Full Opinion

10/27/2026 DA 24-0392 IN THE SUPREME COURT OF THE STATE OF MONTANA 2026 MT 257N STATE OF MONTANA, Plaintiff and Appellee, v. MICHAEL ARTHUR SMITH, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause Nos. ADC-22-477, ADC-22-585, and ADC-23-72 Honorable Mike Menahan, Presiding Judge COUNSEL OF RECORD: For Appellant: Ryan P. Archibald, Attorney at Law, Warrenton, Oregon For Appellee: Austin Knudsen, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana Kevin Downs, Lewis and Clark County Attorney, Dan Baris, Deputy County Attorney, Helena, Montana Submitted on Briefs: August 19, 2026 Decided: October 27, 2026 Filed: __________________________________________ Clerk Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Defendant Michael Arthur Smith (Smith) appeals an order entered in the First Judicial District Court, Lewis and Clark County, consolidating his three cases for trial. He contends the District Court abused its discretion because no good cause was shown by the State to allow it to file the motion after the omnibus hearing. He also maintains his sentence is unlawful because the presentence investigation (PSI) prepared for his hearing only had one prior Partner Family Member Assault (PFMA) conviction, rather than the necessary two prior convictions needed to support his felony convictions. ¶3 On the night of September 22, 2022, Helena Police arrested Smith at America’s Best Value Inn. Smith’s partner, I.M., stumbled out of their room, beaten and bruised, with golf ball sized injuries on her forehead. The Lewis and Clark County Attorney’s Office filed charges for felony PFMA because it was Smith’s third or subsequent PFMA (Cause No. ADC-22-477). A no-contact order was issued and Smith was released of his own recognizance. ¶4 On November 30, 2022, a witness saw I.M. stumbling in the hallway of the Baymont Inn, her face visibly bloody. The witness carried her back to her room, and Smith opened the door. The witness could see the room was torn apart, describing it as though “there had 2 been a brawl in there,” with blood smeared all over the bedding. The witness called Helena Police, but Smith fled the area before they arrived. I.M. informed police of the no-contact order in effect against Smith. Police arrested Smith the next night and charged him with felony PFMA and violating a no-contact order (Cause No. ADC-22-585). Smith was released on his own recognizance unopposed by the State and another no-contact order was issued. ¶5 On January 28, 2023, Helena Police responded to a multi-vehicle accident at 11th and Fee Streets. I.M. was one of the involved drivers, who told police that she was “getting away from her husband” because he “beat the crap out of her” and he threw a box of wine at her nose. She had a large bruise on the left side of her face, a cut on her nose, and dry blood on the corners of her mouth. I.M. identified the assailant as Smith, alleging he had also punched her several times the night before, and told the police he was in her hotel room. Helena Police went to the Howard Johnson hotel, used I.M.’s room key, and found Smith on the bed. The room was in disarray and consistent with a fight. Smith was arrested and charged with two counts of felony PFMA, and one for violating a no-contact order (Cause No. ADC-23-72). A $25,000 bond was ordered, which Smith did not post and remained in jail. ¶6 Though hard to glean the procedural history in this case from the record, there was an Omnibus Hearing Memorandum and Order entered in ADC-22-477 on January 5, 2023, several weeks before the third incident occurred. An omnibus hearing was scheduled in ADC-23-72, but the record does not establish that the hearing occurred. On June 27, 2023, one day before the final pretrial conference set in ADC-22-477 and ADC-23-72, the State, 3 noting Smith’s objection, filed a motion and supporting brief in each of the three cases seeking consolidation. At that time, ADC-22-477 and ADC-23-72 were set for trial on September 11, 2023, and ADC-22-585 was set for trial on September 18, 2023. Smith did not file an answer brief to the State’s consolidation motion, but included the following in his trial brief: The State has advised it intends to file a motion to consolidate the Defendant’s cases. This advisory was made in court, at which time the Court orally responded that it would likely deny such a motion. At this late hour, with trial mere weeks away, notice is given that the Defendant will object to consolidate this matter with any other pending matter. ¶7 The final pre-trial conference was held on August 16, 2023. Smith’s counsel indicated he was unavailable for trial on the September dates. Smith’s counsel still had not filed any answer brief to the State’s motion to consolidate. The only mention of an objection to consolidation made at this pre-trial conference came from the prosecutor saying, “I believe [defense counsel] has not filed a response to all three, but I did note that his client objected.” ¶8 The District Court granted the State’s consolidation motion and set all three cases for trial on November 6, 2023. Defense counsel fell ill, and a mistrial was declared the next day, resetting the matter for November 23, 2023. The jury found Smith guilty of PFMA for the September 22, 2022 incident, PFMA and violation of a no-contact order for the November 30, 2022 incident, and for one count of PFMA and violation of a no-contact order for the January 28, 2023 incident. The jury found Smith not guilty of the second count of PFMA for the January 27, 2023 incident. 4 ¶9 A PSI report was filed on January 3, 2024. In the PSI, it listed three charges for PFMA in Montana since 2021. It listed a charge for misdemeanor PFMA on March 1, 2021, with an unknown disposition. It listed a second charge for misdemeanor PFMA on March 22, 2021, with another unknown disposition. Lastly, it listed another charge for misdemeanor PFMA on June 28, 2021, indicating Smith was convicted. ¶10 In preparation for sentencing on February 21, 2024, Smith filed a sentencing memorandum, in which he offered some corrections to the PSI, but raised no objection to his three PFMAs being labeled as felony offenses based on having at least two prior PFMAs. At sentencing, the State read in the following: In March [2021,] he was arrested for DUI and a PFMA; and then later in the month of March he was arrested again for PFMA; and then arrested again for a PFMA in June. The PFMA, the initial arrest was TK-2021-890. I think it indicates in the PSI that it was in Belgrade. However, it appears from my investigation that it was actually in Park County. TK-2021-890 from the Park County Justice Court on March 16th, 2021, he pled guilty on an amended charge to assault. However, he was ordered to do anger management, he was ordered to have no contact with [I.M.]. Just before that, in TK-2021-045, the other March case in Livingston City Court, he was convicted of PFMA on March 2nd, he was ordered to have no contact with her, at least until he had started anger management, was ordered to do anger management, and pay [I.M.]’s medical bills. Then in September of 2021 on the 16th in TK-2021-066 also out of Park County Justice court – the Livingston City Court – excuse me – he was convicted in that from the June arrest. Again, no contact order, again ordered to do anger management. It appears he never did anger management and never respected that no contact order. ¶11 At no point during the sentencing hearing did Smith object to the State’s representation, nor did Smith challenge the notion that he had at least two prior convictions of PFMA. The District Court imposed five-year sentences for each felony PFMA, to run 5 consecutively, and gave Smith credit for time served on his convictions for violating a no-contact order. The District Court suspended five years, imposing a net sentence of fifteen years with five suspended. Smith appeals the District Court’s decision to consolidate his three cases and to sentence him as a third or subsequent PFMA offender. ¶12 This Court reviews a district court’s determination of whether to grant relief from waiver under § 46-13-101(3), MCA, for an abuse of discretion. State v. Ankeny, 2018 MT 91, ¶ 16, 391 Mont. 176, 417 P.3d 275 (citing State v. VonBergen, 2003 MT 265, ¶¶ 18-19, 317 Mont. 445, 77 P.3d 537). A district court abuses its discretion when it exercises its discretion based on a mistake of law, clearly erroneous finding of fact, or otherwise acts arbitrarily without employment of conscientious judgment, or outside the bounds of reason, resulting in substantial injustice. Larson v. State, 2019 MT 28, ¶ 16, 394 Mont. 167, 434 P.3d 241. ¶13 Where a defendant is sentenced to more than one year of actual incarceration, we review his sentence for legality. State v. Wolf, 2020 MT 24, ¶ 7, 398 Mont. 403, 457 P.3d 218. “Our review is confined to determining whether the sentencing court had statutory authority to impose the sentence, whether the sentence falls within the parameters set by the applicable sentencing statutes, and whether the court adhered to the affirmative mandates of the applicable sentencing statutes.” Wolf, ¶ 7 (quoting State v. Anderson, 2009 MT 39, ¶ 7, 349 Mont. 245, 203 P.3d 764). This determination is a question of law; as such, our review is de novo. State v. Rosling, 2008 MT 62, ¶ 59, 342 Mont. 1, 180 P.3d 1102 (citing State v. Ariegwe, 2007 MT 204, ¶ 175, 338 Mont. 442, 167 P.3d 815). 6 ¶14 Smith argues the District Court abused its discretion when it consolidated the three pending cases against him, because the motion to consolidate followed an omnibus hearing and thus the State waived the opportunity to make the motion pursuant to § 46-13-101(2), MCA. Smith argues that the State failed to show good cause for the District Court to grant relief from the State’s statutory waiver. ¶15 To properly preserve an issue or argument for appeal, a party must first timely raise an objection or argument in the district court. State v. Byrne, 2021 MT 238, ¶ 20, 405 Mont. 352, 495 P.3d 440 (citing § 46-20-104(2), MCA). Also, “an objection must be specific in order to preserve the issue for appeal.” State v. LaFreniere, 2008 MT 99, ¶ 12, 342 Mont. 309, 180 P.3d 1161; see also State v. Thompson, 2017 MT 107, ¶ 17, 387 Mont. 339, 394 P.3d 197 (stating that the Court generally requires an appellant to show that an objection made at trial has the same basis as the error asserted on appeal). We generally refuse to consider arguments for the first time on appeal because it is “fundamentally unfair to fault the trial court for failing to rule on an issue it was never given the opportunity to consider.” City of Missoula v. Moore, 2011 MT 61, ¶ 13, 360 Mont. 22, 251 P.3d 679 (citing LaFreniere, ¶ 11). ¶16 In this case, Smith objected, in his trial brief, to consolidation “at this late hour, with trial mere weeks away.” Although that statement objected to the motion’s proximity to trial, it did not invoke § 46-13-101, MCA, identify an omnibus deadline the State had missed, argue that the State had waived consolidation, or contend that the State lacked good cause for relief from waiver. Smith did not file an answer brief. At the final pretrial conference, defense counsel acknowledged that he had not filed a response and supplied 7 no legal basis for the objection. Because Smith did not present the District Court with the statutory theory he now advances, he did not preserve his argument that the State waived consolidation under § 46-13-101, MCA, or failed to show good cause for relief from waiver. ¶17 Section 46-13-101(1), MCA, provides that “[e]xcept for good cause shown, any defense, objection, or request that is capable of determination without trial of the general issue must be raised at or before the omnibus hearing.” Failure to raise those defenses, objections, or requests by a time set by the district court constitutes waiver. Section 46-13-101(2), MCA. Section 46-13-101(3), MCA, vests in a district court discretion to grant relief from waiver. This Court has not adopted a definitive standard for determining good cause for waiver, as the question is fact-specific and falls within the sound discretion of the district court. VonBergen, ¶ 19. When considering whether to grant relief from a waiver, a district court retains the authority to control the progress of the case, and may, within its discretion, grant or deny the requested relief, as it deems appropriate. State v. Adkins, 2009 MT 71, ¶ 19, 349 Mont. 444, 204 P.3d 1 (citing VonBergen, ¶ 21). ¶18 A district court may order two or more indictments, informations, complaints, or defendants to be tried together if the interests of justice require and the charges or defendants could have been joined in a single indictment, information, or complaint as provided for in § 46-11-404. Ankeny, ¶ 24. Two or more offenses may be charged in the same charging document in separate counts if the offenses charged are of the same or similar character or based on the same transactions connected or constituting parts of a common scheme or plan. Section 46-11-404(1), MCA. The District Court is allowed to 8 consider judicial economy in determining if joinder is in the interest of justice and the defendant’s right to a fair trial. Ankeny, ¶¶ 24-25. ¶19 Here, the District Court explained its reasons for consolidating at the final pretrial conference and again at sentencing. At the final pretrial conference in August, the District Court held: Okay, I’m just going to grant the motion to consolidate. My reasons for doing so, I think that this arises out of the same course of conduct. The charges are sufficiently similar. I think also one of the factors that the Court can consider in a motion to consolidate is the Court’s schedule and the taxing of judicial resources. At sentencing, the District Court again addressed consolidation: As you folks know, there was a motion to consolidate these cases into one trial, and I granted that motion to join them, in fact because this dealt with the same victim in all three cases, under circumstances that in all three cases were for all purposes identical. And they all occurred in hotels, even in hotels that were close in proximity to each other, and close in proximity in time. I think I just issued an order from the bench saying that the factors here favored a joint trial, and I didn’t think that there would be undue prejudice to the Defendant because we have essentially this course of conduct that occurred over such a short period of time. I think the fact that the jury found Mr. Smith not guilty of the count that was in ADC-2023-7[2], I think that was charged as Count 1, and that offense of partner family member assault alleged to have occurred on January 27th, 2023. The jury found him not guilty on that case, which I think was pretty good evidence that the jury considered each case here in its own light based upon the evidence presented. ¶20 Because Smith did not preserve his statutory-waiver argument, we decline to address whether the State showed good cause for relief from waiver. The District Court’s stated reasons instead bear on the separate question whether consolidation was appropriate under §§ 46-13-210 and 46-11-404, MCA. We conclude that Smith has not demonstrated 9 that the District Court abused its discretion in consolidating Smith’s cases for trial. We therefore affirm the order consolidating Smith’s cases for trial. ¶21 Smith argues that his sentence is unlawful because the PSI only recorded one prior conviction for PFMA, and thus he should not have been designated a felony offender. Smith argues that the State did not meet its burden to prove he was convicted of the required number of convictions necessary to designate his charges as felony PFMA. Smith made no objection to the State’s representation of his criminal history. ¶22 It is the State’s burden to prove that a defendant has the requisite number of convictions to enhance a penalty. State v. Krebs, 2016 MT 288, ¶¶ 19-20, 385 Mont. 328, 384 P.3d 98. This Court has held that a convicted defendant has a due process guarantee against a sentence predicated on misinformation. State v. McLeod, 2002 MT 348, ¶ 16, 313 Mont. 358, 61 P.3d 126. Since due process cannot protect against all misinformation, a defendant is under an “affirmative duty” to show that the alleged misinformation is materially inaccurate or prejudicial before a sentence will be overturned by this Court. Bauer v. State, 1999 MT 185, ¶ 22, 295 Mont. 306, 983 P.2d 955. A criminal defendant cannot be heard to complain where the information in a presentence report is true; however, where a petitioner can show that the sentence was predicated on something materially erroneous in the presentence report, that petitioner is entitled to resentencing. Bauer, ¶ 27. Where the sentencing judge referred to facts outside of the presentence investigation report at a presentence hearing, but provided the defendant an opportunity to explain or rebut that information at the hearing, it is not a violation of a defendant’s due process rights. Bauer, ¶ 23 (citing State v. Orsborn, 170 Mont. 480, 484, 555 P.2d 509, 512 (1976)). 10 When a defendant does not allege prior to or at sentencing that any information in the State’s presentation is false, the defendant’s due process rights are not implicated. State v. Jacob, 2025 MT 133, ¶ 8, 422 Mont. 431, 571 P.3d 1027 (citing State v. Mainwaring, 2007 MT 14, ¶ 16, 335 Mont. 322, 151 P.3d 53). ¶23 The PSI itself identified only one prior PFMA disposition as a conviction. At sentencing, however, the prosecutor identified two prior PFMA convictions—TK-21-045 and TK-21-066—by court, cause number, conviction date, and judgment conditions. Smith received two continuances to review the PSI and the State’s additional disclosures, corrected other PSI information, and did not dispute either conviction. When a defendant contests prior-conviction information, the State must produce additional competent proof. State v. Letherman, 2023 MT 196, ¶¶ 11–13, 413 Mont. 459, 537 P.3d 862. On these narrow facts, the District Court could rely on the detailed and undisputed information presented at sentencing, and the State met its burden to establish two qualifying prior PFMA convictions. We do not decide what proof would be required had Smith timely disputed either conviction. ¶24 The District Court did not abuse its discretion when it consolidated Smith’s cases for trial. Further, Smith was lawfully sentenced for felony PFMA. ¶25 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. The issues in this case are ones of judicial discretion and there clearly was not an abuse of discretion. The issues in this case are legal and are controlled by settled Montana law, which the District Court correctly interpreted. 11 ¶26 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ JAMES JEREMIAH SHEA /S/ KATHERINE M. BIDEGARAY /S/ INGRID GUSTAFSON /S/ JIM RICE 12