PD-0581-22 & PD-0582-22 08/21/2024
“The Second Court of Appeals decided an important question of federal law that is not settled by the Court of Criminal appeals when it held that Appellant’s Fourteenth Amendment due process right was not violated by having a virtual hearing on a motion to adjudicate guilt and subsequent sentencing hearing despite his request to be physically present before and during the proceedings.”
Montgomery’s deferred revocation hearing took place virtually over his objection. It was justified, in part, by the Supreme Court’s emergency COVID-19 order authorizing remote proceedings. Montgomery and his attorney conferred privately during the hearing, and the court took care to remedy any glitches. After the trial court found some of the State’s alleged violations true, it adjudicated Montgomery guilty and sentenced him.
On appeal, Montgomery complained that the virtual proceedings violated his due process right to physical presence. The court disagreed and held that the record was insufficient to show that his ability to participate and confer with counsel was impaired. Further, balancing various due process interests, the court held, “[T]he State’s interest in protecting the public health during the COVID-19 pandemic is significant, as is the State’s interest in the timely disposition of cases. Accordingly, we conclude that the virtual hearing on the State’s petition to proceed to adjudication-though not seamless-was not so inadequate that Montgomery was not permitted to participate in the hearing on the State’s petition to proceed to adjudication.”
Montgomery takes issue with the lower court’s determination of an insufficient record. He contends that the record shows he was not present over his objections. Defense counsel stated that it was an infringement to take a break when he wanted to talk to Montgomery, and he was unsure Montgomery had the chance to tell him everything he wanted to say. Weighing the due process interests, Montgomery argues his in-person presence right was significant, virtual technology does not allow real-time conferencing between attorney and client, the private break-out room fell short of safeguarding his rights, and the State’s interest was not supported by evidence of a backlog or positive COVID-19 testing among the participants.
