State v. Browning

No. 05-433

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 190

STATE OF MONTANA,

Plaintiff and Respondent,

v.

ROBERT LEE BROWNING,

Defendant and Appellant.

APPEAL FROM: The District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DC 04-37,
Honorable Deborah Kim Christopher, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender, Helena, Montana

Peter Lacny, University of Montana Criminal Defense Clinic,
Missoula, Montana

For Respondent:

Honorable Mike McGrath, Attorney General; Jennifer Anders, Assistant
Attorney General, Helena, Montana

Robert Long, County Attorney, Polson, Montana

Submitted on Briefs: June 14, 2006

Decided: August 16, 2006

Filed:

__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1 On April 12, 2004, the State of Montana charged Robert Lee Browning with

driving under the influence (felony) (DUI), obstructing a police officer (misdemeanor),

driving while privilege to do so is suspended or revoked (misdemeanor), and failure to

carry proof of insurance (misdemeanor). After Browning provided proof of insurance,

the State dropped the last charge. A year and three attorneys later, Browning appeared

pro se before the Twentieth Judicial District Court, Lake County, and pled guilty.

Because the DUI was Browning’s sixth DUI offense and he had prior convictions for bail

jumping, the court sentenced Browning as a persistent felony offender to twenty years,

with the entire sentence suspended except for time served through completion of the

WATCH program. Browning subsequently filed a motion to withdraw his guilty plea,

contending that his plea was involuntary because he did not receive effective assistance

of counsel.

¶2 The issue on appeal is whether the District Court denied Browning assistance of

counsel and therefore erred when it denied Browning’s motion to withdraw his guilty

plea?

¶3 We reverse.

BACKGROUND

¶4 The District Court assigned three attorneys to represent Browning during the year-

plus that Browning’s case moved through the lower court, none of whom ultimately

represented Browning when he pled guilty. The first lawyer, Larry Nistler, withdrew

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from the case, citing deterioration of the attorney-client relationship to the point where

new counsel would better serve Browning’s best interests. The second attorney, Sean

Hinchey, was removed after Browning expressed distrust for him, specifically because

Hinchey “tried to convince” Browning’s wife to talk Browning into accepting a plea

agreement from the State. The court appointed a third lawyer, Lane Bennett, whom

Browning dismissed minutes before a scheduled trial in anticipation of hiring private

counsel.

¶5 Throughout proceedings, Browning repeatedly expressed dismay and frustration

with his court-appointed attorneys for not obtaining certain discovery. On the day the

District Court dismissed Bennett as counsel, Browning stated that while he believed

Bennett was a “professional,” there were “certain things” in his case that he had

requested and not received. The court told Browning that it believed the evidence

Browning wanted did not exist and then explained in detail the consequences Browning

faced in terminating his third court-appointed attorney. The court made clear that while

Browning had every right to hire any attorney of his choosing, Bennett would be the last

court-appointed defender on the case. Browning stated that he understood the potential

ramifications of terminating Bennett, but that he nonetheless wanted to proceed without

Bennett because he intended to hire a private attorney, Rebecca Dupuis, to represent him.

¶6 The following discussion, in pertinent part, transpired between the court and

Browning on the day that Browning’s third attorney, Bennett, was terminated:

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 THE COURT: . . . The Court is significantly concerned about you
proceeding without representation. However, you certainly have the right
to either represent yourself or to hire private counsel.

....

. . . [I]f Ms. Dupuis intends to represent you, that’s certainly your
right. But she needs to be prepared to go to trial in 20 minutes. And I’m
wondering, based on your request, where she is, if you intend to proceed
with Ms. Dupuis. If not, then the Court would expect that you intend to
represent yourself.

And before I’m going to remove Mr. Bennett off this case, I want to
make very, very certain that you understand all of the dangers and
disadvantages of representing yourself. Mr. Bennett has outlined some of
those.

....

So at this point is it your intention, then, to proceed with Ms.
Dupuis, to represent yourself or to continue with Mr. Bennett as your
attorney?

BROWNING: Well, I want Ms. Dupuis.

THE COURT: Well, she’s not here. And you have a trial in 15
minutes.

....

The only way I’m going to grant you a continuance to allow Ms.
Dupuis to appear for you is if you waive speedy trial, sir. You have a trial
date right now at nine o’clock, in 15 minutes, and I have 40 jurors sitting
out there.

....

. . . Mr. Browning, you have two options, sir, at this point in time.
The only way that you can proceed with Ms. Dupuis as your attorney is to
waive your right to speedy trial, obtain a continuance and allow her to be
present. The county attorney has just attempted again to call her. It’s now

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12 minutes to nine o’clock, which is the time set for trial, and there’s no
answer at her office.

....

BROWNING: I want the continuance.

THE COURT: You want the continuance.

....

BROWNING: Yes, Your Honor. I’m going to continue.

THE COURT: You want the continuance.

BROWNING: Yes.

THE COURT: And as I indicated, you want that continuance so that
Ms. Dupuis can represent you.

BROWNING: Yes.

THE COURT: All right. Mr. Bennett, you are removed as the
public defender in this case.

....

And you understand, [Mr. Browning], that I’m presuming that Ms.
Dupuis is actually going to appear on your behalf at this point in time.

BROWNING: So am I. I’m presuming that she is also. We have
the money coming to –

THE COURT: Because the other thing is, you have to understand
that essentially what you are doing is you will be in a position where you
will be representing yourself. And that means that all of the same rules in
court apply to you just as they do the lawyers.

BROWNING: Yeah.

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 THE COURT: You understand that if you make any mistakes, that I
can’t give you any assistance and I won’t give you any special benefits or
privileges.

BROWNING: I understand.

THE COURT: You understand that the government is represented
by an attorney, someone who has spent a lot of time in handling criminal
cases. And you understand that you will be up against determining all of
the decisions that would have to be made in selection of a jury, in providing
an opening statement, in what’s admissible evidence. You understand that?

BROWNING: I understand.

THE COURT: You understand that you would then have to conduct
your own direct and your own cross-examination of witnesses.

BROWNING: I understand.

THE COURT: In addition . . . you understand that by removing Mr.
Bennett, then the Court is removing the obligation to have a public
defender involved in this case.

BROWNING: I understand.

THE COURT: All right. Then I have removed Mr. Bennett. You
are now for the Court’s purposes representing yourself until and unless
such time happens as Ms. Dupuis enters some appearance . . . .

....

BROWNING: I want to thank Mr. Bennett. I just – he did seem to
be pretty professional. There’s just certain things that would have eased
my mind and made me feel better about my case if I would have gotten
them sooner. I just –

THE COURT: The Court’s difficulty is, at this point you’re in three
attorneys deep. . . . The first one the Court removed. Mr. Hinchey and Mr.
Bennett the Court did not remove until request to do so by you.

BROWNING: Mr. Hinchey lied to me.

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 THE COURT: My experience with both counsel is they’re very
professional and very experienced, and I am concerned about you
representing yourself in this matter because of the dangers and
disadvantages that come with that. But you have that right and I am going
to afford that to you.

¶7 Although Browning intended to retain Dupuis as counsel, his plans failed when his

daughter allegedly absconded with the retainer fee. Browning then told the court that he

wanted to hire his own attorney, but that he lacked sufficient funds. Browning further

stated that he was “in no shape to act as [his] own attorney.” The court responded that it

had been clear with Browning that when Bennett was dismissed, Browning was either

proceeding with private counsel or appearing pro se and that under the circumstances, the

court viewed Browning as representing himself.

¶8 During subsequent hearings, Browning asserted that in representing himself, he

was receiving ineffective assistance of counsel because he was “a fool” as an attorney.

The court informed Browning in no uncertain terms that it would not assign another

defender to represent Browning because it had already appointed three qualified lawyers,

none of whom satisfied Browning, and that Browning had “fired” the last attorney when

the court had a jury sitting for trial. “I can’t do any better than that,” the court told

Browning, “and I’m not going to.” Browning explained to the court that in continuing

pro se, he would “be prejudiced because I don’t know what I’m doing.” When asked by

the court what the likelihood was that any attorney would satisfy him, Browning

responded that all he had wanted was an attorney that would obtain certain State dispatch

logs relating to his arrest. At this point, the court, in part because of Browning’s status as

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a pro se litigant, ordered the State to provide the discovery that Browning requested. The

court then reiterated to Browning that it would not appoint further counsel because it

could not provide Browning an attorney to his satisfaction. The court noted, “I’m

hopeful that you can provide for yourself.”

¶9 Browning eventually pled guilty pursuant to a plea agreement that was

significantly more onerous than a previous offer from the State. During the change of

plea hearing, Browning asserted that while he did not want to sign the plea agreement, he

felt there was no other choice, as he was “stuck,” unable to pay for an attorney.

Browning further stated that in complaining of his representation, he “never intended to

mess with the Court,” he simply wanted evidence that his lawyers had failed to obtain.

The court accepted Browning’s guilty plea and sentenced him accordingly.

¶10 Post-sentencing, the District Court appointed the Appellate Defender Office to

review Browning’s case. The office, in conjunction with the University of Montana

Criminal Defense Clinic, filed a motion to withdraw Browning’s guilty plea, arguing that

Browning’s plea was not a voluntary and intelligent choice, but rather, a helpless decision

resulting from lack of counsel. The District Court denied Browning’s motion, stating that

it had “made every effort to afford the Defendant counsel,” but that no attorney could

represent Browning “in the way that he wished.”

STANDARD OF REVIEW

¶11 When a defendant appeals a district court’s denial of a motion to withdraw a guilty

plea, we review the trial court’s findings of fact to determine if they are clearly

8
erroneous, and conclusions of law to determine if they are correct. When the

voluntariness of the plea is at issue, we review that ultimate mixed question of law and

fact de novo to determine if the trial court correctly held that the defendant pled

voluntarily. State v. Leitheiser, 2006 MT 70, ¶ 12, 331 Mont. 464, ¶ 12, 133 P.3d 185,

¶ 12.

DISCUSSION

¶12 Did the District Court deny Browning assistance of counsel and therefore err

when it denied Browning’s motion to withdraw his guilty plea?

¶13 Browning argues that the District Court should have granted the motion to

withdraw his guilty plea pursuant to § 46-16-105(2), MCA, which allows a defendant to

withdraw a guilty plea for “good cause shown.” Browning argues that he has shown

good cause because his plea was entered without the assistance of counsel.

¶14 “The right to assistance of counsel is embodied in the Sixth Amendment of the

United States Constitution and Article II, Section 24 of the Montana Constitution.” State

v. Langford (1994), 267 Mont. 95, 99, 882 P.2d 490, 492. “Indigent defendants are

entitled to legal representation by court-appointed counsel at public expense.” State v.

Mann, 2006 MT 33, ¶ 12, 331 Mont. 137, ¶ 12, 130 P.3d 164, ¶ 12. Although an accused

has a constitutional right to appear pro se, such action results in the loss of many benefits

associated with the right to counsel. Consequently, this Court indulges in every

reasonable presumption against waiver of the right to counsel. State v. Swan, 2000 MT

246, ¶¶ 16-17, 301 Mont. 439, ¶¶ 16-17, 10 P.3d 102, ¶¶ 16-17.

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¶15 “Since Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799,

it has been clear that a guilty plea to a felony charge entered without counsel and without

a waiver of counsel is invalid.” Brady v. U.S. (1970), 397 U.S. 742, n.6, 90 S.Ct. 1463,

n.6, 25 L.Ed.2d 747, n.6. This Court will uphold a waiver of counsel so long as the

defendant made the decision knowingly, voluntarily and intelligently. Section 46-8-102,

MCA. In Langford, 267 Mont. at 99, 882 P.2d at 492 (citing United States v. Robinson

(9th Cir. 1990), 913 F.2d 712, 714), we adopted the Ninth Circuit’s requirement that “the

request to represent oneself must [also] be unequivocal.” This requirement serves an

institutional purpose in that a defendant who vacillates at trial between wishing to be

represented by counsel and wishing to represent himself could place the trial court in a

difficult position:

If the court appoints counsel, the defendant could, on appeal, rely on his
intermittent requests for self-representation in arguing that he had been
denied the right to represent himself; if the court permits self-representation
the defendant could claim he had been denied the right to counsel. The
requirement of unequivocality resolves this dilemma by forcing the
defendant to make an explicit choice. If he equivocates, he is presumed to
have requested the assistance of counsel.

Langford, 267 Mont. at 100, 882 P.2d at 493 (citation omitted).

¶16 In Langford, the defendant argued that he had been denied the right to represent

himself when the court refused to remove court-appointed counsel after he stated during a

pre-trial hearing that he waived his right to counsel. “Standing alone,” we noted,

“Langford’s request appears to be unequivocal.” Upon reviewing the record as a whole,

however, we determined that “the request was equivocal” given that Langford filed a

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motion both requesting replacement counsel and stating that he did not feel that he could

“remotely represent himself.” Langford, 267 Mont. at 101, 882 P.2d at 493. “Taken as a

whole,” we concluded, “the record clearly reflects the fact that Langford’s request to

represent himself was equivocal” and therefore the trial court did not violate Langford’s

right to self-representation. Langford, 267 Mont. at 102, 882 P.2d at 494.

¶17 We reached a similar conclusion in Swan, where the defendant stated, “Yes, I do,”

when asked by the court if he wanted to proceed pro se, but then filed a motion

suggesting that the court assign a new attorney as co-counsel to assist him with advice.

Swan, ¶ 20. We determined that what Swan really wanted was to have different counsel

appointed and to be allowed to use the law library. Swan, ¶ 20. Recognizing that Swan

had changed his mind regarding representation by an attorney, we held that “[t]he record

as a whole reveals that Swan’s request for self-representation was anything but

unequivocal.” Swan, ¶ 25.

¶18 Turning to the case at hand, the State argues that whether Browning asked to

proceed pro se is “irrelevant” because the court advised Browning of the dangers and

disadvantages of self-representation, and made clear that in dismissing Bennett,

Browning was on his own if private counsel fell through. Relying on State v. Craig,

(1995), 274 Mont. 140, 906 P.2d 683, the State contends that Browning cannot “halt the

administration of justice” by insisting on a new attorney, while simultaneously refusing

to waive his right to counsel.

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¶19 In Craig, we held that the District Court did not deny the defendant his

constitutional right to the assistance of counsel when it denied his request for a

substitution of court-appointed counsel. After conducting a hearing to determine whether

counsel was ineffective, the court made the following statement:

As with any other defendant, you are entitled to hire any attorney you wish.
. . . You do have the right in [this] circumstance for a court-appointed
counsel, but you do not have the right to choose your own attorney. So I’m
just telling you now that you also have the right to represent yourself for
your trial date.

[Your court-appointed attorney] is going to stay on your case. I’m
going to deny your motion to replace him with any other public defender.
It’s too late, among other things. I don’t think there’s been any
ineffectiveness on his part in preparing this case for trial. Nevertheless,
he’ll be here in court the morning of the trial, and if you don’t want to use
him, that’s fine. You go ahead and represent yourself or bring another
attorney. . . . [Your court-appointed attorney] is going to be here [at trial] as
scheduled, and you’re going to be here as scheduled. If you have a defense,
we’d like to hear it from you that day.

Craig, 274 Mont. at 144-45, 906 P.2d at 686.

¶20 Apparently unable to afford private counsel, Craig proceeded to trial with his

court-appointed attorney, all the while refusing to present a defense or cooperate with

counsel. We reasoned that Craig could not, on appeal, assert denial of his right to

counsel when he had refused to cooperate with his competent court-appointed attorney.

Craig, 274 Mont. at 152-53, 906 P.2d at 691.

¶21 Importantly, in Craig, we declined to adopt the State’s position that Craig’s

rejection of court-appointed counsel constituted an unequivocal request to proceed pro se

and a valid waiver of his right to counsel. Craig, 274 Mont. at 151, 906 P.2d at 690. We

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determined that Craig did not seek permission to appear pro se, as he consistently and

repeatedly reiterated that he was unqualified to represent himself. We thus concluded

that the court appropriately retained Craig’s court-appointed attorney given its

determination that counsel was effective. Craig, 274 Mont. at 152, 906 P.2d at 690.

¶22 In this case, when the District Court inquired whether Browning intended “to

proceed with Ms. Dupuis, to represent [himself] or to continue with Mr. Bennett as [his]

attorney,” Browning stated, “I want Ms. Dupuis.” While Browning affirmed that he

understood that in terminating Bennett, he could be in a position of self-representation, he

also indicated throughout the proceedings that he did not want to proceed pro se and was

completely incompetent to serve as his own lawyer. The record does not support a

conclusion that Browning unequivocally requested to proceed pro se. Under the

Langford test, a defendant cannot be deemed pro se by default.

¶23 At first blush, it may appear that the district courts in Craig and Browning’s case

provided the defendants with a similar choice in that Browning, like Craig, was told he

could proceed with court-appointed counsel or represent himself. The key difference,

however—and the one this case turns on—is that the court in Craig declined to terminate

Craig’s public defender given that Craig had not made an unequivocal request to proceed

pro se, whereas the court in Browning’s case did terminate court-appointed counsel, even

though there were no assurances that Browning had secured private representation and

even though Browning had not made an unequivocal request to proceed pro se. Given

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these circumstances, we conclude that the District Court denied Browning the assistance

of counsel.

¶24 We hold that the District Court erred in denying Browning’s motion to withdraw

his guilty plea. Reversed and remanded for further proceedings consistent with this

opinion.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS

Justice Jim Rice specially concurring.

¶25 The Court creates an unnecessary and costly rule that accommodates defendants

engaged in shenanigans with the judicial system.

¶26 In Craig, this Court stated the following:

In refusing to cooperate with his appointed counsel and, at the same
time insisting that he was not asking to proceed pro se, Craig was
attempting to force the appointment of new counsel. This Court cannot
countenance such dilatory and manipulative tactics at the expense of the
efficient administration of justice.

Craig, 274 Mont. at 153, 906 P.2d at 691. Faced with a defendant who was clearly

attempting to unfairly manipulate the system to his advantage, the district court in Craig

saw a viable remedy: keep appointed counsel on standby. While we recognized the

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prudence of that action by the district court, we did not make it a rule that in similar

situations district courts must do likewise. We do so today.

¶27 The tension in our precedent leads to the rule announced today, but it need not

have done so. In Craig, we stated that “at some point a criminal defendant can be

deemed to have waived to a certain extent his constitutional right to effective assistance

by virtue of his unreasonable refusal to communicate with his attorney,” Craig, 274

Mont. at 152, 906 P.2d at 690 (quoting Thomas v. Wainwright (11th Cir. 1985), 767 F.2d

738, 743), and that a “persistent unreasonable demand for dismissal of counsel [is] the

functional equivalent of a knowing and voluntary waiver of counsel.” Craig, 274 Mont.

at 152, 906 P.2d at 690 (quoting Thomas, 767 F.2d at 743) (brackets in original).

However, we also stated:

We decline to adopt the State’s position that Craig’s rejection of [appointed
counsel’s] representation constituted an unequivocal request to proceed pro
se and a valid waiver of his right to counsel. Craig’s situation does not
meet the unequivocal request standard established by Langford, 267 Mont.
95, 882 P.2d 490.

Craig, 274 Mont. at 151, 906 P.2d at 690. Thus, on the one hand, according to the rule in

Langford, a defendant must make an unequivocal request to waive his right to counsel

and to proceed pro se. On the other hand, according to Craig, a defendant’s obfuscatory

actions can at some point effectively create a waiver of the right to counsel—without an

unequivocal request. In the latter situation, I would leave it to the district court’s

discretion in each individual case how best to address the defendant’s actions.

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¶28 I concur with the Court’s decision today because I cannot say with confidence that

Browning reached the point at which he could be deemed to have waived his right to

counsel, because he was focused primarily on hiring private counsel. However, I do not

agree that we should require, as a rule, appointed counsel to remain on standby absent an

unequivocal waiver.

/S/ JIM RICE

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