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 of supervisory control 

to reverse the ruling denying the 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 of this petition. At our request and pursuant to 

M. R. App. P. 14(7), Hon. David J. Grubich, District Court Judge, responded in opposition 

to the petition. The State filed notice that it agrees with the relief requested 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, but the cases proceeded in District Court after the court denied his request to transfer 

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, 

and BDC-23-206, also in the Eighth Judicial District Court, but before Hon. Elizabeth Best. 

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 23-0460
petition for writ of supervisory control was pending before this Court in Elendil v. Mont. 

Eighth Judicial Dist. Court, No. OP 23-0322, which involved Judge Grubich's denial of a 

motion to dismiss a revocation petition filed by the State pursuant to a plea agreement. 

Covington advised the court that the parties' plea negotiations also included dismissing the 

revocation petition but negotiations had stalled because this Court's disposition of Elendil 

could affect the plea agreement. The District Court continued Covington's case, pending 

this Court's disposition of Elendil. 

The next day, this Court issued its Order granting Elendil'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 in Elendil's case because the 

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 

its burden of proof at the evidentiary hearing when 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 of the agreement, Covington pled 

guilty in BDC-23-206 before Judge Best on July 17, 2023. Also pursuant to the agreernent, 

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 

for ADC-22-003 and a change-of-plea hearing for ADC-23-176 over which Judge Grubich 

presided. The State advised the court that dismissal of the 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 unable to 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, 

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moved to continue the evidentiary/disposition hearing, advising the court that he 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 of ADC-22-003 

was an element of the 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 of state-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 the revocation rnatter. Here, the court alleges that while Covington was released 

without bond in BDC-23-206, the revocation matter has a $25,000 bond, and AD,C-23-176 

has a $2,500. Covington has posted neither bond. However, if the revocation petition were 

dismissed, Covington would face only the $2,500 bond in ADC-23-176 and possibly could 

post bond. Further, in Elendil, Elendil's incarceration was only one of two bases for which 

Elendil lacked an adequate remedy on appeal: his plea agreement was "imperiled by the 

uncertainty surrounding the agreed-upon dismissal" of the revocation petition. Elendil at 

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4. This peril likewise exists here, as Covington's plea agreement cannot proceed until the 

uncertainty surrounding the dismissal of the revocation petition is resolved. We further 

conclude that urgency or ernergency exists as Covington's plea agreement is jeopardized 

by the delay in resolving the question of dismissal in ADC-22-003. 

Since this case involves a purely legal question and urgent or emergency factors 

make the normal appeal process inadequate, we further consider whether the District Court 

is proceeding under a mistake of law 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 if the 

State informs the court that the State is unable to meet its burden, or if the State believes 

probable cause for the petition does not exist. Covington argues that, as set forth in Elendil, 

"[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, the District Court intruded into the State's lawful exercise of its prosecutorial 

discretion to enter into a plea agreernent and dismiss a revocation petition. 

The District Court, however, maintains that Covington's case is distinguishable 

from Elendil because in this instance the evidentiary hearing did not occur while in Elendil, 

this Court determined the District Court erred in denying dismissal when the State did not 

meet its burden of proof at 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. 

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

If Defense 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 the petition, and given what's before the Court, I'rn going to 

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 of the conditions of your suspended and deferred sentences in this 

case. I'm not going to — I don't find that it's in furtherance of justice to let 

you get away with it without being held accountable, and that's what I find. 

So, as to your motion to dismiss, I'm denying it. What's the State's position? 

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. 

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The prosecutor informed the court—twice—that the State was ready to proceed 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 furthering the 

cause of justice, 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 of this case, but the case before Judge 

Best, and to needlessly prolong Covington's detention. 

Having considered the petitions and responses filed, we conclude the District Court 

erred as a matter of law in denying the State's motion to dismiss the revocation petition in 

ADC-22-003. Therefore, supervisory control is warranted pursuant to M. R. App. P. 14(3). 

IT IS THEREFORE ORDERED that this Petition for a Writ of Supervisory Control 

is ACCEPTED and GRANTED. 

IT IS FURTHER ORDERED that the District Court's denial of the State's Motion 

to Dismiss is REVERSED. 

IT IS ORDERED that this matter is REMANDED to the District Court for the 

purpose of DISMISSING 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, 

Cause No. ADC-22-003, and the Honorable David J. Grubich, presiding. 14/4-1— 

DATED this •?) day of September, 2023. 

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