September 13 2011
DA 10-0444
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 226N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
LARRY HAMBY,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC 08-554
Honorable Edward P. McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joslyn Hunt, Chief Appellate Defender; Koan Mercer,
Assistant Appellate Defender, Helena, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Tammy Plubell,
Assistant Attorney General, Helena, Montana
Fred Van Valkenburg, Missoula County Attorney; Kristen Pabst LaCroix,
Deputy County Attorney, Missoula, Montana
Submitted on Briefs: August 24, 2011
Decided: September 13, 2011
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court Internal
Operating Rules, this case is decided by memorandum opinion and shall not be cited and
does not serve as precedent. Its case title, cause number, and disposition shall be
included in this Court’s quarterly list of noncitable cases published in the Pacific
Reporter and Montana Reports.
¶2 Larry Hamby appeals from his convictions of the crimes of deliberate homicide,
attempted deliberate homicide and driving with a suspended license. Hamby argues on
appeal that the District Court erred by not allowing him to dismiss his appointed
attorneys and represent himself, and that he received ineffective assistance of counsel.
¶3 A defendant’s request for self-representation and waiver of counsel must be
voluntary, knowing, intelligent and unequivocal. State v. Dawson, 2006 MT 69, ¶ 13,
331 Mont. 444, 133 P.3d 236; § 46-8-102, MCA. Hamby wrote letters to the District
Court requesting to represent himself, and the District Court held two evidentiary
hearings on Hamby’s requests. Hamby’s statements and explanations of his wishes were
confusing and inconsistent. During the hearings Hamby made requests to represent
himself, to have different counsel appointed, and to have his existing counsel represent
him differently. Under these circumstances Hamby did not unequivocally waive the right
to counsel and the District Court properly denied Hamby’s request.
¶4 We decline to address Hamby’s allegations that he received ineffective assistance
of counsel. Hamby’s claims are not record based and there may be plausible
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justifications for the actions complained of. We therefore dismiss those claims without
prejudice to his filing a petition for postconviction relief. State v. Frasure, 2004 MT 305,
¶¶ 12-13, 323 Mont. 479, 100 P.3d 1013.
¶5 The issues in this appeal are legal and are controlled by settled Montana law. The
District Court’s denial of Hamby’s request for self-representation is affirmed and
Hamby’s claims of ineffective assistance of counsel are dismissed, without prejudice.
/S/ MIKE McGRATH
We concur:
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JIM RICE
/S/ BRIAN MORRIS
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