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No. 00-091
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 222
STATE OF MONTANA
Plaintiff and Respondent,
v.
RUSSELL G. GARNER,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Kenneth R. Neill, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Kristina Guest, Appellate Defender Office,
Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Jim Wheelis,
Assistant Attorney General, Helena, Montana
Brant Light, Cascade County Attorney, Great Falls, Montana
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Submitted on Briefs: February 2, 2001
Decided: November 8, 2001
Filed:
_________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.
¶1 On November 15, 1999, Russell G. Garner filed a motion to withdraw his guilty pleas.
The District Court denied his motion. Garner appeals. The following issues are dispositive:
1. Did the District Court violate Garner's due process rights by failing to hold a
hearing to determine Garner's competence to stand trial?
2. Did the District Court abuse its discretion by denying Garner's motion to
withdraw his guilty pleas?
3. Did Garner's motion to withdraw his guilty pleas constitute a critical stage of the
proceedings?
¶2 We affirm.
BACKGROUND
¶3 On June 16, 1995, Russell Garner and Steven Newhouse were charged with the theft of
a pickup truck. Garner was also charged with forgery. The State alleged that Newhouse
and Garner stole a truck from Missoula, Montana, and that Garner later presented a stolen
check at the EZ Money in Great Falls, Montana. Garner and Newhouse were prosecuted
separately and Garner was the sole defendant on the forgery charge. After counsel was
appointed to Garner, he entered a plea of not guilty.
¶4 The trial commenced on November 29, 1995, with Larry LaFountain appearing as
counsel for Garner. The State called as witnesses the owner of the check, which Garner
presented to EZ Money, and employees of EZ Money who identified Garner as the man
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who attempted to sign the stolen check. The owner of the pickup truck in question then
testified that his truck had been missing for about ten days prior to the incident at EZ
Money and that neither Garner nor Newhouse had his permission to use it.
¶5 John Sowell, a detective with the Great Falls Police Department, appeared next as a
witness. He had responded to the incident at EZ Money and testified at trial that, after
Garner was arrested and read his Miranda rights, Garner informed him that he had taken
the truck from Missoula and picked up a friend in Bozeman several days later. During
cross-examination of Sowell, LaFountain established that Newhouse was the only person
seen driving the pickup and that Sowell was unable to obtain any fingerprints from the
truck. LaFountain also established that Sowell's memory of his conversation with Garner
was refreshed by looking at his report, which he dictated after the incident.
¶6 Following the prosecutor's redirect examination, LaFountain informed the court at a
side-bar conference that Garner wished to question Sowell himself. After an objection by
the prosecution, the court determined that it would take up the issue the following day.
The next morning, LaFountain told the court that Garner wanted to "do part of the
questioning of some of the [State's] witnesses." The State opposed the request. The court
inquired if Garner wanted to represent himself. While LaFountain said that he did not, he
indicated that he and Garner were in conflict over some of Garner's requests. The court
told LaFountain that, unless Garner dismissed him as counsel, LaFountain had the
authority to decide whether a question Garner posed was appropriate. The court ultimately
denied Garner's request to examine the State's witnesses.
¶7 LaFountain then asked for a recess in order to file a motion to dismiss for lack of a
speedy trial. The court denied the request. LaFountain again indicated that he and Garner
were unable to cooperate. After further discussion, the court informed Garner that he
needed to determine whether he wished to continue to be represented by LaFountain or
whether he wished to represent himself. Garner informed the court that he wished to
represent himself. After further questioning, Garner proceeded pro se and the court
appointed LaFountain as standby counsel. Before the trial continued, LaFountain informed
the court that he wished to question Garner on the stand about his medication. At this time,
Garner clearly expressed his unhappiness with LaFountain's representation.
¶8 Following this exchange, Garner requested that the court recall those witnesses that had
previously been excused. The court refused. The trial proceeded, and Garner cross-
examined the remaining State witnesses. After the State rested, Garner moved to dismiss
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the case for lack of evidence. The court denied the motion and after a short break, the trial
proceeded. Before Garner commenced his case-in-chief, the following conversation took
place:
COURT: Mr. Garner, how are you coming?
GARNER: Good.
COURT: All right. I want to make sure that before we proceed any further, that you
understand exactly what it is you're doing here. You know, of course, that the sixth
amendment guarantees you the right to counsel?
GARNER: Yes.
COURT: And you've had counsel appointed for you?
GARNER: Yes.
COURT: Okay. Now, I want to make sure that you're aware of the nature of the
charges against you. You understand that you're charged with theft and that you're
charged with forgery.
GARNER: Yes.
COURT: Do you know what the penalties are for those offenses?
GARNER: Twenty years for forgery, up to 20 years and up to 10 years, and also
Mrs. Macek is seeking persistent felony offender on me, so anywhere from 5 to 100
tacked on the end of that.
COURT: OK, I mean -
MACEK: Just as a correction to that, Your Honor, because Mr. Garner has already
been declared as a persistent felony offender once, he actually, if convicted, is
facing an additional minimum of 19 years to 100 years and that that sentence must
run consecutively to his sentence on the underlying charges.
COURT: OK. The penalty then for theft is, I think you said 10 years.
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GARNER: Yes.
COURT: In the Montana State Prison to on, up to 10 years and a fine of $50,000 or
both. And for forgery, the penalty is imprisonment in the state prison for a term of
not more than 20 years or a fine of not more than $50,000 or both. And then the
persistent felony, or persistent offender issue is tacked on to that as a consecutive.
GARNER: Excuse me, Your Honor, I'd like to know what amendment guarantees
me the right to a fast and speedy trial.
COURT: I'm not sure which one it is. But it's one of the first 10 amendments.
GARNER: Yes.
COURT: And you're aware of that. And you indicated that you intend to raise that
as an issue. And you're certainly entitled to do that as grounds for an appeal if you
should be convicted.
As you know, the order that I issued required that pretrial provisions be required
four weeks before trial and your attorney discussed -
GARNER: And I asked him to.
COURT: I understand you asked him to and he said that he did not believe that the
motion was well taken. He so chose in his capacity as counsel not to file that
motion, which is his obligation to make the determination.
So, and I understand that's a concern that you have and that's apparently one of the
reasons that you have elected to proceed -
GARNER: I'd like to ask for a mistrial on the grounds that I have been
misrepresented about by my attorney.
COURT: That's not the basis for a mistrial and I am not going to grant -
GARNER: Ineffective assistance of counsel?
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COURT: That's a matter for appeal. And I don't think that you've established - nor
am I going to listen to that motion at this time.
GARNER: Okay.
COURT: The other thing that I want to make sure of is that you understand the
pitfalls of trying to represent yourself.
GARNER: Yes, Your Honor. What I am trying to get across is that my lawyer was
so, how would I put this? Did such a poor job that I, I have no way to continue this.
I'm not prepared for this.
COURT: And so what you're telling me is that you don't feel competent to go
forward individually?
GARNER: Oh, I feel competent. But with the information here, with the statements,
now I need more time. I'm going to have to have time to be able to go through this,
to get to a legal library. I'm being held in Montana State Prison. I have it there. I
would like to postpone for at least six months or have a chance to prepare for this on
my own.
¶9 After further discussion about LaFountain's ineffectiveness, Garner again indicated that
he wanted more time to prepare. The court was unwilling to delay the trial for such a
lengthy time. The court eventually agreed to recess until the afternoon in order for Garner
to prepare.
¶10 In his case in chief, Garner recalled several police officers who had been present
during his arrest. Upon examination of Detective Sowell and other officers, he elicited that
his confession could not be confirmed by other officers and that certain statements made
by Newhouse occurred before Miranda warnings were read.
¶11 Garner finally called himself to testify. The state objected to Garner giving a narrative
statement. Therefore, Garner agreed to have LaFountain question him on the stand. Garner
essentially testified that Newhouse picked him up in a pickup truck at a rest stop and
instigated the check scam. He also indicated that he decided not to go through with
cashing the check and that he abandoned the enterprise because it was wrong. After cross
and redirect examination, Garner rested.
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¶12 The court then initiated a discussion about instructions to the jury. Garner requested
an instruction on a lesser charge. During the discussion, Garner interjected a number of
times, including to opine that "nobody's following the law." After the court eventually
denied Garner's request for jury instructions, Garner stated that he wished to plead guilty
to both charges. After an extensive dialogue between the court and Garner, including
questioning by the State and a remark by LaFountain, the court determined that Garner
voluntarily entered guilty pleas to both counts.
¶13 On January 23, 1996, during the sentencing hearing, the State introduced certified
copies of two prior judgments, and the court declared Garner to be a persistent felony
offender. Sentence was imposed and enhanced to include a ten-year term due to Garner's
status as a persistent felony offender. On May 6, 1996, Garner, through new counsel,
moved to correct the sentence on the grounds that the persistent felony offender notice was
not filed prior to the omnibus hearing. The State responded, and the presiding judge
informed counsel that the issue must be raised in a postconviction petition. Garner,
through counsel, then filed a Motion to Correct Sentence and Petition for Postconviction
Relief on September 23, 1996, raising the same issues. In March 1997, Garner's counsel
filed an amended petition adding claims of ineffective assistance of counsel. A hearing
was held on October 21, 1997.
¶14 On January 21, 1998, the District Court issued an order denying the petition for
postconviction relief. On November 5, 1998, Garner, acting pro se, filed a notice of
appeal, a motion for appointment of counsel, and a motion to take an out of time appeal
with this Court. He claimed that he was not informed of his right to appeal after the lower
court denied his petition for postconviction relief. On December 8, 1998, this Court
ordered that the case be remanded for an evidentiary hearing. Garner was appointed
counsel and an evidentiary hearing was held on April 19, 1999. Garner's motion was
subsequently denied on November 30, 1999.
¶15 On November 15, 1999, Garner filed a motion with the District Court to withdraw his
guilty pleas and enter a plea of not guilty asserting that he was denied medication and that
he was incompetent to enter a guilty plea. The motion was denied on January 24, 2000.
Garner appeals.
¶16 Garner argues that he was not competent to plead guilty and thus his guilty plea
should be vacated. He argues that the District Court erred in first considering Garner's
competency independent of his guilty plea. We conclude that the District Court correctly
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addressed Garner's competency to stand trial and Garner's ability to make a knowing and
voluntary plea of guilty as separate issues.
¶17 We will first address the issue of Garner's competency to stand trial. Next, we will
address the validity of Garner's guilty plea. Finally, we will address his contentions that he
did not knowingly and intelligently waive his right to counsel and was denied counsel at a
critical stage of the trial.
ISSUE ONE
¶18 Did the District Court violate Garner's due process rights by failing to hold a hearing
to determine Garner's competence to stand trial?
¶19 Garner argues that he was not competent at the time he entered his guilty pleas
because he was not taking his prescribed antidepressant medication. He further argues that
his behavior at trial, along with his attorney's expressed doubt about his competence,
provided enough evidence to require a hearing into his competence. The State, on the
other hand, contends that this evidence was insufficient to require the District Court to
hold such a hearing. We agree with the State.
¶20 The due process clause of the Fourteenth Amendment prohibits the criminal
prosecution of a defendant who is not competent to stand trial. See, e.g., Drope v. Missouri
(1975), 420 U.S. 162, 171-172, 95 S.Ct. 896, 904, 43 L.Ed.2d 103-04. Montana law
codifies a similar right whereby a person who is unable to understand the proceedings
against him or herself or to assist in his or her own defense as a result of mental disease or
defect may not be tried, convicted, or sentenced for the commission of an offense so long
as the incapacity endures. See § 46-14-103, MCA.
¶21 The standard for determining whether an accused is competent to stand trial is
"whether [the defendant] has sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding - and whether he has a rational as well as
factual understanding of the proceedings against him." Dusky v. United States (1960), 362
U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824, 825, adopted in State v. Austad (1982),
197 Mont. 70, 78, 641 P.2d 1373, 1378. Even if a defendant is competent at the beginning
of trial, a trial judge must "always be alert to circumstances suggesting a change that
would render the accused unable to meet the standards of competence to stand trial."
Drope, 420 U.S. at 181, 95 S.Ct. at 908. When sufficient doubt is raised as to an accused's
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competency to stand trial, the district court has a duty to sua sponte order a hearing on this
issue. See State v. Bartlett (1997), 282 Mont. 114, 120, 935 P.2d 1114, 1118.
¶22 We inquire whether substantial evidence supports the district court's decision that the
defendant was fit to proceed to trial when reviewing a district court's finding of
competence. State v. Santos (1995), 273 Mont. 125, 130, 902 P.2d 510, 513 (citations
omitted).
¶23 Garner argues that evidence of his lack of medication necessitated a competency
hearing. We disagree. There can be "no fixed or immutable signs which invariably
indicate the need for further inquiry," as inquiry into an accused's competency is
necessarily based on the individual circumstances presented. Drope, 420 U.S. at 180, 95 S.
Ct. at 908. A defendant's use of drugs, prescription or otherwise, certainly may be a
relevant factor in determining competency, but it does not per se necessitate a competency
hearing. See Fallada v. Dugger (11th Cir. 1987), 819 F.2d 1564, 1569; Price v.
Wainwright (11th Cir. 1985), 759 F.2d 1549, 1555, overruled on other grounds by United
States v. Hogan (11th Cir. 1993), 986 F.2d 1364, 1371 n.2; United States ex rel. Fitzgerald
v. LaVallee (2d Cir. 1972), 461 F.2d 601, 602, cert. denied 409 U.S. 885, 93 S.Ct. 121, 34
L.Ed.2d 142 (1972). Other indicia of an accused's incompetency may include the accused's
demeanor at the trial, a prior medical opinion on competence, the nature of the crime, past
behavior of the accused, and a claimed defense of mental instability. Compare Pate v.
Robinson (1966), 383 U.S. 375, 385, 86 S.Ct. 836, 842, 15 L.Ed.2d 815 (holding that
evidence introduced at trial entitled defendant to hearing on competency), Drope, 420 U.S.
at 180-83, 95 S.Ct. at 908-09 (holding that correct course for trial court was to suspend
trial until evaluation could be made), and State v. Bostwick, 1999 MT 237, ¶28, 296 Mont.
149, ¶28, 988 P.2d 765, ¶28 (holding that record presented indicia of incompetence that
required hearing), with Speedy v. Wyrick (8th Cir. 1984), 748 F.2d 481, 487 (holding that
record provided insufficient evidence to raise reasonable doubt concerning defendant's
competence), and Bartlett, 282 Mont. at 121-22, 935 P.2d at 1118 (holding that despite
indicia of incompetence, the evidence did not rise to level that required court to sua sponte
order competency hearing).
¶24 In examining the record presented, we believe that Garner's indicated use of
medication did not rise to a level sufficient to require the District Court to sua sponte order
a competency hearing. The record shows that the issue regarding defendant's medication
only arose during a discussion about the strained relationship between Garner and
LaFountain. During this discussion, LaFountain indicated to the court that he wished to
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address the issue of Garner's medication prior to continuing trial. The transcript of this
conversation follows.
LAFOUNTAIN: Second point is, I would like to put Mr. Garner on the stand to
question him about his medication situation. I've had difficulty dealing with him in
the past, and part of it has had to do with some, I feel with some type of a problem
he's been medicated for, or maybe this isn't the appropriate time.
But basically, he was brought down here from Montana State Prison without his
medications. I was told by the jail at one point he went into a sweat. And --
THE COURT: Have you arranged --
LAFOUNTAIN: When he first came down here he was more cooperative than he
had ever been. He was under the influence of his medication.
GARNER: You are an idiot.
THE COURT: Mr. Garner, you're out of order.
GARNER: I've had enough. Go ahead and send me back to jail. He has no rapport
with these people over here. These people up here sit and laugh at him. This guy has
asked me if I would like more paper to write things down. This is a joke.
THE COURT: Mr. Garner, sit down. You're going to be in order or you're going to
be shackled. Now, I don't want any more outbursts. Mr. LaFountain, what kind of
medication are you talking about here?
GARNER: I'm on antidepressants. This has nothing to about being depressed. It has
to do with being very angry about that man's incompetence if nothing less.
THE COURT: Ms. Macek. Any comment?
MACEK: No, Your Honor. Mr. Garner's indicated what medication he's on. The fact
that he feels that he's prepared to proceed and I would suggest we get the show on
the road.
¶25 Clearly there was a strained relationship between defense counsel and Garner. Garner,
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however, insisted that his depression was not a basis for the strained relationship between
himself and LaFountain and he repeatedly told the Court that he was competent to
proceed. Defense counsel's statements that Garner was "more cooperative than he had ever
been" when he was under the influence of his medication does not rise to a level that
requires the District Court judge to inquire as to defendant's competence.
¶26 Garner also argues that his overall behavior at trial necessitated a competency hearing.
On the contrary, we find that Garner's behavior indicated a fair degree of competency.
While Garner was at times animated, if not belligerent, he capably questioned witnesses
and presented a cogent account of his actions. In addition, no other evidence casting doubt
on Garner's competence was presented to the Court, such as indications of prior mental
competency issues or a potential plea of insanity. When the District Court directly
questioned Garner regarding his competence, he completely denied suffering from any
mental or emotional impairment or defect that would prevent him from understanding
what he was doing. Garner did not raise any issue before the court relating to not having
his antidepressant medication prior to his guilty plea.
¶27 Finally, Garner argues that LaFountain's statement, "I had began to raise the issue
before about competence, about Mr. - I don't know", intimated a concern about Garner's
competency. LaFountain, however, never articulated any specific questions relating to the
competency of his client. Defense counsel's expressed doubt concerning a defendant's
competency is a factor to consider but is not enough standing alone to create sufficient
doubt about the defendant's fitness to proceed. See Bostwick, ¶18 (citations omitted). In
the case at hand, we do not feel that LaFountain's comment was enough to create a
sufficient doubt about Garner's competency.
¶28 For the preceding reasons, we are convinced that the evidence presented before the
trial judge did not raise a bona fide doubt as to Garner's capacity to participate in his trial.
See, e.g., Fallada, 819 F.2d at 1569 (holding that evidence, including use of medication,
did not raise sufficient doubt concerning competence to require a hearing).
¶29 Garner argues in the alternative that the District Court erred in not at least holding a
retrospective competency hearing when presented with additional evidence. Again, we
disagree. Although we have previously concluded that under certain circumstances a
retrospective competency hearing may be held, such hearings are disfavored. See
Bostwick, ¶30.
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¶30 We have held in the past that there may be times when a retrospective hearing is
appropriate, but we have not addressed whether supplemental evidence of an accused's
competency could be used at a subsequent hearing. See generally Bostwick, ¶28-31. In
support of his position that we should consider supplemental evidence, Garner directs us
to Boag v. Raines (9th Cir. 1985), 769 F.2d 1341. While Boag does hold that a court may
review new evidence of incompetence on habeas corpus, the court concluded that the
evidence Boag presented was insufficient to raise a bona fide doubt as to his competence.
See Boag, 769 F.2d at 1344. The court in Boag noted that in cases where the court found
sufficient evidence of incompetency, the petitioners were able to show extremely erratic or
irrational behavior during the trial. See Boag, 769 F.2d at 1343.
¶31 In this instance, Garner argues that subsequent evidence presented during sentencing
concerning his previously attempted suicide and past psychological treatment should have
required the District Court to grant a retroactive hearing. This evidence indicated that
Garner was admitted to Montana State Hospital and treated for substance abuse,
depression and other mental health problems approximately seven years prior to trial.
Given the length of time elapsed since Garner's hospitalization and failure to demonstrate
how this evidence affected his competence to stand trial, we conclude that the District
Court properly declined to hold a retrospective competency hearing.
ISSUE TWO
¶32 Did the District Court abuse its discretion by denying Garner's motion to withdraw his
guilty pleas?
¶33 We review a district court's denial of a motion to withdraw a guilty plea for an abuse
of discretion. See, e.g., State v. Keys, 1999 MT 10, ¶11, 293 Mont. 81, ¶11, 973 P.2d 812,
¶11; State v. Bowley (1997), 282 Mont. 298, 304, 938 P.2d 592, 595. Garner, however,
urges this Court to employ de novo review because "the issue here addresses, in part,
whether Garner was competent to stand trial or to waive his rights and enter knowing,
intelligent, and voluntary guilty pleas." We decline to do so. The question of competency
to stand trial and the ability of a defendant to enter a voluntary and intelligent guilty plea
are two separate inquiries. We see no reason to modify the standard of review of either
inquiry in the case before us.
¶34 We therefore turn directly to the question of whether the District Court erred in
denying Garner's motion to withdraw his guilty pleas. Garner contends that the court erred
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in applying our three-part test set forth in Bowley when it decided not to permit Garner to
withdraw his guilty pleas. Because a criminal defendant waives numerous constitutional
rights and protections when pleading guilty, "it is a well-settled legal principle that a guilty
plea must be a voluntary, knowing, and intelligent choice among the alternative courses of
action open to the defendant." Bowley, 282 Mont. at 304, 938 P.2d at 595 (citations
omitted); see also Keys, ¶11 (stating that a court may permit a defendant to withdraw his
guilty plea for good cause). Therefore, in determining whether good cause existed and
whether a district court abused its discretion in refusing to allow withdrawal of a guilty
plea we consider (1) the adequacy of the court's interrogation at the time the plea was
entered regarding the defendant's understanding of the consequences of the plea; (2) the
promptness with which the defendant attempts to withdraw the plea; and (3) the fact that
the plea was the result of the plea bargain in which the guilty plea was given in exchange
for dismissal of another charge. See Bowley, 282 Mont. at 304, 938 P.2d at 595.
¶35 We first address whether the interrogation by the District Court was adequate as to
Garner's understanding of the consequences of his plea. An interrogation is sufficient if the
judge "examines the defendant, finds him to be competent, and determines from him that
his plea of guilty is voluntary, he understands the charge and his possible punishment, he
is not acting under the influence of drugs or alcohol, he admits his counsel is competent
and he has been well advised, and he declares in open court the facts upon which his guilt
is based." State v. Walker (1986), 220 Mont. 70, 72, 712 P.2d 1348, 1350 (citations
omitted); see also § 46-16-105(1), MCA.
¶36 After careful consideration of the record, we conclude that Garner was adequately
questioned about his desire to plead guilty and fully informed of his right to continue with
a plea of not guilty. The District Court and the prosecutor thoroughly questioned Garner
before he entered his plea. Garner was informed of the ramifications of pleading guilty,
including potential prison sentences and fines on each charge, the potential sentence as a
persistent felony offender, the potential loss of rights to appeal and the fact that the court
could designate Garner as a dangerous offender.
¶37 Garner also admitted to the facts of the forgery and the theft. He stated "[o]n the
forgery, I forged a check to cash it. And I left." He then agreed to certain details of the
forgery. As to the theft, he stated, in part, "[t]heft? I was going through Missoula and I
found a truck and stole it." We therefore conclude that the District Court, with additional
questioning provided by the prosecution, adequately interrogated Garner before entering
his guilty plea.
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¶38 Next, we turn to the promptness with which the defendant attempted to withdraw the
prior plea. Garner filed his motion for postconviction relief just shy of four years after he
entered his guilty plea. Garner argues that, taken alone, this factor should not support a
denial of relief because the District Court failed to inquire as to the reasons for the delay.
We agree that Garner's almost four year failure to attempt to withdraw his plea is not a per
se bar to withdrawing his guilty plea. We note, however, that Garner had ample
opportunity to raise his claim over the past four years while represented by counsel and
while raising other claims. Thus, we conclude that the District Court did not err in
determining that a delay of four years, together with defendant's prior motions, can only
lead to the conclusion that defendant's motion does not satisfy the requirements of
promptness.
¶39 The final factor to consider is whether entry of a plea is the result of a plea bargain.
Garner urges that the lack of a plea bargain should weigh in his favor. We disagree.
Because there is no plea bargain here, this factor is not relevant. See State v. Long (1987),
227 Mont. 199, 202, 738 P.2d 487, 489 (holding that the third factor is not pertinent when
defendant's plea was not given in exchange for a dismissal of a different charge).
¶40 In summary, after weighing the three factors, we conclude that the District Court did
not abuse its discretion in denying Garner's motion to withdraw his guilty plea.
ISSUE THREE
¶41 Did Garner's motion to withdraw his guilty pleas constitute a critical stage of the
proceedings?
¶42 Garner filed a Motion to Withdraw a Guilty Plea on November 15, 1999, nearly three
years after filing his petition for postconviction relief. He argues that a motion to withdraw
a guilty plea constitutes a critical stage of the proceedings at which a right to counsel
attaches. He contends that he therefore must expressly waive his right to counsel, which he
did not do.
¶43 Garner's argument relies on numerous non-Montana cases where the right to counsel
was found to attach to a motion to withdraw a guilty plea. See, e.g., United States v.
Sanchez-Barreto (1st Cir. 1996), 93 F.3d 17, 20; United States v. Crowley (3d Cir. 1976),
529 F.2d 1066, 1069; United States v. Garrett (7th Cir. 1996), 90 F.3d 210, 212; United
States v. White (D.C. Cir. 1981), 659 F.2d 231, 233; State v. Harell (Wash. Ct. App.
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1996), 911 P.2d 1034, 1035; Fortson v. State (Ga. 2000), 532 S.E.2d 102, 104. This Court,
however, has not established any bright line as to when in the sequence of proceedings the
right to counsel attaches. See Ranta v. State, 1998 MT 95, ¶25, 288 Mont. 391, ¶25, 958
P.2d 670, ¶25 (expressly declining to "march lock-step" with the Supreme Court's
interpretation of comparable U.S. Constitutional rights). Instead, we have held that a right
to counsel attaches at any "critical stage," which is defined as "any step of the proceedings
where there is potential for substantial prejudice to the defendant." Ranta, ¶25.
¶44 Garner filed his motion almost four years after his guilty plea and almost three years
after he filed his petition for postconviction relief. Furthermore, Garner has been
represented by three different attorneys during the course of his legal proceedings. Given
the length of time since trial and the ample opportunities of representation Garner has
enjoyed, we conclude that his pro se motion to change his pleas did not raise the potential
for substantial prejudice to the defendant. Therefore, his motion did not constitute a
critical stage of the proceedings and a right to counsel did not attach.
¶45 We note in passing that Garner contends that the District Court did not properly
question him when he first waived his right to counsel at trial. Garner failed to raise this
claim in his original or amended motion for postconviction relief. Because all grounds for
relief claimed in a postconviction appeal must be raised in an original or amended petition
for postconviction relief, we decline to address this issue. See § 46-21-105(1)(a), MCA.
¶46 Affirmed.
/S/ JIM REGNIER
We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ TERRY N. TRIEWEILER
Justice W. William Leaphart dissenting:
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¶47 I dissent from our holding that the District Court did not err in failing to hold a
hearing to determine Garner's competence to stand trial.
¶48 The standard for determining whether an accused is competent to stand trial is
whether the defendant has sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding and whether he has a rational as well as
factual understanding of the proceedings against him. State v. Austad (1982), 197 Mont.
70, 78, 641 P.2d 1373, 1378. When sufficient doubt is raised as to an accused's
competency to stand trial, the district court has a duty to sua sponte order a hearing on this
issue. See State v. Bartlett (1997), 282 Mont. 114, 120-21, 935 P.2d 1114, 1118.
¶49 The record before us clearly indicates there was sufficient doubt as to Garner's ability
to consult with his lawyer with a reasonable degree of rational understanding.
¶50 Counsel represented to the court that, due to Garner's medications, he had difficulty
dealing with Garner in the past; that Garner was "brought down here without his
medications" and that he went into a sweat; and that when he was under the influence of
his medications, Garner was more cooperative than he had ever been. Garner responded to
counsel's representations with, "You're an idiot." Furthermore, counsel expressed concern
about Garner's competency when he stated: "I had began to raise the issue before about
competence, about Mr.-I don't know."
¶51 We thus have the presence of three indicia of incompetency: the use and withdrawal
of medications; a clear inability to consult with counsel with a reasonable degree of
rational understanding; and, finally, counsel's expressed concern about his client's
competency. Although any one of these indicators standing alone may not be adequate to
create a sufficient doubt as to Garner's fitness to proceed, the three in combination raise a
bona fide doubt as to Garner's capacity to participate in his trial such that the court, sua
sponte, should have held a competency hearing. Bartlett, 282 Mont. at 120-21, 935 P.2d at
1118.
¶52 The Court notes that no other evidence casting doubt on Garner's competence was
presented to the District Court, such as indications of prior mental competency issues or a
potential for insanity. That observation, however, begs the very question at issue. Since
there was no competency hearing, it is not surprising that no other evidence of
incompetency was presented.
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¶53 Failure to hold a competency hearing as to Garner's competency to stand trial
invalidates the remainder of the proceedings, including Garner's change of plea after the
settling of jury instructions. For that reason, I would also reverse and hold that the District
Court abused its discretion by denying Garner's motion to withdraw his guilty plea.
/S/ W. WILLIAM LEAPHART
Justice James C. Nelson dissents.
¶54 I join Justice Leaphart in his dissent. Additionally, I would hold that the trial court
erred in denying Garner's motion to withdraw his guilty pleas and in not appointing him
counsel for the withdrawal-of-plea proceedings.
¶55 Justice Leaphart correctly points out that Garner exhibited sufficient indicia of
incompetency that the trial court should have held a competency hearing. It flies in the
face of logic and common sense--if not medical sense--that within the span of a few hours
and during the course of the trial (which he referred to as a "joke"), Garner, acting without
his prescribed psychotropic medication, fired his counsel, proceeded to represent himself,
and then decided to plead guilty as the instructions were being settled.
¶56 This whole matter might have been avoided had the trial judge not erred by failing to
conduct an appropriate inquiry as required by Faretta v. California (1975), 422 U.S. 806,
95 S.Ct. 2525, 45 L.Ed.2d 562, to determine whether Garner was making a knowing and
intelligent choice to forgo the benefit of counsel. Under Faretta, the court must advise the
prospective pro se litigant of the dangers and disadvantages of self-representation.
Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. Moreover, the waiver of counsel and
invocation of the right to proceed pro se must be voluntarily made, State v. Colt (1992),
255 Mont. 399, 404, 843 P.2d 747, 750, and must be unequivocal, State v. Langford
(1994), 267 Mont. 95, 99, 882 P.2d 490, 492, cert. denied, 513 U.S. 1163, 115 S.Ct. 1128,
130 L.Ed.2d 1090.
¶57 In my view, at least, the colloquy cited by the majority demonstrates that Garner's
choice to represent himself was anything but knowing or intelligent. Garner was
dissatisfied with his counsel--whom he referred to as an "idiot." His focus was entirely
directed to what he considered to be his attorney's failures and not to the business of his
ability to represent himself and the dangers of doing so. And, as already noted, throughout
all of this Garner did not have the benefit of his medications which might have enhanced
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his ability to give more considered deliberation to his situation and decision. The trial
court's Faretta examination was little more than a pro forma Q and A on the basics, such
as stating the maximum sentence and asking; "Do you really want to do this?" and "Do
you know what you're doing?" The colloquy did not probe Garner's mental competency
(or, rather, the lack thereof) to represent himself and how that might be affecting his
decision to represent himself.
¶58 Finally, I would hold that a proceeding to withdraw a guilty plea is a "critical stage" of
the proceedings that requires the appointment of counsel. A defendant's right to counsel
arises at every critical stage of the proceedings against him. Coleman v. Alabama (1970),
399 U.S. 1, 7, 90 S.Ct. 1999, 2002, 26 L.Ed.2d 387; United States v. Wadsworth (9th Cir.
1987), 830 F.2d 1500, 1510. In State v. Finley (1996), 276 Mont. 126, 144-45, 915 P.2d
208, 220, overruled on other grounds by State v. Gallagher, 2001 MT 39, 304 Mont. 215,
19 P.3d 817, we defined a "critical stage" as "any step of the proceeding where there is
potential substantial prejudice to the defendant." Finley involved a post-trial hearing to
determine whether Finley's complaints against his counsel were "substantial." Finley, 276
Mont. at 131-32, 915 P.2d at 212.
¶59 The great weight of authority is that a withdrawal-of-plea hearing is a "critical stage"
of the proceedings requiring the appointment of counsel. See United States v. Sanchez-
Barreto (1st Cir. 1996), 93 F.3d 17, 20; United States v. Crowley (3rd Cir. 1976), 529 F.2d
1066, 1069; United States v. Garrett (7th Cir. 1996), 90 F.3d 210, 212; United States v.
White (D.C. Cir. 1981), 659 F.2d 231, 233; State v. Harrell (Wash. Ct. App. 1996), 911
P.2d 1034, 1035; Browning v. Commonwealth (Va. Ct. App. 1994), 452 S.E.2d 360, 362;
Randall v. State (Okla. Crim. App. 1993), 861 P.2d 314, 316; Berry v. State (Ala. Crim.
App. 1993), 630 So.2d 127, 129; Martin v. State (Ind. Ct. App. 1992), 588 N.E.2d 1291,
1293; Beals v. State (Nev. 1990), 802 P.2d 2, 4; Lewis v. United States (D.C. 1982), 446
A.2d 837, 841; People v. Holmes (Ill. App. Ct. 1973), 297 N.E.2d 204, 206; People v.
Skelly (N.Y. App. Div. 1967), 281 N.Y.S.2d 633, 634.
¶60 Garner's right to assistance of counsel was self-executing and remained until validly
waived by him. See Spencer v. Ault (N.D. Iowa 1996), 941 F.Supp. 832, 840. Garner, thus,
had an automatic right to the assistance of counsel under Article II, Section 24 of the
Montana Constitution and under the Sixth and Fourteenth Amendments of the federal
constitution, during the stage at which he sought to withdraw his guilty pleas. Garner did
not waive this right and denial of counsel was per se prejudicial error. United States v.
Cronic (1984), 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657.
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¶61 For those reasons set forth in Justice Leaphart's dissent and above, I also dissent.
/S/ JAMES C. NELSON
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