State v. Bohager

No. DA 06-0147
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 1N
_____________________________________
STATE OF MONTANA,
Plaintiff and Respondent,
v.
FRANCIS BOHAGER,
Defendant and Appellant.
_____________________________________
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin, Cause No. DC 05-307,
The Honorable Holly Brown, Presiding Judge.
COUNSEL OF RECORD:
For Appellant:
Casey R. Moore, Gallatin County Public Defender’s Office, Bozeman,
Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Tammy K. Plubell, Assistant
Attorney General, Helena, Montana
Marty Lambert, Gallatin County Attorney; John Worsfold, Deputy County
Attorney, Bozeman, Montana
_____________________________________
Submitted on Briefs: December 13, 2006
Decided: January 3, 2007
Filed:
____________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court 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 Francis Bohager (Bohager) appeals from the District Court’s rejection of his
challenge to the validity of an Order of Protection during his criminal trial on charges of
violating the Order of Protection. Gallatin County Justice Court issued a temporary
Order of Protection on February 23, 2005, based upon the sworn affidavits and petitions
of Melody Harvey Bliese (Melody) and Averee Elizabeth Bliese (Averee). The Justice
Court issued an order to show cause why the temporary Order of Protection should not
continue as an Order of Protection and scheduled a hearing for March 14, 2005. Bohager
received service of the temporary Order of Protection and Order to Show Cause on
February 23, 2005.
¶3 Melody and Averee appeared for the show cause hearing, but Bohager failed to
appear. The Justice Court concluded at the end of the hearing that Melody and Averee
were in danger of harm and that good cause existed to make the temporary Order of
Protection a permanent Order of Protection. Bohager received personal service of the
permanent Order of Protection on March 21, 2005. The Order of Protection required
Bohager to stay 300 feet away from Melody, Averee, and Alexis Bliese. Bohager made
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no effort to challenge the validity of the Order of Protection.
¶4 The State charged Bohager in Justice Court with violation of an order of
protection, a misdemeanor, in violation of § 45-5-626, MCA. Bohager waived his right
to a jury trial in Justice Court. The Justice Court held a bench trial on October 28, 2005,
and found Bohager guilty of a violation of Order of Protection. The Justice Court
sentenced him on November 4, 2005, to 135 days in jail and gave him credit for the time
he already had served. Bohager filed a notice of appeal requesting a trial de novo in
District Court. The District Court scheduled a jury trial for January 27, 2006.
¶5 On December 9, 2005, Bohager filed a motion to dismiss the charge against him
based upon his claim of the invalidity of the underlying Order of Protection. He asserted
that the Justice Court had granted the Order of Protection in violation of his rights to due
process, freedom of religion, and freedom of association. Bohager also argued for the
first time that the Justice Court never should have granted the Order of Protection. The
State filed a response and the District Court conducted a hearing on January 17, 2006.
The District Court denied the motion on the grounds it was not proper to review the terms
or restrictions contained in the Order of Protection that were not at issue in the criminal
case, particularly when Bohager had failed to pursue available civil remedies. The court
likewise found that Bohager’s failure to pursue available civil remedies precluded it from
considering his challenges to the underlying Order of Protection based upon alleged
constitutional due process violations in the context of the criminal proceeding. The jury
convicted Bohager of a violation of the Order of Protection and the District Court
sentenced him to 167 days at the Gallatin County Detention Center and gave him credit
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for 167 days already served. Bohager filed a timely notice of appeal.
¶6 Bohager makes similar arguments on appeal in arguing the District Court erred in
failing to consider his challenges to the underlying Order of Protection. He contends that
he has a fundamental constitutional right to present a defense and that his defense was
based upon the fact that the underlying Order of Protection was invalid. He alleges the
District Court’s failure to review the validity of the underlying Order of Protection
violates his right to due process and also tenets of fundamental fairness in criminal
proceedings. The State counters that Bohager failed to raise many of these constitutional
claims before the Justice Court.
¶7 The District Court’s decision to grant or deny a motion to dismiss in a criminal
case constitutes a question of law. We review conclusions of law to determine if they are
correct. State v. Baker, 2004 MT 393, ¶ 12, 325 Mont. 229, ¶ 12, 104 P.3d 491, ¶ 12.
We have determined to decide this case pursuant to Section I, paragraph 3(d), of our 1996
Internal Operating Rules, as amended in 2003, which provides for memorandum
opinions. It is manifest on the face of the briefs and record before us that the legal issues
are clearly controlled by settled Montana law that the District Court correctly interpreted.
¶8 We affirm the judgment of the District Court.
/S/ BRIAN MORRIS
We Concur:
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ JOHN WARNER
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