### No. 82-168 INTHE SUPREME COURT OF 

### THE STATE OF 

### MO!JTANA

STATE OF MONTANA, ex rel., LLOYD SCOTTMAIER, aMinor, and ROBERT P. MORIN, his attorney, Petitioners,

THE CITY COURT OF THE CITYOF BILLINGS, COUNTY OF YELLOWSTONE,HONORABLE DONALD E. BJERTNESS,A 

### JUDGETHEREOF, Respondents.

ORIGINAL PROCEEDING: Counsel of Record: For Petitioners: Berger Law Firm,Billings,Montana RobertMorin, Billings,Pontana For Respondents: Donald E. Bjertness,Billings,Montana Peterson,Schofield and Leckie,Billings,Montana

Submitted: July 16, 1982 Decided: August 20, 

### 1982 Filed:

## &uG201982Mr. 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 appearon 

### a complaintof failure to drive ina careful and prudent manner. The complaint

### was issued by officer Dewayne Ness, 

### a police officeremployed 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 aparentwithhim. He replied that he did not and Judge Bjertness directed him to leave the courtroom, go to aphone provided forhim and call hisparents 

### to have them appear with him. After some 

### timehe reappeared inthe courtroom, and indicated 

### toJudge Bjertness thathisparentswould not appear with him and he would have toappear 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 hisMontana 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 citycourt. At both appearances, the petitioner, 

### Maier, was age seventeen, born onJuly25, 1964. Two months 

### later the petitioner appeared with counsel, Morin, requesting 

### a withdrawal of the previous plea of guilty.After evidencewas heard, Judge Bjertness entered a writtenorder denying the petitioner's motion 

### to withdrew the plea of guilty. The court issued the order on May 13I 1982. Atthe 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 inentering hisplea of guilty. The respondentjudge, inhisMay 13writtenorderdenying 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 incarcerationof 

### a juvenile upon hisentryof apleaof guiltyor
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 ina careful and prudent

manner without a parent, guardian or attorney and waive his right inorder to enter into a valid plea of guilty. The petitioner arguesJudge Bjertness failed 

### to followthe 

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



### case of Edward 

### v. Collings (1981), Mont

# .-- 1 632P.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 fineof $50 and ten days inthe PowellCounty jail to be served on weekends. Ashere, theyouth wasunaccompanied by a parent orcounsel at the 

### timeof 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 heldthat the Montana Youth Court Act, Chapter 5, sections 41-5-101 through 41-5-924 applied. However, there is an important distinct ion between Edward supra, and the present case. The violation in Edward was an illegal possession of alcohol, where an incarceration sentence

was imposed. In thiscase the charge 

### was only thatof 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 statutoryprovisions 

### of the Montana Youth Court Actapplynor 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 authoritygranted. "Unlawfuloperationbyminor

## --- jurisdiction of courts

## ---penalties. "(1) The district courts and the justices' courtsof 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 childrenunder the age of 18years. "(2) Whenever, after a hearing before the court, it shall be found that a child under the age of 18years has unlawfully operated a motor vehicle, the courtmay: "(a) impose a fine, not exceeding $50, provided such child shall not be imprisoned for failuretopay 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 shallnot be impounded. 

### "(3) Upon nonpayment of any finehereinprovided for, the court may order thatany

### motor vehicle owned by said child or operated by saidchildwith the consent of the owner shall be impounded until the fine shallbe paid, 

### ormay order that the driver's license of such child shallbe 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 shallbe committed 

### to orheld inany detention facility 

### or jail by reason of non-payment of such fine

# ." Section61-12-601, MCA. In addition, 

### we note that the Montana Youth Court Act does not apply to trafficviolations. Section41-5-511, 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, theyouth and theparent

### 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 willnot 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 statutehas no application to the case athand 

### for here the petitioner 

### was in the City Court of Billings on a traffic violation, not 

### as 

### a resultof a filingof a petitionalleging him tobe a delinquent youth 

### or a youth inneed of supervision. Our statutesprovide inthe 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

### -- thana 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 athand, 

### we willconsider now the factsofthe 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 hispleaof 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 timehe 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. Asa seventeen-year-old, who had been granted a license to drive an automobile, it would appear from hisrecord thathe had the capability

### to determine inhisown mind if he had, in fact, failed 

### to complywith the requirements of the 

### laws of the Stateof 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. Thisgave him sufficientopportunity torelay that notice of time for his appearance 

### to a parent or guardian. He could have at the time of his appearance had hisparentswith him, or as previouslynoted on thebasisof histelephone call to gethisparents they could have been with him atthe timehe made hisplea, and it 

### was onlyaf

### termaking the call and informing the presiding judge that his parents would not appear that he was allowed toenterhisplea 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 thepetitioner, a minor, could claim he did not know what he was doing; thathe did not know the consequences of hisact; and that he was not given an opportunity to have hisparents, guardians,

ora chosen counsel torepresenthim. 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