, stating that the prosecution does not need to prove venue beyond a reasonable doubt at trial. Section 46-3-111, MCA, comm. cmt. (1967). Instead, the Commission noted determination of proper venue is "a pre-trial procedure principally for the benefit and convenience of the parties involved to be established by a preponderance of the evidence." Section 46-3-111, MCA, comm. cmt. (1967). Despite these comments and resulting amendments to the statutes, this...

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