No. 02-155

IN THE SUPREME COURT OF THE STATE OF MONTANA

2003 MT 265

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

MARTIN LEE VonBERGEN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Rosebud, Cause No. DC 2000-22, 

Honorable Joe L. Hegel, Judge Presiding

COUNSEL OF RECORD:

For Appellant: 

Brian Kohn, Attorney at Law, Billings, Montana 

For Respondent:

Honorable Mike McGrath, Attorney General; Jim Wheelis, 

Assistant Attorney General, Helena, Montana 

Michael B. Hayworth, County Attorney, Forsyth, Montana 

Submitted on Briefs: August 8, 2002

 Decided: September 30, 2003

Filed:

__________________________________________

Clerk
2

Justice Jim Rice delivered the Opinion of the Court. 

¶1 Appellant Martin Lee VonBergen (VonBergen) appeals the Sixteenth Judicial District

Court’s refusal to hear his pretrial suppression motion as untimely filed and waived. We

affirm.

¶2 The sole issue presented upon appeal is whether the District Court erred when it

denied as untimely Defendant’s motion to suppress. 

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On September 18, 2000, Martin Lee VonBergen was charged with seven

misdemeanors and one felony involving the poaching of a deer, possession of drugs and drug

paraphernalia, and theft. The District Court held an omnibus hearing on November 27,

2000, at which VonBergen and his counsel were present. VonBergen indicated at the

omnibus hearing that he would file motions to suppress both the evidence and his confession

on the grounds that the stop and search were unlawful, and that his Miranda rights had been

violated. In its omnibus order, the court set January 29, 2001, as a 60-day deadline for filing

these pretrial motions, and scheduled the trial for April 10, 2001. VonBergen made no

request to extend the 60-day deadline. VonBergen’s counsel filed the intended suppression

motions within the time provided for doing so under the omnibus order. On February 26,

2001, the court conducted a hearing on the motions, and on March 26, 2001, the court denied

the motions.

¶4 On April 6, 2001, four days before trial, VonBergen substituted counsel and moved

for a continuance of the trial. The District Court granted the motion, and set trial for
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November 19, 2001. On May 7, 2001, VonBergen’s new counsel filed another motion to

suppress based on an issue not raised in VonBergen’s initial suppression motion: that the

warrant did not state with particularity the items to be seized from VonBergen’s premises.

 VonBergen’s new counsel also requested a second omnibus hearing. 

¶5 On June 20, 2001, the District Court ruled that VonBergen had waived his right to file

a second motion to suppress by failing to give notice of this motion at the omnibus hearing

or by January 29, 2001, the subsequent deadline set by the court. Noting that VonBergen’s

initial motions to suppress were timely filed, the court denied the subsequent suppression

motion because “the Defendant had every opportunity to file the instant motion to suppress

but did not do so in a timely manner and waived his right to bring such a motion.”

¶6 On November 26, 2001, VonBergen pled guilty to all eight counts in the Information

under a plea agreement which reserved his right to appeal the denial of his second

suppression motion. On January 7, 2002, VonBergen received a suspended sentence on the

felony theft charge and lesser, concurrent periods of probation on the other charges, except

for fifteen days in the county jail. His sentence was stayed pending appeal. 

STANDARD OF REVIEW

¶7 The standard of review for a denial of a motion to suppress is whether the trial court’s

“findings of fact are clearly erroneous, and whether those findings were correctly applied as

a matter of law.” State v. Griffing, 1998 MT 75, ¶ 7, 288 Mont. 213, ¶ 7, 955 P.2d 1388, ¶ 7

(quoting State v. Greywater (1997), 282 Mont. 28, 36, 939 P.2d 975, 980). The district

court’s determination that a motion to suppress is untimely is a conclusion of law. Griffing,
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¶ 7. We review a district court’s conclusions of law to determine whether they are correct.

Griffing, ¶ 7. 

¶8 The standard of review of a district court’s denial of relief from waiver, pursuant to

§ 46-13-101(3), MCA, which arises from an untimely motion, will be addressed herein.

DISCUSSION

¶9 Did the District Court err when it denied as untimely Defendant’s motion to

suppress?

¶10 VonBergen argues the court erred in ruling his motion to suppress, filed on May 7,

2001, was untimely and that he waived the right to file additional pretrial motions by not

indicating his intention to do so at the November 27, 2000, omnibus hearing or by the

motion deadline of January 29, 2001. 

¶11 Title 46 contains several sections setting forth timing requirements for filing pretrial

motions. These sections provide that pretrial motions must be filed at or before the omnibus

hearing unless otherwise provided by Title 46, or at a later date ordered by the court. First,

§ 46-13-101, MCA, regarding pretrial notices and motions, states: 

(1) Except for good cause shown, any defense, objection, or request

that is capable of determination without trial of the general issue must be

raised at or before the omnibus hearing unless otherwise provided by Title 46.

(2) Failure of a party to raise defenses or objections or to make requests

that must be made prior to trial, at the time set by the court, constitutes a

waiver of the defense, objection, or request.

(3) The court, for cause shown, may grant relief from any waiver

provided by this section. Lack of jurisdiction or the failure of a charging

document to state an offense is a nonwaivable defect and must be noticed by

the court at any time during the pendency of a proceeding.

(4) Unless the court provides otherwise, all pretrial motions must be in

writing and must be supported by a statement of the relevant facts upon which
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the motion is being made. The motion must state with particularity the grounds

for the motion and the order or relief sought. [Emphasis added.]

Second, § 46-13-110, MCA, which governs the omnibus hearing, mandates that counsel for

both parties “must be prepared to discuss” motions to suppress at the omnibus hearing, and

provides that the district court may rule on the motion at the hearing, or may schedule the

matter for “briefing and further hearing as the court considers necessary.” Section 46-13-

110(3), (5), MCA. Third, § 46-13-302, MCA, regarding motions to suppress, states:

(1) A defendant aggrieved by an unlawful search and seizure may move

the court to suppress as evidence anything obtained by the unlawful search and

seizure.

(2) If the motion states facts that, if true, would show that the evidence

should be suppressed, the court shall hear the merits of the motion at the

omnibus hearing or at a later date if the court orders.

(3) If the motion is granted, the evidence is not admissible at trial.

[Emphasis added.]

Thus, a party has a statutory mandate to bring any defense, objection, or request that is

capable of determination without trial of the general issue, including motions to suppress,

at or before the omnibus hearing, or, at the latest, by a subsequent date ordered by the court.

The consequence for failure to do so is clear: “[a] party’s failure to raise matters which are

capable of determination without trial and required to be raised at or before the omnibus

hearing constitutes a waiver.” Griffing, ¶ 10 citing § 46-13-101(2), MCA. 

¶12 VonBergen argues that under § 46-13-101(2), MCA, suppression issues are waived

only if not raised “prior to trial.” He contends his May 7, 2001, motion should have been

considered timely because it was filed just 31 days after substitution of new counsel and 196

days before the rescheduled trial. However, this argument ignores that the phrase “prior to
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trial” in subsection (2) is further defined by the appositive “at the time set by the court,” and

further ignores the plain meaning of subsection (1), which specifically requires that pretrial

motions be raised “at or before the omnibus hearing unless otherwise provided . . . .”

¶13 The timely filing of pretrial motions is a well established requirement. The Court

“consistently ha[s] affirmed a district court’s denial of an untimely motion to suppress under

both current and predecessor statutes setting time requirements for such motions.” Griffing,

¶ 11. See State v. Landis, 2002 MT 45, ¶ 20, 308 Mont. 354, ¶ 20, 43 P.3d 298, ¶ 20; see

also State v. Hart (1982), 200 Mont. 185, 191, 650 P.2d 768, 772; State v. Hall (1979), 183

Mont. 511, 514, 600 P.2d 1180, 1182; State v. Briner (1977), 173 Mont. 185, 189-90, 567

P.2d 35, 37-38 (in each case, the Court upheld the denial of untimely motion to suppress

under a previous version of the statute).

¶14 In Griffing, the Court upheld the denial of a suppression motion filed over four

months after the omnibus hearing, applying the same version of § 46-13-101, MCA, at issue

here. Griffing, ¶ 12. Likewise, in Greywater, the Court affirmed the district court’s denial

of a suppression motion filed over three months after the omnibus hearing pursuant to this

statutory language. Greywater, 282 Mont. at 37, 939 P.2d at 980. These rulings demonstrate

that the timeliness of a pretrial motion is determined not by the length of time prior to trial

the motion is submitted, but by compliance with the statutory requirement of filing at or

before the omnibus hearing, or a later date set by the court. 

¶15 VonBergen contends that none of the opinions or rationale expressed by this Court,

particularly Griffing and Greywater, apply to a pretrial suppression motion which, like his,
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was filed six months before trial. However, this premise erroneously assumes that timeliness

is a function of the time remaining before trial. According to statute, whether VonBergen’s

motion to suppress was timely is properly determined by reference to November 27, 2000,

the date of his omnibus hearing, or January 29, 2001, the later deadline set by the court.

VonBergen’s motion was filed thereafter, and therefore, as a matter of law, was untimely.

¶16 The purpose of requiring pretrial motions to be brought at or before the omnibus

hearing is the “orderly and fair administration of the criminal justice system itself.” United

States v. Sisca (2nd Cir. 1974), 503 F.2d 1337, 1349. Section 46-13-110(2), MCA, states

“[t]he purpose of the [omnibus] hearing is to expedite the procedures leading up to the trial

of the defendant.” Further, the Commission Comments to § 46-13-101, MCA, state “[t]he

general theory of the entire chapter is to simplify the procedure... in bringing a case to trial.”

Although VonBergen contends the purpose of § 46-13-101, MCA, is to establish reasonable

timetables, his interpretation, without more, would erase the time frame created by the

statutes and subject pretrial proceedings to potentially arbitrary governance.

¶17 Having determined that VonBergen violated the statute and waived the right to file

his second motion to suppress, we must consider whether the District Court erred in denying

relief from that waiver pursuant to § 46-13-101(3), MCA, which provides such relief can be

granted for good cause. It states, “[t]he court, for cause shown, may grant relief from any

waiver provided by this section.” VonBergen asserts that a reasonable interpretation of this

language necessarily requires that substitution of counsel constitute good cause. He argues

that because his substituted counsel was hired after the omnibus hearing and after the motion
8

deadline date, it was impossible for his new counsel to have filed the second motion to

suppress by the dates required by statute. VonBergen argues that if a defendant changes

attorney before trial, the defendant should have the benefit of the new attorney’s advice.

¶18 We have not previously enunciated a standard of review to be applied to a district

court’s denial of relief from waiver pursuant to § 46-13-101(3), MCA. However, a district

court’s determination of the existence of “good cause” is generally reviewed for abuse of

discretion. For example, a district court’s determination of whether good cause exists for

withdrawal of a plea pursuant to § 46-16-105(2), MCA, is reviewed for abuse of discretion.

State v. Tweed, 2002 MT 286, ¶ 26, 312 Mont. 482, ¶ 26, 59 P.3d 1105, ¶ 26. Further,

discretionary district court rulings, such as the granting or denial of a motion to continue, are

reviewed for an abuse of discretion. State v. Garcia, 2003 MT 211, ¶ 10, 317 Mont. 73, ¶

10, 75 P.3d 313, ¶ 10. 

¶19 Paragraph one of the Commission Comments to § 46-13-101, MCA, emphasizes

“[t]he statute continues to recognize the court’s wide discretion in controlling pretrial motion

practice.” What constitutes good cause for granting relief from the waiver is fact-specific

and falls under the sound discretion of the district court. For example, this Court concluded

a public defender’s busy case load was not good cause to grant a waiver of an untimely

motion to suppress in Greywater, 282 Mont. at 37, 939 P.2d at 980, but concluded that

confusion over whether the prosecution was going to drop or continue a defendant’s charges

was good cause to grant a waiver in State v. Bentley (1970), 156 Mont. 129, 132, 477 P.2d
9

345, 346. Therefore, we conclude that we will review the District Court’s denial of relief

from a waiver pursuant to § 46-13-101(3), MCA, under an abuse of discretion standard.

¶20 This Court has not previously addressed whether substitution of counsel constitutes

good cause for a relief from waiver under § 46-13-101(3), MCA. Recently, we held that a

defendant’s right to counsel must be carefully considered by the district court in determining

whether to grant a continuance of the trial itself, noting the court “must be sensitive to the

defendant’s right to counsel of his choice, as well as the public’s interest in prompt and

efficient administration of justice.” Garcia, ¶ 32. Here, the District Court gave such

consideration, granting the request of VonBergen’s new counsel to continue the trial date.

¶21 It does not follow, however, that new counsel is necessarily entitled to have pretrial

proceedings rescheduled or conducted anew. Although new counsel may request such

accommodations, a district court retains the authority to control the progress of the case, and

may, within its discretion, grant or deny the requested relief, as it deems appropriate. In

considering such requests, a district court may properly consider the history of the

proceedings prior to new counsel’s involvement. To hold otherwise would subject criminal

proceedings to the vagaries of counsel substitution.

¶22 The holdings of the federal courts are instructive. In United States v. DeLuna

(W.D.Mo. 1985), 616 F. Supp. 534, 538, the court, under similar circumstances, was faced

with whether good cause relieved the defendant’s failure to file a timely motion to suppress

pursuant to Rule 12(f), Fed.R.Crim.P., which then contained nearly identical language to

§ 46-13-101(2), (3), MCA. It concluded that “[w]here defendant has been represented
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throughout the proceedings by counsel, the addition or substitution of new counsel does not

constitute good cause compelling a court to grant relief from defendant’s waiver.” In United

States v. Johnson (8th Cir. 1980), 614 F.2d 622, 623, where, as here, the defendant added

new counsel and changed his trial strategy, the appellate court, in reviewing the trial court’s

denial of relief from the defendant’s waiver, concluded “[w]e cannot say . . . that the district

court abused its discretion in holding that there was no good cause compelling it to grant

relief of the waiver.” 

¶23 As in DeLuna, VonBergen was represented throughout the proceedings by his first

counsel and substituted counsel on the eve of trial. Nothing prevented VonBergen’s first

counsel from filing a timely motion attacking the sufficiency of the warrant by the November

27, 2000, omnibus hearing or the January 29, 2001, deadline set by the court. In fact,

VonBergen’s first counsel filed several other motions to suppress which met these two

deadlines. Thus, we conclude from these circumstances that the District Court did not abuse

its discretion in denying VonBergen’s request for relief.

¶24 Affirmed.

/S/ JIM RICE

We concur: 

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

/S/ JAMES C. NELSON

/S/ JIM REGNIER