State v. Dion
| Decision Date | 14 June 2022 |
| Docket Number | DA 20-0366 |
| Parties | STATE of Montana, Plaintiff and Appellee, v. Erica Ann DION, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Colin M. Stephens, Smith & Stephens, P.C., Missoula, Montana
For Appellee: Austin Knudsen, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana, Lacey Lincoln, Hill County Attorney, Havre, Montana
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Erica Ann Dion appeals her conviction after entering a guilty plea in the Twelfth Judicial District Court for Assault with a Weapon, a felony, in violation of § 45-5-213, MCA. Dion argues her conviction was obtained in violation of her right to be free from double jeopardy and to effective assistance of counsel after the District Court declared a mistrial upon her failure to appear at trial. We affirm.
¶3 In May 2019, the State charged Dion with Assault with a Weapon in violation of § 45-5-213, MCA, after she used a BB gun—modeled after a real pistol—to intimidate a woman who had previously refused Dion entry into a residence. Dion elected a jury trial and the District Court set a jury confirmation hearing for September 30, 2019. Dion failed to appear at this hearing. The District Court rescheduled the hearing for the next day. Dion appeared at the rescheduled hearing, albeit late, and the District Court admonished her for her absence. It then set a jury trial for October 30, 2019, and stated in its pretrial order:
Per the Court's admonishment, Defendant and Defense Counsel are required to be personally present in the Hill County Courtroom at Counsel table at 8:15 A.M. on October 30, 2019. Defendant's failure to be at Counsel table on time will result in the jury being dismissed, Defendant paying for costs of summoning a jury and Defendant being held until another jury pool can be summoned for trial.
(Emphasis in original.)
¶4 The day before trial, defense counsel, at Dion's request, filed a motion to continue the trial, arguing Dion did not feel "mentally prepared" for trial because she had recently lost her living arrangements. The District Court denied the motion. That night, Dion was arrested on an unrelated matter; she was therefore transported from jail to trial the next morning. As the trial began, Dion's counsel advised the District Court that Dion's right arm was in pain and required medical care. The District Court called a recess and permitted Dion to go to the hospital for an examination. Dion returned to court that afternoon, whereupon the parties completed jury selection and made opening statements to the jury. Before dismissing the parties for the evening, the District Court admonished Dion that she needed to be seated at counsel table by 8:15 the next morning.
¶5 By 8:34 the next morning, Dion had not appeared, although her defense counsel was present. Defense counsel informed the District Court that he "got some messages from [Dion] this morning" that she was not able to fill the prescription the hospital had given her the previous day, was still not feeling well, and wanted permission to be excused from the trial that morning. The District Court responded:
Absolutely not. This is absolutely ridiculous. She is ordered to be here. She needs to be at trial. So this is what the Court is going to do. If she is not here by the time we have the jury brought up, I will call a mistrial and order a warrant for her arrest. She absolutely needs to be at trial. This is not a tea party. This is not optional. She needs to be here. We will wait until the jury gets here and wait until she arrives.
¶6 After the jury was seated, the court reconvened at 8:56, and Dion was still absent. After informing the jury of the situation, the District Court stated: The District Court apologized to the jury for the inconvenience and excused it. After the jury left, the State requested issuance of an arrest warrant for Dion based on her failure to appear. Dion's counsel objected to the warrant but not to the declaration of mistrial. The District Court granted the motion for a warrant. Dion's counsel thanked the court and apologized to everyone present, and the proceedings concluded. Dion appeared about ten minutes later and was taken into custody.
¶7 On November 1, 2019, the District Court entered a written order declaring a mistrial. A week later, Dion filed a motion to dismiss, arguing double jeopardy precluded a retrial. The District Court denied the motion, and Dion petitioned this Court for a writ of supervisory control, which we considered in State ex rel. Dion v. Twelfth Judicial Dist. Court , 399 Mont. 551, 460 P.3d 403 (2020) (Dion I ). In Dion I , we concluded that jeopardy attached to Dion's case once the jury was sworn, prior to the District Court's declaration of mistrial. We recognized that the District Court warned Dion several times, either personally or through counsel, that she needed to be present and that it would declare a mistrial should she fail to appear for trial. Dion I , *8-9. Additionally, we noted that Dion's counsel failed to object to the mistrial, acknowledged the District Court had made its requirement for Dion's appearance clear, and apologized for Dion's behavior. Based on these circumstances, we concluded that retrial was not barred by double jeopardy pursuant to § 46-11-503(2)(a), MCA, because Dion had waived her right to object to the trial's termination, and therefore denied the petition.
¶8 Before the matter could be set for a new trial, Dion entered a guilty plea to the charge. The District Court committed Dion to the Department of Corrections for six years, with one year suspended and a recommendation that Dion be screened for a drug-treatment program. Dion appeals, now represented by new counsel, arguing she received ineffective assistance of counsel when her trial counsel failed to object to the District Court's declaration of a mistrial, and that trial counsel labored under an un-waivable conflict of interest when he untimely objected to the mistrial and then challenged the District Court's ruling through the petition for writ of supervisory control.
¶9 "Only record-based ineffective assistance of counsel claims are considered on direct appeal." State v. Ugalde , 2013 MT 308, ¶ 28, 372 Mont. 234, 311 P.3d 772 (quoting State v. Aker , 2013 MT 253, ¶ 22, 371 Mont. 491, 310 P.3d 506 ). "To the extent such claims are reviewable, they present mixed questions of law and fact that we review de novo." State v. Howard , 2011 MT 246, ¶ 18, 362 Mont. 201, 265 P.3d 606 (citation omitted).
¶10 "A defendant's right to effective assistance of counsel is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, and by Article II, § 24 of the Montana Constitution." Ugalde , ¶ 65. We analyze ineffective assistance of counsel claims under the two-part test articulated by the United States Supreme Court in Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, (1984). Whitlow v. State , 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861. "Under Strickland , a defendant bears the burden of proving: ‘(1) that counsel's performance was deficient; and (2) that counsel's deficient performance prejudiced the defense.’ " Ugalde , ¶ 66 (quoting Whitlow , ¶ 10). To establish prejudice, a defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Howard , ¶ 22 (quoting Strickland , 466 U.S. at 694, 104 S. Ct. at 2068 ). This analysis considers "the likelihood of success of the actions counsel failed to take." State v. Henderson , 2004 MT 173, ¶ 9, 322 Mont. 69, 93 P.3d 1231 (citing Hill v. Lockhart , 474 U.S. 52, 59-60, 106 S. Ct. 366, 371 (1985) ).
¶11 Dion argues her trial counsel's failure to object to the District Court's declaration of a mistrial was deficient and prejudiced her. She argues that, but for her counsel's failure to object, either a mistrial would not have been declared and the trial would have proceeded in her absence,1 or the District Court would have granted her subsequent motion to dismiss.2 Dion's arguments conflate two distinct concepts: the District Court's authority to declare a mistrial and, once a proceeding is terminated, whether a subsequent prosecution is barred by § 46-11-503(2), MCA, the Fifth Amendment to the United States Constitution and Article II, Section 25, of the Montana Constitution. Further, we previously concluded in Dion I that "the District Court acted rationally and responsibly when it declared a mistrial after Dion failed to appear in spite of the court's explicit and clear requirement that she do so." Dion I , *9. Implicit in this conclusion was that trial was not required to continue in Dion's absence pursuant to § 46-16-122(3)(b), MCA, an argument Dion raised in Dion I and which we decline to consider a second time here. Our order thus made clear that Dion's actions were alone sufficient to justify the District Court's decision to declare a mistrial; any objection defense counsel may have lodged would not have changed that. Therefore, there is not a...
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