City of Darby v. A. Grauberger ( 2020 )

07/14/2020
DA 19-0705
Case Number: DA 19-0705
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 180N
CITY OF DARBY,
Plaintiff and Appellee,
v.
AUSTIN W. GRAUBERGER,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DC-19-79
Honorable Howard F. Recht, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Austin W. Grauberger, Self-represented, Corvallis, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Ben Eckstein, Assistant
Attorney General, Agency Legal Services Bureau, Helena, Montana
Submitted on Briefs: June 17, 2020
Decided: July 14, 2020
Filed:
cir-641.—if
__________________________________________
Clerk
Justice Ingrid Gustafson 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 Defendant and Appellant Austin Grauberger (Grauberger) appeals from the Darby
City Court Sentencing Order issued April 30, 2019, and the subsequent October 1, 2019
Order Dismissing Appeal and Remanding to City Court issued by the Twenty-First Judicial
District Court, Ravalli County. We affirm.
¶3 On May 19, 2018, Grauberger was cited for two misdemeanors—assault and driving
a vehicle during a suspension period. He appeared at his arraignment on May 22, 2018.
At that time, he signed a Notification and Acknowledgment of Rights form and a
Conditions of Release form. He was provided copies of these documents along with the
City Court’s Trial Management Order for each of the charges. The Trial Management
Order directed Grauberger to “personally appear for all proceedings on the case or forfeit
his/her right to a jury trial.” At the original Omnibus Hearing, the City Court consolidated
Grauberger’s offenses for trial. Thereafter, the City Court mailed to Grauberger a Notice
of Jury Confirmation Hearing and Notice of Jury Trial and also mailed such to his
counsel—each notice indicating Grauberger’s personal appearance was required.
Grauberger appeared at the Jury Confirmation hearing on August 14, 2018, with counsel
2
and advised the City Court no plea deal had been reached and he was ready to proceed to
trial. The City Court then set a trial date. Thereafter, by way of multiple continuances—
some requested by Grauberger and some by the prosecution—trial was ultimately reset for
January 8, 2019, with the Jury Confirmation Hearing set for December 11, 2018. With
each continuance the City Court again mailed the Notice of Jury Trial directly to
Grauberger, as well as to his counsel, advising of the date of the jury confirmation hearing
and the trial date and the requirement of Grauberger’s personal appearance at all
proceedings.
¶4 Grauberger failed to appear on December 11, 2018, for his Jury Confirmation
Hearing. The City Court determined, despite Grauberger’s non-appearance at this and
other prior proceedings, he could potentially have a valid reason for his non-appearance.
As such, the court vacated the jury trial and scheduled a bench trial for January 8, 2019.
Notice of the bench trial was mailed directly to Grauberger as well as to his counsel on
December 13, 2018. Thereafter, additional continuances were sought by the prosecution
and granted. Again, notices of the trial date were mailed directly to Grauberger as well as
to his counsel. Ultimately, trial was scheduled for March 20, 2019, with notice of such
being again sent to Grauberger and separately to his counsel.1
1
City Judge Burnsides even attempted to call Grauberger personally to advise of the trial date, but
did not reach him.
3
¶5 On March 20, 2019, Grauberger failed to appear for his trial and was tried in
absentia. At the completion of the trial, the City Court issued a warrant for Grauberger’s
arrest. Following several continuances, sentencing was held on April 30, 2019.2
Grauberger was arrested March 25, 2019, on the outstanding warrant. At the detention
facility, he was given a Notice to Appear in City Court within 10 days of his release.
Grauberger then appeared with his counsel at sentencing on April 30, 2019. At that time,
the City Court entered a verdict with respect to the bench trial of March 20, 2019,
conducted a contempt of court proceeding with respect to Grauberger’s failure to appear
for the December 11, 2018 jury confirmation hearing and the March 20, 2019 bench trial,
and imposed sentence on Grauberger with respect to all charges. At that proceeding
Grauberger admitted he received the mail at his address on record with the court but did
not have time to review his mail even though he understood missing his trial could result
in a conviction resulting in jail and a fine. Based on his testimony, Grauberger was held in
contempt of court for his failures to appear and was also sentenced to serve a total of 65
days in jail and pay fines totaling $900.
¶6 Grauberger now asserts his convictions should be reversed due to ineffective
assistance of counsel (IAC). He asserts his counsel rescheduled court dates without
2
Again, notice was mailed to each Grauberger and his counsel as to the date of sentencing. Each
notice advised Grauberger of the requirement to personally appear.
4
notifying him and his attorney provided incorrect dates and times for various proceedings.
These issues he raises for the first time on appeal.
¶7 Generally, we do not consider issues raised for the first time on appeal unless plain
error review is appropriate.3 State v. Akers, 2017 MT 311, ¶ 10, 389 Mont. 531, 408 P.3d
142 (citing State v. Favel, 2015 MT 336, ¶ 13, 381 Mont. 472, 362 P.3d 1126). Grauberger
has failed to carry his burden to establish the requisite threshold for finding plain error such
that Grauberger has waived appeal with regard to his IAC claims against his trial counsel
for alleged scheduling and notice deficiencies.
¶8 Grauberger also asserts his counsel was ineffective for failing to timely file an
appeal brief.
¶9 Claims of IAC are mixed questions of law and fact that we review de novo. State
v. Jefferson, 2003 MT 90, ¶ 42, 315 Mont. 146, 69 P.3d 641. When defendants raise IAC
claims on direct appeal, prior to consideration of the two-pronged test for IAC set forth in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), we first determine whether
the claims are more appropriately addressed in a postconviction relief proceeding. State v.
Kougl, 2004 MT 243, ¶ 14, 323 Mont. 6, 97 P.3d 1095. If we cannot answer from the
record “the question ‘why’ counsel did or did not take the actions constituting the alleged
3
We note the State argues this point in its Response Brief and then cites a non-cite opinion as
authority on this point. Given the vast volume of citable cases which reference this point, we are
compelled to point out the inappropriateness of citing a non-cite case. Non-cite cases should not
be cited in appellate briefs.
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ineffective assistance, the claims are better raised by a petition for post-conviction relief
where the record can be more fully developed, unless ‘no plausible justification’ exists for
the defense counsel’s actions or omissions[.]” State v. Sartain, 2010 MT 213, ¶ 30, 357
Mont. 483, 241 P.3d 1032 (quoting Kougl, ¶¶ 14-15) (internal citation omitted). “A record
that is silent about the reasons for counsel’s actions or omissions seldom provides sufficient
evidence to rebut the ‘strong presumption’ that counsel’s actions fell ‘within the wide range
of reasonable professional assistance.’” State v. Cheetham, 2016 MT 151, ¶ 35, 384 Mont.
1, 373 P.3d 45 (citations omitted).
¶10 Here, the record is entirely silent as to why counsel did not file an appeal brief and
thus, not subject to direct appeal. Grauberger’s claim his counsel was ineffective for failing
to file an appeal brief must be raised through postconviction relief, if at all.
¶11 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, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶12 Affirmed.
/S/ INGRID GUSTAFSON
We concur:
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
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