State v. Hammer

July 23 2013

DA 12-0297

IN THE SUPREME COURT OF THE STATE OF MONTANA

2013 MT 203

STATE OF MONTANA,

Plaintiff and Appellee,

v.

FLOYD DENNIS HAMMER,

Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DC 11-38
Honorable Deborah Kim Christopher, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Wade Zolynski, Chief Appellate Defender, Nicholas C. Domitrovich,
Assistant Appellate Defender; Helena, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, Mardell Lynn Ployhar,
Assistant Attorney General; Helena, Montana

Mitchell A. Young, Lake County Attorney; Polson, Montana

Submitted on Briefs: May 8, 2013
Decided: July 23, 2013

Filed:

__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1 Floyd Hammer (Floyd) appeals his conviction for Criminal Possession with Intent to

Distribute by the Twentieth Judicial District Court, Lake County. Floyd specifically

challenges the District Court’s treatment of his pre-trial complaint concerning his trial

counsel’s failure to contact a certain witness, the Court’s denial of his motion for a new trial,

and the Court’s assessment of fees, costs, and surcharges in the written judgment that were

not included in the oral pronouncement of his sentence. We affirm the conviction but we

also conclude that it is necessary to remand this case to the District Court with instructions to

enter an amended judgment in conformance with its oral pronouncement of sentence and this

Opinion.

ISSUES

¶2 1. Was the District Court’s pre-trial inquiry into Hammer’s complaint about his
counsel sufficient?

¶3 2. Did the District Court err in denying Hammer’s motion for a new trial?

¶4 3. Did the District Court err in assessing fees, costs, and surcharges when these
amounts were not orally pronounced?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 Floyd was charged with criminal possession of dangerous drugs (methamphetamine)

with intent to distribute by information on April 7, 2011. Floyd was appointed counsel.

Two weeks before trial, Floyd sent a letter to the District Court stating that he was unhappy

that his counsel had not contacted a potential witness named Cheryl Combs. The letter

consequently requested that the Court appoint him new counsel. The Court held a meeting in
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chambers the morning of trial, September 26, 2011, to discuss the letter and Floyd’s

concerns. At the meeting, the following discussion took place between the Court, Lake

County Attorney Mitchell Young and Floyd’s counsel, Steven Eschenbacher

(Eschenbacher):

MR. YOUNG: Your Honor, it appears that the Court received a letter from the
defendant on September 12th of this year, 2011. Copies of that letter were sent
to myself and the Public Defender’s Office. The defendant expressed some
dissatisfaction with his attorney over the calling of or failure to contact a
witness named Sheryl Combs. And I spoke with Mr. Eschenbacher.
Apparently that issue has been resolved. But I wanted to make a record of the
fact that the defendant is not any longer complaining about the services of his
attorney before we go forward with the trial.

MR. ESCHENBACHER: And I think that’s appropriate, Your Honor, if you
would go ahead and question Mr. Hammer.

THE COURT: Mr. Hammer, have you had enough time to
talk with Mr. Eschenbacher in preparation for this case?

THE DEFENDANT: Yes, we have.

THE COURT: Does the information that’s contained in this letter apply any
longer?

THE DEFENDANT: No.

THE COURT: You’re satisfied?

THE DEFENDANT: Yes, I am.

MR. YOUNG: Your Honor, I do want to make one further record and that is,
to the best of my knowledge going through my file I have not received notice
of witness Sharon [sic] Combs has not been noticed up as a witness.

MR. ESCHENBACHER: Your Honor, I filed a notice of witnesses that was
just [sic] listed the State’s witnesses and any exhibits they had. I’m planning
on just attacking their case. I had talked to Ms. Combs and she wouldn’t be –
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 would only be required if there was a question of someone’s testimony that
needs to be corroborated or reviewed.

THE COURT: So it would be a rebuttal witness.

MR. ESCHENBACHER: If it’s necessary.

MR. YOUNG: Surrebuttal. Because the defendant doesn’t do rebuttal.

THE COURT: Okay. Well, it depends on who’s calling when. But, yeah,
you’re really not supposed to do your own witnesses or attack them. All right,
gentlemen, anything else?

MR. YOUNG: Not from the State, Your Honor.

THE COURT: Very well. Then we’ll go on the record at nine o’clock.

This exchange was the only time that the Court addressed Floyd’s concerns regarding Ms.

Combs’s use as a witness for his defense. At trial, Floyd’s counsel did not call any

witnesses. Instead, Eschenbacher attacked the State’s case through the cross-examination of

the State’s witnesses. The jury subsequently found Floyd guilty of criminal possession with

intent to distribute on September 27, 2011.

¶6 The day after trial, September 28, 2011, Floyd sent the Court another letter. Floyd’s

second letter requested that the Court appoint him a new attorney for an upcoming trial in

another matter, DC 11-78. Hammer explained that he wanted a different attorney “[b]ecause

of the out turn [sic] of my last trial, I strongly feel it is important that I receive a fair trial. I

also Feel that if I had (Cheryl Combs) [sic] to testify at my last trial, it would of turned out

Different.” This letter was apparently attached to DC 11-78, and not the present case, DC

11-38.

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¶7 Benjamin Anciaux (Anciaux) was subsequently substituted as Floyd’s counsel on

October 31, 2011. Anciaux filed a motion for a new trial pursuant to § 46-16-702, MCA, on

December 9, 2011. The motion claimed that Eschenbacher’s failure to call Ms. Combs

denied Floyd the opportunity to present “a major defense” because Ms. Combs would have

testified that other people had actually possessed the dangerous drugs in question. The

motion also alleged that the failure to call Ms. Combs amounted to ineffective assistance of

counsel.

¶8 The District Court denied Floyd’s motion for a new trial in a January 18, 2012 order.

The Court found that the motion was untimely because it was filed after the 30 day statutory

limit. See § 46-16-702(2), MCA, (“The motion must be filed by the defendant within 30

days following verdict or finding of guilty and be served upon the prosecution.”). The Court

also determined that Floyd acquiesced to Eschenbacher’s trial strategy when he stated that he

was satisfied with his communication with Eschenbacher and indicated that the concerns

contained in his first letter no longer applied. The Court concluded that it could “go no

further in a review of ‘ineffective counsel’ ” in light of these prior representations, and

denied the motion.

¶9 Floyd was sentenced on January 26, 2012. At the hearing, defense counsel objected

to several of the recommended conditions contained in the presentence investigation (PSI)

report. Most relevant for our purposes are defense counsel’s objections to the recommended

imposition of various fees and costs. Defense counsel specifically objected to the

recommended imposition of a $50 presentence investigation fee and a $2244.39 fee for jury
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costs, explaining that Floyd “has absolutely no assets; clothes on his back basically and

maybe a few mementos[.]” The Court thereafter orally pronounced a sentence of 20 years in

the Montana State Prison. The Court also stated that “with regard to paragraph 13 [the

section of the PSI report recommending imposition of fees and costs] the Court suspended

those unless the defendant can work given his age and the sentence of the Court.”

¶10 The Court signed the written judgment on March 19, 2012. The judgment ordered

Floyd to be sentenced to Montana State Prison for 20 years, with no time suspended. The

Court also recommended that “all the conditions recommended by Probation and Parole” in

the PSI “should be conditions of the Defendant’s parole.” These conditions provided for the

assessment of the fees and fines that the Court had suspended in its oral pronouncement of

sentence. However, the written judgment did not reflect the oral pronouncement’s

conditioning of the assessment of fees and costs on Floyd’s later ability to find work.

¶11 Floyd filed a notice of appeal on May 10, 2012, appealing the Court’s final written

judgment entered March 19, 2012.

STANDARD OF REVIEW

¶12 We review a district court’s denial of a request for the appointment of new counsel for

an abuse of discretion. State v. Holm, 2013 MT 58, ¶ 16, 369 Mont. 227. A district court’s

denial of a motion for a new trial is also reviewed for an abuse of discretion. State v.

Stewart, 2012 MT 317, ¶ 23, 367 Mont. 503, 291 P.3d 1187. Last, this Court reviews a

district court’s imposition of a sentence for legality only. State v. Kroll, 2004 MT 203, ¶ 12,

322 Mont. 294, 95 P.3d 717.
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 DISCUSSION

¶13 1. Was the District Court’s pre-trial inquiry into Hammer’s complaint about his
counsel sufficient?

¶14 On appeal, Floyd contends that the District Court erred by failing to adequately

inquire into his pre-trial letter requesting that he be appointed new counsel. Criminal

defendants have a fundamental constitutional right to the effective assistance of counsel.

U.S. Const. amend. VI; Mont. Const. art. II, § 24; State v. Meredith, 2010 MT 27, ¶ 50, 355

Mont. 148, 226 P.3d 571. However, indigent defendants cannot demand substitution of

counsel if their appointed counsel has been providing effective assistance. State v. Dethman,

2010 MT 268, ¶ 15, 358 Mont. 384, 245 P.3d 30. Instead, when a defendant complains

about ineffective assistance of appointed counsel and requests new counsel, a district court

must make “adequate initial inquiry” as to whether the defendant’s allegations are

“seemingly substantial.” Dethman, ¶ 16; Holm, ¶ 19; State v. Gallagher, 1998 MT 70, ¶ 15,

288 Mont. 180, 955 P.2d 1371. A district court conducts “adequate initial inquiry” “when it

considers the defendant’s factual complaints together with counsel’s specific explanations

and makes some sort of critical analysis of the complaint.” Dethman, ¶ 16. Conversely, a

court’s initial inquiry may be inadequate if it fails to make “ ‘even a cursory inquiry’ ” into

the defendant’s complaints. Gallagher, ¶ 15. If the trial court determines that the defendant

has presented a “seemingly substantial” complaint, the court must hold a hearing to address

the validity of the complaint. Gallagher, ¶ 15. However, no further inquiry is required if the

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court determines that the defendant has failed to present a “seemingly substantial” complaint.

Gallagher, ¶ 15.

¶15 Floyd argues that the Court’s pre-trial discussion of his letter was inadequate because

it never addressed the substance of his complaint. As discussed above, the Court held an in-

chambers meeting before trial to discuss Floyd’s complaint that Eschenbacher had failed to

adequately pursue using Ms. Combs as a defense witness. At this meeting, the Court asked

Floyd whether he had problems communicating with his counsel and whether his complaint

regarding Ms. Combs still applied. Floyd responded that there were no communication

problems and answered that his concerns involving Ms. Combs no longer applied. Mr.

Eschenbacher then explained that he had planned on potentially calling Ms. Combs as a

surrebuttal witness, and the parties proceeded to trial.

¶16 We conclude that the District Court conducted an adequate initial inquiry. The Court

directly questioned Floyd about his pre-trial letter and Floyd denied that the concerns he

expressed therein still applied. Mr. Eschenbacher explained the strategy behind not

including Ms. Combs in the defense’s witness disclosure. The Court explicitly afforded

Floyd the opportunity to address the complaints contained in his letter. Floyd chose to

instead deny that his concerns still applied. The record therefore reflects that the District

Court possessed sufficient information to determine whether Floyd had raised substantial

complaints about Eschenbacher’s alleged failure to contact Ms. Combs. The District Court

accordingly conducted an adequate initial inquiry into Floyd’s pre-trial complaint. See

Holm, ¶¶ 20-22; Dethman, ¶¶ 18-19.
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¶17 We similarly conclude that the District Court did not abuse its discretion by declining

to further consider Floyd’s complaints in a hearing. Such a hearing is only necessary when

the defendant presents a “seemingly substantial” complaint about inadequate counsel during

the initial inquiry. Holm, ¶ 19; Gallagher, ¶ 15. Floyd’s letter expressed concern over

Eschenbacher’s alleged failure to contact Ms. Combs and claimed that Eschenbacher had

misled him into believing that Ms. Combs would be used as a witness. Floyd denied that

these concerns still applied when the Court conducted an initial inquiry into his request for

new counsel, belying the seeming substantiality of his complaint. However, even if we were

to disregard Floyd’s answer, Floyd’s letter presented the same sort of complaints regarding

trial strategy that we dismissed in Holm and Dethman.

¶18 Holm claimed that his counsel’s trial strategy had been inadequate because he had

failed to subpoena witnesses and did not hire or call certain expert witnesses. Holm, ¶ 20.

We applied the “ ‘time-honored rule that courts must accord great deference to defense

counsel’s exercise of judgment in determining appropriate defense and trial strategy’ ” to

conclude that the District Court did not abuse its discretion when it determined that Holm’s

complaints were not “seemingly substantial.” Holm, ¶ 23. This ruling was based on our

similar conclusion in Dethman. Dethman also disagreed with his trial counsel’s strategy,

specifically complaining of his counsel’s refusal to present witnesses, testimony, and

evidence that he requested. Dethman, ¶ 6. We concluded, however, that vague assertions of

a difference in opinion as to how to proceed with the case could not overcome the “great

deference” that courts afford counsel in determining appropriate defenses and trial strategy.
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Dethman, ¶ 19 (citing State v. Kaske, 2002 MT 106, ¶ 33, 309 Mont. 445, 47 P.3d 824). Our

review of the record presented in this case leads us to the conclusion that additional hearings

into the concerns Floyd raised in his pre-trial letter were unnecessary. The District Court

conducted an adequate initial inquiry into Floyd’s request for new counsel. This inquiry did

not uncover “seemingly substantial” complaints about Eschenbacher’s trial strategy given the

“great deference” we afford counsel. Dethman, ¶ 19. We consequently hold that the District

Court did not abuse its discretion by denying Floyd’s request for new counsel.

¶19 2. Did the District Court err in denying Hammer’s motion for a new trial?

¶20 Floyd next contends that the District Court erred by failing to grant a new trial. Floyd

specifically argues that his second, September 28, 2011 letter to the Court should have been

construed as a timely motion for a new trial, or that, in the alternative, the District Court

should have exercised its “inherent power to order a new trial sua sponte when required in

the interest of justice.” The State responds that Floyd’s second letter addressed the

appointment of counsel in a different case, DC 11-78, and did not ask the Court to grant a

new trial or take any action in this case, DC 11-38. The State also asserts that Floyd’s

motion for a new trial is barred by the 30-day deadline found in § 46-16-702, MCA.

¶21 Floyd first claims that his September 28, 2011 letter should have been construed as a

motion for a new trial. Floyd relies on State v. Finley, 276 Mont. 126, 915 P.2d 208 (1996),

to argue that the legal effect of a motion should be measured by its content, rather than its

title. However, the letter in question neither clearly addressed the proceedings in DC 11-38

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nor asked the Court for any sort of relief in that matter. In the letter, Floyd stated that he

was:

writing this letter to you requesting that you apoint [sic] me another attorny
[sic] for my upcomeing [sic] trial which is due to start on 10-24-2011.
Because of the out turn of my last trial, I strongely [sic] feel it is important that
I receive a fair trial. I also feel that if I had (Cheryl Combs) [sic] to testify at
my last trial, it would of turned out different.

The letter’s reference to his prior complaints about the use of Ms. Combs in DC 11-38 is an

attempt to justify his request for a new attorney in a different matter, and do not suggest that

Floyd is requesting a new trial.

¶22 This distinguishes Floyd’s letter from the motion considered in Finley. There, the

defendant filed a pro se motion titled as a motion for a change of venue. Finley, 276 Mont.

at 142. We considered whether the District Court erred by not conducting a hearing on

complaints about the effectiveness of counsel that Finley included in the change of venue

motion. Of the six reasons Finley listed in his motion to change venue, three complained of

ineffective assistance of counsel. Finley, 126 Mont. at 142. We determined that the motion

consequently contained “sufficient indicia that it was in substance a motion complaining of

ineffective assistance of counsel” and construed it as such. Finley, 126 Mont. at 142. Here,

the Court was faced with a letter referencing a different case that made a vague assertion that

the defendant believed a previous trial would have turned out differently if a certain witness

had been called. The content of Floyd’s letter most clearly indicates that its intended legal

effect was to spur the appointment of new counsel in an upcoming trial in another matter.

The letter contained no indicia that Floyd desired a new trial in this case. The decision to
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deny a motion for a new trial shall not be disturbed absent an abuse of judicial discretion,

which occurs when the court acts arbitrarily without the employment of conscientious

judgment or exceeds the bounds of reason, resulting in substantial injustice. State v.

Fadness, 2012 MT 12, ¶ 18, 363 Mont. 322, 268 P.3d 17. Declining to construe Floyd’s

second letter as a motion for a new trial did not exceed the bounds of reason. We conclude

that the District Court did not err by declining to treat Floyd’s September 28, 2011 letter as a

motion for a new trial.

¶23 Second, the Court did not abuse its discretion by dismissing Floyd’s motion for a new

trial. Section 46-16-702(2), MCA, clearly provides that “[t]he motion [for a new trial] must

be filed by the defendant within 30 days following a verdict or finding of guilty and must be

served upon the prosecution.” Floyd filed his motion for a new trial on December 9, 2011,

73 days after the September 27, 2011 guilty verdict. Floyd now attempts to circumvent the

30-day deadline by appealing to the power of a court to grant a new trial in the interests of

justice. See § 46-16-702(1), MCA. While Floyd is correct that a district court may grant a

new trial sua sponte if justice so requires, we have strictly adhered to the 30-day deadline

where defendants moved for a new trial pursuant to § 46-16-702(2), MCA. As we explained

in State v. Baker, 2013 MT 113, 370 Mont. 43, 300 P.3d 696, “while [State v. Brummer]

recognizes a district court’s inherent power to grant a new trial, it does not excuse a

defendant from filing a motion for a new trial within 30 days of the verdict as required by

§ 46-16-702, MCA.” Baker, ¶ 38. There is no provision for extending the 30-day time limit

of § 46-16-702(2), MCA. State v. McCarthy, 2004 MT 312, ¶ 42, 324 Mont. 1, 101 P.3d
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288. Thus, “ ‘so far as the defendant is concerned, he may move for a new trial, and if he so

moves, his motion must be in writing and filed within 30 days of the verdict[.]’ ” Baker, ¶

38 (quoting Brummer, ¶ 46). In light of the above, it was not an abuse of discretion for the

District Court to deny Floyd’s motion for a new trial.

¶24 3. Did the District Court err in assessing fees, costs, and surcharges in the written
judgment when these amounts were not orally pronounced?

¶25 Floyd finally argues that the District Court erred both by imposing fees and costs in

the written judgment that were not included in the oral pronouncement of sentence and by

failing to inquire into his ability to pay these costs. We will first address Floyd’s claim

challenging the Court’s inquiry into Floyd’s ability to pay the suspended costs.

¶26 Floyd claims that the Court erred during the sentencing hearing by failing to

determine Floyd’s ability to pay costs pursuant to § 46-18-232(2), MCA. This claim is

contradicted by a review of the record. Indeed, the Court suspended the imposition of costs

due to its determination, based on Floyd’s age (65), the length of the sentence imposed, and

defense counsel’s representations of Floyd’s financial resources, that Floyd lacked a present

or future ability to pay the costs unless he could find employment. Section 46-18-232(2),

MCA, states that:

[t]he court may not sentence a defendant to pay costs unless the defendant is
or will be able to pay them. In determining the amount and method of
payment of costs, the court shall take into account the financial resources of
the defendant, the future ability of the defendant to pay costs, and the nature of
the burden that the payment of costs will impose.

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The Court suspended the assessment of fees because it took Floyd’s present financial

resources and future ability to pay into account. We conclude that this inquiry into Floyd’s

wherewithal satisfied the requirements of § 46-18-232(2), MCA.

¶27 Regarding the discrepancy between the Court’s oral pronouncement of sentence and

the written judgment, we have repeatedly held that the oral pronouncement of a sentence

controls where a conflict exists between the oral and written judgments. State v. Clark, 2008

MT 317, ¶ 10, 346 Mont. 80, 193 P.3d 934; Kroll, ¶ 18. While the written judgment does

not suspend the imposition of costs, the oral pronouncement indicated that the Court

intended to suspend costs unless Floyd was able to find employment on parole. This case

presents a situation similar to that addressed in State v. Goff, 2011 MT 6, 356 Mont. 548, 228

P.3d 450. There, the District Court did not specifically state in its written judgment that the

conditions it imposed for probation or parole applied only to one sentence. Goff, ¶ 29. This

distinction was made, however, at the oral pronouncement of sentence. We applied the rule

that the oral pronouncement of sentence is the legally effective sentence and concluded that

it was “necessary that we remand this cause to the District Court with instructions to enter an

amended judgment in conformance with its oral pronouncement of sentence and this

Opinion.” Goff, ¶¶ 31-33. Like in Goff, Floyd’s written sentence “does not conform entirely

to the oral pronouncement of sentence.” Goff, ¶ 32. Because the oral pronouncement is the

legally effective sentence, the suspension of costs announced by the Court at the sentencing

hearing controls. Clark, ¶ 10. To prevent confusion, however, we similarly conclude that it

14
is necessary to remand this cause to the District Court with instructions to enter an amended

judgment in conformance with its oral pronouncement of sentence. See Goff, ¶ 33.

¶28 However, Floyd argues, for the first time on appeal, that a remand to the District

Court to reform the written judgment to include the suspension of costs would go beyond the

powers afforded to the Department of Corrections in Title 46, chapter 23 of the Montana

code. While we will not review issues where the defendant failed to make a

contemporaneous objection to the alleged error at the trial court, we have created an

exception to this rule where a defendant alleges that a sentence is illegal or exceeds statutory

parameters. State v. Micklon, 2003 MT 45, ¶ 8, 314 Mont. 291, 65 P.3d 559; State v.

Lenihan, 184 Mont. 338, 343, 602 P.2d 997 (1979). We conclude, however, that Floyd’s

argument misapprehends the nature of the suspended costs. Here, the Court imposed a

supervision fee pursuant to § 46-23-1031, MCA; a felony offense surcharge pursuant to §

46-18-236(1)(b), MCA; a victim and witness advocate program surcharge pursuant to § 46-

18-236(1)(c), MCA; a court information technology fee pursuant to § 3-1-317, MCA; a PSI

report fee pursuant to § 46-18-111(3), MCA; and a jury trial fee pursuant to § 46-18-232,

MCA. District courts may impose sentences that are authorized by a specific grant of

statutory authority. State v. Burch, 2008 MT 118, ¶ 23, 342 Mont. 499, 182 P.3d 66.

District courts also possess the ability to condition the suspension of the execution of all or

part of a sentence. Section 46-18-201(4), MCA. At the oral pronouncement of sentence, the

Court stated “And with regard to paragraph 13 [the paragraph of the PSI imposing costs] the

Court suspended those unless the defendant can work given his age and the sentence of the
15
Court.” In State v. Heafner, we concluded that district courts have the power to impose

conditions upon a sentence, including fines and surcharges, where specifically authorized by

statute. State v. Heafner, 2010 MT 87, ¶¶ 5-6, 13, 356 Mont. 128, 231 P.3d 1087. Here,

costs were imposed, and suspended pending the fulfillment of a specific condition, by the

District Court at the oral pronouncement of sentence. This was within the Court’s power,

Heafner, ¶¶ 6, 13, and the sentence imposed at the oral pronouncement controls. Clark, ¶ 10.

Thus, on remand, the District Court should restate the costs listed in the written judgment at

condition 13 as conditions of the sentence, suspended pending Floyd’s future ability to

obtain work, to conform the written judgment to the oral pronouncement of sentence.

Heafner, ¶ 13.

CONCLUSION

¶29 The District Court performed an adequate inquiry into Floyd’s pre-trial complaints

about his appointed counsel, and when questioned by the Court, Floyd indicated that his

concerns no longer applied. We accordingly conclude that the Court performed a sufficient

inquiry into Floyd’s complaints and did not abuse its discretion by denying Floyd’s request

for new counsel. We similarly affirm the Court’s denial of Floyd’s untimely motion for a

new trial. We remand the case so that the District Court may conform the written judgment

to the oral pronouncement of sentence, which conditioned any assessment of fees upon

Floyd’s future ability to obtain work if released on parole.

_________________________________
/S/ MICHAEL E WHEAT

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We concur:

/S/ MIKE McGRATH
/S/ JIM RICE
/S/ BETH BAKER
/S/ BRIAN MORRIS

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