No. 91-459
IN THE SUPREME COURT OF THE STATE OF MONTANA
THE STATE OF MONTANA,
Plaintiff and Respondent,
v.
JAMES MORRISON,
Defendant and Appellant-
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Defender Officer,
Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Patricia J.
Jordan, Assistant Attorney General, Helena,
Montana; Dennis Paxinos, Yellowstone County
Attorney, Shelley Briney and Brent Brooks,
Deputy County Attorneys, Billings, Montana
Submitted on Briefs: December 22, 1992
Decided: March 18, 1993
Filed:
Justice willaim E. Hunt, Sr., delivered the opinion of the Court.
Appellant James Morrison appeals from a judgment of the
Thirteenth Judicial District Court, Yellowstone County, convicting
him of the offense of sexual intercourse without consent, a felony,
and the court's designation of appellant as a "dangerous offender"
for the purposes of parole.
We affirm in part and remand.
Appellant presents two issues for this Court's consideration:
1. Did the District Court err in failing to hold a hearing
regarding appellant's request for appointment of substitute
counsel, thereby denying him effective assistance of counsel?
2. Did the District Court err in failing to articulate its
reasons for designating appellant as a "dangerous offender" for
purposes of eligibility of parole as required by § 46-18-404, MCA?
Appellant was charged with sexual intercourse without consent
on September 14, 1990. At the arraignment hearing held on
September 18, 1990, attorney John Adams was appointed to represent
appellant. Appellant pleaded not guilty to the charge and remained
incarcerated until trial began on February 26, 1991.
After being incarcerated for approximately six weeks, on
October 29, 1990, appellant wrote to the District Court Judge
expressing his dissatisfaction with Adamst legal representation.
In his letter, appellant complained that he had not been able to
contact his court-appointed counsel to discuss the case and
requested the court appoint him new counsel. On November 1, 1990,
the District Court Judge directed Adams to see both the court and
appellant about the matter and provided Adams with a copy of
appellant's letter. No hearing was held on the matter and Adams
continued as appellant's court-appointed counsel. Adams did not
file any motions or a trial brief, and did not subpoena any
witnesses on appellant's behalf.
Following a jury trial, appellant was found guilty of the
crime charged. The court ordered a presentence investigation
report and set a sentencing date of March 20, 1991.
On the day of sentencing, appellant made a second request for
new appointment of counsel to represent him at the sentencing and
on appeal. The minute entry reflects that the court denied the
request and postponed sentencing until April 3, 1991.
On April 3, 1991, the court appointed Art Thompson as
co-counsel and postponed sentencing until April 10, 1991.
Sentencing was held on April 10, 1991, at which time Adams
asked to be relieved as counsel and that new counsel be appointed,
and the request was granted. The court imposed a sentence of
20 years imprisonment, with an additional three years for use of a
weapon, to be served consecutively. The court designated appellant
as a dangerous offender for purposes of parole eligibility. This
Court appointed counsel for the purposes of this appeal.
I.
Did the District Court err in failing to hold a hearing
regarding appellant's request for appointment of substitute counsel
thereby denying him effective assistance of counsel?
Appellant argues that the trial court's failure to hold a
hearing upon his requests for appointment of new counsel warrants
a reversal of the conviction. We have stated that it is within the
sound discretion of the trial court to rule on the substitution of
counsel and that we will not overturn a decision absent a showing
of an abuse of discretion. State v. Martz (1988), 233 Mont. 136,
139, 760 P.2d 65, 67. A defendant has the right to a "meaningful
client-attorney relationship'' with his attorney. State v. Enright
(1988), 233 Mont. 225, 229, 758 P.2d 779, 782 (quoting State v.
Long (1983), 206 Mont. 40, 46, 669 P.2d 1068, 1071-72). Upon a
showing of a seemingly substantial complaint about counsel, the
district court should conduct a hearing to determine the validity
of defendant's claim. Enrisht, 758 P.2d at 782. When the district
court considers a motion for substitution of counsel, it must
adequately inquire into the complaint of the defendant and must
discover whether the conflict was so great that it resulted in a
total lack of communication. Martz, 760 P.2d at 67.
Appellant contends that the District Court has an affirmative
duty to hold an evidentiary hearing upon a defendant's motion for
substitution of counsel pursuant to Enrisht, 758 P.2d at 782. In
Enrisht, the defendant appeared before the district court 13 days
before trial requesting substitution of counsel on the basis that
the client-attorney relationship had deteriorated to the point of
animosity, that counsel had violated the confidentiality of the
relationship, that counsel failed to appear at a meeting in which
defendant had assembled all of her witnesses, and had failed to
contact a witness defendant had deemed crucial to the case. The
court granted the motion and told defendant that she would have to
represent herself pro se. Pursuant to a motion by the county
attorney's office, the court subsequently held a hearing to
determine defendant's competency to represent herself. After the
hearing, the court determined that she was competent to represent
herself. The court failed to question defendant about her
complaints concerning counsel, and counsel did not appear to answer
the accusations. The court also failed to inform defendant of the
hazards of self-representation. We held that it was reversible
error because the District Court failed to hold a hearing in order
to determine the validity of defendant's claims which in effect
deprived her of the opportunity to make a meaningful choice to
proceed pro se. This failure infringed upon defendant's right to
effective assistance of counsel and a fair trial. Enriqht, 758
P.2d at 782.
In this instance, the appellant wrote a letter to the District
Court approximately four months prior to trial requesting
substitution of counsel because Adams had not yet spoken to him
regarding the preparation of defense. The court told counsel to
speak with his client and with the court regarding the matter. No
hearing or subsequent action was taken until after the trial.
Appellant did not make another request for a substitution of
counsel until after his conviction during the sentencing hearings.
At the April 10, 1991, sentencing hearing, Adams stated to the
court:
MR. ADAMS: Mr. Morrison is a man of Indian descent, as
the Court notes. He is a man who has always been
cooperative with me.
When in the County Jail we visited a number of times
and he has always been interested in trying to maintain
and prove his innocence. At one time I presented to him
and showed him that the County Attorney's Office was
filing notice of persistent felony offender status. He
informed me he wasn't interested in that fact because he
was innocent. He has maintained his innocence
throughout. It is hard to believe that he would not
allow me to plea bargain or do anything because he
insisted he was innocent.
This testimony reveals that appellant and Adams did meet on
several occasions and discussed the case, which demonstrates that
they had a "meaningful relationshipw and that there was not a total
breakdown of communication. Adams followed appellant's wishes to
not accept a plea bargain. It can be inferred from the facts that
after the District Court's initial inquiry into appellant's
complaint, any communication problems were resolved between
appellant and Adams because appellant did not follow through on his
complaint until sentencing. Unlike Enriaht, appellant did not
proceed through trial without counsel nor did appellant present
seemingly substantial complaints as those contained in Enriaht.
The omnibus hearing indicated that appellant would rely on a
general denial defense and would take the stand on his behalf.
Other than the witnesses called by the State, appellant has not
named a witness whom he could have called on his behalf. Moreover,
appellant has not alleged which pretrial motions could have been
raised. A careful review of the trial transcript indicates Adams
was prepared and conducted an adequate defense and appellant was
not denied effective assistance of counsel.
With regard to the court's denial of substitution of counsel
at the sentencing hearing, the court did appoint co-counsel for
appellant at the second hearing in which Adams did not appear, and
postponed sentencing another week. At the time of sentencing, the
court granted Adams' request to be dismissed as court-appointed
counsel. We hold that the District Court's inquiry was sufficient
and that it did not err in failing to substitute appointed counsel.
Did the District Court err in failing to articulate its
reasons for designating appellant as a "dangerous offender1' for
purposes of eligibility of parole as required by 3 46-18-404, MCA?
The designation of an offender as either nondangerous or
dangerous is an important factor in determining parole eligibility.
Section 46-18-404, MCA, governs the designation of nondangerous or
dangerous offender. In State v. Belmarez (1991), 248 Mont. 378,
381, 812 P.2d 341, 343, we stated:
[A]n individual may be designated a dangerous offender,
if, in the discretion of the sentencing court, he is
determined to represent a substantial danger to other
persons or society; however, more than a mere recital of
the statutory language is required. The sentencing court
must articulate its reasons underlying its determination.
During the sentencing hearing, the District Court stated its
reason for designating appellant a dangerous offender:
And you admit that you have been convicted of a
felony and, in my mind, I will have to designate you as
a dangerous offender for these purposes. I refuse to
even consider the other matter because it wasn't brought
up to me until this time, persistent felony offender. I
do nothing and do not consider it. The dangerous
offender is a different section.
The Judgment and Commitment order contain the following
statements:
Defendant is designated a dangerous offender for
purposes of parole, in accordance with Section 46-18-404,
Montana Code Annotated, and meets the requirements of
that regulation.
Sentence was imposed for the following reasons:
1. The Court has considered the contents of the
presentence report.
2. The Court has considered the nature and
seriousness of the offense.
The above statements are nothing more than a recitation of the
statutory requirement. The reasons stated in this case are even
less detailed than those used in Belmarez. In addition, the court
made no finding as to whether appellant represented a substantial
danger to other persons or society. See Section 46-18-404(1)(b),
MCA .
Where there is substantial evidence to support a court's
determination that an offender is dangerous, this Court has
remanded the case to the district court for findings to support
such a conclusion and without those findings this Court cannot
determine whether there is an abuse of discretion. Belmarez, 812
P.2d at 343. We cannot determine whether there was an abuse of
discretion unless the District Court articulates its reasons for
the designation of dangerous offender status. Therefore, we remand
this case to t h e District Court for further p r o c e e d i n g s on
d e s i g n a t i n g a p p e l l a n t as a dangerous o f f e n d e r .
We affirm in part and remand for further proceedings
c o n s i s t e n t with this o p i n i o n .
We concur:
March 18, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
William F. Hooks
Appellate Defender
Capitol One Center
208 North Montana Ave.
Helena, MT 59620
HON. MARC RACICOT, Attorney General
Patricia J. Jordan, Assistant
Justice Bldg.
Helena, MT 59620
DENNIS PAXINOS, County Attorney
Shelley Briney, Deputy County Attorney
P.O. Box 35025
Billings, MT 59107
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA