STATE v DIEZIGER

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No. 81-521 IN THE SUPREME COURT OF THE STATE OF MON'I'ANA 1982 STATE OF MONTANA, Plaintiff and Respondent, VS . JAMES BERT DIEZIGER, Defendant and Appellant. Appeal from: District Court of the Third Judicial District, In and for the County of Powell Honorable Robert Boyd, Judge presiding. Counsel of Record: For Appellant: C. F. Mackay argued, Anaconda, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Chris Tweeten argued, Assistant Attorney General, Helena, Montana Ted Mizner, County Attorney, Deer Lodge, Montana Submitted: June 28, 1982 SEI' Filed: Decided: September 10, 1982 " j Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Defendant was charged by information with aggravated assault and possession of a weapon by a prisoner. The information was filed, and the defendant made his initial appearance on July 2, 1980, approximately 42 days after the offenses allegedly occurred. After a jury trial, defendant was convicted of both counts and sentenced to consecutive terms of 10 and 15 years. On appeal, defendant contends that the trial court erred in refusing to dismiss the charges because of unnecessary delay between the time of the alleged offense and the filing of the information, initial appearance and arraignment. Defendant also contends that he was entitled to dismissal because he was denied counsel at his initial appearance. In affirming defendant's conviction, we find that defendant has failed to show any unnecessary delay, and that appointed counsel is not required at the initial appearance. On May 19, 1981, while incarcerated at ?4ontana State Prison at Deer Lodge, the defendant attacked a guard with a "homemade baton" and a knife. He was not served with an arrest warrant and no charges were filed until July 21 1981. On that date, the defendant appeared in court and was advised of the nature of the charges, the possible penalties, and his right to counsel. At the defendant's request, the court appointed a public defender to represent him and scheduled arraignment for July 9, 1981. At the arraignment, the defendant pleaded not guilty to both counts. The defendant moved to dismiss the charges on the grounds that he was not brought before a magistrate without unnecessary delay and the court failed to provide counsel at e v e r y s t a g e of t h e p r o c e e d i n g s . t h e c a s e was s e t f o r j u r y t r i a l . 27, 1981. The motion w a s d e n i e d and T r i a l was h e l d on October The d e f e n d a n t c a l l e d no w i t n e s s e s , and p r e s e n t e d no c a s e a t t r i a l . The d e f e n d a n t ' s c o u n s e l d i d n o t p r e s e n t a n argument b e f o r e t h e c a s e w a s s u b m i t t e d t o t h e j u r y . The j u r y c o n v i c t e d d e f e n d a n t , and he a p p e a l s t h e t r i a l c o u r t ' s j udgment . Defendant c o n t e n d s t h a t h i s r i g h t s w e r e v i o l a t e d by p r i s o n and c o u n t y o f f i c i a l s b e c a u s e h e was n o t b r o u g h t b e f o r e a m a g i s t r a t e w i t h o u t u n n e c e s s a r y d e l a y a s r e q u i r e d by s e c t i o n 46-7-101(2), MCA. H e a r g u e s t h a t t h e p r o p e r remedy f o r t h i s v i o l a t i o n i s d i s m i s s a l of t h e c h a r g e s . S e c t i o n 46-7-101 ( 2 ) , MCA p r o v i d e s : "Any p e r s o n making a n a r r e s t w i t h o u t a w a r r a n t s h a l l t a k e t h e a r r e s t e d person without unnecessary d e l a y b e f o r e t h e n e a r e s t o r most a c c e s s i b l e judge i n t h e same c o u n t y , and a c o m p l a i n t s t a t i n g t h e c h a r g e s a g a i n s t t h e a r r e s t e d p e r s o n s h a l l be f i l e d forthwith." The purpose o f t h i s s t a t u t o r y r e q u i r e m e n t i s t o p r o t e c t t h e d e f e n d a n t from b e i n g j a i l e d f o r a p r o t r a c t e d t i m e and p r e v e n t e d from a s s i s t i n g i n h i s own d e f e n s e . Nelson ( 1 9 6 1 ) , 139 Mont. 180, 362 P.2d 224. S t a t e v. The d e f e n d a n t h e r e , however, w a s a l r e a d y i n t h e c u s t c d y o f t h e s t a t e prison. Consequently, an a r r e s t was u n n e c e s s a r y , and t h e need t o b r i n g him b e f o r e a m a g i s t r a t e t o p r e v e n t u n j u s t incarceration did not exist. T h e r e f o r e , d e f e n d a n t i s u n a b l e t o show any p r e j u d i c e from t h e d e l a y . F i n a l l y , t h e p r o p e r remedy f o r a v i o l a t i o n o f s e c t i o n 46-7-101 i s s u p p r e s s i o n of i m p r o p e r l y o b t a i n e d e v i d e n c e . See S t a t e v. Benbo ( 1 9 7 7 ) , 174 Mont. 252, 570 P.2d 894. Here, t h e d e f e n d a n t made no motion t o s u p p r e s s and no s u p p r e s s i ~ n hearing was ever held. As a result of this, we have no evidentiary record upon which to review defendant's claims. Therefore, dismissal is an inappropriate remedy. Next, defendant contends that he was denied his right to effective assistance of counsel. This claim is based on the fact that he was not provided with counsel at his initial appearance. The United States Constitution requires the appointment of counsel for indigent defendants at all critical stages of the prosecution. Mempa v. Rhay (1967), 389 U.S. 128, 88 Sect. 254, 19 L.Ed.2d 336. A "critical stage" is any step of the proceeding where there is potential substantial prejudice to the defendant. See United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. The policy basis of the righ,t is to allow the defendant to intelligently exercise his rights and prepare a defense, and to counterbalance the trained advocate of the State. The initial appearance is not a "critical stage" of the prosecution in Montana. There was no potential for substantial prejudice to the defendant's rights. The defendant was merely made aware of the charges against him and informed of his constitutional rights. We therefore hold that the defendant's right to effective assistance of counsel was not violated. A£ f irmed. We Concur: Chief ~ust'ice

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