No. 87-559
I N T H E SUPREME COURT O F T H E S T A T E O F MONTANA
1988
T H E S T A T E O F MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
JUNE ENRIGHT,
D e f e n d a n t and A p p e l l a n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e S i x t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y o f R o s e b u d ,
T h e H o n o r a b l e A l f r e d B . C o a t e , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
J a m e s G. Hunt, Helena, Montana
For R e s p o n d e n t :
Hon. Mike Greely, Attorney General, Helena, Montana
P a t r i c i a J. Schaeffer, A s s t . A t t y . G e n e r a l , H e l e n a
M a r v i n W. Q u i n l a n , J r . , C o u n t y A t t o r n e y , Forsyth,
Montana
S u b m i t t e d on B r i e f s : June 2 2 , 1 9 8 8
Decided: A u g u s t 11, 1 9 8 8
Filed: A V G 1 1 1988'
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Following trial by jury in the District Court of the
Sixteenth Judicial District, Rosebud County, Enright was
convicted of aggravated assault, a felony. This appeal
followed. We reverse.
The issues before the court are:
1. Was Enright denied effective assistance of counsel?
2. Did Enright voluntarily, knowingly and intelligently
waive her right to counsel?
On July 21, 1986, following complet-ionof her shift as a
bartender, Enright remained in the Ashland bar as a patron.
At approximately 10:30 p.m., Enright's former stepdaughter,
Georgia Wilson, and several other people congregated in the
street outside the bar. A heated and vulgar exchange ensued
shortly thereafter.
As the local county attorney had prohibited Wilson from
entering the bar or standing on the sidewalk outside the bar
as a result of prior conflicts, the Wilson group remained in
the street hurling insults. However, Enright apparently
became fed up with the harassment. Shouting "1'11 scare
you," Enright came out of the bar and fired a .38 caliber
pistol in Wilson's direction three times.
At approximately 11:30 p.m., two deputy sheriffs arrived
on the scene. They were met by Evette Archambault, a member
of the Wilson group, who informed them that Enright had fired
shots at Wilson. Following a brief discussion with Enright,
the deputies arrested Wilson on a theft warrant from Big Horn
County and told the remainder of the Wilson group to leave
the bar area. They then proceeded toward Colstrip with
Wilson in custody.
Shortly after leaving Ashland, the deputies again
received a call that shots had been fired outside the Ashland
bar. On their return, they ascertained that a fight had
taken place between Enright and Archambeault which resulted
in Enright suffering a bite wound on the eye brow. Enright
fired another shot immediately after the fight. No one was
injured in either shooting incident.
Following her arrest, Enright was charged by information
with two counts of aggravated assault. The District Court
appointed counsel to represent her on August 4, 1986.
Initially, counsel appears to have been actively
involved in the case. However, problems later developed. On
April 29, 1987, 13 days before trial, Enright appeared in
chambers requesting removal of her court-appointed attorney.
Upon submission of a written request, the court granted her
wish the same day. At that time, she was advised that
substitute counsel would not be appointed.
Pursuant to a motion of the county attorney's office,
the court subsequently held a hearing to determine Enright's
competency to represent herself, pro se. At that time,
Enright indicated that she did not want to represent herself,
nor did she think she was competent to do so, but felt that
she had little choice in light of the court's refusal to
appoint substitute counsel. She did not request a specific
replacement.
The essence of Enright's complaint is that the
client-attorney relationship had deteriorated to the point of
animosity upon her refusal to accept a proposed plea bargain.
Enright testified that following rejection of the plea
bargain she felt counsel had violated the confidentiality of
the relationship by contacting a number of her friends and
relatives in order to pressure her into acceptance. Counsel
also failed to appear at a meeting in which she had assembled
all her witnesses and had failed to contact a witness she
deemed crucial to her case. When Enright appeared at
counsel's office pursuant to appointment, he twice informed
her in no uncertain terms that he had more important things
to do and did not want to see her. In addition, the record
indicates that counsel had failed to subpoena witnesses for
the trial at the time of the discharge and that no action had
been taken for several months.
Enright had responded to counsel's conduct by filing a
complaint with the Commission on Practice sometime prior to
the request for dismissal of counsel.
Following completion of Enright's testimony, the
District Court determined that Enright was competent to
represent herself and that she had made a knowing and
voluntary waiver of her right to counsel. However, the court
did not question Enright about her complaints concerning
counsel; nor did counsel appear to answer her accusations;
inform her of the hazards of self-representation; nor hold an
independent hearing to determine whether Enright had received
effective representation and whether the relationship was
such that Enright would receive effective representation in
the future.
Art. 11, 5 24 of the 1972 Montana Constitution, and the
right to a fair trial inherent in the due process clause of
Art. 11, 5 17, guarantee a defendant charged with a crime the
right to assistance of counsel. State v. Robbins (Mont.
1985), 708 P.2d 227, 42 St.Rep. 1440; State v. Lundblade
(Mont. 1984), 691 P.2d 831, 41 St.Rep. 2208. The right is
fundamental. It applies to all persons with equal force,
regardless of the person's ability to compensate the
attorney. If indigent, counsel shall be provided by the
state. Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct.
792, 9 IJ.Ed.2d 799.
Further, the mere fact of representation by counsel is
not per se sufficient. In order to give meaning to the
constitutional guarantees, the assistance must be effective.
State v. McElveen (1975), 168 Mont. 500, 503, 544 P.2d 820,
822. Only then, can the right to the assistance of counsel,
and the right to a fair trial, have true meaning.
However, the defendant's right to assistance of counsel
does not vest the accused with the right to counsel of his
choice. State v. Pepperling (1978), 177 Mont. 464, 472, 582
P.2d 341, 346. Nor does the right prohibit a defendant from
rejecting the assistance of counsel. State v. Strandberg
(Mont. 1986), 724 P.2d 710, 43 St.Rep. 1591. "When his
appointed counsel is rendering effective assistance, the
defendant has the choice of: (1) continuing with the counsel
so appointed, or (2) having his counsel dismissed and
proceeding on defendant's own, pro %.Iv Pepperling, 177
Mont. at 473, 582 P.2d at 346.
In the instant case, Enright argues that the District
Court's failure to hold a hearing in order to determine the
validity of her claims is reversible error; that the failure
to make such a determination, in effect, deprived her of the
opportunity to make a meaningful choice to proceed pro se,
thus infringing on the right to effective assistance of
counsel and the right to a fair trial. We agree.
In Faretta v. California (1975), 422 U.S. 806, 834, 95
S.Ct. 2525, 2541, the U.S. Supreme Court reasoned that since
it was the defendant and not the lawyer who would bear the
consequences of a conviction, it was the defendant "who must
be free personally to decide whether in his particular case
counsel is to his advantage." Freedom of choice for the
defendant between counsel and self-representation is a
condition to the voluntariness of a waiver of counsel.
While the right to assistance of counsel is subject to
waiver, it must be the product of a free and meaningful
choice. Moore v. Michigan (1957), 355 U.S. 155, 164, 78
S.Ct. 191, 196, 2 L.Ed.2d 167, 172. A criminal defendant may
be asked, in the interest of orderly procedures, to choose
between waiver and another course of action as long as the
choice presented him is not constitutionally offensive.
However, if the choice presented is constitutionally
offensive, the choice cannot be voluntary. A defendant may
not be forced to choose between proceeding with ineffective
counsel or proceeding pro se. Such a set of options is in
essence no choice at all.
The accused has a right to "meaningful client-attorney
relationship" with her attorney. State v. Long (1983), 206
Mont. 40, 46, 669 P.2d 1068, 1071-1072. Upon a showing of a
seemingly substantial complaint about counsel, the District
Court should conduct a hearing to determine the validity of
the defendant's claims. State v. Boyer (Mont. 19841, 208
Mont. 258, 676 P.2d 787. A substitution of counsel should be
made "where it appears the failure to do so would
substantially impair or deny the right [to] assistance of
counsel." Peters v. State (1961), 139 Mont. 634, 636, 366
P.2d 158, 159.
In the instant case, Enright presented seemingly
substantial complaints. However, the District Court's
failure to conduct a hearing prohibits informed appellate
review of the validity of her contentions. The further
requirement by the District Court that she accept the counsel
she had, or proceed pro se gave her only a Hobson's choice.
We therefore reverse and remand with instructions to appoint
substitute counsel. The issue of waiver need not be
addressed.
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Justice
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Chief Just