State v. Adams, 01-312.
| Decision Date | 05 September 2002 |
| Docket Number | No. 01-312.,01-312. |
| Citation | 311 Mont. 202,2002 MT 202,54 P.3d 50 |
| Parties | STATE of Montana, Respondent and Respondent, v. Larry ADAMS, Defendant and Appellant. |
| Court | Montana Supreme Court |
Larry Adams, Deer Lodge, Montana, pro se.
Mike McGrath, Montana Attorney General, Pamela P. Collins, Assistant Montana Attorney General, Helena, Montana; George H. Corn, Ravalli County Attorney, Hamilton, Montana, for Respondent.
¶ 1 Following a jury trial in the Twenty-First Judicial District Court, Ravalli County, Appellant Larry Adams was convicted of aggravated assault, criminal possession of dangerous drugs, criminal possession of drug paraphernalia, and possession of a switchblade knife. Adams filed a petition for postconviction relief which raised ineffective assistance of counsel and a constitutional challenge to his enhanced sentence for the use of a dangerous weapon during the commission of the aggravated assault. The District Court denied Adams' petition and Adams appeals. We reverse.
¶ 2 The sole issue on appeal is whether the District Court erred when it denied Adams' petition for postconviction relief.
¶ 3 On October 2, 1998, the State charged Adams by information with attempted deliberate homicide, a felony, in violation of § 45-4-103, MCA; obscuring the identity of a machine, a misdemeanor, in violation of § 45-6-326, MCA; possession of a switchblade knife, a misdemeanor, in violation of § 45-8-331, MCA; criminal possession of dangerous drugs, a felony, in violation of § 45-9-102, MCA; and criminal possession of drug paraphernalia, a misdemeanor, in violation of § 45-10-103, MCA. With the aid of his court-appointed counsel, Adams pled not guilty to all of the charges on October 28, 1998. On May 20, 1999, Adams' counsel filed a motion to withdraw which the District Court subsequently granted. Adams agreed to waive his right to a speedy trial until substitute counsel could proceed. The District Court appointed substitute counsel for Adams in approximately June of 1999.
¶ 4 The case proceeded to a jury trial on September 20, 1999. On September 21, 1999, the jury found Adams guilty of aggravated assault, a lesser included offense of attempted deliberate homicide; not guilty of obscuring the identity of a machine; guilty of possession of a switchblade knife; guilty of criminal possession of dangerous drugs; and guilty of criminal possession of drug paraphernalia. Following a sentencing hearing on December 1, 1999, the District Court sentenced Adams to twenty years in the Montana State Prison for the aggravated assault conviction, five years in the Montana State Prison for the criminal possession of dangerous drugs conviction; six months in the Ravalli County Detention Center for the possession of a switchblade knife conviction; and six months in the Ravalli County Detention Center for the possession of drug paraphernalia conviction. Pursuant to § 46-18-221, MCA, the District Court sentenced Adams to an additional ten years in the Montana State Prison for using a "dangerous weapon" during the commission of the aggravated assault. The District Court ordered the sentences to run consecutively and precluded Adams from parole eligibility until he attained the age of sixty-five.
¶ 5 On February 24, 2000, Adams' attorney drafted a letter to Adams which stated:
[U]pon reviewing your case, I do not believe that we have a reasonable basis for an appeal. If you still want to appeal your case you need to contact Mr. William Hooks of the state appellate defender office in Helena, Montana, who will review your case for any possible appellate issues. Also, you need to file any notice of your appeal to the Montana Supreme Court within ten days after you receive this copy of your judgement.
On March 1, 2000, Adams' counsel filed a motion entitled "Defense Attorney's Motion to be Removed as Counsel of Record" which insisted that "no reasonable avenues of appeal" existed. The District Court ordered Adams to respond to his attorney's motion within ten days of receiving service of the motion. Adams failed to respond to the motion and on March 29, 2000, the District Court removed Adams' attorney as counsel of record.
¶ 6 On October 16, 2000, Adams, acting pro se, filed a petition for postconviction relief in the District Court. Adams' petition alleged ineffective assistance of his original court-appointed counsel due to that attorney's failure to file a motion to dismiss for lack of a speedy trial. Adams' petition also alleged ineffective assistance of his subsequently appointed trial counsel for (1) offering a lesser included instruction on aggravated assault to the jury and (2) failing to file an appeal to this Court following Adams' convictions. Finally, Adams' petition alleged that the District Court imposed the sentence enhancement for use of a dangerous weapon in violation of his constitutional rights. Therefore, Adams requested that the District Court set aside the aggravated assault conviction and sentence enhancement. On January 3, 2001, the District Court denied Adams' petition for postconviction relief. Adams appeals.
¶ 7 We review a district court's denial of a petition for postconviction relief to determine whether the court's findings of fact are clearly erroneous and whether its conclusions of law are correct. State v. Hanson, 1999 MT 226, ¶ 9, 296 Mont. 82, ¶ 9, 988 P.2d 299, ¶ 9.
¶ 8 Did the District Court err when it denied Adams' petition for postconviction relief?
¶ 9 Adams argues that § 46-8-103, MCA, clearly requires that appointed counsel continue representation until final judgment, which includes appellate review by this Court, unless counsel is relieved by court order. Adams recognizes that the District Court entered an order purporting to relieve his attorney of continued representation. However, Adams maintains that his attorney failed to comply with the mandatory statutory procedure for withdrawal from appointed representation. Therefore, Adams insists that the withdrawal was ineffective, and that his attorney was therefore obligated to pursue a direct appeal. He further contends that his attorney's failure to pursue a direct appeal constitutes ineffective assistance of counsel. Consequently, Adams claims that he should not have been barred from raising the relevant issues for review in postconviction relief proceedings.
¶ 10 The District Court cited § 46-21-105(2), MCA, and Kills on Top v. State (1995), 273 Mont. 32, 901 P.2d 1368, for the proposition that claims which could reasonably have been raised on direct appeal are procedurally barred from consideration in postconviction proceedings. The District Court noted that Adams had sixty days from the entry of judgment to file a direct appeal pursuant to Rule 5(b), M.R.App.P. The District Court determined that "Adams failed to file an appeal to the Montana Supreme Court within the specified 60-day period, and furthermore, has offered the Court no reasons for his failure to do so." Therefore, the District Court concluded that Adams is "barred from making his claim for postconviction relief."
¶ 11 We are aware of the principle contained in § 46-21-105(2), MCA, that "grounds for relief that were or could reasonably have been raised on direct appeal may not be raised, considered, or decided in a [postconviction relief] proceeding...." However, this principle must be observed in conjunction with a defendant's right to the effective assistance of counsel on a first appeal. See Hans v. State (1997), 283 Mont. 379, 408, 942 P.2d 674, 691-92
.
¶ 12 Section 46-8-103(1), MCA, governs the duration of appointed representation as follows:
When counsel has been assigned, the assignment is effective until final judgment, including any proceeding upon direct appeal to the Montana supreme court, unless relieved by order of the court that assigned counsel or that has jurisdiction over the case.
Section 46-8-103(2), MCA, is a codification of the Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, procedure which appointed counsel must undertake to withdraw from appellate representation. It provides:
If counsel finds the defendant's case on appeal to be wholly frivolous, counsel shall advise the court of that fact and request permission to withdraw. The request to withdraw must be accompanied by a memorandum referring to anything in the record that might arguably support the appeal. The defendant is entitled to receive a copy of counsel's memorandum and to file a reply with the court.
Section 46-8-103(2), MCA. In State v. Rogers, 2001 MT 165, ¶ 27, 306 Mont. 130, ¶ 27, 32 P.3d 724, ¶ 27, we stated that "[f]ollowing the Anders procedure protects a defendant's right to effective assistance of counsel on appeal." A logical extension of this statement is the converse notion, i.e., a failure to follow the Anders procedure frustrates the right to effective assistance of counsel on appeal.
¶ 13 As indicated above, Adams' trial counsel filed a motion to withdraw on March 1, 2000. This same attorney also drafted a letter advising Adams to contact the Appellate Defender's Office in the event he wanted to pursue an appeal. On March 7, 2000, the District Court ordered Adams to respond to his attorney's motion. Adams failed to respond to the motion and the District Court removed Adams' attorney from the case on March 29, 2000. The State contends that Adams sufficiently understood the consequences of inaction and had ample opportunity to preserve his right to direct appeal. Since Adams failed to respond, the State insists that Adams voluntarily waived his right to appeal and is, thus, barred from raising the relevant issues in postconviction relief proceedings.
¶ 14 The State admits that Adams' attorney "only partially complied with the procedure set forth in § 46-8-103, in that his...
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