State v. Flesch

553 P.3d 357

2024 MT 160

STATE of Montana, Plaintiff and Appellee,

v.Cody Joseph Vernon FLESCH, Defendant and Appellant.

DA 22-0522

Supreme Court of Montana.

Submitted on Briefs: May 8, 2024

Decided: July 30, 2024

APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC-21-866, Honorable Ashley Harada, Presiding Judge

For Appellant: Rufus I. Peace, Peace Law Group, LLC, Jacksonville, Florida

For Appellee: Austin Knudsen, Montana Attorney General, Michael P. Dougherty, Assistant Attorney General, Helena, Montana, Scott D. Twito, Yellowstone County Attorney, Morgan K. Lix, John Ryan, Deputy County Attorneys, Billings, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 Cody Joseph Vernon Flesch appeals the Thirteenth Judicial District Court’s denial of his motion to dismiss a charge of attempted escape. He further argues that his conviction must be reversed because the presiding judge should have disqualified herself. We consider the following issues on appeal:

1. Whether the charge against Flesch fails as a matter of law because he was not eluding official detention when he fled the courtroom during his arraignment.

2. Whether Flesch waived his claim that Judge Harada was disqualified from hearing Flesch’s case under Rule 2.12 of the Montana Code of Judicial Conduct.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On June 18, 2021, Flesch appeared before Judge Harada in the Yellowstone County District Court for arraignment on a charge of bail jumping. Flesch’s counsel appeared remotely. Flesch had posted bond on a separate charge the night before the hearing and was released from the Yellowstone County Detention Facility. The State served Flesch with charging documents, and he entered a plea of not guilty. The State requested a bond of $200,000 consecutive to other bonds.

¶3 The State then notified the court that it had received an e-mail from the Powell County Attorney’s Office that Judge Dayton in the Third Judicial District Court had issued an order for Flesch’s detention. The order, issued June 11, 2021, provided that Flesch was "to be detained and held in custody pending the July 20, 2021 hearing on the State’s petition to revoke his suspended sentence." The court asked the prosecutor, "Is [the order] to detain [Flesch] indefinitely with no bail?" The State responded, "It reads as if it’s intended to be no bond." The court told Flesch’s counsel that he would receive an e-mail with the order and stated, "[T]hat order needs to be honored, but in the meantime, it would make sense for your client to have a bond in this case so that he gets credit for sitting if he’s gonna get picked up on … that order. …"

¶4 Flesch interjected that he "spent every penny [he] had" to post bond in Yellowstone County the previous day. Flesch and the court had the following conversation:

[FLESCH]: I didn’t even know I had this. Nobody [k]new. I should have never been allowed to bond. That’s every single penny I had to my name.

THE COURT: Well, you have to understand though, that I don’t have discretion to change another Judge’s order. And they’re ordering that you be put in detention.

[FLESCH]: But you can set a bond for it. Is that what you’re gonna say?

THE COURT: No. I’m saying I can set a bond in your new bail jumping case so that you are getting credit for sitting in jail on this case as well.

¶5 The court told Flesch, "When that order is in effect, you are to be detained according to Judge Dayton." Flesch stated, "I didn’t know nothing about it. I never would have posted bail." Flesch’s counsel expressed concern that the Yellowstone County Detention Facility accepted a bond for Yellowstone County while knowing there was an order from Powell County for Flesch’s detention. The State explained that there was an over- sight on the part of the clerk’s office in Powell County, and the detention facility did not receive a copy of the order until after Flesch was released. The court asked the State whither the detention order "is still in effect." The State confirmed that it was.

¶6 Flesch said that he had recently posted bond for three separate counties, including Powell County. The court responded, "I don’t think Powell County has a bond. It says you must be detained." Flesch suggested the detention order may have been issued mistakenly because he paid $50,000 to Powell County. The court held the following exchange with Flesch:

THE COURT: Okay. But be that as it may. There is an order for your detention out of Powell County.

[FLESCH]: For a bond that I already posted that they’re saying that nothing’s changed?

THE COURT: Right. But again, order for detention means order for detention.

[FLESCH]: Yes, ma’am.

THE COURT: I can’t say that Judge Dayton did something wrong; I can’t say that I can overrule his order for you to be detained. … Based upon the information that I have today, Judge Dayton ordered as of June 11^th, that you are detained.

¶7 Returning to the bond for Flesch’s bail jumping in Yellowstone County, the State argued Flesch was a flight risk and posed a danger to the community. Flesch’s counsel requested that the bond be set at $5,000 and the court issue an order that whatever bond Flesch posted the day prior be returned to him. Flesch asked to see a copy of the Powell County order, and the court provided him one. As the court began issuing its bond amount, Flesch jumped up from the table where he was sitting and ran through the back door of the courtroom, which led to the jury room. The transcript captured the sequence of events:

THE COURT: Okay. So, what I’m gonna do is I am gonna set bond in the amount of $50,000. You must make all court appearances and obey all laws.

You shall not leave the State of Montana without written permission from the Court. You--Whoa!

(Noises of furniture moving and people running.)

MS. FARMER¹: Cody! Cody! Oh my god.

DEPUTY SHERIFF 1: He’s going the other way! Everybody out of the way!

THE COURT: Jury room! Jury room!

DEPUTY SHERIFF 1: You’re gonna get tased!

[COUNTY ATTORNEY]: Well, that might change the bond amount.

Officers restrained Flesch in the jury room and returned him to the courtroom. The court finished reading the release conditions. Flesch apologized for his actions, and the State requested an opportunity to readdress the bond amount. Based upon Flesch’s actions in the courtroom, the court increased Flesch’s bond to $200,000, consecutive to other bonds.

¶8 The State later filed a motion and supporting affidavit for leave to file an information charging Flesch with felony attempted escape under §§ 45-7-306(2) and 45-4-103, MCA. The new case was assigned to Judge Harada. The State’s motion alleged that on June 18, four officers with the Yellowstone County Sheriff’s Office were present in the courtroom "as a security measure and because of the possibility of a remand." It noted that during the hearing the State informed the court of the Powell County order requiring Flesch’s detention pending a hearing on July 20. The State contended, "As the Court began orally pronouncing the release conditions … [Flesch] sprang up from his chair and ran out of the [c]ourtroom." It also alleged that after the officers detained Flesch and brought him back into the courtroom, Flesch "said something to the effect of: I’m sorry, I was trying to get away." The District Court granted the State leave to file the information. The information stated that on June 18, Flesch "was subject to official detention at [the] Yellowstone County Detention Facility following a court ordered remand and orally pronounced $50,000 bond" and he "purposely or knowingly attempted to elude official detention by running out of the courtroom and attempting to avoid remand[.]"

¶9 Flesch filed a motion to dismiss, arguing that he "was not in custody at the time he bolted from the court" and therefore the State was "unable to prove its case based on the statutory definition of ‘official detention.’" The State responded that the District Court had stated that it intended to or was going to remand Flesch into custody and therefore Flesch was subject to constructive restraint and in official detention. The court denied Flesch’s motion to dismiss, determining that "[a] reasonable person would have understood they were being remanded on a warrant out of Powell County."

¶10 Based on the District Court’s order denying Flesch’s motion to dismiss, the State moved in limine to preclude Flesch from arguing at trial that he was not subject to official detention. Flesch opposed the State’s motion and asserted that the issue of when he was subject to official detention would be a crucial question of fact at trial. The court agreed that the issue was a question of fact for the jury and denied the State’s motion.

¶11 Judge Harada presided over a two-day jury trial. The jury found Flesch guilty of attempted escape. The court designated Flesch as a persistent felony offender under §§ 46-18-501 and -502, MCA, and sentenced him to a term of imprisonment in the Montana State Prison for seven years. He now appeals.

STANDARD OF REVIEW

[1, 2] ¶12 We review de novo a district court’s decision on a motion to dismiss for lack of probable cause. State v. Giffin, 2021 MT 190, ¶ 11, 405 Mont. 78, 491 P.3d 1288. Additionally, "we will review a judge’s disqualification decision de novo, determining whether the lower court’s decision not to recuse was correct under the Montana Code of Judicial Conduct." State v. Dunsmore, 2015 MT 108, ¶ 10, 378 Mont. 514, 347 P.3d 1220.

DISCUSSION

¶13 1. Whether the charge against Flesch fails as a matter of law because he was not eluding official detention when he fled the courtroom during his arraignment.

¶14 A person commits the offense of escape "if the person knowingly or purposely eludes official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited time." Section 46-7-306(2), MCA....