State v. Adams

No. 01-312

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 202

STATE OF MONTANA,

Respondent and Respondent,

v.

LARRY ADAMS,

Defendant and Appellant.

APPEAL FROM: District Court of the Twenty-First Judicial District,
In and for the County of Ravalli,
The Honorable Jeffrey H. Langton, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Larry Adams, Deer Lodge, Montana (pro se)

For Respondent:

Mike McGrath, Montana Attorney General, Pamela P. Collins, Assistant
Montana Attorney General, Helena, Montana; George H. Corn, Ravalli
County Attorney, Hamilton, Montana

Submitted on Briefs: March 21, 2002

Decided: September 5, 2002
Filed:

__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Following a jury trial in the Twenty-First Judicial District

Court, Ravalli County, Appellant Larry Adams was convicted of

aggravated assault, criminal possession of dangerous drugs,

criminal possession of drug paraphernalia, and possession of a

switchblade knife. Adams filed a petition for postconviction

relief which raised ineffective assistance of counsel and a

constitutional challenge to his enhanced sentence for the use of a

dangerous weapon during the commission of the aggravated assault.

The District Court denied Adams’ petition and Adams appeals. We

reverse.
¶2 The sole issue on appeal is whether the District Court erred

when it denied Adams’ petition for postconviction relief.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On October 2, 1998, the State charged Adams by information

with attempted deliberate homicide, a felony, in violation of § 45-

4-103, MCA; obscuring the identity of a machine, a misdemeanor, in
violation of § 45-6-326, MCA; possession of a switchblade knife, a

misdemeanor, in violation of § 45-8-331, MCA; criminal possession

of dangerous drugs, a felony, in violation of § 45-9-102, MCA; and

criminal possession of drug paraphernalia, a misdemeanor, in

violation of § 45-10-103, MCA. With the aid of his court-appointed

counsel, Adams pled not guilty to all of the charges on October 28,

1998. On May 20, 1999, Adams’ counsel filed a motion to withdraw

which the District Court subsequently granted. Adams agreed to

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waive his right to a speedy trial until substitute counsel could

proceed. The District Court appointed substitute counsel for Adams

in approximately June of 1999.

¶4 The case proceeded to a jury trial on September 20, 1999. On

September 21, 1999, the jury found Adams guilty of aggravated

assault, a lesser included offense of attempted deliberate

homicide; not guilty of obscuring the identity of a machine; guilty

of possession of a switchblade knife; guilty of criminal possession

of dangerous drugs; and guilty of criminal possession of drug

paraphernalia. Following a sentencing hearing on December 1, 1999,

the District Court sentenced Adams to twenty years in the Montana

State Prison for the aggravated assault conviction, five years in

the Montana State Prison for the criminal possession of dangerous

drugs conviction; six months in the Ravalli County Detention Center

for the possession of a switchblade knife conviction; and six

months in the Ravalli County Detention Center for the possession of

drug paraphernalia conviction. Pursuant to § 46-18-221, MCA, the

District Court sentenced Adams to an additional ten years in the

Montana State Prison for using a “dangerous weapon” during the

commission of the aggravated assault. The District Court ordered

the sentences to run consecutively and precluded Adams from parole

eligibility until he attained the age of sixty-five.
¶5 On February 24, 2000, Adams’ attorney drafted a letter to
Adams which stated:

[U]pon reviewing your case, I do not believe that we have
a reasonable basis for an appeal. If you still want to
appeal your case you need to contact Mr. William Hooks of
the state appellate defender office in Helena, Montana,
who will review your case for any possible appellate

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 issues. Also, you need to file any notice of your appeal
to the Montana Supreme Court within ten days after you
receive this copy of your judgement.

On March 1, 2000, Adams’ counsel filed a motion entitled “Defense

Attorney’s Motion to be Removed as Counsel of Record” which

insisted that “no reasonable avenues of appeal” existed. The

District Court ordered Adams to respond to his attorney’s motion

within ten days of receiving service of the motion. Adams failed

to respond to the motion and on March 29, 2000, the District Court

removed Adams’ attorney as counsel of record.
¶6 On October 16, 2000, Adams, acting pro se, filed a petition

for postconviction relief in the District Court. Adams’ petition

alleged ineffective assistance of his original court-appointed

counsel due to that attorney’s failure to file a motion to dismiss

for lack of a speedy trial. Adams’ petition also alleged

ineffective assistance of his subsequently appointed trial counsel

for (1) offering a lesser included instruction on aggravated

assault to the jury and (2) failing to file an appeal to this

Court following Adams’ convictions. Finally, Adams’ petition

alleged that the District Court imposed the sentence enhancement

for use of a dangerous weapon in violation of his constitutional

rights. Therefore, Adams requested that the District Court set

aside the aggravated assault conviction and sentence enhancement.

On January 3, 2001, the District Court denied Adams’ petition for

postconviction relief. Adams appeals.
STANDARD OF REVIEW

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¶7 We review a district court’s denial of a petition for postconviction relief to determine

whether the court’s findings of fact are clearly erroneous and whether its conclusions of law

are correct. State v. Hanson, 1999 MT 226, ¶ 9, 296 Mont. 82, ¶ 9, 988 P.2d 299, ¶ 9.

DISCUSSION

¶8 Did the District Court err when it denied Adams’ petition for

postconviction relief?

¶9 Adams argues that § 46-8-103, MCA, clearly requires that

appointed counsel continue representation until final judgment,

which includes appellate review by this Court, unless counsel is

relieved by court order. Adams recognizes that the District Court

entered an order purporting to relieve his attorney of continued

representation. However, Adams maintains that his attorney failed

to comply with the mandatory statutory procedure for withdrawal

from appointed representation. Therefore, Adams insists that the

withdrawal was ineffective, and that his attorney was therefore

obligated to pursue a direct appeal. He further contends that his

attorney’s failure to pursue a direct appeal constitutes

ineffective assistance of counsel. Consequently, Adams claims that

he should not have been barred from raising the relevant issues for

review in postconviction relief proceedings.

¶10 The District Court cited § 46-21-105(2), MCA, and Kills on Top

v. State (1995), 273 Mont. 32, 901 P.2d 1368, for the proposition

that claims which could reasonably have been raised on direct

appeal are procedurally barred from consideration in postconviction

proceedings. The District Court noted that Adams had sixty days

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from the entry of judgment to file a direct appeal pursuant to Rule

5(b), M.R.App.P. The District Court determined that “Adams failed

to file an appeal to the Montana Supreme Court within the specified

60-day period, and furthermore, has offered the Court no reasons

for his failure to do so.” Therefore, the District Court concluded

that Adams is “barred from making his claim for postconviction

relief.”

¶11 We are aware of the principle contained in § 46-21-105(2),

MCA, that “grounds for relief that were or could reasonably have

been raised on direct appeal may not be raised, considered, or

decided in a [postconviction relief] proceeding . . . .” However,

this principle must be observed in conjunction with a defendant’s

right to the effective assistance of counsel on a first appeal.

See Hans v. State (1997), 283 Mont. 379, 408, 942 P.2d 674, 691-92.

¶12 Section 46-8-103(1), MCA, governs the duration of appointed

representation as follows:

When counsel has been assigned, the assignment is
effective until final judgment, including any proceeding
upon direct appeal to the Montana supreme court, unless
relieved by order of the court that assigned counsel or
that has jurisdiction over the case.

Section 46-8-103(2), MCA, is a codification of the Anders v.

California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493,

procedure which appointed counsel must undertake to withdraw from

appellate representation. It provides:

If counsel finds the defendant’s case on appeal to
be wholly frivolous, counsel shall advise the court of
that fact and request permission to withdraw. The
request to withdraw must be accompanied by a memorandum

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 referring to anything in the record that might arguably
support the appeal. The defendant is entitled to receive
a copy of counsel’s memorandum and to file a reply with
the court.

Section 46-8-103(2), MCA. In State v. Rogers, 2001 MT 165, ¶ 27,

306 Mont. 130, ¶ 27, 32 P.3d 724, ¶ 27, we stated that “[f]ollowing

the Anders procedure protects a defendant’s right to effective

assistance of counsel on appeal.” A logical extension of this

statement is the converse notion, i.e., a failure to follow the

Anders procedure frustrates the right to effective assistance of

counsel on appeal.
¶13 As indicated above, Adams’ trial counsel filed a motion to

withdraw on March 1, 2000. This same attorney also drafted a

letter advising Adams to contact the Appellate Defender’s Office in

the event he wanted to pursue an appeal. On March 7, 2000, the

District Court ordered Adams to respond to his attorney’s motion.

Adams failed to respond to the motion and the District Court

removed Adams’ attorney from the case on March 29, 2000. The State

contends that Adams sufficiently understood the consequences of

inaction and had ample opportunity to preserve his right to direct

appeal. Since Adams failed to respond, the State insists that

Adams voluntarily waived his right to appeal and is, thus, barred

from raising the relevant issues in postconviction relief

proceedings.

¶14 The State admits that Adams’ attorney “only partially complied

with the procedure set forth in § 46-8-103, in that his request to

withdraw was not accompanied by a ‘memorandum referring to anything

in the record that might arguably support the appeal.’”

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Nevertheless, the State attempts to justify this oversight with its

notification and voluntary waiver position. We cannot accept the

State’s proposition.

¶15 We do not believe that Article II, Section 24, of the Montana

Constitution and its supporting statutory and case law contemplate

“partial compliance” with those procedural safeguards designed to

preserve a litigant’s right to appeal and right to effective

assistance of counsel on appeal. In fact, § 46-8-103(2), MCA,

provides that appointed counsel “must” include the requisite

memorandum with his or her motion to withdraw. This compulsory

language contains no ambiguity which might support the State’s

“partial compliance” theory.
¶16 The accompanying memorandum requirement in § 46-8-103(2), MCA,

serves a vital function. It notifies prospective pro se litigants

of potentially viable issues for appellate review. It also

provides assistance to a court deliberating over the merit of a

motion to withdraw from appellate representation. As we stated in

Rogers, ¶ 26, “a defendant’s right to appellate counsel must be

safeguarded and allowing counsel to be the final judge of the

merits of an appeal does not adequately safeguard this right.” The

State’s “partial compliance” proposition would effectively transfer

the legal practitioner’s statutory obligation to the untrained and

unsuspecting pro se litigant. In light of the potential

consequences, we believe this is too high a burden to place upon

someone unfamiliar with the nuances of appellate procedure.

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¶17 In short, Adams’ attorney failed to comply with the

requirements of § 46-8-103(2), MCA, and, therefore, could not

effect a valid withdrawal. It follows that since Adams’ counsel

did not effect a valid withdrawal and did not file a notice of

appeal on Adams’ behalf, Adams’ trial counsel failed to preserve

Adams’ right to appeal. Failure to preserve a defendant’s right to

appeal when he has requested notice be filed is error. Rogers, ¶

24. And when, but for counsel’s deficient performance, defendant

would have appealed, such error is prejudicial. Rogers, ¶ 24.
¶18 The State argues that “it cannot be said that, but for

counsel’s failure to file a memorandum, Adams would have appealed.”

With his petition for postconviction relief, Adams filed an

“Affidavit in Support of Petition for Postconviction Relief.” In

the affidavit, Adams states, “After affiant was sentenced by this

court, on or about December 1, 1999, affiant requested that [his

attorney] appeal his conviction to the Montana Supreme Court and

[his attorney] failed to do so.” Further, on appeal, Adams

contends that the letter from his attorney and the District Court’s

order which demanded a response to his attorney’s motion contained

conflicting information which led him to believe that his

opportunity to file a notice of appeal had expired. We conclude

that there is sufficient evidence in the record to indicate that

but for counsel’s deficient performance, Adams would have filed an

appeal. Accordingly, we hold that the District Court erred when it

denied Adams’ petition for postconviction relief as procedurally

noncompliant.

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¶19 In Hans, 283 Mont. at 410, 942 P.2d at 693, we held that all

claims foreclosed from appeal because of counsel’s abandonment on

appeal may be raised in a postconviction petition. Therefore, the

exclusionary language in § 46-21-105(2), MCA, does not apply to the

case at bar.

¶20 Generally, a postconviction relief procedure is civil in

nature and there is no constitutional requirement that counsel be

appointed. State v. Bromgard (1997), 285 Mont. 170, 175, 948 P.2d

182, 185. However, Adams would have been entitled to counsel on

direct appeal and should not be precluded from such representation

throughout the postconviction proceedings simply because his trial

counsel failed to preserve his direct appeal. Section 46-8-

101(3)(c), MCA, provides that a “defendant, if unable to employ

counsel, is entitled to have counsel assigned if the interests of

justice would be served by assignment.” Here, in the interests of

justice, we conclude that Adams is entitled to appointed counsel

throughout the course of postconviction proceedings on remand.
¶21 Although the District Court determined that Adams’ petition

was procedurally barred, it proceeded to analyze the merits of the

allegations contained therein. However, Adams did not have the

benefit of counsel in preparing his petition for postconviction

relief. Therefore, on remand, the District Court must consider

anew, upon briefs filed by counsel, the substantive issues

presented for review.

¶22 In Petition of Hans, 1998 MT 7, 288 Mont. 168, 958 P.2d 1175

(Hans II), a case procedurally similar to the one at bar, we

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delineated what substantive issues a party could present for review

in postconviction proceedings in cases such as this. We stated:

[I]n the future, a defendant whose counsel has abandoned
his or her appeal should raise, in one petition for
postconviction relief, the claim that counsel was
ineffective in abandoning the appeal, all claims that
could have been raised on direct appeal, and all claims
that would normally be appropriate in a petition for
postconviction relief, including challenges to the
validity of the sentence under § 46-21-101, MCA, and
other ineffective assistance claims.
Hans II, ¶ 19. However, in Hans II, we indicated that we had

already ruled on the ineffective assistance allegation for

abandoning the direct appeal. Therefore, on remand, Hans was given

leave to raise two types of issues in his amended petition for

postconviction relief: (1) those issues that could have been raised

in a direct appeal but for counsel’s abandonment of his appeal; and

(2) those issues properly raised in a petition for postconviction

relief that have not already been raised. Hans II, ¶ 17.
¶23 As in Hans II, we have already ruled on Adams’ allegation of

ineffective assistance of counsel for failure to preserve his

direct appeal. Accordingly, on remand, Adams is given leave to

raise those direct appeal and postconviction relief issues

delineated in Hans II. In summary, we reverse the District Court’s

judgment to the extent it concluded that Adams’ petition for

postconviction relief was procedurally barred. We remand this case

for the appointment of counsel and for further proceedings

consistent with this Opinion.

/S/ PATRICIA COTTER

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We Concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER

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