STATE OF MONTANA v. JACQUES DAVID BERNARD (2026)

¶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 Jacques David Bernard appeals from the March 15, 2024 Amended Judgment of the Montana Fourth Judicial District Court, Missoula County, following a bench trial at which the District Court found him guilty of deliberate homicide. We affirm.

¶3 On January 24, 2022, Missoula Police Department officers responded to Angela Kohl's residence after Bernard reported that Kohl had stabbed him. Officers found Kohl dead from multiple stab wounds and found Bernard injured inside the residence.

¶4 On January 25, 2022, the State charged Bernard with one count of deliberate homicide in violation of § 45-5-102(1), MCA. The parties’ Omnibus Hearing Memorandum filed May 17, 2022, identified a mental-disease-or-disorder issue in Section XI and directed counsel to present that issue by motion so that the court could order an examination. Section III separately stated that Bernard's fitness to proceed was not an issue. Neither party sought a competency evaluation.

¶5 On March 15, 2023, Bernard filed a motion to vacate the scheduled jury trial and set a bench trial. He also filed an “Acknowledgement and Waiver of Right to Jury Trial” (waiver), which he and defense counsel had signed. The document stated that Bernard had read it or had it read to him and understood its contents. Paragraph 3 stated that he understood he was waiving his right to a jury trial and wished to have the “matter decided instead by a judge.” Paragraph 4 stated that Bernard's counsel had explained the rights he was waiving and “the consequences of his waiver of those rights.” The following day, the District Court granted Bernard's motion and vacated the jury trial setting.

¶6 At the April 11, 2023 scheduling hearing, Bernard appeared by video with counsel, and the State orally consented to a bench trial. The District Court did not question Bernard about his understanding of the waiver. The court initially scheduled trial for September 18, 2023, and later rescheduled it for December 4, 2023. Bernard appeared with counsel at the December 1 pretrial hearing and proceeded through the four-day bench trial without objecting to the absence of a jury or asking to withdraw his waiver. He testified at trial.

¶7 On December 7, 2023, the District Court found Bernard guilty of one count of deliberate homicide under § 45-5-102(1), MCA. On March 1, 2024, it sentenced him to 60 years in Montana State Prison with no time suspended, awarded him 769 days of credit for time served, and waived financial obligations. The court filed its written judgment on March 13, 2024, and filed an Amended Judgment on March 15, 2024, correcting its stated reasons for the sentence.

¶8 We ordinarily will not review issues raised for the first time on appeal. State v. Harris, 2026 MT 14, ¶ 6, 426 Mont. 165, 583 P.3d 203. We exercise plain-error review sparingly when the appellant demonstrates a plain or obvious error that affected a fundamental constitutional right and seriously affected the fairness or integrity of the proceeding. Harris, ¶ 6; State v. Abel, 2021 MT 293, ¶ 4, 406 Mont. 250, 498 P.3d 199. Whether plain error occurred is a question of law we review de novo. Abel, ¶ 4.

¶9 A jury-trial waiver must be knowing, voluntary, and intelligent under the totality of the circumstances. State v. Cole, 2025 MT 18, ¶ 9, 420 Mont. 231, 562 P.3d 1065; City of Missoula v. Charlie, 2025 MT 85, ¶¶ 15, 28-29, 421 Mont. 403, 567 P.3d 922. When the defendant did not preserve the challenge, he must firmly convince us that failure to correct the asserted error would result in a manifest miscarriage of justice, leave unsettled the fundamental fairness of the proceedings, or compromise the integrity of the judicial process. Charlie, ¶¶ 18, 24, 29.

¶10 We review ineffective-assistance-of-counsel claims de novo as mixed questions of law and fact. Hyslop v. State, 2026 MT 82, ¶ 7, 427 Mont. 434, 588 P.3d 87. Such a claim requires deficient performance and resulting prejudice. Hyslop, ¶ 8. We consider an ineffective-assistance-of-counsel claim on direct appeal when the record sufficiently explains why counsel took or failed to take the challenged action and may also consider a claim involving an obligatory, nontactical act or conduct for which no plausible justification exists. State v. Polak, 2021 MT 307, ¶¶ 24-25, 406 Mont. 421, 499 P.3d 565. Claims requiring evidence outside the record generally belong in postconviction proceedings. State v. Soapes, 2025 MT 296, ¶ 31, 425 Mont. 367, 581 P.3d 73.

Bernard has not established reversible plain error in the District Court's acceptance of his jury-trial waiver and decision to proceed to a bench trial

¶11 The Montana and United States Constitutions protect Bernard's right to a jury trial. Mont. Const. art. II, §§ 24, 26; U.S. Const. amends. VI, XIV. Section 46-16-110(3), MCA, requires written consent of both parties before a felony jury trial may be waived. State v. Dahlin, 1998 MT 113, ¶¶ 18-20, 23, 289 Mont. 182, 961 P.2d 1247. Bernard and his counsel signed a written jury-trial waiver, but the State consented only orally. The statutory writing requirement was not satisfied.

¶12 Bernard did not object below, so we review the claimed errors under the plain-error standard. In State v. Pein, 2026 MT 226, ¶¶ 27-31, ___ Mont. ___, ___ P.3d ___, we acknowledged noncompliance with the written-waiver requirement but declined to reverse under that standard. Pein personally confirmed his informed and voluntary election during an extensive colloquy and did not dispute that understanding on appeal. Pein, ¶¶ 30-31. Bernard, by contrast, challenges both the form of the State's consent and the validity of his own waiver. We therefore must consider his personal-waiver challenge as well as the statutory defect.

¶13 Charlie distinguishes a preserved challenge to the validity of a jury waiver from a request for reversal under plain-error review. Charlie, ¶¶ 28-29. Our consideration of an unpreserved claim does not itself establish entitlement to reversal. Charlie, ¶ 24. In State v. Reim, 2014 MT 108, ¶¶ 33-34, 374 Mont. 487, 323 P.3d 880, counsel's written request for a bench trial and the defendant's subsequent conduct supported rejection of an unpreserved waiver challenge, even without the defendant's personal signature. Both parties had provided written consent there. Reim, ¶ 34. Reim thus informs our consideration of Bernard's election; it does not excuse the State's missing written consent. Cole similarly considered the defendant's acknowledgments, consultation with counsel, and subsequent conduct, although its misdemeanor statute did not require a written waiver. Cole, ¶¶ 9-10.

¶14 Bernard relies on his history of substance abuse and reported bipolar disorder, attention-deficit/hyperactivity disorder, traumatic brain injury, trauma, and depression. His ability to understand the proceedings and his actual understanding of the jury waiver are separate questions. See Godinez v. Moran, 509 U.S. 389, 400-01 & n.12, 113 S. Ct. 2680, 2687-88 & n.12 (1993). Section XI of the omnibus memorandum identified a mental-disease-or-disorder issue, but Section III expressly stated that fitness to proceed was not at issue. That representation neither adjudicated Bernard's competency nor established his understanding of the later waiver. It is nevertheless part of the information the parties presented to the District Court.

¶15 Bernard cites United States v. Christensen, 18 F.3d 822, 825-26 (9th Cir. 1994), which required further inquiry when the trial court had reason to question whether the defendant's mental condition affected his waiver. Counsel there reported that the defendant was despondent and unresponsive and raised concern about competency. Christensen, 18 F.3d at 823-25 & n.7. Bernard's omnibus memorandum did not identify comparable difficulty understanding proceedings or communicating with counsel; it identified a mental-health issue while expressly disclaiming a dispute over fitness to proceed. The distinction does not turn simply on whether counsel filed a competency motion. We consider the information supplied to the court together with the waiver and the remaining circumstances, rather than treating the absence of a motion as proof of an informed waiver.

¶16 Bernard also challenges the document's description of the rights he would surrender. Paragraph 1 combined confrontation, public-trial, and speedy-trial rights; and paragraph 4 purported to waive “all the rights” described above, including the presumption of innocence and proof beyond a reasonable doubt. That language was overbroad. Electing a bench trial did not relinquish those protections. See Mont. Const. art. II, § 24; U.S. Const. amend. VI; Sullivan v. Louisiana, 508 U.S. 275, 277-78, 113 S. Ct. 2078, 2080-81 (1993). We do not approve the form or presume that counsel privately corrected it.

¶17 The document nevertheless did more than identify a preference for a judge. It described a twelve-person jury, Bernard's participation in jury selection, and the requirement of a unanimous verdict. Paragraph 3 expressly stated that Bernard understood he was waiving a jury and wanted a judge to decide. He personally acknowledged that he had read the document or had it read to him, that counsel had explained the rights and consequences, and that no threats or promises induced his election. Those provisions supply affirmative evidence of his understanding of the jury-trial right and his choice to relinquish it. Bernard then appeared with counsel at the scheduling and pretrial hearings and participated in the bench trial without objecting or seeking to withdraw the waiver. Bernard's later participation does not substitute for an informed waiver, but it is consistent with his express written election. See Reim, ¶¶ 33-34; Cole, ¶ 10.

¶18 Considering the document's specific description of the jury right, Bernard's acknowledgments, the information in the omnibus memorandum, and his subsequent conduct, the overbroad clause and absence of a colloquy do not firmly convince us that his waiver was unknowing, involuntary, or unintelligent. Charlie, ¶¶ 24, 29. We consider the asserted defects together and do not hold that a signature alone establishes a valid waiver. A denial of the constitutional right to a jury trial is structural error; the strength of the evidence of guilt cannot render it harmless. See Sullivan, 508 U.S. at 281-82, 113 S. Ct. at 2082-83. Here, however, Bernard has not established on this record, under the applicable plain-error standard, that his personal waiver was constitutionally invalid.

¶19 The State's failure to consent in writing remains a statutory violation. In Dahlin, the record contained no written waiver and the court relied solely on counsel's oral representation of the defendant's election. Dahlin, ¶¶ 5, 20. Here, Bernard personally made a written election, and the State expressly consented in open court. In light of the record supporting Bernard's own election, he has not firmly convinced us that the State's failure to reduce its consent to writing requires reversal to prevent a manifest miscarriage of justice, protect the fundamental fairness of proceedings, or preserve the integrity of the judicial process. Pein, ¶¶ 30-31. We do not hold that oral consent satisfied the statutory requirement.

We decline to resolve Bernard's ineffective-assistance claims on direct appeal

¶20 Bernard argues that counsel obtained a defective jury-trial waiver, failed to pursue a mental-disease-or-disorder defense, failed to file additional pretrial motions, stipulated to extensive photographs and videos, and suggested a third-party killer despite his testimony that he killed Kohl and his reliance on justifiable use of force and mitigation. He also argues that the failure to obtain an evaluation deprived him of the opportunity to seek a mental-health commitment rather than imprisonment at sentencing. We must determine whether the record permits resolution of those claims, including whether they fall within the exceptions for obligatory acts or conduct lacking any plausible justification. Polak, ¶¶ 24-25; Soapes, ¶ 31.

¶21 The record does not disclose the extent of counsel's mental-health investigation, the scope of counsel's expert consultation beyond the testimony presented, the advice counsel received, why counsel did not pursue a statutory mental-disease-or-disorder defense, what further evaluation relevant to trial or sentencing would have shown, why counsel stipulated to particular exhibits, or why counsel chose the trial strategy they used. The omnibus memorandum's identification of a mental-health issue makes the scope of that investigation important; it does not answer those questions. Resolving these claims requires more than evaluating the choices in hindsight without the information counsel considered. See Soapes, ¶ 31; State v. Arvidson, 2025 MT 200, ¶ 23, 424 Mont. 46, 575 P.3d 949.

¶22 The waiver's language does appear in the record, and accurately describing retained trial rights was not a strategic choice. But the document does not disclose counsel's complete advice or its effect on Bernard's decision. Identifying its defective wording does not resolve both deficient performance and prejudice. Hyslop, ¶ 8. Our rejection of Bernard's plain-error claim on the direct-appeal record does not resolve an ineffective-assistance claim supported by additional evidence concerning counsel's advice and investigation. We decline to decide those claims on their merits.

¶23 Bernard may pursue any proper ineffective-assistance claim in an appropriate postconviction proceeding, subject to the applicable statutes and procedural requirements. We express no view on the claims’ ultimate merits. We also conclude that extraordinary circumstances require appointed counsel in the interests of justice. Sections 46-8-104(2), 46-21-201(2) MCA; Arvidson, ¶ 25; Soapes, ¶ 31. The inaccurate waiver, the identified mental-health issue, and the need to investigate counsel's advice and the potential trial and sentencing consequences require development of evidence outside this appellate record. Should Bernard choose to file a petition for postconviction relief, counsel from the Office of the Public Defender shall be assigned to represent him, provided he meets their income criteria for representation.

¶24 We affirm the Amended Judgment. We decline to decide Bernard's ineffective-assistance claims on direct appeal.

¶25 We have determined to decide this case pursuant to Section I, Paragraph 3(c), of our Internal Operating Rules. The issues on direct appeal are controlled by settled law and the application of the governing standards of review.

¶26 Affirmed.

KATHERINE M. BIDEGARAY

We Concur: CORY J. SWANSON JAMES JEREMIAH SHEA LAURIE McKINNON INGRID GUSTAFSON