City of Billings v. Smith

• Decision Date: 06 February 1997
• Docket Number: No. 95-346,95-346
• Citation: 281 Mont. 133,932 P.2d 1058,54 St. Rep. 96
• Parties: CITY OF BILLINGS, State of Montana, Plaintiff and Respondent, v. James Virl SMITH, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1058

932 P.2d 1058

281 Mont. 133

CITY OF BILLINGS, State of Montana, Plaintiff and Respondent, v. James Virl SMITH, Defendant and Appellant.

No. 95-346.

Supreme Court of Montana.

Submitted on Briefs Jan. 9, 1997.

Decided Feb. 6, 1997.

James V. Smith, Pro Se, Billings, Montana.

Joseph P. Mazurek, Attorney General, John Paulson, Ass't Attorney General, Helena, Mary Jane Knisely, City Attorney's Office, Billings, for Respondent.

LEAPHART, Justice.

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 Background

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 § 61-8-401, MCA, and driving with no proof of vehicle insurance, in violation of § 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 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 novo 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 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 II, 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.2d 799). The assistance must be effective in order to give true meaning to that right and to the right to a fair trial. See Enright, 758 P.2d at 781 (citing State v. McElveen (1975), 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. Kills On Top v. State (Mont.1996), 928 P.2d 182, 190, 53 St.Rep. 1197, 1204; State v. Weaver (1996), 276 Mont. 505, 511, 917 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." Finley, 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.2d 683; Morrison, 848 P.2d 514.

In Craig, 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. Craig, 906 P.2d at 689-90.

In Morrison, the defendant wrote a letter to the judge four 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." Craig, 906 P.2d at 689 (citing Enright, 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 Enright, 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 pro se. This error, in effect, deprived Enright of the opportunity to make a meaningful choice to proceed pro se. Enright, 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 Finley, 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. Finley, 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. Finley, 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. Finley, 915 P.2d at 212.

In a post-conviction...