No. 82-168 

IN THE SUPREME COURT OF THE STATE OF MO!JTANA 

STATE OF MONTANA, ex rel., 

LLOYD SCOTT MAIER, a Minor, 

and ROBERT P. MORIN, his attorney, 

Petitioners, 

THE CITY COURT OF THE CITY OF BILLINGS, 

COUNTY OF YELLOWSTONE, HONORABLE DONALD 

E. BJERTNESS, A JUDGE THEREOF, 

Respondents. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Petitioners: 

Berger Law Firm, Billings, Montana 

Robert Morin, Billings, Pontana 

For Respondents: 

Donald E. Bjertness, Billings, Montana 

Peterson, Schofield and Leckie, Billings, Montana 

Submitted: July 16, 1982 

Decided: August 20, 1982 

Filed: &uG 2 0 1982 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is a petition by the minor, Lloyd Scott Maier, and his 

counsel, Robert P. Morin, for a writ of supervisory control or 

other appropriate writ. We grant the petition and deny. 

On February 4, 1982, the petitioner, Lloyd Scott Maier, was 

issued a notice to appear on a complaint of failure to drive in a 

careful and prudent manner. The complaint was issued by officer 

Dewayne Ness, a police officer employed by the City of Billings. 

He was not required to appear until February 11, 1982. The 

petitioner, Maier, appeared on the eleventh day before the City 

Court of the City of Billings, County of Yellowstone, before 

respondent Judge, Donald E. Bjertness. At the time of his 

appearance, he was asked if he had a parent with him. He replied 

that he did not and Judge Bjertness directed him to leave the 

courtroom, go to a phone provided for him and call his parents to 

have them appear with him. After some time he reappeared in the 

courtroom, and indicated to Judge Bjertness that his parents would 

not appear with him and he would have to appear by himself. After 

being told that the parents would not appear with him, Judge 

Bjertness accepted the petitioner's plea of guilty and fined him 

in the amount of $45. The motor vehicle he was driving was 

impounded after petitioner told the court that he did not have 

the $45. In addition to impounding the car he was driving, the 

petitioner, Maier, was required to turn in his Montana driver's 

license to the court. 

Petitioner hired counsel in February 1982, six days after 

having entered the plea and through counsel filed a motion 

to withdraw his plea of guilty with a memorandum in support to 

the city court. 

At both appearances, the petitioner, Maier, was age 

seventeen, born on July 25, 1964. 

Two months later the petitioner appeared with counsel, 

Morin, requesting a withdrawal of the previous plea of guilty. 
After evidence was heard, Judge Bjertness entered a written order 

denying the petitioner's motion to withdrew the plea of guilty. 

The court issued the order on May 13 I 19 82. 

At the time of his appearance on April 12, 1982, petitioner 

contended that as a seventeen-year-old youth, he was unable to 

intelligently and understandingly enter a plea of guilty. He 

argued that, as a minor, as a matter of law, he was incompetent 

to appear without parent and/or an attorney in entering his plea 

of guilty. 

The respondent judge, in his May 13 written order denying the 

withdrawal of the plea, stated that a juvenile appearing in the 

city court on a traffic citation does not have the right to 

appointed counsel and found it was unnecessary to have appointed 

counsel present when one considers there was no provision for 

incarceration of a juvenile upon his entry of a plea of guilty or 

a conviction relative to a minor traffic violation. 

The sole issue presented to this Court by the petitioner's 

request is whether a minor is incompetent to appear in a city 

court on the charge of failing to drive in a careful and prudent 

manner without a parent, guardian or attorney and waive his 

right in order to enter into a valid plea of guilty. The petitioner argues Judge Bjertness failed to follow the clear mandates 

of section 41-5-511, MCA, section 61-12-601, MCA, and our recent 

case of Edward v. Collings (1981), Mont . -- 1 632 P.2d 325, 

38 St.Rep. 1240. 

In Edward, supra, this Court considered a writ of habeas 

corpus on behalf of a minor who had entered a plea of guilty of 

illegal possession of alcohol, where the court sentenced the 

minor to a fine of $50 and ten days in the Powell County jail to 

be served on weekends. As here, the youth was unaccompanied by a 

parent or counsel at the time of the plea and petitioner alleged 

that he requested the right to speak to his father before 

entering a plea, but that such request was denied after he 

admitted the possession of two cans of beer. This Court held 
that the Montana Youth Court Act, Chapter 5, sections 41-5-101 

through 41-5-924 applied. 

However, there is an important distinct ion be tween Edward 

supra, and the present case. The violation in Edward was an 

illegal possession of alcohol, where an incarceration sentence 

was imposed. In this case the charge was only that of a traffic 

violation without an imposition of any incarceration. Here, 

there was no possibility of any jail time being given as part of 

the sentence according to our law. 

We find that neither the statutory provisions of the Montana 

Youth Court Act apply nor is the Edward case determinative of the 

issue presented to us. Under the provision of 61-12-601, MCA, 

the city court had jurisdiction of the matter, and the penalties 

prescribed and ordered by the court were within the statutory 

authority granted. 

"Unlawful operation by minor --- jurisdiction 

of courts --- penalties. 

"(1) The district courts and the justices' 

courts of the state and the municipal and city 

courts of cities and towns shall have concurrent original jursidiction in all proceedings concerning the unlawful operation 

of motor vehicles by children under the age of 

18 years. 

"(2) Whenever, after a hearing before the 

court, it shall be found that a child under 

the age of 18 years has unlawfully operated a 

motor vehicle, the court may: 

"(a) impose a fine, not exceeding $50, provided such child shall not be imprisoned for 

failure to pay such fine; 

"(b) revoke the driver's license of such 

child, or suspend the same for such time as 

may be fixed by the court; and 

"(c) order any motor vehicle owned or 

operated by such child to be impounded by the 

probation officer for such time, not exceeding 

60 days, as shall be fixed by the court. 

However, if the court shall find that the 

operation of such motor vehicle was without 

the consent of the owner, then such vehicle 

shall not be impounded. 

" (3) Upon nonpayment of any fine herein provided for, the court may order that any motor 

vehicle owned by said child or operated by 

said child with the consent of the owner shall 

be impounded until the fine shall be paid, or 
may order that the driver's license of such 

child shall be taken up and held by the probation officer until payment of said fine, or 

may cause both said motor vehicle and said 

driver's license to be taken up and impounded 

until such fine shall be paid; but no child 

shall be committed to or held in any detention 

facility or jail by reason of non-payment of 

such fine ." Section 61-12-601, MCA. 

In addition, we note that the Montana Youth Court Act does 

not apply to traffic violations. Section 41-5-511, MCA, provides 

as follows: 

"Right - to Counsel. In all proceedings 

following the filing of a petition alleging a 

delinquent youth or youth in need of 

supervision, the youth and the parent or guardian of youth shall be advised by the court, 

or in absence of the court, by its 

representative, that the youth may be represented by counsel at all stages of the 

proceedings. If counsel is not retained, or 

it appears that counsel will not be retained, 

counsel shall be appointed for the youth if 

the parents and the youth are unable to provide counsel, unless the right to appoint 

counsel was waived by the youth and parent or 

guardian.. ." 

This statute has no application to the case at hand for here 

the petitioner was in the City Court of Billings on a traffic 

violation, not as a result of a filing of a petition alleging him 

to be a delinquent youth or a youth in need of supervision. Our 

statutes provide in the above-quoted statute, 61-12-601, MCA, for 

the handling of violations by a minor and the jurisdictions of 

the court to handle such violation. In addition it should be 

further noted that the Youth Court Act 41-5-203 provides: 

"Jurisdiction -- of the Court. (1) Except as 

provided in subsection (2), the court has - 

exclusive jurisdiction of all proceedings 

under the Montana Youth Court Act in which a 

youth is alleged to be a delinquent youth, a 

youth in need of supervision, or a youth in 

need of care or concerning any individual 

under twenty-one years of age charged with 

having violated any law of the state or ordinance of any city or town other -- than a traffic 

---- or fish and game violation prior - to having 

become eighteen years - of - age." (Emphasis 

supplied. ) 

Having found that neither the statutory provisions of the 

Montana Youth Court Act apply nor is Edward, supra, determinative of the issue at hand, we will consider now the facts of 
the case presented to us to see if it meets the intent of our 

law. 

This presents us with the issue of whether the petitioner, 

Maier, made a knowledgeable waiver of his rights prior to the 

time which he entered his plea of guilty. 

On the information submitted to us for our consideration 

in this petition it appears that the petitioner, Lloyd Scott 

Maier, did, in fact, make a knowledgeable waiver of his rights 

prior to the time he entered the plea. There is nothing to base 

any other contention, as made by the comment that he did not 

understand and know what the law was in regard to the requirements to drive a vehicle in a careful and prudent manner. As a 

seventeen-year-old, who had been granted a license to drive an 

automobile, it would appear from his record that he had the capability to determine in his own mind if he had, in fact, failed to 

comply with the requirements of the laws of the State of Montana. 

Here petitioner was given an opportunity by the presiding 

judge and, in fact, directed to call his parents to have them 

appear with him at the time he made his appearance. As previously noted, his notice to appear was issued on February 4, 

1982, a week before he was required to appear as he did on 

February 11, 1982. This gave him sufficient opportunity to relay 

that notice of time for his appearance to a parent or guardian. 

He could have at the time of his appearance had his parents with 

him, or as previously noted on the basis of his telephone call to 

get his parents they could have been with him at the time he made 

his plea, and it was only af ter making the call and informing the 

presiding judge that his parents would not appear that he was 

allowed to enter his plea of guilty. 

We recognize that the right to counsel is one of the fundamental rights that support justice in our system and that it is 

a right essential to minors who are not knowledgeable of their 

fundamental rights. However, in the case at hand, it does not 

appear to be that we have one of those cases in which the 
petitioner, a minor, could claim he did not know what he was 

doing; that he did not know the consequences of his act; and that 

he was not given an opportunity to have his parents, guardians, 

or a chosen counsel to represent him. 

In view of the foregoing, we hold that the presiding Judge, 

Bjertness, did not abuse his discretion in denying petitioner's 

right to withdraw his plea of guilty and enter a plea of not 

guilty. 

We concur: 

Chief Justice 

,' Justices