State v. Dunsmore

State v. Dunsmore, 2015 MT 108 (April 21, 2015) (Shea, J.) (5-0, aff’d)

Issue: Whether the district court’s failure to recuse himself violated Dunsmore’s right to a fair tribunal.

Short Answer: No.

Affirmed

Facts: Dunsmore was charged with failure to register as a sex offender and theft, both felonies. Dunsmore entered into a plea agreement that recommended a 10-year sentence to the DOC with all 10 years suspended. The presentence investigation (PSI) concluded Dunsmore was not fit for community supervision and recommended a sentence of 10 years in MSP with five years suspended. Judge Robert Allison presided over the case. Prior to becoming a judge, Allison represented Dunsmore’s daughter in a 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.

Procedural Posture & Holding: At sentencing, two people spoke in favor of Dunsmore, and his ex-wife spoke against him. The district court sentenced him to 15 years in MSP with five suspended. Dunsmore appeals, and the Supreme Court affirms.

Reasoning: The Court holds that a claim for disqualification of a judge must be brought within a reasonable time after the moving party learns the facts forming the basis for the claim. Dunsmore’s counsel knew of the factual basis for Dunsmore’s disqualification claim before sentencing, but did not raise the issue. Thus, Dunsmore’s claim was waived.