State v. Makarchuk

• Decision Date: 17 March 2009
• Docket Number: No. DA 07-0341.,DA 07-0341.
• Citation: 204 P.3d 1213,349 Mont. 507,2009 MT 82
• Parties: STATE of Montana, Plaintiff and Appellee, v. Gordon Edward MAKARCHUK, Defendant and Appellant.
• Court: Montana Supreme Court

204 P.3d 1213

2009 MT 82

349 Mont. 507

STATE of Montana, Plaintiff and Appellee, v. Gordon Edward MAKARCHUK, Defendant and Appellant.

No. DA 07-0341.

Supreme Court of Montana.

Submitted on Briefs June 4, 2008.

Decided March 17, 2009.

[204 P.3d 1214]

For Appellant: Jim Wheelis, Chief Appellate Defender; Joslyn Hunt, Assistant Appellate Defender; Helena, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General; Jonathan M. Krauss, Assistant Attorney General; Helena, Montana, Ed Corrigan, Flathead County Attorney; Kalispell, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Appellant Gordon Edward Makarchuk (Makarchuk) appeals from the order, judgment, and sentence of the Eleventh Judicial District Court, Flathead County, denying his motion for new trial, setting conditions of parole and probation, and refusing to credit him time served on house arrest pending trial. We affirm in part and reverse in part.

¶ 2 We consider the following restated issues on appeal:

¶ 3 1. Was Makarchuk's constitutional right to be present at critical stages of the trial violated when he was absent from a portion of the conference settling jury instructions?

¶ 4 2. Did the District Court err when denying Makarchuk's motion for a new trial by concluding that the State's closing argument was proper?

¶ 5 3. Did the District Court exceed its statutory authority by imposing conditions on Makarchuk's parole?

¶ 6 4. Did the District Court err by failing to credit Makarchuk for time served on house arrest as a condition of his release on bond pending trial?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 7 In September 2003, Makarchuk was living in a camper trailer located on a dairy farm. The farm owners had initially permitted Makarchuk to stay on the property in exchange for work, but eventually asked Makarchuk to leave. However, Makarchuk did not leave, and was thereafter cited for trespass and escorted off the property. A short time later, Makarchuk returned to the property and was again cited for trespass. While on the property, police officers smelled strong chemical odors emanating from the trailer and obtained a search warrant. While searching the trailer, police discovered materials and chemical residues used in the manufacture of methamphetamine and consistent with operation of a drug lab. Makarchuk was arrested and charged with the offense of operating an unlawful clandestine laboratory, a felony, pursuant to § 45-9-132(1), MCA. Makarchuk pled not guilty.

¶ 8 Prior to trial, Makarchuk moved for release on his own recognizance. The motion was denied. Thereafter, pursuant to a stipulation, Makarchuk was "released upon formal house arrest" with several conditions. Nearly nine months later, the court revoked Makarchuk's release on bond when he violated the conditions of release.

¶ 9 Trial commenced on October 16, 2006, and the State presented uncontroverted evidence that a meth lab was present in the trailer where Makarchuk was living. It was Makarchuk's theory at trial that he was unaware of the drug lab because he was kicked off the property and was absent from the trailer for a few days. Makarchuk testified that he returned to the property for purposes of gathering his belongings and that before the police arrived he called two people, Jim Bernard and Matt Marvin, and asked them to come over and help him. Makarchuk testified that he would not have made the telephone calls if he had known there was a drug lab in the trailer. Neither Jim Bernard nor Matt Marvin testified at trial.

¶ 10 At the close of evidence, the District Court excused the jury and began to settle jury instructions with counsel in-chambers. Part way through the conference, Prosecutor Dan Guzynski realized that Makarchuk was not present. When asked if Makarchuk waived his right to be present, Defense Counsel John Putikka stated: "I don't know if I specifically advised him he had the right to be here. I told him he didn't need to be here unless he wanted to be, and he said no, that's okay." The court directed that Makarchuk be brought to the conference, and the following dialogue occurred:

THE COURT: Mr. Makarchuk, sorry to disturb, whatever it is you went downstairs to do. We're settling instructions, and I know that Mr. Putikka told you we were going to do this, and my impression was he asked you if you wanted to be here and you said that was fine, you would go on downstairs.

MR. PUTIKKA: I didn't specifically ask you if you waived your right to be here, and so that's some concern of the State, so they brought you up here, did you want to be here did I misunderstand[?]

MR. MAKARCHUK: If it's no trouble.

THE COURT: It's no trouble for you to stay for the rest, although we have done a fair amount, but I want to make sure you don't want us to repeat for you everything that we have done up to this point.

MR. MAKARCHUK: I'm fine, I think it's out of my hands at this point, or whatever if it was.

THE COURT: Okay. And so even though we have done some things here outside of your presence, you will waive your presence up to this point, but you'd just as soon stay for the rest, am I understanding you right?

MR. MAKARCHUK: Yes.

Makarchuk remained in-chambers for the remainder of the conference.

¶ 11 During the State's rebuttal closing argument the prosecutor referenced Makarchuk's testimony stating:

[I]t is the State's burden to prove a case, we have that burden of proof, and we acknowledge that, but, you know, when the Defendant is trying to put a fact in front of you they have the opportunity to call other witnesses besides the Defendant. All — the whole case — the Defendant's case is propelled by one thing, and that's what [Makarchuk] says. [Makarchuk] says he made a phone call in that shop. Did they get phone records — did they get phone records from the farm? Did they subpoena those phone records, get phone records to show that calls were made? Did they call Jim Bernard to the stand? Did they call Matt Marvin to the stand? No.

Makarchuk's counsel objected and an off the record side-bar conference ensued. Following the sidebar, Guzynski continued his argument, again commenting on Makarchuk's testimony and asking the jury to "determine his credibility."

¶ 12 The jury subsequently found Makarchuk guilty of operating an unlawful clandestine methamphetamine laboratory. Makarchuk filed a motion for new trial on the basis that the State's closing argument created reversible error and denied him due process of law and a fair trial. The motion was denied.

¶ 13 The District Court sentenced Makarchuk to twenty years in the Montana State Prison with ten years suspended with conditions. The judgment provides nineteen enumerated conditions of "parole and probation." The District Court did not credit Makarchuk for the 264 days he was released on house arrest pending trial. Makarchuk appeals.

STANDARD OF REVIEW

¶ 14 Whether a criminal defendant's right to be present at all critical stages of his trial was violated is a question of constitutional law for which our review is plenary. State v. Roedel, 2007 MT 291, ¶ 35, 339 Mont. 489, 171 P.3d 694; State v. Mann, 2006 MT 160, ¶ 10, 332 Mont. 476, 139 P.3d 159; State v. Matt, 2008 MT 444, ¶ 12, 347 Mont. 530, 199 P.3d 244. Statutes are presumed to be constitutional. State v. Samples, 2008 MT 416, ¶ 14, 347 Mont. 292, 198 P.3d 803. We review a district court's denial of a motion for new trial for abuse of discretion. State v. Misner, 2007 MT 235, ¶ 20, 339 Mont. 176, 168 P.3d 679. We review criminal sentences for legality only, to determine whether they are within the parameters set by statute. State v. Vernes, 2006 MT 32, ¶ 27, 331 Mont. 129, 130 P.3d 169.

DISCUSSION

¶ 15 1. Was Makarchuk's constitutional right to be present at critical stages of the trial violated when he was absent from a portion of the conference settling jury instructions?

¶ 16 Makarchuk argues that the District Court violated his Sixth Amendment right under the United States Constitution, and corresponding right under Article II, Section 24 of the Montana Constitution, to be present at all criminal proceedings against him when he was absent from the in-chamber conference where counsel settled a portion of the jury instructions. Makarchuk asserts that the conference was a critical stage of the proceedings for which he did not effectively waive his right to be present, and his exclusion from the conference amounts to "structural error, thereby requiring reversal of [his] conviction and a new trial."

¶ 17 The State responds that pursuant to § 46-16-410(4), MCA, the presence of the defendant is not required during the settlement of jury instructions. The State contends that conferences consisting of "purely legal" matters are not critical stages of trial because the "criminal defendant can do little to aid his defense." In the alternative, the State argues that Makarchuk waived his right to be present at the conference, and failed to challenge the constitutionality of § 46-16-410(4), MCA, which allows a defendant to be absent from the settling of jury instructions. The State asks that we affirm under the same rationale as in Roedel, where we declined to undertake a constitutional analysis when the statute had not been challenged ("Roedel does not challenge the statute's constitutionality. Accordingly, we will not address whether § 46-16-410(4), MCA, impermissibly relieves a court of the obligation to obtain an express waiver of a defendant's presence from the settling of jury instructions." Roedel, ¶ 60).

¶ 18 In his reply brief, Makarchuk acknowledges the failure to challenge § 46-16-410(4), MCA, in the District Court, and offers a belated constitutional challenge to the statute. Makarchuk explains that Roedel was decided after Makarchuk's opening brief was filed, and therefore the statute was not challenged earlier.¹ Makarchuk reasons that Roedel represents a "new development in the law that in order to make a...