State v. T. Green
CourtMontana Supreme Court
Date FiledNovember 10, 2026
DocketDA 25-0111
JudgeMcKinnon
StatusPublished
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Full Opinion
11/10/2026
DA 25-0111
Case Number: DA 25-0111
IN THE SUPREME COURT OF THE STATE OF MONTANA
2026 MT 270
STATE OF MONTANA,
Plaintiff and Appellee,
v.
TARRYL NIKOLE GREEN,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixth Judicial District,
In and For the County of Sweet Grass, Cause No. DC 2023-20
Honorable Brenda R. Gilbert, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Tammy A. Hinderman, Appellate Defender Division Administrator,
Noah Goldberg-Jaffe, Assistant Appellate Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Thad Tudor, Assistant
Attorney General, Helena, Montana
Patrick N. Dringman, Sweet Grass County Attorney, Big Timber,
Montana
Submitted on Briefs: September 16, 2026
Decided: November 10, 2026
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Tarryl Nikole Green appeals the December 2024 order of the Sixth Judicial District
Court, Sweet Grass County, dismissing her appeal of her convictions in Sweet Grass
County Justice Court. We address the following issues:
Issue 1: Whether the District Court abused its discretion when it dismissed Green’s
justice court appeal after she failed to appear for a jury trial verification hearing.
Issue 2: Whether the record establishes Green’s counsel was ineffective.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In late December 2022, Green was cited outside of Big Timber for driving under the
influence of alcohol (DUI) and for driving a vehicle without proof of insurance or
registration. She had a bench trial in Sweet Grass County Justice Court on October 27,
2023, and was convicted of DUI, in violation of § 61-8-1002, MCA; driving without proof
of insurance, in violation of § 61-6-302, MCA; and driving without valid registration, in
violation of § 61-3-312, MCA. As these were her first offenses, she was sentenced to
six months of custodial time with all but 24 hours suspended and required to complete a
treatment class. She received a fine for each violation.
¶3 On November 3, 2023, she appealed to the Sixth Judicial District Court, Sweet
Grass County, for a trial de novo pursuant to § 46-17-311, MCA. On August 1, 2024, the
District Court issued a scheduling order that advised Green of the following consequences
if she failed to appear at the September 4, 2024 jury trial verification hearing:
The Defendant shall personally appear, with Counsel, at the Jury Trial
Verification Hearing to confirm the Jury Trial set herein.
In the event the Defendant and counsel do not appear at the Jury
Trial Verification Hearing, the Court will vacate the Jury Trial
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scheduled herein. If the jury trial is vacated due to non-appearance, the
delay caused thereby in resetting a jury trial at a later date will be
counted against the Defendant for purposes of speedy trial analysis.
The Court may hold the Defendant in contempt for failing to
appear for the Jury Trial Verification Hearing as ordered by the Court.
The Court may issue a warrant for the Defendant’s arrest for
failing to follow the Court’s Order to appear at the Jury Trial
Verification Hearing as ordered by the Court.
Failure to appear and verify jury trial, including Defendant’s
failure to personally appear at more than one jury verification hearing,
may jeopardize Defendant’s right to a jury trial and result in a bench
trial.
(Emphasis in original.) These warnings were reiterated two more times in
subsequent scheduling orders.
¶4 Green failed to appear for the September 4, 2024 jury trial verification hearing, nor
did she tell her attorney before the hearing why she was unable to attend. The District
Court questioned Green’s counsel, who offered the following in response:
Your Honor, I do not know why my client is not here today. I do know that
this was an appeal from a lower court, and I believe -- I don’t have the statute
in front of me, but I think there is a statute out there that says it should be
dismissed, if the Defendant does not appear for the jury trial verification. I
would ask the Court, however, to continue this to give me one opportunity
to follow-up with my client in the hopes that she still does want to confirm
her jury trial.
¶5 The State did not oppose a continuance, and the District Court issued another
scheduling order, setting the jury trial verification hearing for September 24, 2024,
with the same advisement, warning, and order for Green’s personal appearance. Green
appeared on September 24 and said that she wanted a jury trial. To explain her absence on
September 4, she supplied the following: “I was working out of state, which is why I was
not here on the fourth; I didn’t know about it.”
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¶6 After comparing the speedy trial status of Green’s case with other cases scheduled
for trial on the same day, the District Court rescheduled Green’s trial and rescheduled
Green’s jury trial verification hearing for December 10, 2024. It issued another scheduling
order that contained the same advisement, warning, and order requiring Green’s
personal appearance. Thus, Green was warned both in the scheduling order and at the
September 24 hearing of the need to appear at the December 10 jury trial verification
hearing. On December 10, 2024, Green did not appear. Green’s counsel had no
information to explain Green’s absence. The State moved for a dismissal of Green’s
appeal. Green’s counsel responded:
I do understand that the statute does state that it should be dismissed if the
Defendant does not appear. So I would ask the Court to just continue this to
next week to give me an opportunity to find out as to why Ms. Green is not
here today.
The District Court dismissed Green’s appeal.
¶7 Green appeals, arguing that she was never advised by the District Court that her
failure to personally appear could result in dismissal of her appeal. Alternatively, Green
argues the District Court abused its discretion by not giving Green the opportunity to show
good cause for her failure to appear after counsel asked for time to contact Green. Green
also alleges that her trial counsel was ineffective because she conceded Green’s case should
be dismissed based on Green’s failure to appear and that she misunderstood the law
regarding trials de novo.
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STANDARD OF REVIEW
¶8 This Court reviews discretionary trial court rulings, including dismissal of a justice
court appeal under § 46-17-311(5), MCA, for abuse of discretion. State v. Ziolkowski,
2014 MT 58, ¶ 11, 374 Mont. 162, 321 P.3d 816. “A court would necessarily abuse its
discretion if it based its ruling on an erroneous view of the law[.]” Ziolkowski, ¶ 11 (citing
City of Missoula v. Girard, 2013 MT 168, ¶ 10, 370 Mont. 443, 303 P.3d 1283). A district
court abuses its discretion when it acts arbitrarily without employment of conscientious
judgment, or exceeds the bounds of reason, resulting in substantial injustice. Larson v.
State, 2019 MT 28, ¶ 16, 394 Mont. 167, 434 P.3d 241.
¶9 Ineffective assistance of counsel is a mixed question of law and fact reviewed de
novo. State v. Larsen, 2018 MT 211, ¶ 6, 392 Mont. 401, 425 P.3d 694.
DISCUSSION
¶10 Issue 1: Whether the District Court abused its discretion when it dismissed Green’s
justice court appeal after she failed to appear for a jury trial verification hearing.
¶11 Section 46-17-311(5), MCA, provides:
If, on appeal to the district court, the defendant fails to appear for a scheduled
court date or meet a court deadline, the court may, except for good cause
shown, dismiss the appeal on the court’s own initiative or on motion by the
prosecution and the right to a jury trial is considered waived by the defendant.
Upon dismissal, the appealed judgment is reinstated and becomes the
operative judgment.
(Emphasis provided.)
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¶12 Further, § 46-16-120, MCA, provides:
In all cases in which a defendant is charged with a misdemeanor offense, the
defendant may appear by counsel only, although the court may require the
personal attendance of the defendant at any time.
(Emphasis provided.) Accordingly, we have explained that a defendant “fails to appear”
only if both she and her counsel (if she has counsel) fail to appear, unless the court has
previously informed the defendant that her personal attendance is required. State v. Clark,
2006 MT 313, ¶ 10, 335 Mont. 39, 149 P.3d 551.
¶13 Good cause is generally defined as a “legally sufficient reason” and is referred to as
“the burden placed on a litigant, usually by court rule or order, to show why a request
should be granted or an action excused.” Ziolkowski, ¶ 14 (citing State v. Luke, 2014 MT
22, ¶ 15, 373 Mont. 398, 321 P.3d 70). Where a party fails to appear and then fails to
provide a non-speculative reason for his failure to appear, this Court presumes that
failing to appear is a conscious choice, as any other conclusion is pure conjecture. City of
Missoula v. Charlie, 2025 MT 85, ¶ 32, 421 Mont. 403, 567 P.3d 922.
¶14 In Clark, Clark’s counsel was present for the de novo jury trial, and there was no
order in the record from the district court that Clark’s personal appearance was required.
Clark, ¶ 5. Accordingly, we reversed the district court’s dismissal because Clark had not
truly failed to appear under the statute. Clark, ¶ 13. In Ziolkowski, Ziolkowski appealed
her justice court conviction following a jury trial held in absentia and failed to appear in
District Court for her appeal. The State moved to dismiss pursuant to § 46-17-311(5),
MCA, which the district court granted. Ziolkowski, ¶ 10. We held the district court did not
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abuse its discretion because Ziolkowski neither personally appeared nor appeared through
counsel. Ziolkowski, ¶¶ 13-14.
¶15 Here, Green was ordered to appear personally by the District Court at several jury
trial verification hearings and only appeared for one. Green did not provide any
explanation for her absences. When the District Court made the decision to dismiss
Green’s appeal after her unexplained absences and a motion from the prosecution, the
District Court did so under the authority granted by § 46-17-311(5), MCA. The District
Court continued the case on multiple occasions, but Green never provided an explanation
for her absences.
¶16 Green argues that her due process rights were violated because she lacked notice
that dismissal of her appeal was a potential consequence for failing to appear. Green
maintains that dismissal, and subsequent reinstatement of her conviction, is far harsher than
any of the consequences provided in the District Court’s repeated warnings. However,
statutes necessarily provide notice to parties. Here, the District Court’s decision is not
contrary to the governing statute, and the statute gave Green notice to conform her conduct
to the law, which includes appearing in court when ordered to do so.
¶17 Green also argues that her failure to appear should be construed as a choice to accept
a bench trial rather than a jury trial. That claim is entirely speculative and one our case law
does not allow us to entertain. Charlie, ¶ 32. The text of the statute does not include a
requirement for the district court to set a bench trial before dismissing the defendant’s
appeal. Section 46-17-311(5), MCA. The record indicates that the District Court required
her to appear at several jury trial verification hearings and Green did not appear or provide
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good cause for her failure to appear. Finally, Green argues that the District Court should
have provided her with an opportunity to establish good cause for her absences. However,
Green was given the opportunity to be heard on several occasions but continued to be
absent and never provided good cause for her absences. Here, the only record evidence of
Green’s failure to appear is from her counsel at the December 10, 2024 jury verification
hearing: “I have no information for the [c]ourt at this time.” As the State argues, reversing
Green’s conviction because Green might have a valid excuse would be pure conjecture and
inconsistent with our precedent.
¶18 We conclude that the District Court did not abuse its discretion in dismissing
Green’s appeal after she failed to appear for several jury trial verification hearings where
she was ordered to appear and when she failed to provide any explanation for her absences.
The District Court did not abuse its discretion when it dismissed Green’s appeal as
provided by § 46-17-311(5), MCA.
¶19 Issue 2: Whether the record establishes Green’s counsel was ineffective.
¶20 The Sixth and Fourteenth Amendments to the United States Constitution, and
Article II, Section 24, of the Montana Constitution, guarantee criminal defendants the right
to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86,
104 S. Ct. 2052, 2063 (1984); Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90,
183 P.3d 861. This Court applies the two-pronged Strickland test to address ineffective
assistance of counsel claims to determine whether counsel’s performance was deficient
and, if so, whether the defendant suffered prejudice as a result. Whitlow, ¶ 10.
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¶21 Counsel’s performance is deficient if it falls below an objective standard of
reasonableness measured under prevailing professional norms and considering the
surrounding circumstances. State v. Walter, 2018 MT 292, ¶ 14, 393 Mont. 390, 431 P.3d
22 (citing State v. Brown, 2011 MT 94, ¶ 12, 360 Mont. 278, 253 P.3d 859). The defendant
must overcome a strong presumption that counsel’s actions were within a broad range of
reasonable professional assistance. Brown, ¶ 12. The defendant must also demonstrate
prejudice by showing a reasonable probability that the result of the proceeding would have
been different but for counsel’s deficient performance. Brown, ¶ 12 (citing State v.
Weisweaver, 2010 MT 198, ¶ 9, 357 Mont. 384, 239 P.3d 952).
¶22 This Court reviews ineffective assistance of counsel claims on direct appeal if the
claims are based solely on the record. State v. Ward, 2020 MT 36, ¶ 15, 399 Mont. 16,
457 P.3d 955. Non-record-based claims of ineffective assistance of counsel are reviewable
only in a petition for post-conviction relief. State v. Lindberg, 2008 MT 389, ¶ 40,
347 Mont. 76, 196 P.3d 1252. If counsel fails to fully explain why counsel took a particular
action, then the matter is best suited for postconviction proceedings to further inquire into
whether counsel’s representation was ineffective. Lindberg, ¶ 40. 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. Lindberg, ¶ 40.
¶23 Here, Green’s counsel acknowledged the existence of § 46-17-311(5), MCA, and
used the word “should” instead of “may,” and was candid with the tribunal when she
advised she had no information of Green’s whereabouts. After a review of these
proceedings and record, we conclude the record is insufficient to determine whether Green
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received ineffective assistance of counsel. Accordingly, we decline on direct appeal to
address whether counsel’s performance was deficient and whether it prejudiced Green’s
right to a fair trial.
CONCLUSION
¶24 We conclude the District Court did not abuse its discretion in dismissing Green’s
appeal pursuant to § 46-17-311(5), MCA. Green’s ineffective assistance of counsel claim
cannot be reviewed on direct appeal.
¶25 Affirmed.
/S/ LAURIE McKINNON
We Concur:
/S/ CORY J. SWANSON
/S/ JAMES JEREMIAH SHEA
/S/ KATHERINE M. BIDEGARAY
/S/ JIM RICE
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