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Date: 01-18-2020

Case Style:


Case Number: 2020 MT 1

Judge: Beth Baker


Plaintiff's Attorney: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana

Kent M. Sipe, Fergus County Attorney, Lewistown, Montana

Defendant's Attorney:


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This case arises from an order of protection that Marquart’s estranged wife Crissy
obtained against him in June 2015 following their separation. The order of protection
required Marquart to stay 300 feet away from her residence. The procedural history is
dense, complicated by multiple substitutions of court-appointed attorneys, two
substitutions of judge after Marquart filed civil suits against the first two judges, and the
District Court’s orders for psychological evaluations on the State’s motions. We
summarize the facts relevant to the issues on appeal.
¶3 On December 24, 2015, Crissy came home to find Marquart’s truck parked on her
property. Crissy called the police and waited in her car while Marquart carried boxes
from the shop building to his truck. Once Marquart had left the property, she went into

the shop and noticed items of property were missing. On January 4, 2016, the State
charged Marquart with burglary, a felony, along with violating an order of protection and
theft, both misdemeanors.
¶4 The court convened the initial appearance on January 8, 2016. Marquart’s first
court-appointed attorney was present, but because Marquart failed to appear, the court
rescheduled the hearing. In a January 10, 2016 letter to the Clerk of the District Court,
Marquart, who had served in law enforcement for nearly twenty years, indicated that he
had met with his attorney and resolved to represent himself moving forward. The State’s
response to Marquart’s letter indicated it planned to request a mental health evaluation
and believed that Marquart required standby counsel. Marquart’s attorney filed a motion
to withdraw on January 14, 2016.
¶5 Marquart and his court-appointed attorney appeared at the January 20 rescheduled
initial appearance. The court inquired whether Marquart still wished to represent himself,
explaining that his court-appointed attorney could serve on a standby basis. Marquart
confirmed he was waiving his right to counsel and exercising his right to act as his own
attorney. The court dismissed his attorney over the State’s objections.
¶6 The District Court then explained Marquart’s constitutional rights, the charges
against him, and the potential penalties. After confirming that he understood his rights
and the charges against him, Marquart entered not guilty pleas to all three charges.
Before adjourning, the court urged Marquart to check his mail diligently to avoid missing
any upcoming hearings. Two days later, the court issued an order setting an omnibus
hearing for February 22, 2016.

¶7 On January 26, 2016, County Attorney Thomas Meissner filed a Motion for
Mental and Physical Examination of Marquart, questioning his fitness to proceed and
indicating the State’s plan to offer testimony at a mental competency hearing. Meissner
filed a Notice of Hearing for Friday, February 16, 2016, at 3:00 p.m., and served
Marquart with both the motion and notice on January 26, 2016.
¶8 On February 12, four days before the competency hearing, Marquart emailed
Clerk of District Court Phyllis Smith, asking whether there was another court-ordered
hearing between then and the February 22 omnibus.1 Clerk Smith informed Marquart
that the County Attorney’s request was sufficient and no court order was necessary.
Meissner, whom Marquart had copied, responded via email, “You have been provided
with notice of the hearing scheduled for Tuesday, February 16th at 3:00. You need to be
there.” A lengthy email exchange between Marquart, Meissner, and Clerk Smith ensued.
Marquart objected to the hearing on the grounds that Meissner lacked authority to set a
hearing and require Marquart’s presence. He requested an order from the District Court
setting the February 16 hearing, stating he would comply with a court order. Meissner
responded that it is standard practice for counsel to “notice up” hearings. He further
warned, “If you are not there, I will ask the Court to either proceed without you or issue
an arrest warrant. The hearing is for a significant issue. You need to be there.” In one
follow-up email, Clerk Smith informed Marquart: “If you fail to show up on Tuesday,
1 In a previous email communication, Clerk Smith had requested that Marquart desist from emailing filings to the District Judge. She instructed Marquart to file documents with the Clerk of Court, or “[a]ny document that you want to file electronically needs to be sent to my e-mail address.”

February 16, the Judge will issue a Warrant for your arrest I am sure. You need to show
up on Tuesday and the Judge will explain to you the process and that you did have proper
notice.” Meissner subsequently emailed Clerk Smith, asking her to request the District
Judge to issue an order setting the hearing, but neither Clerk Smith nor the court
¶9 Marquart did not attend the February 16 hearing on the State’s motion for a mental
health examination. Because the court had granted his request to proceed pro se and
discharged his first court-appointed attorney, no counsel appeared on his behalf. The
court conducted the hearing in Marquart’s absence. Meissner requested that the court
issue a warrant for Marquart’s arrest. He then called three witnesses: Marquart’s mother
Edna Bergstrom, Crissy, and the Marquarts’ daughter Carley. Edna, Crissy, and Carley
testified to recent changes they perceived in Marquart’s stability and mental health. The
District Court ruled that Marquart must undergo both mental health and physical
evaluations.2 The court also granted Meissner’s specific request that Dr. Dee Woolston
conduct the evaluation; issued a warrant for Marquart’s arrest pursuant to Meissner’s
request; and ordered that the email correspondence between Marquart, Clerk Smith, and
Meissner be lodged in the court file. The court followed up with a written order the next
day, explaining:
The defendant was not present. . . . The record shows that the defendant was served with an Amended Notice of Hearing on January 28, 2016, setting the hearing on the State’s Motion for a Physical and Mental
2 The court later withdrew the ordered physical evaluation but ordered a second psychological evaluation on the State’s motion. Aside from his right-of-presence argument, Marquart does not challenge these evaluations on appeal.

Examination. The court was advised that the defendant had been in e-mail communication with the Clerk of Court about this hearing. In this e-mail communication, the defendant acknowledged the date and time of the hearing, and was advised by Ms. Smith that he needed to attend the hearing. However, the defendant advised Ms. Smith that he would not attend the hearing, because the hearing was not set by way of Court order, signed by the undersigned, but instead was set by the County Attorney by way of a Notice of Hearing.

It is standard practice in this jurisdiction and many others that hearings are called before the Court by issuance of notices of hearing, signed by counsel. Simply because this court did not set the hearing, by signing an order, is no excuse or justification for the defendant’s refusal to attend the hearing.

¶10 Marquart was arrested and detained at the Fergus County Jail on February 20.
Dr. Dee Woolston conducted the court-ordered psychological evaluation of Marquart in
the county jail on February 26. Dr. Woolston concluded that Marquart did not require a
medical examination and that he presented no imminent danger to himself or others.
Dr. Woolston opined that Marquart “may be diagnosed as having Delusional Disorder,
Persecutory Type,” a condition characterized by well-organized but rigid false beliefs that
may interfere with the person’s day-to-day functioning. He concluded, however, that
“there are no indications of active psychosis that might interfere with his judgment[]” and
opined that Marquart was fit to proceed.
¶11 On March 28, 2016, the State moved to have counsel appointed, arguing that
standby counsel alone was not “tenable because the defendant suffers from a mental
disorder.” Marquart reasserted his right to self-representation via handwritten motions,
ex parte letters to the court, and during two court hearings on March 25 and April 28.
During the March 25 hearing, after confirming that Marquart still wished to represent

himself, the District Court addressed Marquart, stating, “[Y]ou’re sort of wearing two
hats being the defendant and acting as your own counsel.” During the April 28 hearing,
the court engaged Marquart in the following colloquy:
MR. MARQUART: I wanted to object to the standby counsel. . . .

COURT: All right on January 20th Mr. Marquart you may remember that this Court informed you of your right to counsel is that correct?

MR. MARQUART: Yes sir.

COURT: And . . . the Court at that time discussed with you the perils of representing yourself. Did the Court do that?

MR. MARQUART: Yes. . . .

COURT: Well I want to go through that one more time because representation by counsel is a fundamental right under the US Constitution and the Montana Constitution. When you waive that right you are taking on some very, very difficult responsibilities. . . . Given all that you do still wish to proceed without an attorney, even standby attorney, which just means that they would be sitting there and if you or the Court felt that it was important for you to get some guidance you could get it? Do you still want to proceed without standby counsel?

MR. MARQUART: I do Your Honor. . . . I knowingly with the knowledge of what you just told me in terms of the perils of what I’m doing I knowingly waive my right to counsel and I want to represent myself.

¶12 Meissner responded that, because “Dr. Woolston thinks that there is an underlying
mental health issue,” the court should “overrule [Marquart’s] wishes and appoint counsel
to represent him” despite his “proclamations that he feels he’s competent and he
understands all of the dangers[.]” The District Court granted the State’s motion for
appointment of counsel. In its order, the court expressed concern that, “though obviously

intelligent, [Marquart’s] delusional thinking prohibited him from making rational
choices.” Marquart represented himself for the duration of the omnibus hearing.
¶13 From March to December 2016, Marquart was represented by counsel, but he
continued to file pro se documents and request substitution of counsel. After one filing in
June, in which Marquart argued that he had ineffective counsel, he again stated that he
had the right to represent himself but also protested that the court had forced him to
proceed without counsel at the omnibus hearing. Marquart moved to strike the omnibus
hearing record and schedule a new hearing with counsel present and sufficient time in
advance to consult with counsel. The District Court held a hearing the following month
at which Marquart’s counsel appeared with him. In response to the court’s direct inquiry
at the outset of the hearing, Marquart stated that he accepted counsel’s representation of
him at the hearing.
¶14 On December 8, 2016, the week before the scheduled trial, the District Court held
a hearing on Marquart’s motion to conduct his own defense with the assistance of a new
court-appointed attorney as co-counsel. The following colloquy took place:
COURT: Mr. Marquart is it your intention to want to represent yourself in this matter?

MR. MARQUART: Your Honor it’s not my intention to represent myself, but it’s my intention to have another attorney. I’m not happy with Mr. Harris and my representation that I’m getting from him. . . .

COURT: Just what is your intention today? Now you communicated that you wanted to represent yourself, now you are telling me that you’re dissatisfied with your attorney which is it?

MR. MARQUART: It’s a combination of both. In my motion or letter to you Judge I said to you that I was not happy with Mr. Harris in essence I

wanted to represent myself and I wanted to have an attorney that was effective and that’s what I told you. . . .

COURT: So, I’m still not clear. Is . . . your basic request is that you want a change of counsel?

MR. MARQUART: I want a change of counsel and I do not want to continue to my trial that’s for sure.

¶15 The District Court denied Marquart’s motion. At the December 19, 2016 bench
trial, Marquart was represented by his fourth public defender. The District Court found
Marquart guilty of all three counts. At a separate sentencing hearing several months
later, the District Court imposed six-month deferred sentences for the misdemeanors and
a one-year deferred sentence for the felony, all to run concurrently. This appeal
¶16 Our review of constitutional matters, including the right to be present at all critical
stages of one’s criminal proceedings, is plenary. State v. Heavygun, 2011 MT 111, ¶ 7,
360 Mont. 413, 253 P.3d 897 (citing State v. Charlie, 2010 MT 195, ¶ 21, 357 Mont. 355,
239 P.3d 934). We indulge in every reasonable presumption against waiver of a
fundamental constitutional right. City of Kalispell v. Salsgiver, 2019 MT 126, ¶ 18, 396
Mont. 57, 443 P.3d 504 (citations omitted). The validity of a defendant’s waiver of the
right to counsel is a mixed question of law and fact reviewed de novo. State v. Barrows,
2018 MT 204, ¶ 9, 392 Mont. 358, 424 P.3d 612. “Where there is a question whether a
defendant has waived [his] right to counsel, we will not disturb the district court’s
findings ‘as long as substantial credible evidence exists to support that decision.’”

City of Missoula v. Fogarty, 2013 MT 254, ¶ 10, 371 Mont. 513, 309 P.3d 10 (citations
¶17 We address briefly the State’s contention that Marquart’s appeal is moot. The
State points out that Marquart has fulfilled the conditions of his deferred sentence and is
entitled to seek dismissal of his charges pursuant to § 46-18-204, MCA. An order of
dismissal, according to the State, would preclude access to any records related to
Marquart’s charge without a district court order. Marquart responds that law
enforcement agencies, district courts, and third parties who obtain a court order could still
access his convictions.
¶18 “A matter is moot when, due to an event or happening, the issue has ceased to
exist and no longer presents an actual controversy.” Walker v. State, 2003 MT 134, ¶ 40,
316 Mont. 103, 69 P.3d 872. Marquart served in law enforcement for nearly twenty
years prior to these criminal proceedings. His convictions and deferred sentences have
the potential to impact his future job prospects or work to his detriment in a court of law.
Accordingly, we address the merits of Marquart’s claims.
¶19 1. Did the District Court violate Marquart’s constitutional right to be present at a critical stage of his criminal proceedings when it held the February 16, 2016 hearing in his absence and without defense counsel?

¶20 Marquart argues that the District Court violated his constitutional right to be
present at a critical stage of his criminal proceedings by conducting the February 16,
2016 mental competency hearing in his absence. The State argues that Marquart waived

his right to be present by choosing not to appear despite receiving a Notice of Hearing
and being admonished by Meissner and Clerk Smith that his attendance was mandatory.
¶21 The United States and Montana constitutions both guarantee a defendant’s right to
be present at all critical stages of the proceedings against him. U.S. Const. amend. VI;
Mont. Const. art. II, § 24; Heavygun, ¶ 11. See also State v. Tapson, 2001 MT 292,
¶¶ 14-15, 307 Mont. 428, 41 P.3d 305. A critical stage is any step of the proceeding
where there is potential for substantial prejudice to the defendant. Heavygun, ¶ 12.
¶22 Waiver is the voluntary abandonment of a known right. State v. McCarthy, 2004
MT 312, ¶ 32, 324 Mont. 1, 101 P.3d 288 (citations omitted). A defendant may waive his
fundamental right to be present either: (1) by failing to appear; or (2) through an express
personal waiver. McCarthy, ¶ 32 (citing Tapson, ¶ 24). “A defendant who voluntarily
fails to appear waives her right to be personally present.” State v. Bekemans, 2013 MT
11, ¶ 25, 368 Mont. 235, 293 P.3d 843 (citing McCarthy, ¶ 32). “An absence is voluntary
if the defendant knew of the hearing and failed to appear due to circumstances within his
control.” Bekemans, ¶ 25 (citing State v. Clark, 2005 MT 169, ¶ 16, 327 Mont. 474, 115
P.3d 208).
¶23 In Bekemans, the district court scheduled a show-cause hearing following
Bekemans’s request that her court-appointed counsel withdraw. Bekemans, ¶ 15. The
court mailed Bekemans a notice stating her attendance was mandatory. Bekemans, ¶ 15.
Bekemans nonetheless failed to attend the hearing, later citing scheduling conflicts.
Bekemans, ¶¶ 15, 26. Her attorney was present, however, and persuaded the court to
reschedule the hearing for a later date, which Bekemans attended. Bekemans, ¶ 16.

Bekemans was subsequently convicted. She appealed, arguing that the district court
violated her right to be present. Bekemans, ¶ 26. Observing that the district court had
mailed Bekemans a notice of the scheduled hearing and that she could have asked her
attorney to request a continuance, we concluded that “Bekemans was not denied her right
to be personally present at the [] hearing by anyone but herself. Bekemans voluntarily
failed to appear at the [] hearing and thus waived her right to be personally present.”
Bekemans, ¶¶ 26-27.
¶24 We conclude that Marquart similarly waived his constitutional right to be present
by voluntarily failing to attend the February 16 hearing on his fitness to proceed.
Meissner served Marquart a Notice of Hearing, and Marquart acknowledged receipt of
the notice. When Marquart questioned Meissner’s authority to “notice up” a hearing,
both Meissner and Clerk Smith informed Marquart that this was standard practice in
Fergus County, that his presence was required, and that failure to appear could result in
his arrest.
¶25 Marquart contends that he “was never specifically told by the county attorney, the
clerk, or the district court that . . . a full-blown evidentiary hearing [on his mental
competency] would be held in his absence[]” or that his mother, wife, and daughter
would testify against him. But the State explicitly stated in its motion the prosecutor’s
intent to present testimony at the competency hearing. Marquart not only received the
motion but also filed a response to it, arguing in part that spousal communications are
privileged and noting his intent to offer a redacted mental health assessment “at a
hearing.” Marquart had demonstrated his attentiveness to the proceedings and a keen

understanding of his rights. Prior to February 16, Marquart had attended a hearing and
properly filed and served coherent motions supported by legal authority. Marquart then
inquired of the Clerk about upcoming hearings prior to the scheduled February 22
omnibus hearing. Instead of filing a motion or making his argument in court, Marquart
simply rejected instructions about the hearing notice from the Clerk—an officer of the
court—and voluntarily chose not to attend. Like Bekemans, Marquart was not denied his
right to be present by anyone but himself.
¶26 Because we hold that Marquart voluntarily waived his right to be present, we need
not address whether the competency hearing was a critical stage or whether Marquart
suffered prejudice as a result of his absence. See, e.g., Bekemans, ¶¶ 25-27 (holding,
without considering the critical stage and prejudice factors, that Bekemans waived her
right to be present by failing to appear); McCarthy, ¶¶ 29-35 (holding, without
considering the critical stage and prejudice factors, that the defendant effectuated an
express written waiver of his right to be present).
¶27 2. Did the District Court violate Marquart’s constitutional right to represent himself?

¶28 The Sixth Amendment to the United States Constitution and Article II, Section 24,
of the Montana Constitution guarantee a criminal defendant the right to assistance of
counsel and the corollary right to conduct his or her own defense. Faretta v. California,
422 U.S. 806, 817, 95 S. Ct. 2525, 2532 (1975); State v. Langford, 267 Mont. 95, 99, 882
P.2d 490, 492 (1994). Waiver of the right to counsel—known as a Faretta waiver—must
be knowing, voluntary, intelligent, and unequivocal. Fogarty, ¶ 12; Langford, 267 Mont.

at 99, 882 P.2d at 492. We review the entire record to determine whether the district
court had substantial credible evidence to support its ruling on a Faretta waiver.
Fogarty, ¶ 13.
¶29 The District Court initially granted Marquart’s unequivocal request to represent
himself. It reconsidered several months later based on Dr. Woolston’s explanation of
Marquart’s delusional disorder. By then, the third District Judge was presiding in
Marquart’s case because of Marquart’s civil suits against the previous two presiding
judges. Marquart also had filed a civil lawsuit against the prosecutor—which Marquart
argued should result in the prosecutor’s disqualification. Marquart correctly observes
that a court may not deny a defendant’s request to represent himself because he would
not do so adequately. State v. Swan, 2000 MT 246, ¶ 18, 301 Mont. 439, 10 P.3d 102.
But the court’s comment about Marquart’s ability to make “rational choices” reflects a
concern about his capacity to make an intelligent waiver of the right to counsel.
¶30 The State argues that Marquart thereafter equivocated and then “completely
abandoned his request to represent himself at the December 8, 2016 pretrial hearing.” He
stated at that hearing, “I want a change of counsel” and did not renew his request to
proceed pro se. Marquart responds that his statements at the December 8 hearing did not
constitute equivocation; rather, after the District Court’s repeated denial of his requests to
proceed pro se and with only a week to go before trial, Marquart had acquiesced to
court-appointed representation.
¶31 We have recognized that when a defendant mixes his requests to represent himself
with expressions of displeasure with counsel and requests for a new attorney, the trial

court is justified in maintaining counsel’s appointment to represent the defendant. In
Swan, ¶ 10, during a hearing on Swan’s motion to dismiss his counsel, the defendant
answered, “Yes, I do” to the court’s question, “Do you want to represent yourself?” But
he also stated in his written motion, “[I]f this court deems that an attorney be assigned to
this case then the defendant respectfully requests that [his appointed attorney] be
dismissed and that new counsel be assigned as co-counsel and be there for advice, and to
ensure proper court guidelines are followed.” Swan, ¶ 20. Upon review of the entire
record, we concluded that “Swan’s was an in-the-alternative request for
self-representation.” Swan, ¶ 19. In Barrows, we concluded likewise that, although the
defendant made one unequivocal request to represent himself, the record on the whole
supported the trial court’s determination that Barrows “did not really want to represent
himself.” Barrows, ¶ 21. “Instead, Barrows desired not to have his appointed legal
counsel represent him.” Barrows, ¶ 21.
¶32 We distinguished in Swan a Ninth Circuit ruling that a trial court erred in refusing
a defendant’s request to waive counsel when there was “no evidence on the record that
indicate[d the defendant] ever changed his mind about his decision to represent himself.”
Swan, ¶ 21 (citing United States v. Arlt, 41 F.3d 516, 523 n.5 (9th Cir. 1994)). We
observed that the Ninth Circuit’s later decision in United States v. Hernandez, though
reaching a similar conclusion, acknowledged that “in some instances the failure of a
defendant to renew a self-representation request will provide support for the conclusion
that the request was equivocal.” Swan, ¶ 23 (quoting United States v. Hernandez, 203
F.3d 614, 623 (9th Cir. 2000)). See also Williams v. Bartlett, 44 F.3d 95, 100 (2d Cir.

1994) (“Once asserted, however, the right to self-representation may be waived through
conduct indicating that one is vacillating on the issue or has abandoned one’s request
altogether.”); Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir. 1982) (holding defendant
waived his right to self-representation where, after the initial hearing, he never informed
the court of his continuing desire to conduct his own defense, and an opportunity to
renew his request was available until the day before trial).
¶33 Although there are factual dissimilarities between the record here and those we
examined in Swan and Barrows, we conclude that a review of the entire record through
the lens of the relevant legal authority supports a conclusion that Marquart was not
unequivocal. He asked for substitute counsel on several occasions and, by the time the
matter got to trial, he told the court directly that he did not intend to represent himself.
He advised the court that his letter to the judge said, “[I]n essence[,] I wanted to represent
myself and I wanted to have an attorney that was effective[.]” When the court inquired
further, Marquart said, “I want a change of counsel.” In light of Marquart’s vacillating
requests, culminating in these statements on the eve of trial, it was reasonable for the
District Court to deny Marquart’s request to proceed to trial pro se.
¶34 We caution that a defendant is not obligated to continually reassert a desire to
represent himself once he has “stated his request clearly and unequivocally and the judge
has denied it in an equally clear and unequivocal fashion.” Arlt, 41 F.3d at 523. As the
Ninth Circuit explained:
To impose such a requirement on defendants would lead to an absurd result: the constant burdening of district judges with fruitless motions designed to prove what has already been established – that the defendant

desires to represent himself. Once the defendant has met his burden of making a clear and unequivocal request, he is entitled to accept the judge’s ruling as final and to take all proper steps he deems necessary to obtain the best possible defense.

Arlt, 41 F.3d at 523-24. See also Hernandez, 203 F.3d at 622 (“Where it is reasonable for
a defendant to believe that a further request would be pointless, we have rejected any
suggestions that a defendant must renew his request to represent himself.”). Here though,
in contrast to Arlt, the District Court asked Marquart point-blank whether he wished to
represent himself or to obtain new counsel, and Marquart said it was not his intention to
represent himself. On review of the record as a whole, we conclude that substantial
credible evidence exists to support the District Court’s determination that Marquart did
not intend to represent himself. Consequently, the District Court did not violate
Marquart’s constitutional right to do so.

Outcome: The District Court did not violate Marquart’s constitutional rights to be present at
all critical stages of his proceedings and to act as his own attorney. The judgment is affirmed.

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