12/16/2025
DA 24-0360 Case Number: DA 24-0360
IN THE SUPREME COURT OF THE STATE OF MONTANA
2025 MT 288
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JOSHUA MCKNIGHT,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Sanders, Cause No. DC-21-21 Honorable Molly Owen, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Tammy A. Hinderman, Appellate Defender Division Administrator, Jeavon Lang, Managing Appellate Attorney, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Thad Tudor, Assistant Attorney General, Helena, Montana
Jania Hatfield, Sanders County Attorney, Naomi Leisz, Deputy County Attorney, Thompson Falls, Montana
Submitted on Briefs: October 15, 2025
Decided: December 16, 2025 Filed:
__________________________________________ Clerk Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 On September 12, 2022, Joshua Alan McKnight (McKnight) was convicted of
Criminal Possession of Dangerous Drugs, a felony, in violation of § 45-9-102, MCA,
following a jury trial in the Twentieth Judicial District Court, Sanders County. McKnight
appeared for trial but did not return from the lunch break. McKnight now appeals to this
Court, claiming that the District Court erroneously resumed trial and permitted the jury to
return the verdict in his absence. McKnight also claims his trial counsel was ineffective
by failing to move to suppress evidence. We affirm.
¶2 We restate the issues on appeal as follows:
Issue One: Whether the District Court erred by continuing with trial in McKnight’s absence.
Issue Two: Whether McKnight’s ineffective assistance of counsel claim is properly before us on direct appeal.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On May 8, 2021, at approximately 6:00 p.m., Montana Highway Patrol Trooper
Jourdon Gulick (Trooper Gulick) was advised of a single vehicle crash on Highway 200 in
Trout Creek, Montana. It was reported that a male was trapped in the vehicle, a baby was
seriously injured, and another male had left the scene. The reporting party stated that the
driver appeared to be the male who left the scene. McKnight was identified as a passenger.
McKnight was transported to the Clark Fork Valley Hospital in nearby Plains, Montana.
Officer Jared Hutchings (Officer Hutchings), of the Plains Police Department, met the
ambulance at Clark Fork Valley Hospital to identify the passenger from the crash.
2 ¶4 At the hospital, Officer Hutchings confirmed McKnight’s identity. Hospital staff
cut McKnight’s clothes off in preparation for x-rays. The on-duty nurse requested help
from Officer Hutchings because live ammunition fell out of McKnight’s pocket. A pipe
and baggie containing suspected methamphetamine were found in McKnight’s clothing.
The substance weighed five grams and tested positive for methamphetamine.
¶5 The subsequent investigation of the crash scene revealed drugs and paraphernalia in
plain view. Law enforcement seized approximately ten grams of suspected heroin, various
firearms, a scale, baggies, a loaded syringe with suspected heroin, magazines, and
ammunition. On June 30, 2021, McKnight was charged with Criminal Possession of
Dangerous Drugs,1 a felony, in violation of § 45-9-102, MCA.
¶6 The parties appeared for jury trial on September 12, 2022. McKnight moved to
substitute his attorney prior to voir dire. The District Court denied the motion after
conducting a hearing with McKnight and his attorney. After voir dire, the State made its
opening statement and called its first witness. McKnight’s attorney cross-examined the
State’s first witness prior to lunch. The parties recessed for lunch at 11:46 a.m. and were
to be back at 12:50 p.m.
¶7 The court reconvened on the record at 1:06 p.m. McKnight was not present. The
parties discussed whether trial could continue in McKnight’s absence. The court cited
1 McKnight was also charged with Criminal Possession of Dangerous Drugs with the Intent to Distribute, a felony, in violation of § 45-9-103, MCA; Criminal Endangerment, a felony, in violation of § 45-5-207, MCA; Unlawful Possession of a Firearm by a Convicted Person, a felony, in violation of § 45-8-313, MCA; and four counts of Unlawful Use/Possession of Property Subject to Criminal Forfeiture, a felony, in violation of § 45-9-206(1), MCA. These charges were dismissed without prejudice prior to trial. 3 § 46-16-122(3)(b), MCA, which addresses the absence of a defendant after trial has
commenced in their presence. On McKnight’s behalf, his attorney objected to resuming
trial. The District Court, relying on § 46-16-122(3)(b), MCA, overruled the objection and
proceeded with trial. The District Court reasoned that the absence of the defendant does
not prevent the trial from continuing if the defendant is voluntarily absent and the offense
is not one that is punishable by death.
¶8 Trial resumed and the jury returned with a verdict at 3:24 p.m. The District Court
noted on the record that neither McKnight nor his trial counsel were present and proceeded
to the verdict.2 The jury found McKnight guilty. Prior to adjourning, the State requested
a warrant for McKnight because the State “believe[d] the defendant . . . absconded.” The
District Court issued the warrant. McKnight was arrested on the warrant on September 15,
2022, and was released on his own recognizance. McKnight failed to appear for the
sentencing hearing set for December 13, 2022. The State requested another warrant that
was issued by the District Court. On June 25, 2023, McKnight was arrested and thereafter
appeared on the arrest warrant on June 28, 2023. At the time of his appearance,
McKnight’s trial counsel notified the District Court of a conflict and requested new counsel
be appointed. The District Court ordered new counsel to be appointed as soon as possible.
Sentencing was held on April 9, 2024, after multiple continuances. McKnight was
sentenced to five years to the Montana State Prison, with no time suspended.
2 McKnight’s trial counsel had informed the District Court that “as long as it was okay with the State, he was going to leave because he would not need to do anything further, because he had to travel back to Polson.” 4 ¶9 On appeal McKnight argues that the District Court erred by resuming trial in his
absence. McKnight contends that the parties failed to exercise due diligence to secure his
presence prior to the verdict. McKnight also argues that his counsel was ineffective when
he failed to challenge the warrantless search of his clothing. McKnight contends that a
successful suppression motion would have prevented the State from meeting its burden of
proof at trial. He seeks a reversal of his conviction and a remand for a new trial.
STANDARDS OF REVIEW ¶10 “We exercise plenary review over constitutional questions, including alleged
violations of a criminal defendant’s right to be present at critical stages of the proceedings
against him.” State v. Wilson, 2013 MT 70, ¶ 9, 369 Mont. 282, 297 P.3d 1208 (citing
State v. Charlie, 2010 MT 195, ¶ 21, 357 Mont. 355, 239 P.3d 93).
¶11 “We review a district court’s statutory interpretation and construction de novo for
correctness.” State v. Clinkenbeard, 2025 MT 54, ¶ 5, 421 Mont. 137, 565 P.3d 1259
(citations omitted). Where the plain meaning of words used in a statute can be determined,
we will not go further and apply other interpretations. State v. Gatts, 279 Mont. 42, 47,
928 P.2d 114, 117 (1996) (citation omitted).
¶12 This Court reviews claims of ineffective assistance of counsel de novo, as they “are
mixed questions of law and fact.” State v. Morgan, 2003 MT 193, ¶ 7, 316 Mont. 509, 74
P.3d 1047 (citations omitted).
DISCUSSION
¶13 Issue One: Whether the District Court erred by continuing with trial in McKnight’s absence.
5 ¶14 The United States Constitution and the Montana Constitution provide a defendant
with the right to be present at all “critical stages” of a criminal proceeding against them.
State v. Blake, 2016 MT 212, ¶ 7, 384 Mont. 407, 377 P.3d 1213 (citing Wilson, ¶ 11; U.S.
Const. amend. VI; U.S. Const. amend. XIV; Mont. Const. art. II, § 24). “A critical stage
includes ‘any step of the proceeding where there is potential for substantial prejudice to the
defendant.’” Blake, ¶ 7 (quoting Charlie, ¶ 40). The Court considers three factors to
determine whether a violation of the defendant’s right to be present occurred: “(1) whether
the defendant was excluded from a critical stage of the proceedings; (2) whether the
defendant waived his right to be present at the critical stage; and (3) whether the defendant
was prejudiced by his absence.” Blake, ¶ 8 (citing State v. Price, 2009 MT 129, ¶¶ 23-24,
350 Mont. 272, 207 P.3d 298). A waiver of rights will not be presumed; a waiver “of one’s
constitutional rights must be made specifically, voluntarily, and knowingly.” State v.
McCarthy, 2004 MT 312, ¶ 32, 324 Mont. 1, 101 P.3d 288 (citing State v. Bird, 2001 MT 2,
¶ 35, 308 Mont. 75, 43 P.3d 266).
¶15 Two statutes, consistent with the aforementioned law, control this issue.
Section 46-16-122(3)(b), MCA, “absence of defendant from trial[,]” provides:
After the trial of a felony offense has commenced in the defendant’s presence, the absence of the defendant during the trial may not prevent the trial from continuing up to and including the return of a verdict if the defendant [. . .] is voluntarily absent and the offense is not one that is punishable by death.
§ 46-16-122(3)(b), MCA. The second relevant statute is § 46-16-123(2)(a), MCA,
“[a]bsence of defendant on receiving verdict or sentencing[,]” which provides:
6 In all felony cases, the defendant shall appear in person when the verdict is returned [. . .] unless, after the exercise of due diligence to procure the defendant’s presence, the court finds that it is in the interest of justice that the verdict be returned in the defendant’s absence.
§ 46-16-123(2)(a), MCA. Statutes in pari materia which cover the same subject matter
“should be construed together and effect given to both if it is possible to do so.” Mountain
W. Farm Bureau Mut. Ins. Co. v. Hall, 2001 MT 314, ¶ 23, 308 Mont. 29, 38 P.3d 825.
¶16 McKnight argues that the District Court erred by resuming his trial because he was
involuntarily absent due to health issues. McKnight contends that the District Court
erroneously applied precedent for misdemeanor trials conducted in absentia. McKnight
further argues that the original inquiry into his absence lacks the due diligence required by
§ 46-16-123(2)(a), MCA. Contrarily, the State argues that McKnight was voluntarily
absent; therefore, the District Court was authorized to proceed in accordance with
§ 46-16-122(3)(b), MCA.
¶17 These statutes must be construed consistently together. We will first examine
§ 46-16-122(3)(b), MCA, which addresses the absence of a defendant from trial.
¶18 McKnight’s original trial date of May 9, 2022, had already been continued on his
motion due to medical issues. On June 27, 2022, the State moved to schedule the jury trial
and submitted that “[n]o further information has been presented concerning [McKnight’s]
medical issues.” On the morning of trial on September 12, 2022, McKnight stated, “I’ve
had to put off emergency surgery. I have an abscess in my pelvic area. And I’ve put off
my surgeries and stuff because I don’t want to go to surgery sick and stressed out, you
7 know. And I need heart surgery again.” Trial then commenced through the morning until
breaking for lunch.
¶19 When the parties reconvened after the lunch break, McKnight was not present:
THE COURT: All right. So, the defendant is not present[.] He was instructed to be back at 12:50. It is now 1:10. Defense Counsel, where is your client?
McKNIGHT’S ATTORNEY: Judge, I don’t know. But I don’t think the Court can try a felony in absentia.
THE COURT: All right. 46-16-122 states, after the trial of a felony offense has commenced in the defendant’s presence, the absence of the defendant during the trial may not prevent the trial from continuing, up to and including the return of a verdict, if the defendant is voluntarily absent and the offense is not one that is punishable by death.
McKNIGHT’S ATTORNEY: I stand corrected.
THE COURT: And it says, [n]either 46—this is case law. Neither 46-16-122 nor case law requires fact finding related to the basis of one’s absence prior to conducting a trial in absentia.
. . .
McKNIGHT’S ATTORNEY: Okay. Well, I should object on his behalf and the Court can rule on that.
THE COURT: All right. We are going to continue on. It’s been more than 21 minutes since the defendant was to return.
The State proceeded with its case in chief. When prompted to begin the defense’s case in
chief, after the State rested, McKnight’s attorney stated, “I don’t have a case without
[McKnight].” He further responded, “Mr. McKnight did not come back from
lunch [. . .] He didn’t sound too good or look too good,” but was unsure whether McKnight
was sick. The defense then rested. The jury heard closing arguments, deliberated for
approximately 20 minutes, and returned a verdict finding McKnight guilty in absentia.
8 ¶20 Months later, McKnight was arrested and appeared on his arrest warrant on June 28,
2023. McKnight argued why his bond amount should be lowered:
MR. MCKNIGHT: Um, I just had major heart surgery. I was not aware—I had a graft—essentially a graft put over the top of the first cut in my heart, and I haven’t had time to go see the doctors and get my medications and stuff adjusted to where my blood pressure is normal level[.] I’ve showed up to every court appearance besides the sentencing one. And the reason being, I didn’t—I—I didn’t hear back from my attorney.
THE COURT: Mr. McKnight, though, you—you also—you also left midway through your trial.
MR. McKNIGHT: Well, I apologize for that. I went to the ER. I had severe—severe heart failure and was admitted to Sandpoint hospital, with 20 percent reduced traction in my left ventricle. I was in the ER. I went straight to the ER from the trial. And if you remember, I couldn’t breathe. I was having a real hard time breathing and stuff during trial [. . .] I didn’t really know what to do, so I just sat at home with my heart.
COUNTY ATTORNEY: [T]his defendant has had ample time to contact his attorney or contact the Court, letting us know what—if there was, indeed, a medical problem, which still to this day, I have not been informed of any medical issue. And he also failed to appear at his sentencing. And my—the sheriff’s department—the deputies have seen him multiple times driving, not only in Sanders County but in Clark Fork, Idaho. And he’s been seen multiple times there, riding four wheelers and driving around in his vehicle.
Importantly, McKnight did not request a new trial. His arguments were directed at having
the amount of bail reduced. The District Court reduced McKnight’s bond “because of the
defendant’s admitted health issues, even though we have not actually seen any evidence of
that.” McKnight responded, “[W]ho do I need to give those papers to, to make you aware
of the medical situation? Because I signed a release to the sheriff’s department.” The
9 record does not reflect McKnight provided any records of his September 12, 2022 medical
emergency.
¶21 Trial is undoubtedly a critical stage of criminal proceedings. The Court must next
determine whether McKnight waived his right to be present. Blake, ¶ 8. A defendant
waives the “right to be present at trial in two ways: (1) failing to appear, or (2) through an
express personal waiver.” State v. Clark, 2005 MT 169, ¶ 15, 327 Mont. 474, 115 P.3d
208 (citing McCarthy, ¶ 32; State v. Tapson, 2001 MT 292, ¶ 24, 307 Mont. 428, 41 P.3d
305). “An absence is voluntary if the defendant knew of the hearing and failed to appear
due to circumstances within his control.” State v. Marquart, 2020 MT 1, ¶ 22, 398 Mont.
233, 455 P.3d 460 (citations omitted).
¶22 There are limited cases in our jurisprudence that address trying a defendant in
absentia for a felony charge. See McCarthy, ¶ 34 (in custody defendant waived right to be
present at felony trial through written waiver); State v. Aceto, 2004 MT 247, ¶ 47, 323
Mont. 24, 100 P.3d 629 (in-custody defendant removed from felony trial due to behavior).
McKnight recognized that, “[o]stensibly from the context, the District Court relied on”
Clark to resume trial. Though we disagree that the District Court relied on anything but
§ 46-16-122(3)(b), MCA, we nonetheless address Clark, which had very similar facts but
involved a misdemeanor charge. In Clark, we upheld a decision to proceed with a trial in
absentia, in accordance with § 46-16-122, MCA. Clark, ¶ 17. This Court affirmed the
finding that Clark was voluntarily absent because he admitted himself into the hospital on
the day of trial. Clark, ¶¶ 16-17. Clark received warnings prior to trial that a medical
10 absence without verification from a physician would constitute a voluntary absence. Clark,
¶ 16. A nurse called the court’s clerk and informed the court “that hospital staff had been
unable to verify [Clark’s] physical complaints, and that he would be released.” Clark, ¶ 6.
Clark was found guilty by the jury. Clark, ¶ 7. We concluded that Clark was voluntarily
absent and the municipal court did not err in proceeding with trial. Clark, ¶ 17.
¶23 The parties cite State v. Finnegan, 784 N.W.2d 243 (Minn. 2010), where the
defendant attempted suicide the morning of his second day of trial. Finnegan, 784 N.W.2d
at 246-47. The trial court determined that the defendant had “voluntarily and unjustifiably
absented himself from trial” and proceeded with trial. Finnegan, 784 N.W.2d at 246. On
appeal to the Minnesota Supreme Court, the defendant argued that the trial court erred in
resuming “trial without giving him sufficient time to prove that his absence was
involuntary.” Finnegan, 784 N.W.2d at 249. Though the Minnesota Supreme Court noted
that the trial court “could have done a more thorough investigation,” the court relied on the
defendant’s opportunity, after the fact, to prove that his absence was involuntary.
Finnegan, 784 N.W.2d at 250. The court concluded that, “even if the district court’s
finding of voluntariness was unreasonably premature, Finnegan had the opportunity to
demonstrate that his absence was involuntary both at [a] hearing [. . .] and at the
postconviction stage. Finnegan did not avail himself of either of these opportunities.”
Finnegan, 784 N.W.2d at 250.
¶24 Other states follow this reasoning. In State v. Harris, 630 P.2d 332 (Or. 1981), the
Oregon Supreme Court concluded that “there was ample information from which the trial
11 judge could conclude at the time that [the] defendant had voluntarily absented himself”
because there was no information to support an involuntary absence. Harris, 630 P.2d at
336. The Washington Supreme Court has a three-prong approach requiring the court to:
(1) [make] sufficient inquiry into the circumstances of a defendant’s disappearance to justify a finding whether the absence was voluntary, (2) [make] a preliminary finding of voluntariness (when justified), and (3) [afford] the defendant an adequate opportunity to explain his absence when he is returned to custody and before sentence is imposed.
State v. Thomson, 872 P.2d 1097, 1100 (Wash. 1994) (insertions in original; citations
omitted). Like McKnight, Thomson left after trial had begun. Thomson, 872 P.2d at 1101.
Thomson told his attorney’s secretary that he would not be in court because of a medical
emergency. Thomson, 872 P.2d at 1099. The court found Thomson voluntarily absented
himself after waiting over three hours and without any further indication from Thomson of
where he was. Thomson, 872 P.2d at 1099. Thomson later called his attorney and learned
of the guilty verdict. Thomson, 872 P.2d at 1099. Thomson appeared at sentencing and
gave no explanation for his absence. Thomson, 872 P.2d at 1099. The Washington
Supreme Court concluded that “[t]he court sufficiently inquired into the circumstances of
the [d]efendant’s absence to make a finding of voluntariness, and gave the [d]efendant
adequate opportunity to explain his absence prior to sentencing.” Thomson, 872 P.2d at
1101.
¶25 Fed. R. Crim. P. 43 is similar to § 46-16-122(3)(b), MCA. “[Rule 43] treats midtrial
flight as a knowing and voluntary waiver of the right to be present.” Crosby v. U.S., 506
U.S. 255, 261, 113 S. Ct. 748, 752 (1993). A defendant who was initially present at trial
12 waives the right to be present when the defendant is voluntarily absent after trial has begun.
Fed. R. Crim. P. 43(c)(1)(A). If the defendant waives the right to be present, the trial may
proceed to completion, including the verdict’s return and sentencing, during the
defendant’s absence. Fed. R. Crim. P. 43(c)(2).
¶26 California has a similar provision to Rule 43 and § 46-16-122(3)(b), MCA. The
California Court of Appeal determined that, “upon the subsequent appearance of the
defendant, additional information may be presented which either affirmed the initial
decision of the court or demands that the defendant be given a new trial.” People v.
Connolly, 36 Cal. App. 3d 379, 385 (Cal. Ct. App. 1973). Connolly moved for a new trial
and testified that he was involuntarily absent from his trial. Connolly, 36 Cal. App. 3d at
386. The Court of Appeal affirmed the denial of his motion for a new trial and held that
his absence was voluntary. Connolly, 36 Cal. App. 3d at 387. The court looked to the
“totality of the facts; not just a portion of them.” Connolly, 36 Cal. App. 3d at 385.
¶27 Here, the record does not support McKnight’s contention that the District Court was
aware he was suffering from breathing issues during trial. Further, despite McKnight’s
submission of a robust amount of documentation for sentencing, he failed to provide any
medical documentation from his asserted medical event on September 12, 2022. If
McKnight indeed went straight to the hospital from trial, he did not explain why he elected
to travel the longer distance to Sandpoint, Idaho, while experiencing emergency medical
conditions, rather than seek more immediate treatment at Clark Fork Valley Hospital in
nearby Plains, Montana.
13 ¶28 McKnight argues that, “[u]nlike Clark, the District Court did not exercise diligence
in attempting to return McKnight.” What distinguishes Clark from the instant case is that
the District Court did not have the benefit of knowing McKnight’s location. The extent of
the court’s “diligence” in Clark was receiving a phone call from a nurse at the hospital.
Here, the District Court did not receive any phone calls from the hospital notifying them
that McKnight had been admitted, nor did the District Court receive any documentation
confirming McKnight’s whereabouts on the afternoon of September 12, 2022.
¶29 After multiple continuances, McKnight was sentenced on April 9, 2024. McKnight
failed to provide a medical record, a doctor’s phone call, or any verification that supported
him needing to involuntarily leave midway through his trial for medical reasons. After
sentencing McKnight, the District Court reasoned, “Mr. McKnight has used his health
continually. It’s been an ongoing theme to try to avoid any responsibility.” Based on the
foregoing, we conclude that the District Court did not err by resuming McKnight’s trial in
his absence. The District Court correctly applied § 46-16-122(3)(b), MCA, to find
McKnight chose to voluntarily absent himself from trial. McKnight had ample time to
provide evidence of his claimed medical event on September 12, 2022, but did not avail
himself of the opportunity. Moreover, McKnight did not request a new trial until this
appeal. Here, McKnight’s voluntary absence resulted in a waiver of the right to be present
at trial.
¶30 We next examine § 46-16-123(2)(a), MCA, which addresses the absence of a
defendant on receiving the verdict. In his briefing, McKnight mentions that the original
14 inquiry into his absence lacks the due diligence required by § 46-16-123(2)(a), MCA, to
obtain his presence for the return of the jury verdict. McKnight does not argue that he was
prejudiced by his absence from the verdict; he argues the State must demonstrate that there
is no reasonable possibility that his constitutional rights were violated. The State did not
address the requirements of § 46-16-123(2)(a), MCA, in its briefing on appeal. The statutes
must be construed consistently together and the inquiry required of § 46-16-123(2)(a),
MCA, turns on what is required to establish due diligence.
¶31 This Court has previously held that a youth did not meet their burden of due
diligence in discovering evidence prior to trial. In re J.R.T., 258 Mont. 520, 523, 853 P.2d
710, 712 (1993). There, we concluded that “[d]ue diligence requires something more than
merely relying on an unknown address and a former place of employment.” In re J.R.T.,
258 Mont. at 523, 853 P.2d at 712. In State v. Klemann, 194 Mont. 117, 634 P.2d 632
(1981), this Court affirmed the trial court’s denial of a motion to continue trial because the
defendant “utterly failed to show an attempt or a capacity to obtain private counsel.”
Klemann, 194 Mont. at 120-21, 634 P.2d at 634-35. The defendant was required to show
that they “employed due diligence to procure that which he now requests additional time
to procure.” Klemann, 194 Mont. at 120, 634 P.2d at 634. “[T]he showing of due diligence
is in the nature of a conclusion.” State v. Kuilman, 111 Mont. 459, 462, 110 P.2d 969, 970
(1941).
¶32 District Courts must construe § 46-16-122(3)(b), MCA, and § 46-16-123(2)(a),
MCA, together. Here, the District Court did not exercise due diligence in accordance with
15 § 46-16-123(2)(a), MCA. However, we do not find this determinative because McKnight’s
voluntary absence acted as a waiver of his right to be present at the verdict. A defendant’s
voluntary absence after a felony trial has commenced renders a court’s due diligence
inquiry to procure them for the verdict unnecessary. In the absence of such a waiver, courts
must exercise due diligence to procure the defendant for the verdict in accordance with
§ 46-16-123(2)(a), MCA. However, McKnight’s voluntary absence in the instant case
acted as a statutory waiver of his right to be present, and, construing the statutes together,
we hold that there was no need for the District Court to employ a due diligence inquiry
after McKnight had voluntarily waived his presence. When the jury returned the verdict,
the Court stated: “We are back on the record. The State’s attorney is present. The
defendant is not present,” and the court proceeded with trial, including receiving the jury’s
verdict. The jury found McKnight guilty in absentia.
¶33 Here, McKnight failed to provide any proof that he involuntarily left trial for
medical reasons and went to the hospital. McKnight’s arguments concerning his health
care when he appeared on his arrest warrant were directed at reducing bond, not at securing
a new trial. We conclude that McKnight’s absence from the verdict does not warrant a
new trial. “To allow the . . . activities of a defendant . . . to prevent his trial is to allow him
to profit from his own wrong.” Illinois v. Allen, 397 U.S. 337, 350, 90 S. Ct. 1057, 1064
(1970) (Brennan, J., concurring).
¶34 Issue Two: Whether McKnight’s ineffective assistance of counsel claim is properly before us on direct appeal.
16 ¶35 The United States Constitution and the Montana Constitution provide citizens with
the right to effective assistance of counsel. U.S. Const. amend. VI; Mont. Const. art. II,
§ 24; State v. Johnson, 2019 MT 34, ¶ 14, 394 Mont. 245, 435 P.3d 64. This Court applies
the test from Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), which
requires the defendant “show not only that his counsel’s performance was deficient, but
that the deficient performance was prejudicial to the defendant.” Morgan, ¶ 9 (citing
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064).
¶36 Prior to ruling on whether the defendant has satisfied the Strickland test, the Court
must determine whether a direct appeal is the proper forum for the ineffective assistance
of counsel claim. State v. Kougl, 2004 MT 243, ¶ 14, 323 Mont. 6, 97 P.3d 1095. “If the
record on appeal explains ‘why,’ we will then address the issue on appeal. If, as is usually
the case, the claim is based on matters outside the record on appeal, we will refuse to
address the issue on appeal.” Kougl, ¶ 14. If the Court refuses to address the issue, the
defendant may file a postconviction proceeding where the record can be developed to
address “why” counsel acted as the defendant alleged. Kougl, ¶ 14. “Only when the record
will fully explain why counsel took, or failed to take, action in providing a defense for the
accused may this Court review the matter on direct appeal.” State v. White, 2001 MT 149,
¶ 20, 306 Mont. 58, 30 P.3d 340. It is a “relatively rare situation where there is ‘no
plausible justification’ for what defense counsel did.” Kougl, ¶ 15. Failure to prepare a
defense, failure to inform the defendant of consequences of certain options, and failure to
offer a specific jury instruction are examples of non-record-based claims. White, ¶¶ 18-19.
17 “Generally, an alleged failure to object to the introduction of evidence, or to object to
testimony of a witness, or object to prosecutorial misconduct at trial has been deemed
record-based, and therefore appropriate for direct appeal.” White, ¶ 15.
¶37 McKnight argues that his attorney had no plausible justification to waive a
suppression challenge to the search of his clothing. McKnight further argues that he was
prejudiced and suppression of the evidence would have eliminated the only inculpatory
evidence to convict McKnight of criminal possession of dangerous drugs. The State argues
that a motion to suppress would have been without merit because it was a private search,
not a government search. The State also argues that they could have augmented the record
to support a safety concern which would warrant the nurse’s request for assistance from an
officer.
¶38 Here, we conclude the allegation is a non-record based claim. As we recognized in
State v. Gunderson, 2010 MT 166, 357 Mont. 142, 237 P.3d 74, “[t]he record here provides
no information on whether [defense counsel’s] omissions were reasonable under the
circumstances or due to deficient performance.” Gunderson, ¶ 77. Though the State
attempts to supplement the answer, the record does not answer “why” McKnight’s attorney
did not file a motion to suppress. Accordingly, we hold that McKnight’s allegation of
ineffective assistance of counsel is non-record based and cannot be reviewed on direct
appeal.
18 CONCLUSION
¶39 When a trial court correctly determines pursuant to § 46-16-122(3)(b), MCA, that a
defendant has voluntarily absented themselves from trial, then a due diligence inquiry
under § 46-16-123(2)(a), MCA, is not required. McKnight has not demonstrated a record
based ineffective assistance of counsel claim. The judgment of the District Court is
affirmed.
¶40 Affirmed.
/S/ LAURIE McKINNON
We Concur:
/S/ CORY J. SWANSON /S/ KATHERINE M. BIDEGARAY /S/ JAMES JEREMIAH SHEA /S/ INGRID GUSTAFSON