STATE OF MONTANA v. WILLIAM G. ROSSBACH

On May 15, 2019, Officer Haynes saw Rossbach riding a bike that matched the

description of one that had been reported stolen and tried to stop him. Rossbach did not

stop for Officer Haynes, and Officer Haynes ran after him. The two ended up in a physical

altercation when Rossbach would not comply with Officer Haynes's orders, and these

charges resulted.

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¶4 The Office of the Public Defender (OPD) appointed Liam Gallagher and Dianne

Rice to represent Rossbach. The State filed notice that it would seek persistent felony

offender (PFO) status.

¶5 The case went to trial in early December 2019, and a Lake County Jury found

Rossbach guilty of resisting arrest but could not reach a verdict on the assault charge.

Judge Manley declared a mistrial and scheduled a new trial date for December 16, 2019.

On December 9, 2019, Rossbach filed a late notice, naming 20 new witnesses. The

District Court held a hearing regarding the new witnesses two days later, and Rossbach

moved for a continuance after it became clear that the court was not inclined to allow the

late-noticed witnesses. The District Court granted the continuance, setting the trial date

for February 3, 2020.

¶6 After the District Court set the new trial date, Rossbach filed a second unopposed

motion to continue the trial because both of his attorneys had a previously planned, pre-paid

vacation to Morocco. The District Court denied the motion; Gallagher and Rice withdrew

from the case, and OPD appointed Alisha Backus to represent Rossbach.

¶7 At the second trial, Rossbach called Matthew Friedlander as a witness. Friedlander,

like Rossbach, had a previous relationship with Officer Haynes's wife. Both Friedlander

and Rossbach had been arrested by Officer Haynes, and they both alleged that

Officer Haynes had used excessive force against them. At the time of the second trial,

Friedlander was incarcerated on charges unrelated to this case or to his incidents with

Officer Haynes. In anticipation of trial, Backus arranged for Friedlander to have civilian

clothes to wear while testifying. When she brought the clothing to the jail the morning of

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trial, the jail staff told her that because Friedlander was a violent offender and had

threatened to escape, court security required him to wear his orange jail jumpsuit, shackles,

and handcuffs while testifying. When court convened, Backus requested that the

District Court allow Friedlander to wear civilian clothes. After hearing from both parties,

the court refused the request based on the determination of court security.

¶8 Following a two-day trial, a Lake County Jury found Rossbach guilty of Assault on

a Peace Officer. The District Court designated Rossbach a PFO and sentenced him to the

Montana State Prison for fourteen years, with none suspended.

STANDARDS OF REVIEW

¶9 We review matters of trial administration for abuse of discretion. Estate of Frazier

v. Miller, 2021 MT 85, ¶ 12, 404 Mont. 1, 484 P.3d 912 (citation omitted). We review

criminal sentences for legality. State v. Gallagher, 2005 MT 336, ¶ 16, 330 Mont. 65,

125 P.3d 1141 (citation omitted).

DISCUSSION

¶10 1. Whether the District Court abused its discretion when it denied Rossbach's

motion for continuance after setting the trial during his counsel's pre-planned vacation.

¶11 Rossbach contends that the District Court abused its discretion by denying his

motion for a continuance because a vacation is a "valid basis for granting a continuance.”

He asserts that he was prejudiced by the court's denial because he lost his lawyers and

subsequently was convicted of assault on a peace officer by a unanimous jury. The

District Court, he argues, improperly gave his interest in having the same lawyers defend

him in the second trial less import than it gave to speedy trial concerns and crowded

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dockets. He alleges that the denial violated his right to a fair trial because his replacement

counsel did not have the experience of trying his case in the first trial, at which Rice and

Gallagher had nearly secured his acquittal.

¶12 Ruling on a motion to continue a trial "is left to the discretion of the trial court.”

State v. Molder, 2007 MT 41, ¶ 23, 336 Mont. 91, 152 P.3d 722. "This Court will not

overturn a district court's decision to deny a continuance 'unless the district court abused

its discretion and the ruling prejudices the defendant.'” State v. Duncan, 2008 MT 148,

¶ 37, 343 Mont. 220, 183 P.3d 111 (quoting State v. Ibarra-Salas, 2007 MT 173, ¶ 13,

338 Mont. 191, 164 P.3d 898). "A district court abuses its discretion if it acts arbitrarily

without conscientious judgment or exceeded the bounds of reason resulting in substantial

injustice.” State v. Kaarma, 2017 MT 24, ¶ 6, 386 Mont. 243, 390 P.3d 609 (citation and

quotation omitted).

¶13 A district court may grant a continuance "if the interests of justice so require.”

Section 46-13-202(2), MCA. When reviewing a district court's denial of a motion for a

continuance, we consider factors such as:

the length of the requested delay, whether there was a showing that the

State's case would be prejudiced, the reasons for the requested continuance,

whether defense counsel was diligent in preparation for trial, whether the

defendant's right to a speedy trial would be violated, and the defendant's

right to effective assistance of counsel.

Molder, ¶ 23 (citing State v. Sotelo, 209 Mont. 86, 91, 679 P.2d 779, 782 (1984)).

¶14 In denying Rossbach's motion, the District Court weighed the competing interests

at play. It explained that a continuance would lead to an additional thirty-one days of

incarceration for Rossbach, on top of the forty-nine days of delay caused by the mistrial

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and first continuance. The court observed that the first continuance was caused by

Gallagher's untimely notice of witnesses and failure to make a showing of good cause to

the court why it should consider his request. Further, the court explained that on

Rossbach's "ideal” date for the trial, five felony trials were scheduled, and if any one of

those cases went to trial, Rossbach could face additional delays. The District Court

expressed concern whether Rossbach "was consulted or consented to these additional

delays while he remain[ed] incarcerated.” Defense counsel did not file a written speedy

trial waiver signed by Rossbach. Finally, the court considered the State's prejudice,

concluding that the cost of a continuance would be between $2,550 and $5,100. On

balance, the court determined that Rossbach's counsel's pre-planned vacation was a

"minimal” justification given the prejudice such a delay would cause.

¶15 Public defenders and prosecutors are without doubt entitled to responsibly

scheduled vacations. But the District Court did not refuse the requested continuance on

this basis alone. It discussed each of the considerations we noted in Molder, including

Rossbach's right to a speedy trial, the defense's diligence in preparing for trial, and

prejudice to the State. The court concluded that the additional delay because of Gallagher

and Rice's travel plans was not a sufficient justification to continue the trial for a second

time when new counsel was available.

¶16 Rossbach has been unable to demonstrate how the court's denial prejudiced him.

Although his counsel for the second trial, Backus, had only 46 days to take the case to trial,

his previous counsel, Gallagher and Rice, had only 44—and Backus had the benefit of their

work. Rossbach has not shown or argued that he received ineffective assistance of trial

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counsel but only speculates that because the first jury deadlocked, he should have fared at

least as well in the second trial. The District Court, though, praised Backus for her

thorough trial preparation. Rossbach's theory that he may have had "a better chance of

acquittal” had the same counsel tried his case a second time is not enough to show

prejudice. See State v. Hocevar, 2000 MT 157, ¶ 63, 300 Mont. 167, 7 P.2d 329. Rossbach

has not established that the District Court abused its discretion in refusing the continuance.

¶17 2. Whether the District Court abused its discretion when it denied Rossbach's

motion to allow his witness to testify in civilian clothing rather than shackled and in jail

clothing.

¶18 Rossbach argues he was prejudiced by the District Court's denial of his motion to

allow his witness, Friedlander, to testify in civilian clothes. Rossbach analogizes a

witness's right to be dressed in civilian clothes with that of a defendant's and draws upon

case law from other jurisdictions that have held the same. Rossbach contends that

Friedlander's appearance in his orange jumpsuit, shackles, and handcuffs "obliterated”

Friedlander's credibility before the jury, prejudicing Rossbach and undermining his right

to a fair trial.

¶19 The State responds that the District Court properly considered the security concern

Friedlander presented when it denied Rossbach's request. As the prosecutor explained,

Friedlander "has a violent history. He threatened to try to escape.” The court

acknowledged these concerns in its ruling:

THE COURT: And here is the problem I have, Alisha, is that Mr. Gallagher

noticed this witness about two months ago as a new witness. And so the

defense has had two months to ask for a hearing to determine—for the Court

to determine his level of risk. To do that with the jury waiting outside for the

first time is not acceptable and I'm not going to stop—I'm not going to hold

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all these jurors outside while we have a hearing to determine Mr.

Friedlander's level of risk. And for that reason I'm leaving it up to the court

security.

Furthermore, I don't think there is going to be much, if any, prejudice to the

defendant because it's my understanding this discovery by Mr. Rossbach of

Mr. Friedlander's similar experiences with Officer Haynes was derived from

jailhouse discussions when they were both in jail in Flathead County

together. And so the fact that he was in jail or is in jail is going to come out

anyway, I would assume, in the course of cross-examination as to how the

story—and the State's position is it was concocted.

¶20 A district court has discretion over trial administration decisions, and we will not

disturb those decisions absent an abuse of discretion. State v. Sheehan, 2005 MT 305, ¶ 18,

329 Mont. 417, 124 P.3d 1119 (citations omitted). A district court's control over its

courtroom is especially important when it comes to issues of safety. It is for this reason

we have held that a district court "has wide discretion to decide whether a defendant who

has a propensity for violence poses a security risk and warrants increased security

measures.” State v. Herrick, 2004 MT 323, ¶¶ 14-15, 324 Mont. 76, 101 P.3d 755 (citation

and quotation omitted). The same is necessarily true for witnesses. Although "[t]he due

process clauses of the United States Constitution and Montana Constitution entitle criminal

defendants to appear before a jury free from physical restraints,” State v. Hartsoe,

2011 MT 188, ¶ 22, 361 Mont. 305, 258 P.3d 428, we have not recognized the same right

for defense witnesses and decline to do so as a matter of law. The Dissent cites several

cases in which courts have held that a defendant has a right to have witnesses appear free

from restraints but acknowledges that this rule "is not absolute,” and a district court has

discretion to require restraints when "it is necessary to protect courtroom security.”

Dissent, ¶ 38. We recognized in Hartsoe that district courts have discretion to require

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accused defendants to appear in jail clothing, handcuffs, or shackles when justified by a

compelling state interest, like a risk of flight or other safety concerns. Hartsoe, ¶¶ 22-23.

We decline to impose absolute requirements on a trial court when considering a request

that a witness testify in civilian clothing or free from restraints. Like other matters of trial

administration, we instead review the claimed error for abuse of discretion. On the other

hand, we caution district courts against routinely requiring defense witnesses to appear in

jail clothing, handcuffs, and shackles. We agree with the Dissent that the trial court should

hold a hearing and state on the record its reasons for requiring such measures.

Dissent, ¶ 38. Courts recognize that "the responsibility for requesting a hearing rests with

the parties.” State v. Rodriguez, 45 P.3d 541, 545 (Wash. 2002). And "a judge's refusal

to order the removal of shackles, where there exists any reasonable basis for anticipating

that a prisoner may attempt to escape, will not be overruled.” Loux v. United States, 389

F.2d 911, 920 (9th Cir. 1968) (quoting Commonwealth v. Chase, 217 N.E.2d 195, 197

(Mass. 1966)).

¶21 Rossbach raised the issue of Friedlander dressing in civilian clothes to the

District Court the morning of trial, a mere thirty minutes before the trial was scheduled to

begin. The court understandably did not want to keep the jury pool waiting while it

conducted a hearing to determine the full scope of the identified potential safety concerns.

Despite these timing concerns, the court allowed Rossbach's counsel to present her

argument that Friedlander should be permitted to dress in civilian clothing and allowed the

State to respond. Taking both parties' arguments into account, the District Court

considered the possible prejudicial effect of Friedlander's appearance in light of the fact

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that the jury likely would learn that Friedlander had met Rossbach in jail. The court did

not simply allow a jail administrator's policy to dictate its decision. "[H]owever informal,”

and despite defense counsel's failure to request a hearing before the first day of trial, the

court heard from both parties on Rossbach's last-minute request. See State v. Damon,

669 A.2d 860, 863 (N.J. Super. Ct. App. Div. 1966) (holding that, because discretion in

keeping a defendant restrained at trial is "sharply limited,” "[t]he judge must hold a

hearing, however informal, and state on the record out of the jury's presence his or her

reasons for shackling the defendant, whether they are based on evidence from trial,

information obtained from criminal records, or statements made by law enforcement

officers”).

¶22 The court considered the potential security risks—including Friedlander's history

of violence and his threats to escape—against the possible prejudice to Rossbach before

denying his request. Its decision was a discretionary one, grounded in the information it

received moments before trial, and it did not act arbitrarily or exceed the bounds of reason.

¶23 In the final analysis, we conclude that Rossbach has not shown prejudice from

Friedlander's appearance on the stand. Jail garb aside, Friedlander's testimony had not the

strength Rossbach gives it. Friedlander, like Rossbach, had a relationship with

Officer Haynes's wife. Rossbach sought to establish that Officer Haynes used excessive

force on both men because of their prior relationships with his wife. Friedlander testified

that he had interacted with Officer Haynes twice. In the first instance, Officer Haynes,

during a traffic stop, "overstepp[ed] his bounds a little bit” and was "overly aggressive”

while putting handcuffs on Friedlander. Friedlander stated, however, that he "asked

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[Officer Haynes] to back off [and] he did.” Regarding the second encounter, Friedlander

testified that Officer Haynes "was professional. He was civil to me.” Friedlander

acknowledged that he was "[a] little nervous when [Officer Haynes] showed up . . . but

[Officer Haynes] was professional in that context.” Friedlander's testimony does not

demonstrate that Officer Haynes had a pattern of using excessive force against his wife's

former boyfriends—rather, it shows that Officer Haynes listened to Friedlander and

responded when Friedlander asked. Friedlander was not present and did not witness the

interaction between Rossbach and Officer Haynes, had not experienced the kind of

treatment that Officer Haynes reportedly visited upon Rossbach, and had not seen the

officer treat anyone else that way on other occasions. He did not offer testimony that was

"pivotal” to the case. Dissent, ¶ 41. On the full trial record, we are unable to conclude that

the trial court abused its discretion to the prejudice of Rossbach's substantial rights when

it allowed Friedlander to testify in shackles, handcuffs, and a jail jumpsuit over Rossbach's

objection. See § 46-20-701(2), MCA.

¶24 3. Whether the District Court illegally sentenced Rossbach as a persistent felony

offender under § 46-1-202(18)(b)(ii), MCA, based on his release from a sentence on

revocation when his most recent felony conviction was in 2001.

¶25 A district court's designation of a defendant as a PFO is a question of statutory

interpretation that we review de novo. Gallagher, ¶ 16.

¶26 The State may seek a PFO designation for "an offender who has previously been

convicted of two separate felonies and who is presently being sentenced for a third felony

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committed on a different occasion than either of the first two felonies.”

Section 46-1-202(18), MCA (2017).

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An offender has qualifying previous convictions if:

(a) the two previous felonies were for offenses that were committed in

this state or any other jurisdiction for which a sentence of imprisonment in

excess of 1 year could have been imposed;

(b) less than 5 years have elapsed between the commission of the

present offense and either:

(i) the most recent of the two felony convictions; or

(ii) the offender's release on parole or otherwise from prison or other

commitment imposed as a result of a previous felony conviction; and

(c) the offender has not been pardoned on the ground of innocence and

the conviction has not been set aside at a postconviction hearing.

Section 46-1-202(18), MCA. If an offender qualifies as a PFO, a district court must

sentence the offender under § 46-18-502, MCA.

¶27 The District Court sentenced Rossbach as a PFO under § 46-18-502, MCA, because

of his 1996 aggravated assault conviction and his 2001 robbery conviction. For the

robbery, Rossbach was sentenced to fifteen years in prison, with eleven years suspended.

His suspended sentence was revoked three times, in June 2006, May 2011, and May 2015,

for drug use, failure to attend Alcoholics Anonymous meetings, absconding from

supervision, failure to obtain employment, and tribal court misdemeanor offenses.

Rossbach argues that he does not meet the criteria of § 46-1-202(18), MCA, because he

was in prison not for his previous felony conviction but because his suspended sentence

was revoked. He contends that (1) the revocation of a suspended sentence does not

constitute a "conviction” or an "other commitment,” (2) a release from a revocation cannot



1 We apply "the law in effect at the time of the commission of the crime” to "the possible sentence.”

State v. Thomas, 2019 MT 155, ¶ 10, 396 Mont. 284, 445 P.3d 777 (quoting State v. Finley,

276 Mont. 126, 147, 915 P.2d 208, 221 (1996)).

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trigger the five-year statutory period for a PFO, and (3) his release from commitment was

not directly tied to his previous felony conviction, but instead to his violating conditions of

probation.

¶28 Rossbach first argues that State v. Smith, 232 Mont. 156, 755 P.2d 569 (1988),

supports his assertion that the revocation of a suspended sentence is not a conviction or an

"other commitment.” In Smith, we held that a three-year suspended sentence imposed

under § 46-18-201(2), MCA, with numerous probationary conditions did not constitute a

"commitment” under § 46-18-202(18), MCA. 232 Mont. at 161, 775 P.2d at 572. We

explained that a commitment is "the act of taking or sending to the prison, mental health

facility, or the like[,]” and that "[a] person is committed when he is actually sentenced to

confinement by the court as contrasted with a suspended sentence or probation.” Smith,

232 Mont. at 161, 775 P.2d at 572 (citing Black's Law Dictionary, 248 (5th ed. 1979)). A

commitment "begins when the defendant is handed over to law enforcement personnel for

confinement.” Smith, 232 Mont. at 161-62, 775 P.2d at 572. We further explained what

constitutes an "other commitment” in State v. Montoya, 1999 MT 180, 295 Mont. 288,

983 P.2d 937. We held that Montoya's release following the revocation of his suspended

sentence and his recommitment to the Montana State Prison (MSP) triggered the

commencement of the five-year period in § 46-18-502, MCA, despite the felony occurring

more than five years earlier. Montoya, ¶ 27.

¶29 Rossbach's situation is analogous to Montoya's, not to Smith's. Unlike Smith, who

was sentenced under § 46-18-201(2), MCA, and served his suspended sentence without

incident, both Rossbach and Montoya were sentenced under § 46-18-201(3), MCA, and

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were committed to the Department of Corrections (DOC) or MSP custody after violating

the terms of their suspended sentences. As we held in Montoya, commitment to DOC or

MSP custody following the revocation of a suspended sentence constitutes an

"other commitment” under § 46-18-502(2)(b)(ii), MCA. Montoya, ¶ 27.

¶30 Rossbach argues next that his imprisonment was a result of the revocation of his

suspended sentence, not of the felony itself, so his release from custody in 2019 cannot

trigger the five-year statutory period under § 46-1-202(18)(b), MCA. We disagree.

Following Rossbach's third probation violation in 2015, the District Court revoked his

suspended sentence under § 46-18-203(7), MCA, and committed him to the DOC under

§ 46-18-201(3)(a)(iv), MCA, for the remaining term of his sentence. Under

§ 46-18-203(7), MCA, a district court, upon a finding "that the offender has violated the

terms and conditions of the suspended . . . sentence,” may "revoke the suspension of

sentence and require the offender to serve . . . the sentence imposed[.]” The District Court

revoked Rossbach's suspended sentence and required him to serve the remainder of his

2001 sentence for felony robbery in DOC custody. Rossbach was released from custody

in March 2019. His release was therefore "a result of a previous felony conviction.”

Section 46-1-202(18), MCA. Because the DOC released Rossbach from custody on

March 5, 2019, and he assaulted Officer Haynes two months later, Rossbach is well within

the five-year requirement of § 46-1-202(18), MCA.

Rossbach has failed to show that the District Court committed reversible error when it denied his motion for a continuance and required Friedlander to testify in his jail jumpsuit, shackles, and handcuffs. The District Court correctly sentenced Rossbach as a PFO. The District Court’s December 19, 2019 order, February 5, 2020 order, and its April 1, 2020 sentencing order are affirmed.