State v. Dunsmore

• Decision Date: 21 April 2015
• Docket Number: No. DA 14–0087.,DA 14–0087.
• Citation: 347 P.3d 1220,2015 MT 108,378 Mont. 514
• Parties: STATE of Montana, Plaintiff and Appellee, v. Michael Patrick DUNSMORE, Defendant and Appellant.
• Court: Montana Supreme Court

378 Mont. 514

347 P.3d 1220

2015 MT 108

STATE of Montana, Plaintiff and Appellee

v.Michael Patrick DUNSMORE, Defendant and Appellant.

No. DA 14–0087.

Supreme Court of Montana.

Submitted on Briefs Jan. 21, 2015.

Decided April 21, 2015.

For Appellant: Wade Zolynski, Chief Appellate Defender, Gregory Hood, Assistant Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana, Ed Corrigan, Flathead County Attorney, Allison E. Howard, Deputy County Attorney, Kalispell, Montana.

Opinion

Justice JAMES JEREMIAH SHEA delivered the Opinion of the Court.

¶ 1 Michael Dunsmore appeals from the judgment of the Eleventh Judicial District Court, Flathead County, that sentenced him to five years in the Montana State Prison (MSP) for failure to register as a sex offender, and a consecutive sentence of ten years in MSP with five years suspended for felony theft.

¶ 2 The issue on appeal is whether the District Court Judge was disqualified from hearing Dunsmore's case due to personal knowledge of facts in dispute in the sentencing proceeding. We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 Dunsmore was charged with failure to register as a sex offender and theft, both felonies. Dunsmore entered into a plea agreement with the State that recommended a ten-year sentence to the Department of Corrections (DOC) with all ten years suspended. The presentence investigation (PSI) concluded Dunsmore was not fit for community supervision, however, and accordingly recommended a net sentence of ten years in MSP with five years suspended.

¶ 4 Judge Robert Allison presided over the case. Prior to becoming a district court judge, Allison represented Dunsmore's daughter in a youth in need of care case in which Dunsmore was accused of incest with the daughter Allison represented. At the same time that he was presiding over Dunsmore's criminal charges, Judge Allison was also presiding over a family law matter between Dunsmore and Dunsmore's ex-wife, Jody Radabah.

¶ 5 Judge Allison conducted sentencing a little over a year after the charges were filed. At sentencing, three witnesses testified on behalf of Dunsmore. All three indicated that Dunsmore had made significant improvement in addressing the problems underlying his crimes over the 13 months between the time Dunsmore was charged with the two felonies and the time of the sentencing hearing. Only one witness gave adverse testimony, Dunsmore's ex-wife, Radabah. Radabah testified that Dunsmore attempted to make plans with their son to go hunting while the two felonies were pending and Dunsmore was prohibited from possessing a firearm. Radabah further testified that Dunsmore had another person pawn one of his rifles and had their son retrieve the rifle from the pawn shop because Dunsmore was not permitted to possess a firearm. Radabah also expressed concerns about Dunsmore's parenting.

¶ 6 At the conclusion of testimony, the State recommended a net sentence of ten years commitment to the DOC with all ten years suspended and asked that Dunsmore be designated a level 1 sex offender as recommended in his psychosexual evaluation. Dunsmore's counsel emphasized the significant strides Dunsmore had made in addressing his personal problems, and pointed out that he was holding a job and paying child support. Counsel further pointed out that Dunsmore's underlying sexual offense was twenty years old, Dunsmore had not been charged with any sexual offenses since, and Dunsmore was designated a level 1 offender (meaning he was considered the lowest risk for re-offense). Addressing Radabah's accusation that Dunsmore possessed guns, counsel argued that Dunsmore could legally possess guns but that there was some confusion on the matter between state and federal law.¹ Judge Allison did not give Dunsmore the opportunity to make a statement on his own behalf, as required by § 46–18–115(3), MCA, and Montana Code of Judicial Conduct Rule 2.6.

¶ 7 At the conclusion of the parties' arguments, Judge Allison explained the factors he was taking into consideration for purposes of determining the appropriate sentence. Judge Allison first expressed strong concern about Dunsmore possessing guns after pleading guilty to the two felony charges in this case. Dunsmore attempted to speak up at that point, but Judge Allison prevented him from doing so. Judge Allison explained that he believed the gun possession showed that Dunsmore acted as though the law applied to him only when it suited him. Judge Allison further noted that Dunsmore had been out of prison for less than a year when he committed the two felonies at issue, and that he had six prior felony convictions. Based on those facts, Judge Allison sentenced Dunsmore to a net sentence of fifteen years in MSP, with five years suspended.

¶ 8 Between the time the District Court made its oral pronouncement of judgment and the time it entered its written judgment and sentence, Dunsmore filed a petition for a writ of habeas corpus in this Court. In his petition, Dunsmore made several claims, including that his attorney was ineffective because she failed to move to have Judge Allison recuse himself. Dunsmore revealed that, prior to sentencing, he told his attorney about Judge Allison's prior representation of Dunsmore's daughter in the abuse and neglect case (he also claimed Judge Allison was friends with Radabah's new husband who was trying to adopt Dunsmore's and Radabah's children), but his attorney did not move for recusal. We dismissed the petition, holding that Dunsmore's claims were better addressed on direct appeal or in a postconviction relief proceeding. Order, Dunsmore v. Kirkegard, (Mont. Jan. 14, 2014) (OP 13–0844).

¶ 9 Dunsmore appeals the District Court's judgment and sentence.

STANDARD OF REVIEW

¶ 10 It appears we have never determined the appropriate standard of review for the question of whether a judge should have recused² himself. In general, interpretation of laws such as constitutional and statutory provisions, are matters of law we review de novo. Reichert v. State, 2012 MT 111, ¶ 19, 365 Mont. 92, 278 P.3d 455. Since a judge's disqualification decision is directed by the Montana Code of Judicial Conduct, the decision relies on an accurate interpretation of the Code's provisions. Moreover, as other courts have recognized, an appellate court's inquiry into disqualification requires an objective examination of the circumstances surrounding a request for recusal. See, e.g., Powell v. Anderson, 660 N.W.2d 107, 116 (Minn.2003) (adopting a de novo standard of review and noting that the objective inquiry required in disqualification claims “displaces any deference that might otherwise be paid to the challenged judge's decision to not recuse”). For those reasons, we will review a judge's disqualification decision de novo, determining whether the lower court's decision not to recuse was correct under the Montana Code of Judicial Conduct.

DISCUSSION

¶ 11 Dunsmore argues that Judge Allison should have recused himself, and that his failure to do so violated Dunsmore's due process rights. It is axiomatic that a fair trial in a fair tribunal is a basic requirement of due process. Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876, 129 S.Ct. 2252, 2259, 173 L.Ed.2d 1208 (2009). The requirement of a fair trial in a fair tribunal includes the requirement that any judge who is biased or partial with regard to a particular matter or party be disqualified from hearing the case. As the U.S. Supreme Court has recognized, however, “most matters relating to judicial disqualification [do] not rise to a constitutional level.” FTC v. Cement Institute, 333 U.S. 683, 702, 68 S.Ct. 793, 804, 92 L.Ed. 1010 (1948). Most states, by adopting the ABA's Model Code of Judicial Conduct, have instituted more rigorous standards for judicial disqualification than those required by due process. Caperton, 556 U.S. at 888–89, 129 S.Ct. at 2266–67.

¶ 12 Montana followed this path when it adopted the ABA Model Code as the 2008 Montana Code of Judicial Conduct. Hence, disqualification questions in the Montana state courts are governed by the Montana Code of Judicial Conduct. Reichert v. State, 2012 MT 111, ¶ 31, 365 Mont. 92, 278 P.3d 455. Since the Montana Code of Judicial Conduct provides more protection than due process requires, most disputes over disqualification will be resolved without resort to the Constitution. Reichert, ¶ 31 (quoting Caperton, 556 U.S. at 890, 129 S.Ct. at 2267 ).

¶ 13 Rule 2.12 of the Montana Code of Judicial Conduct states,

A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to the following circumstances:

(1) The judge has a personal bias or prejudice concerning a party ... or personal knowledge of facts that are in dispute in the proceeding.

M.C. Jud. Cond., Rule 2.12(A)(1). When the judge's personal knowledge stems from prior representation as an attorney, Rule 2.12(A)(1) operates in conjunction with Rule 2.12(A)(5)(a), which requires recusal when the judge “served as a lawyer in the matter in controversy.” See Bullman v. State, 2014 MT 78, ¶¶ 16–17, 374 Mont. 323, 321 P.3d 121 (citing Rules 2.12(A)(1) and (A)(5)(a) and holding that “the plain language of Rule 2.12 clearly requires recusal when the judge has personal knowledge of disputed facts stemming from his previous representation of a client in a separate and related matter”).

¶ 14 Dunsmore argues that Judge Allison's prior representation of Dunsmore's daughter in an abuse and neglect proceeding in which Dunsmore was accused of incest gave Judge Allison personal knowledge of facts in dispute in Dunsmore's case. More particularly, Dunsmore argues that allegations of sexual impropriety with his daughter were information regarding his character, and questions regarding his character were facts in dispute in his sentencing hearing. Dunsmore also argues...