07/30/2024
DA 22-0522 Case Number: DA 22-0522
IN THE SUPREME COURT OF THE STATE OF MONTANA
2024 MT 160
STATE OF MONTANA,
Plaintiff and Appellee,
v.
CODY JOSEPH VERNON FLESCH,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC-21-856 Honorable Ashley Harada, Presiding Judge
COUNSEL OF RECORD:
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
Submitted on Briefs: May 8, 2024
Decided: July 30, 2024
Filed: ir,-6‘A•-if __________________________________________ Clerk 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 2 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 oversight 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 whether the
detention order “is still in effect.” The State confirmed that it was.
3 ¶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 11th, 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.
4 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
1 Ms. Farmer accompanied Flesch to court that day. 5 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
6 §§ 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
¶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. “Official
detention” is defined under the statute as “placement of a person in the legal custody of a
municipality, a county, or the state as a result of . . . the actual or constructive restraint or
custody of a person by a peace officer pursuant to arrest, transport, or court order[.]”
Section 45-7-306(1)(a)(ii), MCA.
¶15 Flesch contends that the plain language of “official detention” under
§ 45-7-306(1)(a)(ii), MCA, requires that the defendant’s “actual or constructive restraint”
be “by a peace officer.” He claims that the court’s directives in the courtroom do not
qualify because “courts do not have the authority to restrain or arrest.” He posits that
7 because “no person qualified as a peace officer had placed or attempted to place [him] into
custody in any way,” Flesch could not be found guilty of attempted escape. The State
responds that the charging documents provided sufficient facts to allege the probability that
Flesch was subject to official detention at the time he attempted to elude the officers by
running out of the courtroom.2
¶16 A motion to dismiss raises the question whether the State’s motion for leave to file
an information and affidavit in support is legally or factually sufficient to establish probable
cause—this is a mixed question of law and fact. Giffin, ¶ 11.
¶17 When interpreting a statute, we begin with its plain language. Mitchell v. State,
2015 MT 120, ¶ 9, 379 Mont. 127, 347 P.3d 1278. “We construe a statute by reading and
interpreting the statute as a whole, without isolating specific terms from the context in
which they are used by the Legislature.” State v. Felde, 2021 MT 1, ¶ 19, 402 Mont. 391,
478 P.3d 825 (internal quotation and citations omitted). If the meaning of the statute is
clear from the text, no further interpretation is needed. Mitchell, ¶ 9 (citing Mont. Sports
Shooting Ass’n v. State, 2008 MT 190, ¶ 11, 344 Mont. 1, 185 P.3d 1003; § 1-2-101, MCA).
¶18 The escape statute criminalizes eluding from official detention, which includes “the
actual or constructive restraint or custody of a person by a peace officer pursuant
to . . . court order[.]” Section 45-7-306(1)(a)(ii), MCA. The Legislature’s inclusion of
“constructive restraint” makes clear that the statute is not confined to situations in which a
peace officer already has taken physical control of the person.
2 The State raises a preliminary claim that Flesch waived the argument he makes on appeal, but we find the issue adequately preserved. 8 ¶19 The purpose of the escape statute is to “cover[] any unauthorized departure from
legal custody.” Section 45-7-306, MCA, Annotations, Annotator’s Note (2022). The
Legislature’s amendments to the escape statute show its evolution to achieve this broad
purpose by making the definition of “official detention” more encompassing. The 1989
version of the statute defined “official detention” as
imprisonment which resulted from a conviction for an offense, confinement for an offense, confinement of a person charged with an offense, detention by a peace officer pursuant to arrest, detention for extradition or deportation, supervision while under a supervised release program, participation in a county jail work program under 7-32-2225 through 7-32-2227, or any lawful detention for the purpose of the protection of the welfare of the person detained or for the protection of society.
Section 45-7-306(1), MCA (1989). The statute provided a different range of misdemeanor
and felony punishments, depending on the circumstances of the offender’s escape. Section
45-7-306(3), MCA (1989).
¶20 In State v. Savaria, 245 Mont. 224, 800 P.2d 696 (1990), the defendant escaped
from the courthouse before he could be transported back to the county jail. Savaria, 245
Mont. at 225, 800 P.2d at 697. The State appealed the district court’s decision to sentence
Savaria for a misdemeanor, arguing that the defendant was guilty of felony escape from
the county jail. Savaria, 245 Mont. at 225-26, 800 P.2d at 697. We affirmed, holding that
the statute was specific in listing the places from which escape is a felony and that the
statute did not address escape by a prisoner during transport from a court appearance.
Savaria, 245 Mont. at 227, 800 P.2d at 698. The Legislature amended the statute in 1991
to insert reference to escape while in transit. 1991 Mont. Laws ch. 114, §§ (3)(a), (3)(b)(i),
9 (3)(b)(ii), 3(c). In 1997, it amended the statute to add “the actual or constructive restraint
or custody of a person” to the definition of “official detention.” 1997 Mont. Laws ch. 26,
§ 1. The amendment also changed the definition of escape to say “eludes” rather than
“removes himself” from official detention. 1997 Mont. Laws ch. 26, § 2.
¶21 Our case law regarding official detention similarly reflects a broader application
than what Flesch suggests. In State v. Thornton, 218 Mont. 317, 708 P.2d 273 (1985), we
adopted the modern jurisprudential position that “actual restraint” does not require physical
restraint. Thornton, 218 Mont. at 322-23, 708 P.2d at 277-78. Later, in State v. Martin,
2001 MT 83, 305 Mont. 123, 23 P.3d 216, we upheld an escape conviction where the
defendant, in the process of attempting to cash a forged check, was approached by a
uniformed officer who commanded the defendant to “halt” and “stop,” but the defendant
instead fled. Martin, ¶¶ 11, 42, 45. We rejected Martin’s argument that he was never
placed in “official detention.” Martin, ¶¶ 36, 45. Although the defendant was not
physically restrained, the officer’s commands indicated that he was under arrest. Martin,
¶¶ 40, 43 (citing Thornton, 2018 Mont. at 323, 708 P.2d at 277-78) (“Where, as here,
restraint is claimed to have been accomplished via an oral statement by the officer, rather
than via physical restraint, the pivotal question is whether a reasonable person—innocent
of any offense—would have felt free to walk away.”).
¶22 Flesch’s motion to dismiss raised the question whether the charging documents
stated probable cause to prosecute Flesch for attempted escape. “A trial court determines
the sufficiency of charging documents by reading the information together with the
10 affidavit in support of the motion for leave to file the information.” In re K.J., 2010 MT
41, ¶ 24, 355 Mont. 257, 231 P.3d 75 (citing State v. Elliott, 2002 MT 26, ¶ 26, 308 Mont.
227, 43 P.3d 279). The affidavit need not make out a prima facie case that a defendant
committed the charged offense; it need only present a mere probability that the defendant
committed the offense. In re K.J., ¶ 24 (citing Elliot, ¶ 26).
¶23 The State’s motion for leave indicated that four law enforcement officers were
present in or around the courtroom during Flesch’s hearing “as a security measure and
because of the possibility of a remand” and that Flesch “sprang up from his chair and ran
out of the [c]ourtroom” after the court had directed that he was to be remanded into custody.
The State noted Flesch’s comment after he was restrained and returned to the courtroom
that he was “trying to get away.” Reading these documents together, we conclude that the
State alleged sufficient facts to establish a probability that, at the time he fled the
courtroom, Flesch was subject to at least the “constructive restraint or custody” of law
enforcement officers pursuant to court orders.
¶24 Flesch’s argument would return the statute to a restrictive definition of “official
detention” that, contrary to the plain language of the statute, the Legislature’s amendments,
and our case law, would allow him to avoid criminal liability simply because he took off
before the officers in the courtroom could carry out the judge’s order. “Statutory
construction should not lead to absurd results if a reasonable interpretation can avoid it.”
In re U.A.C., 2022 MT 230, ¶ 13, 410 Mont. 493, 520 P.3d 295 (citation omitted).
11 ¶25 The District Court properly concluded instead that “[a] reasonable person would
have understood they were being remanded on a warrant out of Powell County.” It
correctly denied Flesch’s motion to dismiss and properly allowed the jury to determine
whether Flesch was “eluding official detention” at the time he ran out of the courtroom.
We affirm the District Court’s denial of Flesch’s motion to dismiss.
¶26 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.
¶27 Flesch argues that the plain language of Rule 2.12 of the Montana Code of Judicial
Conduct required Judge Harada to disqualify herself from presiding over the attempted
escape case. Rule 2.12 provides in relevant part:
A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:
(1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.
. . .
(5) The judge . . . was a material witness concerning the matter.
M. C. Jud. Cond. 2.12(A)(1), (5)(c). According to Flesch, Judge Harada violated Rules
2.12(A)(1) and 2.12(A)(5)(c) because she had personal knowledge of disputed facts and
was a material witness to the facts in issue when the case went before a jury. The State
contends that Flesch waived his disqualification claim because he raises it for the first time
on appeal.
12 ¶28 Except for a judge’s alleged bias or prejudice, a claim for disqualification is subject
to waiver. Dunsmore, ¶ 18 (citing M. C. Jud. Cond. 2.12(C)). Such a claim “is considered
waived if a party does not raise the issue within a reasonable amount of time after the party
acquires knowledge of a potential basis for disqualification.” Dunsmore, ¶ 18. As for the
scope of Rule 2.12(A)(1), “[k]nowledge about matters in a proceeding that has been
obtained by a judge within the proceeding itself or within another legal proceeding is
permissible and does not call for disqualification.” State v. Strang, 2017 MT 217, ¶ 26,
388 Mont. 428, 401 P.3d 690 (quoting Charles Gardner Geyh et al., Judicial Conduct and
Ethics § 4.10, 4-42 (5th ed. 2013) (emphasis added) (other citations omitted)). “To be
disqualifying, the knowledge must be obtained extrajudicially rather than in the judge’s
official capacity during the course of a proceeding.” Strang, ¶ 26 (citations omitted).
Flesch’s claim for disqualification is not based on knowledge that Judge Harada gained
from an extrajudicial source, but through her official capacity as a judge.
¶29 We discussed in Dunsmore the consideration of timeliness when a criminal
defendant raises the claim for the first time after sentencing. “A defendant cannot take his
chances with a judge and then, if he thinks that the sentence is too severe, secure a
disqualification and a hearing before another judge.” Dunsmore, ¶ 17 (quoting Taylor v.
United States, 179 F.2d 640, 642 (9th Cir. 1950)). We found Dunsmore’s claim waived
when he raised it for the first time on appeal because “Dunsmore and his attorney were
aware of [the presiding judge’s prior] representation of Dunsmore’s daughter in the abuse
and neglect case but chose not to move for recusal.” Dunsmore, ¶¶ 15, 19.
13 ¶30 In this case, Flesch and his counsel were present during the June 18 hearing that
gave rise to the attempted escape charge. Flesch’s counsel first knew of the factual basis
for a disqualification claim when this case was assigned to Judge Harada. Flesch and his
counsel participated throughout the proceedings with Judge Harada presiding, including a
full trial and sentencing. Flesch did not raise the issue until this appeal. Thus, unless he
has made out a case of bias or prejudice, Flesch waived his claim for disqualification of
Judge Harada.3
¶31 Flesch did not address his claim of disqualification—or the State’s contention that
he waived it—in his reply brief. His opening brief states rather tepidly that “there are
indications in the record that Judge Harada possibly held a bias against Flesch following
the incident. . . .” Flesch points to the following conversation between Flesch and the court
immediately following the incident at his arraignment hearing:
THE COURT: Frankly, I’m afraid to have you have a pen at this point.
[FLESCH]: I understand.
THE COURT: I’m afraid to take your hands out of the restraints.
[FLESCH]: I understand.
Flesch additionally points to the following statement by Judge Harada at sentencing in this
case:
3 This includes Flesch’s contention that Judge Harada should have disqualified herself as “part of the chain of custody for key evidence” after she requested a copy of the video of the hearing to determine if courtroom security needed to be adjusted. Such a claim falls within the scope of Rule 2.12(A)(5)(c)’s “material witness” ground for disqualification, which is subject to the timeliness requirement.
14 And fortunately my court reporter wasn’t here that day because I think you would have taken her out on your way by. You were so intent on getting away that I barely saw you, it was so fast.
You are a danger. I don’t know how [] else to put it. You came to court, you were supposed to see me on something trivial, some kind of status hearing, and the next thing I knew we had an incredibly dangerous situation unfolding.
Flesch asserts these statements “give[] rise to the perception of possible bias or prejudice”
under Rule 2.12(A)(1) and 2.12(C).
¶32 We rejected in Dunsmore the defendant’s argument that the presiding judge’s failure
to offer him the opportunity to speak at sentencing, combined with the fact that the sentence
imposed was greater than both the plea agreement and PSI recommendation, “could be
construed as evidence of bias.” Dunsmore, ¶ 19. We concluded that Dunsmore’s argument
could not be interpreted—nor did it appear to be intended—as a claim of actual bias or
prejudice. Dunsmore, ¶ 19. Flesch makes a similarly weak argument on bias and prejudice.
He suggests that Judge Harada’s involvement raises “possible” bias or prejudice, but he
concedes that Judge Harada’s statements “do not definitively show bias or prejudice.” At
most, the Judge’s comments reflect her personal knowledge of facts in the underlying
proceeding, but Flesch does not claim that those facts were “in dispute” in the attempted
escape case or that she gained such knowledge outside the legal proceeding. See Rule
2.12(A)(1), Strang, ¶ 26. We conclude that Flesch’s disqualification claim does not fall
within the bias or prejudice exception to the timeliness requirement. Flesch did not
preserve his disqualification claim.
15 CONCLUSION
¶33 We affirm the District Court’s denial of Flesch’s motion to dismiss and his
conviction for attempted escape.
/S/ BETH BAKER
We Concur:
/S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA /S/ INGRID GUSTAFSON /S/ DIRK M. SANDEFUR /S/ JIM RICE