# ORIGINAL

IN THE SUPREME COURT OF THE STATE OF MONTANA OP 23-0460

MONTANA LEE COVINGTON,

Petitioner,

v. MONTANA EIGHTH JUDICIAL DISTRICT COURT, CASCADE COUNTY, THE HONORABLE DAVID J. GRUBICH, PRESIDING,

Respondent. ORDER 

# FILED SEP 2 0 2023

Bowen Greenwood Clerk of Supreme Court State of ft/lantana

Petitioner Montana Lee Covington, via counsel, seeks a writ ofsupervisory control to reversetheruling denyingthe State's motion to dismiss its petition for revocation in the Eighth Judicial District Court, Cascade County, in Cause No. ADC-22-003, in which Covington is the defendant. We have granted Covington's request that the District Court matter be stayed pending the resolution ofthis petition. At our request and pursuant to M. R. App.P. 14(7), Hon.David J. Grubich, District Court Judge,responded in opposition tothe petition. The State filed notice that it agrees with the reliefrequested by Covington. On March 27, 2023, the State petitioned to revoke Covington's deferred sentences for burglary and theft and his suspended sentence for criminal mischief before Judge Grubich in Cause No. ADC-22-003. Covington committed these offenses when he was a youth,butthecasesproceeded inDistrictCourt afterthecourtdeniedhisrequesttotransfer the cases to Youth Court. At the time the State petitioned for revocation, Covington was also facing new felony charges in Cause Nos. ADC-23-176, also before Judge Grubich, andBDC-23-206,alsointheEighthJudicialDistrictCourt,butbeforeHon.ElizabethBest. Covington and the State engaged in plea negotiations to attempt to resolve all three matters. On July 5, 2023, Covington appeared before Judge Grubich. At that time, a 09/20/2023

Case Number: OP 23-0460petition for writ ofsupervisory control was pending before this Court in Elendil v. Mont.

Eighth JudicialDist. Court, No. OP 23-0322, which involved Judge Grubich's denial ofa motion to dismiss a revocation petition filed by the State pursuant to a plea agreement. Covington advised the courtthattheparties' plea negotiations also included dismissingthe revocation petition but negotiations had stalled because this Court's disposition ofElendil could affect the plea agreement. The District Court continued Covington's case, pending this Court's disposition ofElendil. The next day, this Court issued its Order grantingElendil's petition for supervisory control. Elendil v. Mont. Eighth Judicial Dist. Court, No. OP 23-0322, Order (July 6, 2023). We concluded that supervisory control was warranted inElendil's casebecausethe District Court should have granted the State's rnotion to dismiss the revocation petition. We held that the court should have dismissed the petition because the State failed to meet itsburden ofproofat the evidentiary hearingwhen it declined to present any evidence and that the court violated Elendil's due process rights when it assumed a prosecutorial role in seeking evidence to support the State's petition. After Elendil was decided, Covington and the State entered into a global plea agreement to resolve his three pending matters. As part ofthe agreement, Covington pled guilty inBDC-23-206 beforeJudgeBeston July 17,2023. Alsopursuanttotheagreernent, the State agreed to dismiss the revocation petition and it then filed its motion to dismiss in ADC-22-003 on July 19, 2023. On August 2, 2023, the District Court convened an evidentiary/disposition hearing forADC-22-003 and a change-of-pleahearing forADC-23-176 overwhich Judge Grubich presided. The State advised the court that dismissal ofthe revocation petition was part of the plea agreernent. The court, however, denied the State's motion, stating in part, "I haven't been told by the State that it's unableto meet its burden; I haven't been told by the State that they don't think probable cause still remains for the petition, and given what's before the Court, I'rn going to hold Mr. Covington to his sentence[.]" Counsel for the State then advised the court that it was ready to proceed with the evidentiary hearing but that it would offer no witnesses. Covington's counsel, however, 2moved to continue the evidentiary/disposition hearing, advisingthe court thathe had been

unable to adequately discuss the matter with Covington as extenuating circumstances had interfered with their ability to consult before the hearing. Counsel further moved to continue the change-of-plea hearing on ADC-23-176 because disrnissal ofADC-22-003

was an element ofthe plea agreement. The court granted the continuance. Covington then filed this petition for writ of supervisory control. Judge Best has also reset the sentencing hearing in BDC-23-206 for October 2, 2023, and at present, Covington is detained in Cascade County Detention Center. Supervisory control is an extraordinary rernedy that rnay be invoked when the case involves purely legal questions and urgent or ernergency factors rnake the normal appeal process inadequate. M. R. App. P. 14(3). The case rnust rneet one of three additional criteria: (a) the other court is proceeding under a rnistake of law and is causing a gross injustice; (b) constitutional issues ofstate-wide importance are involved; or (c) the other court has granted or denied a motion for substitution of a judge in a criminal case. M. R.App. P. 14(3)(a)-(c). Whether supervisory control is appropriate is a case-by-case decision. Stokes v. Mont. Thirteenth Judicial Dist. Court, 2011 MT 182, ¶ 5, 361 Mont. 279, 259 P.3d 754 (citations omitted). In this case, the legal question is whether the District Court erred in denying the State's motion to dismiss the revocation petition in ADC-22-003 considering this Court's holding in Elendil. As to whether an adequate remedy exists on appeal, the District Court alleges that Covington's circumstances are distinguishable from Elendil, where the court conceded the petitioner had no adequate remedy on appeal because he was incarcerated solely on therevocation rnatter. Here, the court alleges thatwhile Covington was released without bond in BDC-23-206,therevocation matter hasa $25,000 bond, and AD,C-23-176 hasa$2,500. Covingtonhasposted neitherbond. However, iftherevocationpetitionwere dismissed, Covingtonwould face only the $2,500 bond inADC-23-176 andpossibly could postbond. Further, inElendil,Elendil's incarceration was only one oftwo bases forwhich Elendil lacked an adequate remedy on appeal: his plea agreement was "imperiled by the uncertainty surrounding the agreed-upon dismissal" ofthe revocation petition. Elendil at 34. This peril likewise exists here, as Covington's plea agreement cannot proceed until the

uncertainty surrounding the dismissal ofthe revocation petition is resolved. We further conclude that urgency or ernergency exists as Covington's plea agreement isjeopardized by the delay in resolving the question ofdismissal in ADC-22-003. Since this case involves a purely legal question and urgent or emergency factors makethe normal appealprocess inadequate,we further considerwhethertheDistrict Court isproceedingunder a mistake oflaw and causing a gross injustice. Covington argues that,

as it hadin Elendil, the court erred by grafting additional requirements onto the State's motion to dismiss by asserting that it will grant the State's motion to dismiss only ifthe State informs the court that the State is unable to meet its burden, or ifthe State believes probable cause forthepetition doesnotexist. Covington argues that, assetforth inElendil, "[W]hen the State elects not to meet its burden of proof, then 'the court is required to disrniss' under Mont. Code Ann. § 46-18-203(9)." He alleges that by denying the State's rnotion here,theDistrict Court intruded intothe State's lawful exercise ofits prosecutorial discretion to enter into aplea agreernent and dismiss a revocation petition. The District Court, however, maintains that Covington's case is distinguishable fromElendilbecause inthis instancetheevidentiaryhearingdid notoccurwhile inElendil, this Court determined the District Court erred in denying dismissal when the State did not meet its burden ofproofat the evidentiary hearing by declining to offer witnesses. In his response, Judge Grubich asserts that, after he denied the State's motion to disrniss at the August 2, 2023 hearing: The next step would have been to begin the scheduled evidentiary hearing. The District Court asked the State for its position. The State mulled several options on the record including moving to dismiss, proceeding with the hearing, or continuing the hearing but with the State intending to call no witnesses. The State ultimately chose to proceed with the evidentiary hearing. At that time, and before the State had an opportunity to either choose to call a witness or choose to not call a witness and rest, the Defense requested a continuance, which was granted. Neither an evidentiary hearing nor a revelation of how the State would proceed at an evidentiary hearing occurred.

4(Internal citations to August 2, 2023 transcript at 12-14 omitted.) Judge Grubich alleges:

IfDefense Counsel had not requested a continuance,the evidentiary hearing could have gone two ways. First, the State could have refused to call a witness, and the District Court, pursuant to Elendil, would have dismissed the Petition to Revoke because the allegations would not have been proven by a preponderance of the evidence pursuant to § 46-18-203(9), MCA. Second, the State could have proceeded in calling witnesses. It remains to be seen what the State will chose [sic]to do. Thus Judge Grubich argues that this petition is premature. However, we have reviewed the transcript of the August 2, 2023 hearing and we do not agree with Judge Grubich's assertion that there was "no revelation of how the State would proceed at an evidentiary hearing"because the State informed the court that it would offer no evidence: THE COURT: I haven't been told by the State that it's unable to meet its burden; I haven't been told by the State that they don't think probable cause still remains for thepetition, and given what's beforethe Court,I'rn goingto hold Mr. Covington to his sentence, I don't find a good reason to do otherwise. I don't think it's in furtherance of justice to allow repeated violations ofthe conditions ofyour suspended and deferred sentences in this case. I'm not going to — I don't find that it's in furtherance ofjustice to let you get away with it without being held accountable, and that's what I find. So, astoyourmotion to dismiss,I'm denyingit. What'sthe State'sposition? MS. LYNN: Your Honor, I can either rnove to dismiss or continue with the hearing, in which time I have no witnesses to produce.
THE COURT: Well, I've already denied the motion to dismiss. MS. LYNN: As far as the petition to revolce.
THE COURT: Yes. MS.LYNN: So, the State has no witnesses, or the hearing can be set over. THE COURT: Do you wish to continue the hearing? MS. LYNN: No, Your Honor, we will proceed. (Hearing transcript at 12-14.) At the evidentiary hearing, and upon the court's denial of the motion to disrniss, there was no rnystery the State did not intend to offer witnesses. 5

### Theprosecutor informed the court—twice—that the State was ready toproceed and that it

had no witnesses to offer. Thus, by Judge Grubich's own admission, the only action available to the court was to dismiss the petition. As in Elendil, rather than furtheringthe

cause ofjustice, the denial of the motion to dismiss has delayed it. To continue this matter—and necessitating the continuance of sentencing in BDC-23-206—only to
reconvene at a future time for the State to reiterate for a third time that it would offer no evidence, serves to delay the resolution not only ofthis case, but the case before Judge Best, and to needlessly prolongCovington's detention. Having considered the petitions and responses filed, we concludethe District Court erred as a matter oflaw in denying the State's motion to dismiss the revocation petition in ADC-22-003. Therefore,supervisory control iswarrantedpursuanttoM.R.App.P. 14(3). ITISTHEREFOREORDEREDthatthisPetition for a WritofSupervisoryControl isACCEPTED and GRANTED. IT ISFURTHER ORDERED that the District Court's denial ofthe State's Motion toDismiss isREVERSED. IT IS ORDERED that this matter is REMANDED to the District Court for the purpose ofDISMISSING the petition to revoke in Cause No. ADC-22-003. The Clerk is directed to provide immediate notice of this Order to counsel for Petitioner, all counsel of record in the Eighth Judicial District Court, Cascade County, CauseNo. ADC-22-003, and the Honorable David J. Grubich, presiding.

1 / 4 4-1— DATED this •?) day ofSeptember, 2023.



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