Archive | August, 2015

State v. Emerson

State v. Emerson, 2015 MT 254 (Aug. 26, 2015) (Shea, J.) (6-0, rev’d)

Issue: Whether the district court erred in denying Emerson’s motion to suppress because her consent to a search was the fruit of an illegal seizure.

Short Answer: Yes.

Reversed

Facts: Deputy Robins stopped a vehicle near Shelby because he recognized the driver, Joseph Bentley, and knew there was a felony warrant out for his arrest. Emerson was a passenger in Bentley’s car. Bentley was arrested and the car was released to Emerson.

About an hour later, Emerson went to the Toole County sheriff’s office to request a gas card, but it didn’t have any. Emerson left the buildlng. A few min utes later, the sheriff’s office received a teletype from the Great Falls police department with an attempt to locate the car Emerson was driving.…

Finn v. Dakota Fire Insurance Co.

Finn v. Dakota Fire Insurance Co., 2015 MT 253 (Aug. 26, 2015) (Rice, J.) (6-0, aff’d)

Issue: Whether the district court erred in granting summary judgment to Dakota Fire on the grounds that it had properly cancelled an insurance policy for nonpayment of a renewal premium.

Short Answer: No.

Affirmed

Facts: Dakota Fire Insurance Co. issued an insurance policy to David Finn for his 2007 Silverado pickup truck, effective May 1, 2011-May 1, 2012. On March 16, 2012, Finn received letter from EMC Insurance (Dakota Fire’s parent company) advising him he would be receiving a renewal invoice soon, and that failure to pay the premium would result in cancellation. On March 28, 2012, Finn requested that his new GMC Sierra be substituted on the policy, and EMC made the change.…

State v. Strong

State v. Strong, 2015 MT 251 (Aug. 25, 2015) (Baker, J.; Cotter, J., dissenting) (5-2, aff’d)

Issue: Whether the district court erred in denying Strong’s motion to dismiss based on its determination that Strong’s conduct could give rise to multiple offenses.

Short Answer: No.

Affirmed

Facts: In August 2012, Strong was charged with four counts of partner/family member assault against his wife, Jessica, and their minor child. He pled guilty to two misdemeanor charges of PFMA and one felony charge of PFMA. He was jailed pending sentencing. On August 10, Jessica obtained an order of protection prohibiting all contract between Strong and Jessica, effective for one year. Strong did not oppose the order.

On Nov. 6, 2012,Strong called Jessica four times from jail.…

In the Matter of the Guardianship of AMM

In the Matter of the Guardianship of AMM, 2015 MT 250 (Aug. 24, 2015) (Shea, J.; Rice, J., concurring) (5-0, aff’d)

Issue: (1) Whether the district court abused its discretion in denying Timothy’s motion to vacate the March 24, 2014 FOF/COLs and Judgment; (2) whether the district court erred in striking Timothy’s reply brief; (3) whether the district court abused its discretion by limiting the powers of the joint conservators and not allowing them to act in AMM’s elected corporate roles; (4) whether the district court abused its discretion in awarding attorney fees to Wold; (5) whether the district court abused its discretion in ordering Timothy to personally pay attorney fees to Emerson as part of a Rule 11 sanction; and (6) whether Timothy can allege violations of the Montana Rules of Professional Conduct in this appeal.…

Wilkes v. State

Wilkes v. State, 2015 MT 243 (Aug. 18, 2015) (Wheat, J.; Rice, J., concurring; McKinnon, J., dissenting) (5-1, rev’d)

Issue: (1) Whether the district court erred by failing to adequately address Wilkes’s claims for postconviction relief; (2) whether the district court erred by denying Wilkes’s ineffective assistance of counsel claim; and (3) whether the district court abused its discretion by denying Wilkes’s petition before conducting a hearing.

Short Answer: (1) Yes; (2) yes; and (3) no.

Reversed and remanded

Facts: Wilkes’s three-month-old son, Gabriel, died Oct 26, 2008, following hemorrhaging in his head sustained on or before Oct. 4, 2008. According to Wilkes, he put Gabriel to sleep the evening of Oct. 4, 2008 after picking him up from a babysitter.…

State v. Williams

State v. Williams, 2015 MT 247 (Aug. 18, 2015) (Rice, J.) (5-0, aff’d)

Issue: (1) Whether the district court committed plain error by failing to instruct the jury that state had to prove Williams acted with purpose to deprive; and (2) whether Williams’ counsel rendered ineffective assistance by failing to object to the erroneous jury instruction.

Short Answer: (1) The Court declines to review this issue for plain error; and (2) No.

Affirmed

Facts: TW’s parents died, leaving him an orphan at 13. His paternal uncle, Carl, had custody under TW’s father’s will, but as unable to care for TW. Carl deferred to his sister, Debra, who was TW’s guardian for almost a year until she was seriously injured in a car accident.…

State v. Bowen

State v. Bowen, 2015 MT 246 (Aug. 18, 2015) (McKinnon, J.) (5-0, aff’d)

Issue: (1) Whether the district court abused its discretion in allowing Nelson to testify as a witness at trial; and (2) whether the district court erred in denying Bowen’s motion to dismiss for insufficient evidence.

Short Answer: (1) No; and (2) no.

Affirmed

Facts: Montana Department of Transportation employees found Brian Doyle’s body Jan. 20, 2012, in a ditch along Hwy. 2. An investigation determined his death occurred the night of Jan. 11, 2012. The temperature that night was between -4 and -7 degrees, and Doyle was dressed in a short-sleeved t-shirt, a sleeveless undershirt, pajama pants under his jeans, and socks. Bowen was eventually identified as person of interest, and then a suspect.…

Estate of Mills

Estate of Mills, 2015 MT 245 (Aug. 18, 2015) (McGrath, C.J.; Rice, J. concurring) (7-0, rev’d)

Issue: Whether the district court abused its discretion in denying David’s motion to set aside his default.

Short Answer: Yes.

Reversed

Facts: Howard Mills (“Father”) died June 21, 2014, leaving three sons – Howard W., John, and David. On August 21, 2014 Howard W. petitioned for formal probate of Father’s will, determination of heirs, and appointment of a PR. The district court scheduled a hearing for Sept. 22, 2014. On Aug. 28, 2014. Howard W. sent notices of the hearing to all interested parties, including his brothers, and filed proof of mailing the notices the same day.

David Mills filed a detailed letter in response to the petition on Sept.…

In re TDH, JH, & JH

In re TDH, JH, & JH, 2015 MT 244 (Aug. 18, 2015) (Baker. J.; McKinnon, J., concurring & dissenting) (4-1, aff’d)

Issue: (1) Whether the district court abused its discretion in rescinding OPD’s appointment of counsel for Ja.H. and denying OPD’s motion to appoint counsel after the termination hearing; (2) whether the district court abused its discretion in concluding Mother’s conduct made her unfit to parent and was unlikely to change within a reasonable time; (3) whether DPHHS made reasonable efforts to prevent the removal of the children and reunify Mother with her children; and (4) whether Mother was denied due process.

Short Answer: (1) The Court declines to reach this issue; (2) no; (3) yes; and (4) no.

Affirmed

Facts: Mother met Father when she was a 17-year-old runaway, after years of abuse.…

Marble v. State

Marble v. State, 2015 MT 242 (Aug. 14, 2015) (Cotter, J.; Rice, J., concurring & dissenting; McKinnon, J., concurring & dissenting) (5-2, rev’d) (Judge Michael Hayworth sitting for Chief Justice McGrath)

Issue: (1) Whether the district court erred in predicating its decision denying Marble’s petition for postconviction relief on the concurring opinion in Beach II; and (2) what test a district court must use in reviewing a petition for postconviction relief predicated on newly discovered evidence and filed within one year of discovering such evidence.

Short Answer: (1) Yes, and (2) The district court shall determine whether the new evidence “if proved and viewed in light of the evidence as a whole would establish that the petitioner did not engage in the criminal conduct for which he or she was convicted.”

Reversed

Facts: In 2002, 17-year-old Cody Marble spent several weeks in Pod C of the Missoula County detention center (MCDC) with seven boys aged 13-18.…