NO.97-021 IN THE SUPREME COURT OF THE STATE OF MONTANA 1997

CITY OF HELENA, STATE OF MONTANA, Plaintiff and Respondent,

JAMES C. MEYERS, Defendant and Appellant

APPEAL FROM: District Court ofthe First Judicial District, In and for the County of Lewis and Clark, The Honorable Thomas C. Honzel, Judge presiding.
COUNSEL OF RECORD: For Appellant: James C.Meyers, Pro Se, Helena, Montana For Respondent: Robert J. Wood. Helena City Prosecutor, Helena, Montana
Submitted onBriefs: July 17, 1997 Decided: August 18, 1997 Filed:Justice Terry 

### N. Trieweiler deliveredthe opinion ofthe Court. Pursuant to Section 

### I, Paragraph 3(c), Montana Supreme Court 1995 Internal Operating Rules,the following decision shallnot be ctted asprecedent and shallbepublished by its filing asa public document with the Clerk ofthe Supreme Court and by a report ofits result to State Reporter Publishing Company and West Publishing Company. James C.Meyers appealedto the District Court for the First Judicial District in Lewis and Clark County from a convictionin the C~ty CourtofHelena for driping with a suspended license and for failure to have liability insurance. Following a jury trial, he was found guilty of both charges and sentencedby the Dtstrtct Court. Meyers appeals. We affirm in part and vacate in part thejudgment ofthe Distr~ct Court, and remand for further proceedings. There are two issues on appeal: 1. Did Meyers' conviction result from bias shown by District Judges, the Clerk ofthe Distrtct Court, orthe attorney who represented him? 2. Did the District Court err when tt sentencedthe defendant or assessed costs to him'? FACTUALBACKGROUND On September 9, 1995,Officer Mutk Ekola ofthe Helena Police Department stopped Meyers' vehicle for a defective taillight. Meyers could not produce a driver's license orproof ofinsurance. After Ekola learned that Meyers' driver's licensehad been suspended, Meyerswas cited for driving while his license was suspended and for failure to have liability insurance, in violation of

## $9 61-5-212, MCA, and 61-6-301, MCA, respectively. Meyers was found guilty ofboth charges by ajury in the City Court of Helena, and on December 27, 1995,he filed a notice of appeal to the District Court. After determining that Meyers was indigent, the District Court appointed counsel to represent him. Meyers filed a number of motions, seeking. among other things, to disqualify the District Court Judge for cause, to substitnte counsel. and to remove the matter to Federal District Court. On May 

### 1, 1996, District Judge James Purcell conducted a hearing to determine whether there was cause to disqualify the District Court Judge. He subsequently denied that motion. On October 24, 1996, Meyers withdrew his request for counsel andproceeded pro se. Following a jury trial on November 26, 1996,Meyers was found guilty ofdriving while his license was suspended and offailuretohave liability insurance. The District Court sentenced Meyers to 190 days in jail, with 188ofthose days suspended. In addition, it assessed fines in the total amount of $600, and court costs, jury costs, and charges in the amount of $650.48. ISSUE I Did Meyers' conviction result from bias shown by District Judges, the Clerk of the District Court, orthe attorney who represented him?Meyers has allegedthat due to the bias ofboth the District Court and Judge Purcell,

as well as the Clerk of Court and hls own attorney, he was denied effective representation, his right to a speedy trial, due process, and his rlght to put forth a proper defense. From review oftherecord, we find no evidence to demonstratebias against Meyers. Meyers' principal claim regarding the District Court (other than claims related to the Judges' religion) are that he was denled a speedy trial and that he was precluded from offering evidence critical tohis defense, However, most delay was attributableto Meyers'

own motions and noprejudice has been shown from delay. Furthermore, the determinationofwhether evidence is relevant and admissible is left to the sound discretion of the trialjudge and wlll not be overturned absent a showing of abuse of discretion. State v Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257. 1263. Here, the District Court's decision that evidence pertaining to Meyers' prior convictions in 1989and 1992was irrelevantto the charges made againsthim in this proceeding was not an abuse of discretion, and therefore, it does not indicate bias against Meyers. For these reasons, we conclude that Meyers' conviction was not the result ofbias bythe District Court, Judge Purcell, the Clerk ofCourt, or Meyers' attorney. 

### ISSUE 2 Did the District Court err when it sentenced the defendant or assessed costs to him?"This Court has consistently held that if a sentence is within the limits provided by statute, it is not an abuse of discretion." State v. Lemmon (1984), 214 Mont. 121, 129? 692 P.2d 355,459 (citing State v. Gurrido (1981), 190Mont. 525,52") 621 P.2d 1105, 1108). Section 61-5-212, MCA, provides that a defendant convicted of driving with a suspended license "shallbe punished by i~nprisonment for not less than 2 days or more than 6 months andmay be fined not more than $500." Here, the District Court sentenced Meyers to serve 180 days in jail, but suspended all but the two days required by the statute. In addition, the District Court assessed a $250 fine. Each sentence is clearly within the limits of the statute. Accordingly, we concludethat the District Court did not abuse its discretion when it imposed Meyers' sentence for driving with a suspended license. Section 61-6-304, MCA, states that a second conviction for failure to have liability insurance is "punishableby a fine of $350 2rby imprisonment in the county jail for not more than 10 days, or both." The District Court fined Meyers $350 and sentenced him to the maximum ten days in jail, although the jail sentencewas suspended;each sentence is within the limits ofthe statute. Accordingly, we conclude that the District Court did not abuse its discretion when it imposed Meyers' sentence for failure to have liability insurance. In addition to the sentences imposed, the District Court required that Meyers pay a total of $650.48 for costs and surcharges. Section46-18-201(d), MCA, permits the District Court to require payment of costs and jury expenses pursuant to 

### 8 46-18-232, MCA; 

## 5 46-18-236(l)(a), MCA, requires all courts of original jurisdiction to assess a $15 charge 5for each misdemeanor conviction, and $ 3-1-317(1)(a), MCA, requires imposition of a $5 user surcharge for each conviction ofcriminal conduct. Although the District Court did not specify these statutes as the basis for its charges, it ordered Meyers topay $40 as surcharges for the convictions in District Court and $40 for court costs and surcharges per violation to the City Court. The District Court also ordered that Meyers pay District Court jury costs in the amount of $296.48, and City Court jury costs in the amount of $234. There is no indication, however, that the District Court applied the other provisions ofthe statutes which provide foran exception where the defendant is unable topay. Sections 46-18-236(2) and -232(2), MCA, both provide that ifthe convicting court determines that the defendant is not able to pay the costs or surcharges, those expenses n~ust be waived. Section 3-1-317(2), MCA, provides that in the event a defendant is unable to pay, the surcharge may be waived. These sections have significancein this case in which the District Court found that Meyers was mdigent. Normally imposition of surcharges, costs, andjury expenses pursuant to these statutes would be inconsistent with a determination ofindigence. Therefore, we vacate that part of the District Court's judgment which assessed costs and surcharges in the combined amount of $650.48 and remand to the District Court for determination of whether Meyers is financially able to pay that amount. We affim~ in part and vacate part ofthejudgment of the District Court, and remand for further proceedings consistent wtth this opinion.We Concur:August 18, 1997
CERTIFICATE OF SERVICE I hereby certify that the following certified order was sent by United States mail, prepaid, to the following named: JAMES C. MEYERS 472 RUSSELL #6 HELENA MT 59601
HON. JOSEPH P. MAZUREK, ATTORNEY GENERAL 

## @ ELIZABETH GRIFFING, ASSISTANT 215 NORTH SANDERS HELENA MT 59620 ROBERT J. WOOD ASSISTANT CITY ATTORNEY BOX 133 HELENA MT 59624-01 33

ED SMITH CLERK OF THE SUPREME COURT STATE OF MONTANA