No. 94-504

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Plaintiff and Respondent,

v .

RUDY STANKO,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Russell K. Fillner, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Rudy Stanko, Pro Se, Laurel, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Kathy Seeley, Ass't Attorney General,

Helena, Montana

Dennis Paxinos, Yellowstone County Attorney,

Dale R. Mrkich, Deputy Yellowstone County Attorney,

Billings, Montana

Filed:

Submitted on Briefs: October 26, 1995

Decided: November 14, 1995
Justice Karla M. Gray 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 Montana Law Week, State Reporter and West Publishing

Company.

Rudy Stank0 (Stanko) appeals from the judgment and sentence

entered by the Thirteenth Judicial District Court, Yellowstone

County, on his conviction for five offenses. We affirm.

We restate the issues on appeal as follows:

1 . Does the filing of charges via complaints, followed by a

judicial determination that probable cause existed to file the

charges, comport with Montana's Constitution and statutes?

2 . Did the District Court's failure to hold an omnibus

hearing deny Stanko's due process rights?

3. Did the District Court err in denying Stanko's motion for

appointment of counsel?

4 . Is 5 45-7-302(l), MCA, unconstitutionally vague and

overbroad on its face, or as applied to Stanko, and did the two

counts of obstructing a peace officer, filed pursuant to that

statute, violate Stanko's right to remain silent?

5 . Can the State of Montana (State) fine Stank0 for driving

a vehicle not registered in Montana under the facts of this case?

6 . Did the District Court err in allowing the State to amend

a statutory reference in the complaint relating to an expired

registration?

7 . Do 55 61-5-103 and 61-5-104(4), MCA, bar the State from

prosecuting Stank0 for driving without a valid driver's license in

violation of § 61-5-102, MCA?

2
FACTS AND PROCEDURE

Stank0 was cited into Justice Court in Billings, Montana, on

five charges arising from Separate lawful traffic stops on May 28

and May 30, 1993, by Montana Highway Patrol (MHP) officers. Two

identical charges--obstructing a peace officer and operating a

vehicle without a valid driver's license--resulted from each of the

two traffic stops; the fifth charge, operating a vehicle without a

valid registration, stemmed from the May 28, 1993, stop.

Following proceedings and a jury trial in Justice Court,

during portions of which Stank0 was represented by a courtappointed public defender, the jury found him guilty on all five

charges. Pursuant to 5 46-17-311, MCA, Stank0 appealed to the

District Court for a trial de novo.

A jury trial was held in the District Court and Stank0 was

again convicted of all the charged offenses. The District Court

entered judgment on October 5, 1994. Stank0 appeals.

DISCUSSION

1 . Does the filing of charges via complaints, followed by a

judicial determination that probable cause existed to file the

charges, comport with Montana's Constitution and statutes?

Stank0 contends that commencing a prosecution by filing a

complaint violates both statute and the Constitution; his

fundamental premise seems to be that a grand jury indictment was

the mandatory method of initiating prosecution of the charges

against him. While Stanko's "argument" on this issue is relatively

lengthy, it largely consists of rhetorical questions rather than

legal citation and analysis and does not address or distinguish

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controlling authority.

Article II, Section 20, of the 1972 Montana Constitution

specifically provides that:

[clriminal offenses within the jurisdiction of any court

inferior to the district court shall be prosecuted by

complaint. All criminal actions in district court,

except those on appeal, shall be prosecuted either by

information, after examination and commitment by a

magistrate or after leave granted by the court . . . .

Stank0 does not address this constitutional authorization for the

procedure used by the State in this case or even suggest that the

constitutionally authorized procedure was not followed here.

Moreover, even absent specific constitutional authorization,

§ 46-11-201, MCA, statutorily authorizes a prosecutor to proceed in

district court via complaint or by information after leave of court

has been granted. Stanko does not assert that the statutory

requirements were not satisfied.

We have repeatedly and consistently held that criminal charges

brought by information, after a magistrate's hearing or by leave of

a district court, are authorized and permitted by both statute and

the Montana Constitution. See, e.q., State v. Corliss (1967), 150

Mont. 40, 43, 430 P.2d 632, 634, cert. denied, 390 U.S. 961,

(1968). With regard to the United States Constitution, the United

States Supreme Court has stated that "[elver since Hurtado v.

California, 110 U.S. 516 (1884), this Court has consistently held

that there is no federal constitutional impediment to dispensing

entirely with the grand jury in state prosecutions." Beck v.

Washington (1962), 369 U.S. 541, 545, 82 S.Ct. 955, 957, 8 L.Ed.2d

98, 104.

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Stanko presents no authority or analysis which attempts to

distinguish this body of authority, much less render it incorrect;

his argument on this issue is without merit. We conclude that the

filing of complaints, followed by a judicial determination that

probable cause existed to file the charges, comports with Montana

law and the Constitution.

2 . Did the District Court's failure to hold an omnibus

hearing deny Stanko's due process rights?

It is undisputed that the District Court scheduled an omnibus

hearing in this case and that the hearing did not take place. It

also is undisputed that such a hearing is required by 5 46-13-110,

MCA, to expedite procedures leading up to the defendant's trial.

Stanko contends that the failure to hold an omnibus hearing

denied him due process. He presents no authority whatsoever for

his conclusory contention. Such authority is required in an

appellant's opening brief by Rule 23(a) (4), M.R.App.P. We

recognize that Stanko appears before us pro se and have made

reasonable accommodation for minor departures from the Montana

Rules of Appellate Procedure. Stanko is hardly unfamiliar with

judicial proceedings and procedures, however, and we will not

create an appellant's legal arguments for him or her.

In any event, as the State points out, this Court does not

reverse trial courts for error "unless the record shows that the

error was prejudicial[;l " we disregard any defect not affecting a

party's substantial rights. Section 46-20-701, MCA. Under the

statute, the party asserting the error clearly bears the burden of

establishing prejudice on the record. Stanko makes no reference to

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anything in the record establishing that he was prejudiced by the

District Court's failure to hold an omnibus hearing; indeed, his

argument on this issue begins and ends with the bare allegation

that the failure "denied defendant due process in this case."

We conclude that the District Court's error in failing to hold

an omnibus hearing was harmless and did not affect Stanko's

substantial rights.

3 . Did the District Court err in denying Stanko's motion for

appointment of counsel?

As noted above, the Justice Court appointed counsel for

Stanko. The court did so, notwithstanding Stanko's refusal to fill

out the application for court-appointed counsel, "in the best

interests and expedition of Justice. . . .I' Thereafter, Stank0

apparently discharged his counsel and the public defender's office

moved to withdraw from further representation. The Justice Court

permitted the withdrawal and required Stank0 to comply with § 46-8-

111(Z) , MCA, so that, in turn, it could make the required

"determination of indigence" pursuant to subsection (1) of that

statute. Stank0 refused, the court did not appoint counsel and

Stanko proceeded pro se.

On appeal to the District Court, Stank0 moved for appointment

of counsel. After Stank0 refused to provide the information

required by § 46-E-111(2), MCA, the District Court denied his

motion and Stank0 continued pro se except for limited assistance

from a purported member of the Iowa bar.

In essence, Stank0 concedes that he did not comply with the

statutory requirements, but argues that the constitutional right to

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counsel does not authorize or permit the State to decide not to

provide counsel to a criminal defendant absent a showing of

indigence. Stanko presents no authority under which the

constitutional right of criminal defendants to counsel has been

interpreted to mean that the State must provide counsel free of

charge to all criminal defendants or that every criminal defendant

who requests counsel at the State's expense is absolutely and

constitutionally entitled to appointment of such counsel.

No applicable authority being presented, we need not further

address this issue. We conclude that, in light of Stanko's refusal

to submit the sworn financial statement evidencing his inability to

obtain legal representation which is required by 5 46-S-111(2),

MCA, the District Court did not err in denying his motion for

appointed counsel.

4 . IS § 45-7-302(l), MCA, unconstitutionally vague and

overbroad on its face, or as applied to Stanko, and did the two

counts of obstructing a peace officer, filed pursuant to that

statute, violate Stanko's right to remain silent?

Two charges of obstructing a peace officer were filed against

Stank0 pursuant to § 45-7-302(l), MCA, which states:

A person commits the offense of obstructing a peace

officer or public servant if he knowingly obstructs,

impairs, or hinders the enforcement of the criminal law,

the preservation of the peace, or the performance of a

governmental function.

The charges stemmed from Stanko's refusal to give the MHP officer

his name during the first traffic stop and giving the officer a

false name during the second stop. Presumably based largely on the

testimony of the officers involved, the jury found that the State

had proved each element of each of the two obstructing charges

7
beyond a reasonable doubt and convicted Stanko on both charges.

Stanko does not assert that either of the traffic stops was

invalid or unlawful or that insufficient evidence existed upon

which the jury could find the elements of the offenses beyond a

reasonable doubt. He presents somewhat murky constitutional

arguments that the statute defining the offense is unconstitutional

for vagueness and overbreadth on its face, and as applied, and that

it violates his constitutional right to remain silent.

A statute duly enacted by the legislature is presumed to be

constitutional, and we will uphold the statute unless the party

challenging it establishes unconstitutionality beyond a reasonable

doubt. State v. Lilburn (1994), 265 Mont. 258, 262, 875 P.2d 1036,

1039, cert. denied, 115 S.Ct. 726 (1995).

Stanko's various positions regarding the unconstitutionality

of the statute, on its face and as applied, neither meet that

burden nor raise sufficient colorable argument to necessitate a

full constitutional analysis. Stank0 cites to no precedential or

even persuasive authority holding unconstitutional a statute

requiring a person lawfully stopped for traffic violations to

identify himself or herself to a peace officer.

Neither the "entrapment" cases nor the "contradictory

commands" cases Stank0 cites are applicable in any way to the facts

of this case. In addition, Stank0 does not support his bare

assertion that the statute at issue criminalizes either "being a

driver" or "mere conversation;" thus, the cases cited which relate

to statutes or situations of those kinds also are inapplicable.

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Stanko does argue the applicability of the underlying

principles contained in Miranda v. Arizona (1966), 384 U.S. 436, 86

S.Ct. 1602, 16 L.Ed.2d 694, vis-a-vis his contention that charging

him with "obstructing" for refusing to identify himself on one

occasion and giving a false name on the second occasion violated

his Fifth Amendment freedom from compulsion to be a witness against

himself. However, he does not analyze how his decisions to refuse

to identify himself and to falsely identify himself constitute or

equate to violations by the State of the Fifth Amendment right he

characterizes as his "right to remain silent." Nor does he analyze

how and when the actual Miranda warning is required during a valid

traffic stop before a driver can be asked to identify himself.

W e conclude that Stanko has not established the

unconstitutionality of § 45-7-302(l), MCA, beyond a reasonable

doubt and, further, has not established any infringement of his

Fifth Amendment rights.

5 . Can the State fine Stanko for driving a vehicle not

registered in Montana under the facts of this case?

The entirety of Stanko's position regarding this issue is as

follows:

The State of Montana cannot constitutionally and

legally fine the defendant pursuant to 61-3-315 for

driving a foreign registered vehicle in the State of

Montana because it was not registered in Montana, when

the State does not have a reciprocity agreement with the

State of Washington pursuant to Part 7 of Chapter 3 of

Title 61.

No contentions, argument or legal authority in support of this

position are presented as required by Rule 23(a) (4), M.R.App.P.

Moreover, the record does not reflect that Stank0 raised this issue

9
via motion or otherwise in the District Court. Absent limited

exceptions not applicable here, defendants are barred from raising

issues on appeal which were not presented to the district court for

initial resolution. See, e.q., § 46-20-104(2), MCA; State v.

Arlington (1994), 265 Mont. 127, 151, 875 P.2d 307, 321. For these

reasons, we decline to address this issue

6. Did the District Court err in allowing the State to amend

a statutory reference in the complaint relating to an expired

registration?

The May 28, 1993, notice to appear and complaint charged

Stanko with driving a vehicle with an expired registration under

§ 61-3-315, MCA. The complaint described the relevant time and

place, and the vehicle Stanko was driving; it also included the

Washington license number, "with expired registrationL.1 " At the

time jury instructions were being settled, the District Court

allowed the State to amend the citation to allege a violation of §

61-3-301, MCA, the correct statutory reference. The court

determined that the variance between the two statutory references

was not material.

The entirety of Stanko's position on this issue is as follows:

The State of Montana cannot charge the defendant

with a different statute after the evidence was presented

to the jury, and the defendant was prepared to defend the

statute that the policeman had originally cited and

charged.

Again, as with the previous issue, no contentions, argument or

legal authority are presented as required by Rule 23(a) (4),

M.R.App.P. Therefore, we decline to address this issue.

7 . Do 55 61-5-103 and 61-5-104(4), MCA, bar the State from

prosecuting Stanko for driving without a valid driver's license in

10
violation of 5 61-5-102, MCA?

The entirety of Stanko's position regarding this issue is as

follows :

The State of Montana cannot charge the defendant for

driving without a Montana license, when the defendant was

not in the State for at least 90 days pursuant to 61-5-

103 and 61-5-104(4).

As with the previous two issues, Stank0 presents no contentions,

argument or authority as required by Rule 23(a) (4), MCA. Nor does

he present any evidence of record regarding factual matters

supporting his position. Therefore, we decline to address this

issue.

Affirmed.

We concur:

Justices

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November 14, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Rudy Stank0

1315 Allendale Road

Laurel, MT 59044

HON. JOSEPH P. MAZUREK, Attorney General

Kathy Seeley, Assistant

Justice Bldg.

Helena, MT 59601

Dale R. Mrkich

Deputy County Attorney

P.O. Box 35025

Billings, MT 59107

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA