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 2 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.” 3 ¶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. 4 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.) 5 ¶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 6 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 7 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. 8 ¶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 9 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 10