Email Notice Counts: Montana Supreme Court Clarifies PFO Notice “Given” Need Not Be Filed by the Omnibus Deadline and Minor Tardiness Does Not Mandate Reversal Absent Prejudice

Case Comment: State v. J. Anderson, 2025 MT 189 (Mont. Aug. 26, 2025)

Introduction

In State v. J. Anderson, the Montana Supreme Court resolved two recurring procedural puzzles in persistent felony offender (PFO) practice: what it means for the State’s PFO notice to be “given” at or before the omnibus hearing under § 46-13-108, MCA, and how courts should treat slight deviations from court-imposed omnibus deadlines. The Court held that “given” does not mean “filed”; service of a detailed notice (here, via email) that specifies the prior convictions suffices to satisfy the statute’s timing mandate. Further, a two-minute delay beyond the court’s electronic omnibus deadline did not warrant reversal where the defendant suffered no prejudice and had ample opportunity to object long before plea and sentencing. The Court also declined plain error review of the district court’s non–in-person omnibus procedure, underscoring that an omnibus hearing need not be conducted in person and that due process was not implicated on the record presented.

Background and Key Issues

Jeffrey Scott Anderson faced numerous charges stemming from repeated violations of orders of protection obtained by his estranged wife, A.B. After arraignment, the district court required the parties to complete an electronic omnibus memorandum by 5:00 p.m. on August 31, 2022, and directed the State to comply with § 46-13-108, MCA, regarding PFO notice.

On August 31:

• 4:52 p.m.: The State emailed defense counsel the omnibus form, noting that PFO notice was being prepared.
• 5:02 p.m.: The State emailed both a “Simple Notice” and a “Detailed Notice” identifying the prior convictions it would rely on for PFO status.

The State filed the Simple Notice on September 1 and the Detailed Notice on September 6; it hand-delivered the Detailed Notice to Anderson on September 2. A plea agreement followed in which Anderson pled guilty to eight offenses; the State agreed not to seek PFO treatment unless Anderson violated conditions. After Anderson’s alleged post-plea misconduct, the State sought to “resurrect” PFO designation at sentencing. The district court allowed it and imposed a PFO sentence.

On appeal, Anderson argued:

• The PFO notice was untimely and invalid because it missed the 5:00 p.m. omnibus deadline and was not filed before the “hearing.”
• His guilty plea did not waive the issue because PFO had been withdrawn and only re-emerged after the State claimed breach.
• Plain error review should be used to correct the court’s failure to conduct an in-person omnibus hearing.

Summary of the Judgment

• The Court affirmed the PFO sentence.
• “Notice must be given” in § 46-13-108(1), MCA, does not require filing with the court by the omnibus deadline; service of a detailed notice on the defense suffices to satisfy the statute’s timing requirement.
• A two-minute delay relative to a local scheduling deadline did not result in prejudice; Anderson had ample time—months—to object and to litigate PFO issues before plea and sentencing.
• Anderson did not waive the PFO challenge by pleading guilty because PFO was withdrawn at the time of the plea and was only “resurrected” at sentencing after the State asserted breach.
• The Court declined to exercise plain error review concerning the lack of an in-person omnibus hearing; due process and the integrity of the proceeding were not implicated.

Detailed Analysis

1) Statutory Framework and the Court’s Construction

The decision turns on § 46-13-108, MCA (2021). It provides, in relevant part:

• Subsection (1): If the prosecution seeks PFO treatment, “notice of that fact must be given at or before the omnibus hearing.”
• Subsection (2): The notice must specify the alleged prior convictions and should not be disclosed to the jury before verdict.
• Subsections (3)–(4): If the defendant objects, the judge holds a hearing to determine the truth of the allegations; if true, sentencing follows as provided by law.
• Subsection (5): The notice “must be filed and sealed until the time of trial or until a plea…”

Key holdings on the statute:

• “Given” does not mean “filed.” The text requires giving notice to the accused by the omnibus hearing; it does not mandate filing with the court by that deadline.
• An emailed detailed notice to defense counsel that specifies the prior convictions satisfies subsection (2).
• Filing and sealing (subsection (5)) may be accomplished after “giving” notice; failure to file by the omnibus deadline does not, by itself, invalidate a notice that has been “given” to the defense in compliance with subsection (1).

2) Precedents Cited and How They Shaped the Outcome

• State v. Gardner, 2024 MT 283, 419 Mont. 188, 559 P.3d 1241
  • Holding: The only basis for accepting an untimely PFO notice (i.e., after the omnibus hearing) is a State showing of “good cause.” A heavy workload is not good cause. The prejudice analysis does not shift the State’s burden at the trial court stage.
  • Relevance to Anderson: The Court distinguished Gardner because Anderson’s notice was effectively contemporaneous with the electronic omnibus deadline (two minutes late), not eight months late. Gardner’s strict good-cause holding applies when the notice is after the omnibus hearing; here, the critical statutory command—“at or before the omnibus hearing”—was substantially met, and the slight local-rule variance did not create appellate prejudice.
• State v. Shults, 2006 MT 100, 332 Mont. 130, 136 P.3d 507; State v. McQuiston, 277 Mont. 397, 922 P.2d 519 (1996); State v. Ramsey, 2007 MT 31, 336 Mont. 44, 152 P.3d 710
  • Core principle: Where a defendant had ample opportunity to object to PFO treatment (including predicate convictions) and suffered no prejudice from the timing, the PFO sentence will not be reversed.
  • Application: Anderson had months to object and negotiate; he acknowledged the State’s PFO position in his plea agreement. The Court relied on Shults and Ramsey to conduct the appellate prejudice analysis and declined to reverse.
• State v. Greywater, 282 Mont. 28, 939 P.2d 975 (1996)
  • Referenced in Gardner to reject “busy caseload” as good cause.
• State v. Claus, 2023 MT 203, 413 Mont. 520, 538 P.3d 14
  • General waiver rule for guilty pleas.
  • Distinguished: Anderson’s plea did not waive the PFO notice challenge because the PFO issue was withdrawn as part of the plea and re-emerged only at sentencing after an alleged breach.
• State v. Marfuta, 2024 MT 245, 418 Mont. 353, 557 P.3d 1260; State v. Deveraux, 2022 MT 130, 409 Mont. 177, 512 P.3d 1198; State v. George, 2020 MT 56, 399 Mont. 173, 459 P.3d 854; Smith v. State, 2024 MT 225, 418 Mont. 210, 557 P.3d 55
  • Plain error standards and the admonition against faulting a trial court for issues not raised below.
  • Applied to decline plain error review of the non–in-person omnibus procedure.
• Dexter v. Shields, 2004 MT 159, 322 Mont. 6, 92 P.3d 1208
  • Use the statutes in effect at the time of the offense; thus, the 2021 MCA versions controlled Anderson’s 2022 conduct.
• State v. Maggi, 2024 MT 90, 416 Mont. 333, 547 P.3d 1245 (n.3)
  • Notes the 2017 PFO amendments (definition now by reference in § 46-1-202(18), MCA) and the “third felony” requirement with at least one sexual or violent offense; not outcome-determinative here but situational context.

3) The Court’s Legal Reasoning

• Textual reading of “given.” The Court emphasized the statutory text: § 46-13-108(1) requires that notice be “given,” not “filed,” by the time of the omnibus hearing. The statute specifies filing and sealing in subsection (5), but does not tie filing to the timing requirement of subsection (1). The Court thus recognized a sequence in which the State first gives notice specifying prior convictions, affording the defendant an opportunity to object and request a hearing, and the notice is then filed and sealed.
• Local deadlines versus statutory timing. Although the district court’s scheduling order set a 5:00 p.m. email deadline, the State’s 5:02 p.m. detailed notice still satisfied the statute’s “at or before the omnibus hearing” requirement in substance and timing. The court treated the two-minute variance as non-prejudicial and not a basis for reversal, particularly given the months-long runway before plea and sentencing.
• Harmonizing Gardner with Shults/Ramsey. Gardner prevents trial courts from excusing truly late PFO notices absent good cause; Shults/Ramsey guide appellate courts to ask whether any timing error prejudiced the defendant or deprived a fair opportunity to object. Here, because any deviation was de minimis and Anderson had ample time to respond, reversal was unwarranted.
• No waiver by guilty plea. Because the State had agreed not to seek PFO at the time of the plea, the PFO issue was not “on the table” for the plea colloquy. When the State later “resurrected” PFO after Anderson’s breach, the district court continued sentencing and allowed briefing and argument. Under these circumstances, the Court held the issue was not waived.
• Plain error declined; no due process violation. The omnibus hearing is a largely ministerial pretrial management tool; the statute does not require the defendant’s presence unless so ordered. The parties followed the district court’s local rules to file an electronic omnibus memorandum. Anderson neither objected nor asked for an in-person hearing. On this record, no fundamental right was implicated to justify plain error intervention.

4) Impact and Practical Implications

This decision clarifies PFO notice practice and sets several practical benchmarks:

• “Given” means service on the defense, not necessarily filing. Prosecutors may satisfy § 46-13-108(1) by timely serving a detailed notice that identifies predicate convictions; filing and sealing can follow under subsection (5). Defense counsel should track service, not only docket filings, to assess compliance.
• De minimis deadline slips will not automatically invalidate PFO notices. Minor variances from a court’s scheduling deadline—especially in electronic procedures—are unlikely to prompt reversal absent actual prejudice. That said, material lateness beyond the omnibus hearing still requires good cause under Gardner.
• Electronic omnibus procedures are acceptable. The Court implicitly endorsed district courts’ use of electronic omnibus memoranda without an in-person hearing, provided parties retain the opportunity to be heard and raise issues. Defendants who want an in-person hearing should request it and make a record.
• Resurrection of PFO post-plea breach. Where the State withdraws PFO in a plea agreement conditioned on the defendant’s conduct, it may reinstate PFO upon breach if the original notice was “given” in compliance with § 46-13-108 and the defendant had a fair chance to object.

Downstream effects:

• Prosecutors will likely feel more secure using email service to meet PFO “notice” requirements, but should still promptly file and seal to satisfy subsection (5) and avoid litigation over timing.
• Defense attorneys should promptly evaluate predicate convictions upon service—even if notice is not yet filed—to preserve objections and ensure adequate sentencing strategy.
• Trial courts retain discretion to enforce scheduling orders but should be mindful that trivial violations without prejudice are unlikely to require exclusion of PFO allegations.

5) Complex Concepts Simplified

• Persistent Felony Offender (PFO): A legal status that enhances sentencing exposure for defendants who meet statutory criteria based on prior felony convictions. Since 2017 amendments, Montana’s definition appears by reference in § 46-1-202(18), MCA, generally requiring sentencing on a third felony with at least one sexual or violent offense among the three.
• Omnibus Hearing: A pretrial management step where the court and parties identify issues, motions, and disclosures. It can be conducted by written submissions under local procedures; a defendant’s personal attendance is not required unless ordered.
• “Notice must be given”: Under § 46-13-108(1), MCA, the State must inform the defendant at or before the omnibus hearing that it will seek PFO treatment; subsection (2) requires the notice to specify the prior convictions. “Given” focuses on communicating to the defense; it does not, by itself, require filing.
• “Filed and sealed”: Subsection (5) requires that the notice be filed under seal to avoid prejudicing the jury. The Court’s reading here allows filing and sealing to occur after “giving” notice, rather than tying filing to the omnibus deadline.
• Good Cause vs. Prejudice:
  • Good Cause (trial court gatekeeping): When the State’s notice comes after the omnibus hearing, the State must show good cause for the delay (Gardner).
  • Prejudice (appellate lens): On appeal, even if there was a timing misstep, reversal requires showing prejudice—i.e., that the defendant lacked a fair chance to object or was otherwise harmed (Shults, Ramsey).
• Plain Error Review: An appellate safety valve used sparingly to correct unpreserved errors that threaten fundamental fairness or the integrity of proceedings. The proponent must firmly convince the court intervention is necessary.

Standards of Review (as applied)

• Legality of sentence (de novo): Whether the sentence complies with statutory authority and mandates.
• Good cause/prejudice determinations on PFO notice (abuse of discretion): The trial court abuses discretion when acting arbitrarily or unreasonably, resulting in substantial injustice.
• Plain error: Applied sparingly to unpreserved claims implicating fundamental rights and the integrity of the process.

What This Case Does Not Do

• It does not relax Gardner’s rule for truly late notices. If a PFO notice is served after the omnibus hearing, the State still must show good cause.
• It does not create a blanket approval for ignoring local deadlines; rather, it treats a trivial two-minute variance without prejudice as non-reversible error.
• It does not categorically bar challenges to electronic omnibus procedures. Instead, it emphasizes the need to raise objections in the trial court and to demonstrate prejudice or fundamental unfairness.

Conclusion and Key Takeaways

State v. J. Anderson clarifies two critical aspects of Montana’s PFO regime. First, “notice must be given” in § 46-13-108, MCA, is satisfied when the State timely communicates to the defense—by email, hand-delivery, or similar means—a detailed notice specifying the alleged prior convictions; filing with the court is required but not as part of the “given” requirement’s timing. Second, trivial deviations from court-imposed omnibus deadlines will not, without more, invalidate a PFO designation where the defendant had ample time to object and shows no prejudice. The Court also underscores that a guilty plea does not waive a PFO challenge where PFO was withdrawn at plea but later reinstated after breach, and it declines to expand plain error doctrine to police the choice of electronic omnibus procedures absent demonstrated unfairness.

Practically, Anderson promotes clarity and predictability in PFO practice: prosecutors should ensure timely service of detailed notices, promptly file and seal them thereafter, and scrupulously document service; defense counsel should treat served notices—filed or not—as operative for strategy and objections. The decision harmonizes Gardner’s strict good-cause rule for truly late notices with Shults/Ramsey’s appellate prejudice analysis for minor deviations, striking a workable balance between statutory fidelity and practical administration of justice.