State v. Cheetham

• Decision Date: 16 June 2016
• Docket Number: No. DA 15–0156.,DA 15–0156.
• Citation: 384 Mont. 1,2016 MT 151,373 P.3d 45
• Parties: STATE of Montana, Plaintiff and Appellee, v. Timothy CHEETHAM Sr., Defendant and Appellant.
• Court: Montana Supreme Court

384 Mont. 1

373 P.3d 45

2016 MT 151

STATE of Montana, Plaintiff and Appellee,

v.Timothy CHEETHAM Sr., Defendant and Appellant.

No. DA 15–0156.

Supreme Court of Montana.

Submitted on Briefs April 13, 2016.

Decided June 16, 2016.

For Appellant: Greg Beebe, Beebe Law Firm, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Mardell L. Ployhar, Assistant Attorney General, Helena, Montana, Steven C. Haddon, Jefferson County Attorney, Boulder, Montana.

Justice BETH BAKER delivered the Opinion of the Court.

¶ 1 Timothy Cheetham Sr. appeals the findings, judgment, and sentence entered by the Fifth Judicial District Court, Jefferson County, on a jury verdict finding him guilty of one count of sexual intercourse without consent, one count of sexual assault, and one count of sexual abuse of children. We restate the issues on appeal as follows:

1. Whether the District Court abused its discretion by failing to conduct an adequate inquiry into Cheetham's request for substitute counsel.

2. Whether Cheetham was denied effective assistance of counsel.

¶ 2 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 In January 2014, the State charged Cheetham with the following felony offenses: sexual intercourse without consent in violation of § 45–5–503, MCA

; sexual assault in violation of § 45–5–502, MCA ; and sexual abuse of children in violation of § 45–5–625, MCA. The offenses were alleged to have occurred in 2004 when Cheetham—who was thirty-two years old at the time¹ —and the victim, N.S.—who was approximately five years old at the time—were living together with N.S.'s grandmother, J.P., in Whitehall, Montana.

¶ 4 At trial, N.S. testified that Cheetham had touched her inappropriately on her chest and her vagina in 2004. She also testified that Cheetham forced her to watch pornographic movies with him that depicted children having sexual intercourse. N.S. also testified that Cheetham had forced intercourse with her on one occasion.

¶ 5 N.S. was interviewed four times before trial. N.S. had two forensic interviews, one in 2006 and one in 2013. She was interviewed in early 2014 by a detective from the Jefferson County Sheriff's Office, and again before trial by an investigator working with defense counsel. On cross-examination, Cheetham's counsel, Steven Scott, questioned N.S. about inconsistencies in her statements in the four interviews. N.S. explained that she remembered things during later interviews and at trial that she did not remember during earlier interviews. She testified that she did not remember most of the events until a few years after they occurred—beginning in 2006. She also testified that while she recalled the inappropriate touching earlier, she did not recall the penetration incident until she saw Cheetham in a store and began having flashbacks.

¶ 6 N.S.'s therapist testified regarding counseling sessions she had with N.S. relating to the sexual abuse. She testified that she often sees instances of delayed disclosures from sexual abuse victims. The State's child abuse expert confirmed that delayed disclosure is common, as is post-traumatic stress disorder

(PTSD). Scott called an expert forensic psychologist, who pointed out that N.S. provided different details about the alleged rape that the expert would consider as “core details of the experience” that N.S. should have been unlikely to have forgotten.

¶ 7 N.S's mother, J.L., and J.P. also testified at trial and were questioned about what N.S. told each of them about Cheetham. J.L. and N.S's therapist testified about the ways in which the events have continued to negatively affect N.S.'s life—including nightmares, trouble in school, depression, and suicidal behavior resulting in three months of inpatient treatment at Shodair Children's Hospital in 2014.

¶ 8 The jury found Cheetham guilty on all three counts. Prior to sentencing, Scott filed a motion to dismiss for negligent destruction of evidence, arguing that the State failed to provide and preserve an exculpatory medical report of a forensic medical examination performed in 2006 on N.S. by Dr. Salisbury. He did not attach the medical report to the motion or brief but quoted the document as stating, “[N.S.'s] exam was within normal limits with copious amounts of hymen intact. [This] does not negate the possibility of a penetration injury. The narrowing noticed in the above exam, could be consistent with patient's history and suspicious of a previous injury.”

¶ 9 Scott represented in his brief that he attempted to obtain the medical report from the County Attorney but was told that it could not be obtained through Child Protective Services (CPS). Noting that CPS once referenced the report, Scott concluded that the report must have been negligently destroyed. In response to the motion to dismiss, the State argued that the prosecution tried to obtain, but never possessed, the 2006 medical report in question. In any event, the State argued, the report was not favorable to Cheetham because it did not negate the possibility of penetration injury.

¶ 10 Eventually Scott obtained the medical report as a result of a subpoena to Dr. Salisbury. Before the court ruled on the motion, however, Scott filed a notice withdrawing the motion to dismiss for negligent destruction of evidence.

¶ 11 On the day of the sentencing hearing, the District Court received a letter from Cheetham addressed to the court and the chief public defender alleging several instances of ineffective assistance of counsel in relation to the medical report. In the letter Cheetham claimed that the medical report “provides cause for reasonable doubt that a penetration rape of a 5 year old child by a grown man lasting 5–8 minutes could leave the child's hymen intact.” Based on Scott's failure to use the medical report, Cheetham requested that Scott “be dismissed [and] replaced.” After questioning Cheetham, Scott, and the State's counsel, the court declined to address the substance of Cheetham's allegations and determined that there was “no total breakdown of communication” between Cheetham and Scott that would require that the sentencing hearing be continued.

¶ 12 The court proceeded with the hearing and sentenced Cheetham to the Montana State Prison for 100 years with 50 years suspended for each of the three counts, to run consecutively. Cheetham appeals.

STANDARDS OF REVIEW

¶ 13 A request for substitute counsel is within the sound discretion of the district court, reviewed for abuse of discretion. State v. Edwards, 2011 MT 210, ¶ 14, 361 Mont. 478, 260 P.3d 396

. A district court abuses its discretion if it acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. State v. Sage, 2010 MT 156, ¶ 21, 357 Mont. 99, 235 P.3d 1284.

¶ 14 Ineffective assistance of counsel claims present mixed issues of law and fact that we review de novo.

State v. Clary, 2012 MT 26, ¶ 12, 364 Mont. 53, 270 P.3d 88

. This Court reviews claims of ineffective assistance of counsel on direct appeal if the claims are based solely on the record. Clary, ¶ 12. “[I]f the record does not demonstrate ‘why’ counsel did or did not take an action which is the basis of the claim, the claim is more suitable for a petition for postconviction relief where a record can be more fully developed.” State v. Heavygun, 2011 MT 111, ¶ 8, 360 Mont. 413, 253 P.3d 897 (quoting State v. Sartain, 2010 MT 213, ¶ 30, 357 Mont. 483, 241 P.3d 1032 ) (internal quotation marks omitted).

DISCUSSION

¶ 15 1. Whether the District Court abused its discretion by failing to conduct an adequate inquiry into Cheetham's request for substitute counsel.

¶ 16 Cheetham argues that the District Court erred by failing to conduct an adequate inquiry into his complaints. Cheetham claims that State v. Schowengerdt, 2015 MT 133, 379 Mont. 182, 348 P.3d 664

, is an “instructive similar case” and notes that Scott also served as trial counsel in that case. Cheetham asserts that his complaint regarding Scott's failure to investigate the medical report and introduce it at trial is an “obvious one presenting a ‘seemingly substantial’ allegation of [ineffective assistance of counsel].” Accordingly, Cheetham argues, the District Court should have inquired “into the substance” of his complaints.

¶ 17 The State argues that the District Court adequately inquired into Cheetham's complaints about counsel. The State points out that the court asked Cheetham and Scott about the conflict and, based on their responses, concluded that they did not have a breakdown in communication and could communicate civilly. The State contends that Cheetham and Scott's disagreement about the medical report was simply a “disagreement about the tactics being taken” and thus “do[es] not establish a ground for new counsel.” As such, the State asserts that Cheetham's claims were not “seemingly substantial” and that the court did not abuse its discretion when it declined to hold a hearing or appoint new counsel.

¶ 18 The right to effective assistance of counsel under the United States and Montana Constitutions “does not grant defendants the right to counsel of their choice.” State v. Dethman, 2010 MT 268, ¶ 15, 358 Mont. 384, 245 P.3d 30

(citing State v. Craig, 274 Mont. 140, 149, 906 P.2d 683, 688 (1995) ). “So long as appointed counsel is rendering effective assistance, a defendant may not demand dismissal or substitution of counsel simply because he or she lacks confidence in, or does not approve of, his or her appointed counsel.” Dethman, ¶ 15 (citations omitted).

¶ 19 Our case law establishes that for the court to replace a defense attorney, the defendant bears the burden of presenting material facts that establish a “complete collapse” of the attorney-client relationship, a total lack of communication, or ineffective assistance of counsel. Edwards, ¶ 32; State v. Kaske, 2002 MT 106, ¶ 30, 309 Mont. 445, 47 P.3d 824

.

¶ 20 When a defendant raises complaints against his attorney and seeks...