State v. White

• Decision Date: 23 December 2014
• Docket Number: No. DA 13–0589.,DA 13–0589.
• Citation: 339 P.3d 1243,377 Mont. 332,2014 MT 335
• Parties: STATE of Montana, Plaintiff and Appellee, v. Mark Nicholas WHITE, Defendant and Appellant.
• Court: Montana Supreme Court

377 Mont. 332

339 P.3d 1243

2014 MT 335

STATE of Montana, Plaintiff and Appellee

v.Mark Nicholas WHITE, Defendant and Appellant.

No. DA 13–0589.

Supreme Court of Montana.

Argued and Submitted Oct. 29, 2014.

Decided Dec. 23, 2014.

Dec. 23, 2014.

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

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman (argued), Assistant Attorney General, Helena, Montana, Marty Lambert, Gallatin County Attorney, Eric Kitzmiller, Deputy County Attorney, Bozeman, Montana.

Opinion

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

¶ 1 Appellant Mark White (White) appeals from his felony conviction for assault with a weapon in the Eighteenth Judicial District. We affirm.

¶ 2 We restate the following issues for review:

Issue One: Whether the District Court erred when it determined White was not mentally fit to stand trial at a proceeding in which White was not present.

Issue Two: Whether the District Court erred by failing to complete the initial appearance process.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 During the early morning of February 15, 2011, Mark Ward (Ward) was delivering newspapers to the Darlington Manor in Bozeman, Montana. White lived in the Darlington Manor. After hearing noises in the hallway, White had a brief conversation with Ward and told him to never return to the building.

¶ 4 Ward returned the following day to deliver papers to residents of the building. As Ward was leaving the building, White confronted him, stating, “I thought I told you to get out of here and never come back.” White then assaulted Ward, slamming him into a door and jumping on him multiple times. After the assault ended, Ward returned to his vehicle and called 911. While on the phone, White entered the vehicle and cut Ward's face. Ultimately, Ward was able to drive to safety and police arrested White.

¶ 5 During the event, White made multiple statements indicating he was suffering from mental health problems. On the 911 call, White is heard referring to Ward as a “Kraut.” When police arrived at the scene, White stated, “Come on, let's go. The Nazis are over here. Let's go kill them.” White also told police that he was wearing gloves because he planned to cut Ward's eyes out and feed the eyes to a cat.

¶ 6 On February 17, 2011, White was charged by complaint with assault with a weapon after a justice of the peace determined there was probable cause to believe he committed the offense. Soon after his placement at the Gallatin County Detention Center, White was transferred to the Hope House for psychiatric treatment. While at Hope House, White was delusional and acted aggressively. As a result, involuntary civil commitment proceedings were initiated. In late February 2011, the District Court found that probable cause existed for the offense and an information charging White with assault with a weapon was filed.

¶ 7 On February 28, 2011, White and his attorney, Mr. Petaja, appeared before Judge Salvagni via video from Hope House. The District Court and defense counsel had the following conversation:

The Court: You're telling me, Mr. Petaja, that he is not in a mental condition for me to do an Initial Appearance with him this morning; is that correct?

Mr. Petaja: Yes, Your Honor.

The Court: So it would be of no benefit to advise him about these charges filed against him; is that correct?

Mr. Petaja: Not at this time, Judge.

...

The Court: Okay. The Court will enter a not guilty plea at Mr. Petaja's request to the charge of—

Mr. Petaja: They're entering a not guilty plea, Mark.

The Court: —to the charge of assault with a weapon. The Court will issue a Conditional Release Order, however, in the criminal case.

...

The Court: So the Court will set bail in the amount of $20,000, will order that he shall not be released from custody until he appears before the Court setting conditions if he proposes to post bail.

¶ 8 The District Court then ordered a fitness evaluation pursuant to § 46–14–202, MCA. In a separate proceeding, White was civilly committed to the Montana State Hospital and involuntarily medicated. White's fitness-to-proceed evaluation did not begin until May 2011, after he completed his 90–day civil commitment. On July 22, 2011, doctors at Montana State Hospital issued a report, concluding that White suffered from schizoaffective disorder

, a mental disease that substantially impaired his ability to rationally understand court proceedings and consult with his attorney. The State Hospital recommended an extension of White's commitment on the issue of fitness to proceed.

¶ 9 On August 1, 2011, the District Court conducted a review hearing pursuant to § 46–14–221, MCA. White remained at the State Hospital and did not participate in the hearing. Neither the prosecutor nor defense counsel contested the report's findings. The District Court determined White was unfit to proceed, relying exclusively on the Montana State Hospital report and continued White's commitment.

¶ 10 In a subsequent report, dated October 6, 2011, doctors concluded that White had regained the ability to rationally understand the proceedings and consult with his attorney. Staff further reported that White had the substantial capacity to form the particular mental state that was an element of the offense, but that his schizoaffective disorder

substantially impaired his capacity to conform his conduct to the law at the time of the offense. Subsequently, White was transferred to the Gallatin County Detention Center. After months of continuances, an omnibus hearing was held in May 2012. The District Court did not conduct an initial appearance after White was deemed fit.

¶ 11 White waived his right to a jury trial and Judge Salvagni conducted a bench trial. Judge Salvagni found White guilty of assault with a weapon. White was sentenced to twenty years with the Department of Public Health and Human Services. Section 46–14–312(2), MCA, allows a criminal defendant to be committed to the custody of the Department of Health and Human Services if the court finds that the defendant suffered from a mental disease, defect, or developmental disability at the time of the crime.

STANDARD OF REVIEW

¶ 12 Whether a criminal defendant's right to be present at a critical stage has been violated is a question of constitutional law. State v. Matt, 2008 MT 444, ¶ 12, 347 Mont. 530, 199 P.3d 244 (overruled in part by State v. Charlie, 2010 MT 195, 357 Mont. 355, 239 P.3d 934 ). This Court exercises plenary review over constitutional questions. Charlie, ¶ 21.

¶ 13 Whether an initial appearance is sufficient to satisfy the requirement of §§ 46–7–101–102, MCA, is an issue of statutory construction that we review for correctness.

State v. Gatlin, 2009 MT 348, ¶ 16, 353 Mont. 163, 219 P.3d 874.

¶ 14 Appellants must make a timely objection or risk waiver for purposes of the appeal. State v. Reim, 2014 MT 108, ¶ 28, 374 Mont. 487, 323 P.3d 880 (citing § 46–20–104(2), MCA ). “We will not put a district court in error for an action in which the appealing party acquiesced or actively participated.” Reim, ¶ 28 (citations omitted). At the Court's discretion, we may review unpreserved claims under the plain error doctrine. Reim, ¶ 29 (citations omitted). Plain error review is appropriate where fundamental rights are implicated and the appellant convinces the Court that failing to review the claimed error would result in “a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial or proceedings, or compromise the integrity of the judicial process.” Reim, ¶ 38 (citations omitted).

DISCUSSION

¶ 15 Issue One: Whether the District Court erred when it determined White was not mentally fit to stand trial at a proceeding in which White was not present.

¶ 16 White asserts on appeal that the District Court erred by making a fitness determination at the August 1, 2011 hearing without him present. White argues that the fitness determination was a critical stage in the case and that his exclusion resulted in a violation of his fundamental right to participate in his own defense.

¶ 17 In response, the State argues that in situations where neither the prosecutor nor the defense counsel contests the findings of the fitness report, the district court may determine fitness based on the report alone, without conducting a hearing. The State asserts that the District Court acted in conformity with § 46–14–221(1), MCA, noting that White has not challenged the constitutionality of the statute. Finally, the State maintains that White suffered no prejudice due to his absence from the proceeding.

¶ 18 The prosecution of an incompetent individual violates due process. Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103 (1975).¹ Persons whose mental condition renders them unable to understand the proceedings against them or to assist in their own defense may not be tried, convicted, or sentenced so long as the incapacity continues. Section 46–14–103, MCA ; Drope, 420 U.S. at 171, 95 S.Ct. at 903. The trial court has a sua sponte duty to order a fitness determination “if the court has reasonable grounds for concluding that there is a good faith doubt as to a defendant's competency.” State v. Bartlett, 282 Mont. 114, 120, 935 P.2d 1114, 1117 (1997).

¶ 19 Both the United States and Montana Constitutions guarantee the right to be present at all critical stages of a criminal prosecution. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 2667, 96 L.Ed.2d 631 (1987) ; Reim, ¶ 36. A “critical stage” includes “any step of the proceeding where there is potential for substantial prejudice to the defendant.” Charlie, ¶ 40 (citations omitted). A defendant waives this right only through an on-the-record statement acknowledging that he voluntarily, intelligently, and knowingly waives his right to be present. Matt, ¶ 69.

¶ 20 A defendant's absence from a critical stage...