NO. 95-526

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

APPEAL FROM: District Court of the Twenty-First Judicial

District, In and for the County of Ravalli,

The Honorable Jeffrey H. Langton, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William W. Roche, Pro Se,

Victor, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Kathy Seeley, Assistant Attorney General,

Helena, Montana

T. Geoffrey Mahar, Assistant Hamilton City

Attorney, Hamilton, Montana

Filed:

Submitted on Briefs: May 9, 1996

Decided: June 20, 1996
Justice Charles E. Erdmann delivered the opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1995 Internal Operating Rules, the following decision shall not be

cited as precedent and shall be published by its filing as a public

document with the Clerk of the Supreme Court and by a report of its

result to State Reporter Publishing Company and West Publishing

Company.

Defendant William W. Roche (Roche) appeals from the judgment

entered by the Twenty-First Judicial District Court, Ravalli

County, which adopted the jury verdict convicting him of four

counts of driving without a driver's license and two counts of

driving without liability insurance. We affirm.

The issues on appeal are as follows:

1 . Did the officer have probable cause to cite Roche?

2 . Did Roche properly move for substitution of the District

Court Judge?

3 . Did the District Court preclude testimony from Judge

Martha Bethel and improperly exclude a juror?

4 . Did the District Court err in sentencing Roche, including

ordering him to pay jury costs?

FACTS

On July 14, 1994, while leading a parade in his patrol car,

Hamilton police officer Joseph Birkeneder observed Roche in his

vehicle stopped at a stop sign. Birkeneder had earlier been

informed by another officer that Roche did not possess a driver's

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license. Birkeneder continued with the parade but later confirmed

the fact that Roche did not have a valid Montana driver's license.

Birkeneder went to Roche's home at approximately 11:OO a.m. on

July 14 but no one was home. He returned to the home at around

2:30 p.m. the same day and spoke with Roche who acknowledged he did

not have a Montana driver's license. Roche was also unable to

produce proof of automobile liability insurance. Birkeneder then

issued Roche citations for driving without a driver's license and

driving without liability insurance.

On the morning of July 19, 1994, Birkeneder was responding to

an unrelated criminal mischief complaint and observed Roche driving

his car. After completing the criminal mischief call, Birkeneder

verified the fact that Roche still had no driver's license.

Birkeneder then discussed the matter with the Chief of Police who

instructed him to issue citations for this incident. Later that

day Roche appeared in City Court to respond to the July 14

citations and Birkeneder cited him for driving without a license

and driving without liability insurance based on the incident

earlier that day. Birkeneder warned Roche at that time not to

drive. Roche left the building, got into his car, and drove away.

At around 11:30 a.m. on July 19 1994, Birkeneder was outside

a restaurant eating his lunch when he saw Roche drive northbound on

Highway 93. Birkeneder subsequently submitted a report to the City

Attorney's office concerning the second and third time he had

witnessed Roche driving on July 19--the second when leaving City

Court, and the third during the lunch hour. The City Attorney

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served Roche with a summons and complaint charging him with two

additional counts of driving without a license as a result of those

incidents.

On December 5, 1994, following a bench trial in Hamilton City

Court, Roche was convicted of four counts of driving without a

driver's license and two counts of driving without liability

insurance. Roche appealed his convictions to the District Court.

On September 14, 1995,a jury trial was conducted and Roche was '

convicted on all six counts. On October 12, 1995, the District

Court entered its judgment and sentence and this appeal followed.

ISSUE 1

Did the officer have probable cause to cite Roche?

Roche argues that Birkeneder did not have probable cause to

issue the citations. He claims that Birkeneder came to his home on

July 14 and issued him two citations under orders from City Court

Judge Martha Bethel. Roche further maintains that Birkeneder

stalked him in an effort to tlstack" citations against him. Roche

does not allege that the two counts brought by the City Attorney

lacked probable cause.

We have previously held that a showing of mere probability

that the defendant committed the crime is sufficient to establish

probable cause to file a criminal charge. State v. Thompson

(1990), 243 Mont. 28, 30, 792 P.2d 1103, 1105. In the present

case, Birkeneder was aware Roche did not have a driver's license

and personally witnessed him driving a motor vehicle on each

occasion for which a citation was issued. Furthermore, it cannot

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be said that Birkeneder was stalking Roche while leading a parade,

responding to an unrelated criminal mischief report, or while

eating lunch outside a restaurant.

Birkeneder asked Roche to produce proof of liability insurance

on July 14 and he could not do so. When Birkeneder observed Roche

driving five days later and confirmed that he still had no driver's

license, there was a good probability that Roche also had no

liability insurance. We therefore conclude there was probable

cause for Birkeneder to issue citations to Roche.

ISSUE 2

Did Roche properly move for substitution of the District Court

Judge?

On February 6, 1995, Roche filed a document with the District

Court entitled "Motion for Change of Venue/Motion for Change of

Jurisdiction." The motion stated:

The Defendant, William W. Roche presently has legal

action ensuing against JUDGE JEFFREY LANGTON in the U.S.

Ninth Circuit Court of Appeals in San Francisco, CA.

USCA Docket # 95-35061

Therefore, an automatic CONFLICT OF INTEREST does

present itself in recusing Judge Jeffrey Langton from

presiding over this case. The Defendant could not hope

to receive a fair trial with Judge Langton presiding over

the proceedings.

In past cases, Judge Langton has brought in his

friend, Judge John Warner from Havre, Mt. to sit in on

cases dealing with the Defendant. This will also be

challenged, as Judge Warner has played the political game

with Langton, and four cases went unlawfully against the

Defendant, William W. Roche. The Court has many judges

to choose from in Montana.

The District Court denied the motion, holding that Roche had failed

to follow the procedures provided for substitution or

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disqualification of a judge and that he did not allege any facts

which would necessitate recusal. The District Court stated:

Simply having been on the opposite side of a completed

case from Mr. Roche prior to assuming office is not

evidence of personal bias or prejudice. Nor is the fact

that Mr. Roche has unsuccessfully attempted to join the

undersigned to litigation in federal court. Roarers v.

Wilkins, 275 S.C. 28, 267 S.E.2d 86 (1980). Moreover,

public criticism of a judge does not require that the

judge disqualify himself in further cases involving the

critic. Amidon v. State, 604 P.2d 575 (Alaska 1979).

Section 3-l-804, MCA, requires that a specific procedure must

be followed in filing a motion to substitute a judge and that the

motion must be made within thirty days after the judge is assigned

to the case. Any motion for substitution which is not timely filed

is void for all purposes. Section 3-1-804(e), MCA. Section

3-l-805, MCA, requires that an affidavit and certificate of counsel

by the moving party must be filed to disqualify a district court

judge for cause

1n the present case, Roche's motion was not timely filed and

it did not comply with the statutory procedures outlined in

§§ 3-l-804 and -805, MCA. We therefore conclude that Roche did not

properly move for substitution of the District Court Judge.

Furthermore, we find nothing in the record which would have

required Judge Langton to recuse himself from the case.

ISSUE 3

Did the District Court preclude testimony from Judge Martha

Bethel and improperly exclude a juror?

The City of Hamilton filed a motion in limine seeking an order

directing Roche not to elicit testimony from any witness, including

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himself, that would relate to incidents, facts, or circumstances

concerning the litigious history between Roche and City Court Judge

Martha Bethel. The City sought the order to prevent Roche from

attempting to prove that his traffic citations were issued in

retaliation for his litigious relationship with Bethel.

The District Court refused to rule on the motion, stating as

follows:

The Court is unable to make any ruling on the City's

motion in advance of trial due to the lack of any offer

of proof by either party with respect to Judge Bethel's

expected testimony.

The court further noted that if Bethel testified at trial, Roche

would be entitled "to some latitude in cross-examination to attempt

to impeach the witness by any accepted means, including evidence of

bias, partiality, or interest in the outcome, to show the witness's

motivation for testifying."

Roche argues that in ruling on the City's motion the District

Court eliminated Bethel from the subpoena list and curtailed his

ability to ask her questions. There is no factual basis for this

allegation.

The record is clear that the District Court did not rule on

the City's motion and specifically addressed the possibility of

Bethel testifying. The court explained its ruling to Roche prior

to trial and explained that even though Roche would not be allowed

to examine Bethel about irrelevant matters, the court was not

preventing Bethel from being called as a witness by the defense or

from being examined by Roche.
The record indicates that Roche never called Bethel to testify

at trial and we therefore conclude there is no basis for Roche's

contention that the District Court eliminated Bethel from the

subpoena list or prevented him from examining her at trial.

Roche further claims that the District Court excluded a juror

"before the jury had even been drawn, on the word of the key

witness Officer Joseph Birkendeder [sic] .'I However, there is

nothing in the record or Roche's brief on appeal to support such a

claim. We have previously held that where the defendant fails to

cite authority to support his allegations of error, this Court is

not called on to answer the contention. Rule 23(a) (4), M.R.App.P.;

State v. Steffes (1994), 269 Mont. 214, 233, 887 P.2d 1196, 1208.

Accordingly, we will not address this allegation of error.

ISSUE 4

Did the District Court err in sentencing Roche, including

ordering him to pay jury costs?

Roche was convicted of four counts of driving a motor vehicle

without a driver's license pursuant to 5 61-5-102, MCA. Each of

those offenses was a misdemeanor punishable by a fine of not more

than $500 or by imprisonment for not more than six months or by

both fine and imprisonment. Section 61-5-307, MCA.

Roche was also convicted of two counts of operating a motor

vehicle without liability insurance pursuant to 5 61-6-301, MCA.

Conviction of a first offense is punishable by a fine of not less

than $250 or more than $500 or by imprisonment for not more than

ten days, or both. A second conviction is punishable by a fine of
$350 or by imprisonment for not more than ten days, or both.

Section 61-6-304(l).

The District Court sentenced Roche as follows:

1 . For the first count of driving without a license, 180

days in the Ravalli County jail with 177 of those days suspended

for a period of one year, plus a fine of $100.

2 . For the second count of driving without a license, 180

days in the Ravalli County jail with 174 of those days suspended

for a period of one year, plus a fine of $200.

3 . For the third count of driving without a license, 180

days in the Ravalli County jail with 171 of those days suspended

for a period of one year, plus a fine of $400.

4 . For the fourth count of driving without a license, 180

days in the Ravalli County jail with 168 of those days suspended

for a period of one year, plus a fine of $500.

5 . For the first count of driving without insurance, five

days in the Ravalli County jail, plus a fine of $350.

6 . For the second count of driving without insurance, ten

days in the Ravalli County jail, plus a fine of $500.

The District Court ordered the separate sentences to run

consecutive to one another for a total of 735 days jail with all

but forty-five days of the sentence suspended. The District Court

also ordered Roche to pay the costs of the jury trial in the sum of

$476.43 as a condition of the suspended portion of his sentence.

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Roche argues that the sentence imposed by the District Court

was contrary to Montana law and that the court erred in ordering

him to pay for his own jury.

We have stated that "[tlrial judges are granted broad

discretion to determine the appropriate punishment." State v.

Henry (1995), 271 Mont. 491, 498, 898 P.2d 1195, 1199 (quoting

State v. Hembd (1992), 254 Mont. 407, 411, 838 P.2d 412, 415). We

do not review a sentence for inequity or disparity, but determine

whether the sentence is within the statutory guidelines. Henrv,

898 P.2d at 1199. If sentencing is within the statutory guidelines,

this Court will not disturb a district court's sentencing decision

absent a showing that the court abused its discretion. Henry, 898

P.2d at 1199 (citing State v. Blanchard (19951, 270 Mont. 11, 15,

889 P.2d 1180, 1182).

In the present case, the length of the jail sentences imposed

by the District Court was within the statutory guidelines.

Furthermore, the court's imposition of consecutive sentences for

the six counts is expressly authorized by 5 46-18-401(4), MCA,

which provides that "[sleparate sentences for two or more offenses

must run consecutively unless the court otherwise orders." Here,

the District Court specifically ordered the sentences to run

consecutively and such an order is consistent with the statutory

mandate.

However, § 46-18-201(l) (b), MCA, allows a court to suspend

execution of a sentence for six months or for a period equal to the

maximum sentence allowed, whichever is greater. Thus, the District

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Court erred as a matter of law in suspending for one year a portion

of each sentence for driving without a driver's license. The

maximum possible jail sentence for each of the charges is six

months and therefore execution of each of the sentences for driving

without a license may only be suspended for six months.

In addition, § 61-6-304, MCA, authorizes a maximum fine of

$350 for the second offense of operating a motor vehicle without

liability insurance. The District Court therefore erred as a

matter of law in ordering Roche to pay a $500 fine for his second

offense of driving without insurance.

This Court may review any sentence imposed in a criminal case

if it is alleged that such sentence is illegal or exceeds statutory

mandates, even if no objection is made at the time of sentencing.

State v. Nelson (Mont. 19951, 906 P.2d 663, 667, 52 St. Rep. 1069,

1072. While Roche failed to object at trial or on appeal to the

specific errors noted above, § 46-20-703(4), MCA, allows this Court

to reduce the punishment imposed by the trial court. It is

apparent that the District Court intended that the maximum possible

sentence and periods of suspension apply in this case, and

therefore, in the interest of judicial economy we hereby reduce the

fine for the second offense of driving without insurance to $350

and reduce the suspended portion of the sentences for driving

without a license to six months.

Finally, we address Roche's contention that the District Court

abused its discretion in ordering him to pay jury costs. In

suspending execution of a sentence, § 46-18-201(l) (b), MCA, allows

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the judge to impose any of the reasonable restrictions or

conditions listed in subsection (1) (a). Section 46-18-

201(l) (a) (vi), MCA, states that such reasonable restrictions or

conditions may include "payment of costs as provided in 46-18-232

and 46-18-233." Payment of costs expressly includes "costs of jury

service." Section 46-18-232(l), MCA. The court may not sentence

a defendant to pay costs unless the defendant is or will be able to

pay them. Section 46-18-232(2), MCA.

The District Court inquired of Roche regarding his financial

resources and his ability to pay the fines and costs. The

following exchange took place:

THE COURT: Is there anything else you wish to make known

in regard to your ability to pay fines or costs?

MR. ROCHE: NO, just that I would simply make every

effort to pay the fines or the costs that are incurred on

me. This is -- this is the way it is.

We conclude that the District Court did not abuse its discretion in

ordering Roche to pay the costs of the jury trial as a condition of

his suspended sentence

Affirmed with amendments to sentence contained herein.

Justice

We concur:
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