State v. Sherman , 2016 MT 110N ( 2016 )

May 10 2016
DA 14-0524
Case Number: DA 14-0524
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 110N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
SHANE SHERMAN,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixth Judicial District,
In and For the County of Park, Cause No. DC 2013-61
Honorable Brenda Gilbert, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad M. Wright, Chief Appellate Defender, James Reavis, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
Assistant Attorney General, Helena, Montana
Bruce E. Becker, Park County Attorney, Kathleen Carrick, Deputy County
Attorney, Livingston, Montana
Submitted on Briefs: March 23, 2016
Decided: May 10, 2016
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Shane Sherman appeals the November 13, 2013 decision and order of the Sixth
Judicial District Court, Park County, denying his motion to dismiss his misdemeanor
Driving Under the Influence of Alcohol (DUI) conviction and declining to grant him a
trial de novo.
¶3 Sherman was tried in Park County Justice Court—a court of record—before a jury
and was found guilty. A non-lawyer justice of the peace presided over the trial. Sherman
appealed to the District Court demanding a trial de novo. Sherman moved to dismiss the
case, arguing that the prosecution of a jailable offense before a non-lawyer judge without
the option of a trial de novo appeal violated the Due Process and Right to Counsel
Clauses of the United States and Montana Constitutions. Sherman also moved to dismiss
the case with prejudice on the ground that the Justice Court failed to record the entire
trial.
¶4 The District Court declined to rule on Sherman’s due process and right to counsel
claims. The court did, however, reverse the judgment of the Justice Court and remanded
the case for a new trial on the ground that Sherman’s rights were violated by the Justice
Court’s failure to record large portions of the trial. On remand, Sherman entered a plea
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of no contest, reserving the right to appeal. The Justice Court reinstated the original
sentence and Sherman appealed again. The District Court affirmed the Justice Court’s
judgment and sentence and stayed execution of sentence pending appeal to this Court.
¶5 This appeal concerns substantially similar facts and issues as State v. Davis, 2016
MT 102, ___ Mont. ___, ___ P.3d ___. As in that case, we conclude here that Sherman’s
trial before a non-lawyer justice of the peace, even though trial de novo was not available
on appeal, did not violate his constitutional right to due process or to effective assistance
of counsel.
¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, Davis resolves the issues on appeal. The District Court’s decision and order
are affirmed.
/S/ BETH BAKER
We concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JIM RICE
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