NO. 95346
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
CITY OF BILLINGS, STATE OF MONTANA,
Plaintiff and Respondent,
v.
JAMES VIRL SMITH,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell C. Fagg, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James V. Smith, Pro Se, Billings, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
John Paulson, Ass't Attorney General,
Helena, Montana
Mary Jane Knisely, City Attorney's Office,
Billings, Montana
Justice W. William Leaphart delivered the Opinion of the Court.
James Smith appeals from the June 14, 1995 Judgment of the
Thirteenth Judicial District Court, Yellowstone County, convicting
him and sentencing him to sixty days in jail and payment of fines
and costs for driving while under the influence of alcohol, driving
with no proof of vehicle insurance, and failure to carry vehicle
registration. We reverse and remand.
We consider the following issue on appeal:
Did the District Court err in failing to adequately
inquire into Smith's complaints of ineffective assistance
of counsel?
Factual and Procedural Backsround
On November 2, 1993, a Billings Police Officer stopped Smith
for speeding. Upon suspicion that Smith was intoxicated, the
officer conducted several field sobriety tests. The officer
testified that Smith had difficulty following the instructions and
performing the tests. Smith failed to produce the vehicle
registration or proof of insurance upon request. Smith was
arrested and transported to the Yellowstone Detention Center, where
a videotaped interview was conducted.
In two separate proceedings initiated in the Billings City
Court, Smith was charged with and convicted of driving while under
the influence, in violation of 5 61-B-401, MCA, and driving with no
proof of vehicle insurance, in violation of 5 61-6-301, MCA, and
failure to carry vehicle registration, in violation of § 61-3-322,
MCA. Smith appealed both City Court judgments to the District
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court. The District Court consolidated the appeals.
Smith filed a financial statement and request for appointment
of counsel, and the District Court appointed the Yellowstone public
defender's office to represent Smith. Trial de nova was set for
February 21, 1995. Before trial, Smith's counsel filed a motion to
continue the trial, and the District Court reset the trial.
A jury trial was held on June 6, 1995. Several times during
the course of the trial, Smith asked the court for a continuance so
that he could get a different attorney, stating that he did not
feel his court-appointed attorney was prepared or representing his
best interests. The court denied Smith's requests. The jury
returned verdicts of guilty on all three charges and the court
sentenced Smith to sixty days in jail for the DUI charge, with all
but three days suspended on certain conditions which included
payment of jury costs incurred in the City Court and District Court
trials. The court sentenced Smith to pay certain fines and
surcharges for the convictions of driving with no vehicle insurance
and failure to carry vehicle registration.
Standard of Review
We have held that motions for continuance are addressed to the
discretion of the district court and are reviewed on appeal for
abuse of discretion. Section 46-13-202, MCA; State v. Haskins
(1992), 255 Mont. 202, 207, 841 P.2d 542, 545 (citing State v.
LaPier (1990), 242 Mont. 335, 790 P.2d 983). Likewise, it is
within the sound discretion of the trial court to rule on the
substitution of counsel and we will not overturn a decision absent
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a showing of an abuse of discretion. State v. Morrison (1993), 257
Mont. 282, 284, 848 P.2d 514, 516; State v. Martz (1988), 233 Mont.
136, 139, 760 P.2d 65, 67.
ISSue
Did the District Court err in failing to adequately
inquire into Smith's complaints of ineffective assistance
of counsel?
Smith alleges that the District Court erred in failing to hold
a hearing on his complaints of ineffective assistance of counsel.
The Sixth Amendment to the United States Constitution and Article
11, Section 24 of the Montana Constitution guarantee a criminal
defendant the right to the assistance of counsel. The right to
counsel is fundamental and applies with equal force to all persons,
regardless of their ability to compensate an attorney. State v.
Enright (1988), 233 Mont. 225, 228, 758 P.2d 779, 781 (citing
Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.Zd
799). The assistance must be effective in order to give true
meaning to that right and to the right to a fair trial. See
Enrisht, 758 P.2d at 781 (citing State v. McElveen (19751, 168
Mont. 500, 503, 544 P.2d 820, 821-22).
A defendant is entitled to a hearing on the issue of
ineffective assistance of counsel where the defendant presents a
"seemingly substantial complaint" about effective assistance. If
the defendant presents a "seemingly substantial complaint" the
court should hold a hearing on the request for substitution of
counsel. State v. Kills On Top (Mont. 1996), 928 P.2d 182, 190, 53
St.Rep. 1197, 1204; State v. Weaver (1996), 276 Mont. 505, 511, 917
4
P.2d 437, 441; State v. Finley (1996), 276 Mont. 126, 143, 915 P.2d
208, 218; Morrison, 848 P.2d at 516.
We have held that the threshold issue in determining whether
a "substantial complaint" exists is "not whether counsel was
ineffective, but whether the District Court erred in failing to
make an adequate inquiry into [a defendant's] claim of ineffective
assistance of counsel." Weaver, 917 P.2d at 441. In determining
if the defendant presented a seemingly substantial complaint about
counsel, "it follows that the district court must make an adequate
inquiry into the defendant's complaints." Finlev, 915 P.2d at 219.
In those cases where this Court has found a district court's
inquiry into a defendant's complaints about counsel adequate, the
district court considered the defendant's factual complaints
together with counsel's specific explanations addressing the
complaints. State v. Craig (1995), 274 Mont. 140, 906 P.Zd 683;
Morrison, 848 P.2d 514.
In a, this Court found that the district court had
adequately inquired into the defendant's complaints by considering
Craig's complaints together with counsel's explanation of the
attorney-client relationship. Craig's lack of cooperation with
counsel, his failure to allege any facts in support of his motion,
and the specific explanation by Craig's counsel concerning Craig's
allegations supported the district court's finding that no hearing
was warranted on Craig's effective assistance of counsel complaint.
&&&, 906 P.2d at 689-90.
In Morrison, the defendant wrote a letter to the judge four
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months before trial expressing his concern that counsel had not yet
contacted him. Morrison, 848 P.2d at 516. The judge contacted
counsel and requested that he speak to the defendant. The
defendant made no further complaints until sentencing. Morrison,
848 P.2d at 516. Upon the defendant's complaint at the sentencing
hearing, the court questioned counsel who recounted to the court
specific discussions he had had with the defendant. Morrison, 848
P.2d at 516. The substance of the discussion convinced the
district court that there had not been a breakdown of communication
between attorney and client. Relying on counsel's comments and the
fact that the defendant failed to reiterate his complaints at
trial, the district court held that the defendant's complaints did
not warrant a hearing. This Court held that the district court
adequately inquired into Morrison's complaints. Morrison, 848 P.2d
at 517.
If a district court fails to address a defendant's complaints
regarding effectiveness of counsel, the court may place a defendant
in the untenable position of choosing between proceeding with
ineffective counsel or proceeding pro se. "Such a set of options
is in essence no choice at all." w, 906 P.2d at 689 (citing
Enriaht, 758 P.2d at 782).
This Court has found reversible error where a district court
fails to make an initial inquiry into a defendant's complaints
about counsel. In Enrisht, this Court held that it was reversible
error for the district court to fail to question defendant about
her complaints concerning counsel before allowing her to proceed
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pro se. This error, in effect, deprived Enright of the opportunity
to make a meaningful choice to proceed pro se. Enriqht, 758 P.2d
at 782.
In another case, this Court found the lower court record
"devoid of any indication that the court made even a cursory
inquiry into [the defendant's] complaints about his counsel's
representation." Weaver, 917 P.2d at 441. The district court had
not considered or ruled upon the defendant's motion to "relieve"
counsel; rather the court indicated that Weaver could pursue his
allegations through habeas corpus proceedings. Weaver, 917 P.2d at
441. We remanded the case so that the district court could make an
adequate inquiry into Weaver's allegations and determine if he had
presented substantial complaints.
Finally, in Finlev, we held that in determining whether Finley
presented substantial complaints about the effectiveness of his
counsel, the district court should have inquired into the
complaints and made "some sort of a critical analysis at the time
the motion was filed." Finley, 915 P.2d at 219.
Finley complained about his counsel in a motion for change of
venue, listing several factual reasons to support his allegations.
Finlev, 915 P.2d at 218. The district court denied Finley's motion
without a hearing. After trial, in which Finley was found guilty
of burglary and sexual intercourse without consent, Finley wrote a
letter to the county attorney's office alleging that his counsel
was ineffective, that counsel refused to discuss terms of an appeal
and refused to speak with him at all. Finlev, 915 P.2d at 212.
After the State moved the district court for a hearing on the
ineffective assistance claim, the court held a post-trial hearing
in which it found that Finley's counsel had rendered effective
assistance. Finlev, 915 P.2d at 212.
1n a post-conviction petition Finley alleged that the district
court erred in failing to conduct a hearing on his complaints of
ineffective assistance alleged in his motion to change venue. The
State argued that the district court's duty to grant a hearing on
substantial complaints of ineffective assistance of counsel
extended only to motions for substitution of counsel. Finlev, 915
P.2d at 218. It reasoned that because Finley's pro se motion
sought a change of venue, not dismissal or substitution of counsel,
the court need not consider the necessity of a hearing on the
ineffective assistance of counsel complaint. This Court held that
"'[tlhe legal effect of any court-filed paper--be it a motion, a
pleading or some other instrument--is to be measured by its content
rather than by the author-provided title."' Finlev, 915 P.2d at
218 (quoting Hulsey v. Mid-America Preferred Insurance Co. (Okla.
19891, 711 P.2d 932, 936 n.14). We found that the substance of
Finley's motion for change of venue indicated that he was in fact
complaining about the assistance of counsel. Because the substance
of the motion was a complaint of ineffective assistance of counsel
it was necessary that the district court inquire into the validity
of his complaints. Finlev, 915 P.Zd at 218. We held that the
district court failed to make an initial determination of whether
Finley presented substantial complaints and, therefore, that the
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court erred. Finley, 915 P.2d at 219. The error was held to be
harmless because the district court conducted a post-trial hearing
on Finley's complaints regarding his counsel's representation.
Finley, 915 P.2.d at 219
Smith, like Finley, did not denominate his motion a "Request
for Substitution of Counsel." However, as we said in Finley, a
court-filed paper should be measured by its content rather than by
its title. Finley, 915 P.2d at 218. Likewise, Smith's motion for
a continuance should be considered for its content rather than for
its form. In this case, Smith asked for a continuance for the
express purpose of finding new counsel because his present counsel
was not familiar with the case. This request must be viewed as a
complaint of ineffective assistance of counsel which requires an
adequate inquiry by the district court.
The transcript reveals that Smith made more than conclusory
allegations regarding his dissatisfaction with counsel. The court,
however, cut him off without any inquiry into the allegations and
gave him a choice between keeping his second court-appointed
counsel and representing himself.
Smith expressed his concerns immediately after the judge made
his opening remarks to the jury.
THE DEFENDANT: . I still feel Mr. English does
not represent my best interests, nor do I believe I am
ready to defend myself. . . I tried to contact several
attorneys yesterday, . . . I would like to . ask for
a continuance so that I might find counsel.
THE COURT: Mr. Smith, your request for a
continuance is denied. . . You do not get a choice of
an attorney, unless you choose to retain one yourself.
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THE DEFENDANT: That is what I would like to do.
. . [W]e had a falling out yesterday. He calls me the
day before the trial and is going to start to prepare for
it.
After opening statements Smith again complained about counsel.
THE DEFENDANT:. From his opening statements I
can see that I know more about this than he does.
MR. ENGLISH: Your Honor, may the record reflect I
have consulted with Mr. Smith on two prior occasions. .
. I have adequately prepared for this case. I'm
prepared for trial. Mr. Smith might have a difference of
opinion as to what this case should be about and how it
should be handled, but as his attorney, I’m going to
handle it the way I see fit.
THE COURT: [After again giving Smith the choice of
having English represent him or having English serve as
stand-by counsel and Smith represent himself:]
Those are your two choices. How would you like to
proceed?
THE DEFENDANT: By the opening statement he said I
refused --
THE COURT: Mr. Smith, I don't want to get into the
opening statement. Do you want Mr. English to represent
you in this case?
THE DEFENDANT: As I stated, I do not want him to
represent me. I don't feel I'm capable representing
myself. I do know more about this than he does. If he
watched the movie he would know that I didn't refuse. He
is saying the same thing she said.
THE COURT: Do you chose to represent yourself?
THE DEFENDANT: No, Your Honor. I would like to
request a continuance so I may get a lawyer.
Contrary to the State's claim that 'I [dlefendant was afforded
several opportunities to discuss his complaints about Mr. English
with the district court," the transcript reveals that the court did
not allow Smith to substantiate his allegations that counsel was
ill-prepared for the trial. Although counsel apparently convinced
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the court that he was not rendering ineffective assistance of
counsel, the court did not allow Smith to elaborate on his
complaints nor did it inquire into Smith's factual complaints
regarding counsel's lack of knowledge of the case.
1n prior decisions in which we held that an attorney's
response to a defendant's complaints about counsel satisfied the
court's inquiry, the attorney recited specific facts addressing the
complaints revealing that there was adequate communication between
the attorney and the defendant and that the attorney otherwise was
effectively representing the defendant. Here, the court did not
allow Smith to express his specific complaints and counsel's
assurances that he was prepared were not adequate to rebut Smith's
complaint that counsel was not familiar with the case and had not
even watched the videotaped interview conducted by the police.
Absent an initial inquiry into the complaints the court could not
have determined whether Smith's complaints were "substantial"
enough to warrant a hearing.
Conclusion
We hold that the District Court failed to adequately inquire
into Smith's complaints about ineffective assistance of counsel and
thereby foreclosed Smith's opportunity for a hearing on the matter.
It is necessary, therefore, to remand this case to the District
Court so that it can make an adequate inquiry into Smith's
allegations and determine whether he had substantial complaints.
If the court determines that Smith had substantial complaints, the
court will proceed accordingly and conduct a hearing to determine
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the validity of Smith's complaints. If the court ultimately finds
that Smith was denied effective assistance of counsel, the
judgments and sentences against him are vacated, including the
impositions of fines and costs, and a new trial is ordered. &
Weaver, 917 P.2d at 441-42. If, on the other hand, the court
determines that Smith has not presented seemingly substantial
complaints or, that upon a hearing, he was not denied effective
assistance of counsel, then the judgment and conviction are
affirmed, subject to Smith's right to appeal the District Court's
determinations on remand.
In the event the conviction is affirmed, that portion of the
sentence imposing costs related to the proceedings in Justice Court
is reversed. Section 46-17-311(l), MCA, provides that "all cases
on appeal from a justices or city court must be tried anew in the
district court . . .I' In other words, an appeal to a district
court for a trial de nova begins a new proceeding against the
defendant. In appeals to the District Court, only costs in
connection with the District Court proceeding may be imposed as
part of a sentence. Section 46-18-201(1)(b), MCA; § 46-18-232,
MCA. We hold that the costs associated with the Justice Court
proceedings were not costs incurred in connection with the District
Court proceedings against Smith and therefore, the imposition of
such costs was an improper exercise of the District Court's
sentencing authority which must be reversed in the event the
conviction is affirmed.
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We concur:
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