State v. Weaver

No. 95-261
IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA,
Plaintiff and Respondent,
v.
RANDY WEAVER,
Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Defender, Helena
Montana

For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Carol Schmidt, Ass't Attorney General,
Helena, Montana
Dale Mrkich, Deputy Yellowstone County Attorney,
Billings, Montana

Submitted on Briefs: April 4, 1996
Decided: May 29, 1996
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.

Randy Weaver (Weaver) appeals from judgments and sentences of
the Thirteenth Judicial District Court, Yellowstone County, entered
on his convictions for the offenses of issuing bad checks, assault
and domestic abuse. We vacate the judgments and sentences and
remand with instructions.
Weaver raises the following issues on appeal:
1. Did the District Court abuse its discretion in failing to
rule on Weaver's motion to withdraw his guilty pleas?
2. Did the District Court err in failing to inquire into
Weaver's contention that his counsel rendered ineffective
assistance?
On October 25, 1994, the State of Montana (State) charged
Weaver by Information with the following offenses: issuing bad
checks, a felony, in violation of § 45-6-316, MCA; assault, a
felony, in violation of § 45-5-202(2) (b), MCA; and domestic abuse,
a misdemeanor, in violation of § 45-5-206(l) (cl, MCA. Weaver pled
not guilty to all of the charges.
On January 26, 1995, the State moved for leave to amend the
Information against Weaver regarding the felony assault charge.
Weaver did not object and the District Court amended the
Information by interlineation; the felony assault charge was
dropped and Weaver was charged with assault, a misdemeanor, in
violation of § 45-5-201(l) cd), MCA. On that same day, Weaver
withdrew his not guilty pleas and pled guilty to the charges of
issuing bad checks and domestic abuse. He also pled guilty to the
misdemeanor assault charge contained in the amended Information.
Weaver signed an llAcknowledgement of Waiver of Rights by Plea of
Guilty" covering all three charges.
Weaver subsequently filed a document entitled "Application for
Plea Reversial [sic]" seeking either permission to withdraw his
guilty pleas or dismissal of all charges against him. He based his
request on allegations of prosecutorial misconduct and ineffective
assistance of court-appointed counsel. The following day, Weaver
filed a "Motion to Relieve Counsel" requesting that the District
Court allow him to proceed pro se.
On March 29, 1995, the District Court held a sentencing
hearing. The court asked Weaver if he had "any cause to show why
this Court should not pronounce your sentence at this time?"
Weaver replied that he did, and referred the court to his pending
motions. In response, the District Court stated:
The Court has reviewed most of the motions that have been
filed in these matters, and I don't see where they will
have anything to do with the sentencing in this matter,
Mr. Weaver.
The District Court proceeded to sentence Weaver on all three
charges. Weaver appeals.
1. Did the District Court abuse its discretion in
failing to rule on Weaver's motion to withdraw his guilty
pleas?
Weaver argues on appeal that the District Court erred in
failing to rule on his motion. The State does not address Weaver's
argument per se. Rather, the State seems to assume that the
court's failure to ~~formallyU~ rule on Weaver's motion to withdraw
his guilty pleas constituted a denial of that motion. It argues,
3
on the merits, that the denial was not an abuse of discretion.
At the outset, we cannot agree with the State's
characterization that the District Court denied Weaver's motion to
withdraw his guilty pleas. The District Court's statement that it
had "reviewed most of [Weaver's] motions" is insufficient to even
advise this Court that it was aware of, and had actually reviewed,
Weaver's motion to withdraw his guilty pleas. Moreover, the
District Court's statement that it did not "see where [the motion]
will have anything to do with sentencing in this matter . . I1 can
only be interpreted as a determination by the court that it would
not consider Weaver's motion. Had the District Court intended to
deny Weaver's motion on the merits, we are confident that it would
have met the requirement of State v. Milinovich (1994), 269 Mont.
68, 75, 887 P.2d 214, 218, that district courts "explain their
reasoning when refusing motions to withdraw guilty pleas." See
also State v. Azure (1977), 175 Mont. 189, 193, 573 P.2d 179, 182.
Consistent with that requirement, we have stated:
That a trial court has a right to exercise its discretion
does not mean that a trial court should not disclose the
reasons underlying a discretionary act. Absent these
reasons, we as an appellate court, are left to guess as
to why the trial court made a particular decision.
State v. Stumpf (1980), 187 Mont. 225, 226, 609 P.2d 298, 299.
Section 46-16-105(2), MCA, provides that 'I [al t any time before
or after judgment the court may, for good cause shown, permit the
plea of guilty to be withdrawn and a plea of not guilty
substituted." No set rule or standard exists under which a
district court considers a motion to withdraw a guilty plea; each

4
case must be considered in light of its unique facts. state v.
Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175, 177 (citing State v.

Radi (1991), 250 Mont. 155, 158-59, 818 P.Zd 1203, 1206).

We repeatedly have stated that a motion to withdraw a guilty

plea "rests within the District Court's discretion and the exercise

of that discretion will not be disturbed absent an abuse of

discretion." State v. Miller 11991), 248 Mont. 194, 197, 810 P.Zd

308, 310; Benjamin v. McCormick (lYYO), 243 Mont. 252, 256, 792

P.2d 7, 10; State v. Mesler (1984), 210 Mont. 92, 96, 682 P.2d 714,

716 (emphasis added). Likewise, we have stated that It [tl he
granting or refusal of permission to withdraw a plea of guilty and

substitute a plea of not guilty rests in the discretion of the

District Court .I' State v. Arbgast (1983), 202 Mont. 220,

223, 656 P.2d 828, 830 (emphasis added).

Thus, while it is true that we generally defer to

discretionary decisions of district courts, this rule presupposes

that the court did, in fact, exercise its discretion. Indeed, our

abuse of discretion standard of review can only be premised on the

district court having exercised its discretion; otherwise, there is

nothing for us to review. Therefore, we conclude, as have courts

from other jurisdictions, that a court's failure to exercise its

discretion is, in itself, an abuse of discretion. &, e.q., State

v. Colton (Corm. 1995), 663 A.2d 339, 349; Johnson v. United States

(D.C. 19791, 398 A.2d 354, 363.

Accordingly, we hold that the District Court's failure to rule
on Weaver's motion to withdraw his guilty pleas prior to sentencing

5
constituted an abuse of the court's discretion. It is necessary,
therefore, to remand this case to the District Court for its
consideration and decision on Weaver's pending motion to withdraw
his guilty pleas. If the court grants Weaver's motion, then this
case will proceed to trial. If, on the other hand, the court
denies Weaver's motion, the court should provide its rationale for
the denial so that we have a basis upon which to review its
decision in the event of a subsequent appeal. See Stumof, 609 P.2d
at 299.
2 . Did the District Court err in failing to inquire into
Weaver's contention that his counsel rendered ineffective
assistance?
As previously stated, Weaver based his motion to withdraw his
guilty pleas, in part, on allegations of ineffective assistance of
counsel. Weaver attached a document captioned "Allegationsl' to his
motion to withdraw his guilty pleas in which he set forth the
following complaints regarding the performance and conduct of his
attorney:
(1) . . That [Weaver's] right to a "Preliminary
Hearing" as stated in M.C.A. was waived without [his]
consent. . . .
(2) . . That on the 26th day of January 1995, [Weaver]
was decieved [sic] by the Yellowstone County Public
Defender's Office by same withholding vitil [sic]
information, that had [he] seen this, he would have never
pled guilty.
. . .

(4) The Yellowstone County Public Defenders Office never
did prepare . his case for trial, that they had no
intentions of providing [him] with proper
representation[;l after [he] wrote to a District Court
Judge complaining of "inefficient counsel, and
professional misconduct" . . the Public Defender's
6
 Office came to the Yellowstone County Detention Facility
and bombared [sic1 [him] with abusive language and
profanity.
(5) That [he] has proof of allegations stated above, and
has since filed motions with the Montana Bar Association,
seeking action against parties involved.
Weaver also filed a "Motion to Relieve Counsel" and requested that
the District Court "grant [him] a pro se' [sic] status, and thereby
relieve present council [sic] .'I
At the sentencing hearing, Weaver referred the District Court
to his pending motions, which included his motion to proceed pro se
and the ineffective assistance allegations attached to his motion
to withdraw his guilty pleas. The District Court did not consider
or rule upon Weaver's motion to "relieve" counsel; rather, the
court indicated that Weaver could pursue an ineffective assistance
claim through habeas corpus proceedings.
Weaver argues on appeal that the District Court erred by
failing to inquire into his allegations of ineffective assistance
of counsel. The State does not address Weaver's argument regarding
the court's failure to conduct an inquiry; rather, it sets forth
and discusses Weaver's burden of proof in establishing an
ineffective assistance claim and argues that, based on the record,
Weaver did not raise "substantial complaints" regarding his
counsel's representation. We agree with Weaver that the threshold
issue is not whether counsel was ineffective, but whether the
District Court erred in failing to make an adequate inquiry into
his claim of ineffective assistance of counsel.
The Sixth Amendment to the United States Constitution and
Article II, section 24 of the Montana Constitution guarantee a
criminal defendant the right to the assistance of counsel. The
assistance must be effective in order to give true meaning to that
right and to the right to a fair trial. See State v. Enright
(1988), 233 Mont. 225, 228, 758 P.2d 779, 781. The right is
fundamental and applies with equal force to all persons, regardless
of their ability to compensate an attorney. Enriqht, 758 P.2d at
781 (citing Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct.
792, 9 L.Ed.2d 799). Additionally, the right to the assistance of
counsel does not prohibit a defendant from rejecting the assistance
of counsel. Enriqht, 758 P.2d at 781 (citing State v. Strandberg
(1986), 223 Mont. 132, 724 P.2d 710).
District courts must conduct a hearing to determine the
validity of a defendant's claim of ineffective assistance of
counsel upon a showing of seemingly substantial complaints. &
State v. Finley (Mont. 1996), _ P.2d _, _, 53 St.Rep. 310,
318; State v. Morrison (1993), 257 Mont. 282, 285, 848 P.2d 514,
516; Enrisht, 758 P.2d at 782. Indeed, a district court should
substitute counsel if it appears that failure to do so would
substantially impair or deny the defendant's right to the effective
assistance of counsel. See Enriqht, 758 P.2d at 782 (citing Peters
v. State (1961), 139 Mont. 634, 636, 366 P.2d 158, 159).
"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, 53 St.Rep. at 318. When a defendant files a

8
motion to remove his attorney based on allegations of ineffective
assistance, whether through a motion for substitution of counsel or
a motion to proceed pro se, the district court must make a critical
analysis of the defendant's complaints regarding his counsel and
make an initial determination of whether the defendant has
presented seemingly substantial complaints. See Finlev, 53 St.Rep.
at 318.
As with Weaver's motion to withdraw his guilty pleas, the
District Court's statement that it had "reviewed most of [Weaver's]
motions" is insufficient to even assure this Court that the
District Court actually reviewed Weaver's motion to remove his
court-appointed counsel. Most importantly, the record is devoid of
any indication that the court made even a cursory inquiry into
Weaver's complaints about his counsel's representation.
Accordingly, we conclude that the District Court erred in
failing to inquire into Weaver's allegations of ineffective
assistance of counsel and in failing to make an initial
determination of whether Weaver presented seemingly substantial
complaints. It is necessary, therefore, to remand this case to the
District Court so that it can make an adequate inquiry into
Weaver's allegations and determine whether he has presented
seemingly substantial complaints. If the court determines that
Weaver has presented seemingly substantial complaints, the court
will proceed accordingly and conduct a hearing to determine the
validity of Weaver's complaints. If, on the other hand, the court
determines that Weaver has not presented seemingly substantial

9
complaints, then the court will deny Weaver's motion to remove his
attorney. Finally, if the District Court ultimately denies the
defendant's motion, the court should provide its rationale so that
we have a basis upon which to review the decision in the event of
a subsequent appeal. & Stumof, 609 P.2d at 299.
We vacate the judgments and sentences and remand to the
District Court for further proceedings consistent with this
opinion, including the reinstatement of the judgments and sentences
in the event the court denies both Weaver's motion to withdraw his
guilty pleas and his motion to proceed pro se.

We concur:

Ju tices

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 May 29, 1996

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:

William F. Hooks
Appellate Defender
Capitol Station
Helena, MT 59624

Hon. Joseph P. Mazurek, Attorney General
Carol Schmidt, Assistant Attorney General
Justice Building
Helena, MT 59620

Dale Mrkich, Deputy County Attorney
Yellowstone County Attorney’s Office
P.O. Box 35025
Billings, MT 59107

ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA

BY:
Deputy,