State v. Clary

• Decision Date: 07 February 2012
• Docket Number: No. DA 11–0040.,DA 11–0040.
• Citation: 2012 MT 26,364 Mont. 53,270 P.3d 88
• Parties: STATE of Montana, Plaintiff and Appellee, v. Charles Edward CLARY, Defendant and Appellant.
• Court: Montana Supreme Court

2012 MT 26

270 P.3d 88

364 Mont. 53

STATE of Montana, Plaintiff and Appellee,

v.Charles Edward CLARY, Defendant and Appellant.

No. DA 11–0040.

Supreme Court of Montana.

Submitted on Briefs Jan. 4, 2012.Decided Feb. 7, 2012.

For Appellant: Joseph Palmer Howard, Attorney at Law; Great Falls, Montana.

For Appellee: Steve Bullock, Montana Attorney General; Mardell Ployhar, Assistant Attorney General; Helena, Montana. John Parker, Cascade County Attorney; Josh Racki, Deputy County Attorney; Great Falls, Montana.

Justice BETH BAKER delivered the Opinion of the Court.

[364 Mont. 54] ¶ 1 Appellant Charles Edward Clary appeals his conviction from the Eighth Judicial District, Cascade County, for aggravated burglary and two counts of assault with a weapon. We consider the following issues:

¶ 2 1. Whether Clary's right to be present at all critical stages of his criminal proceeding was violated by his absence from the omnibus hearing.

¶ 3 2. Whether the District Court erred in allowing Clary to continue pro se without conducting further inquiry into Clary's complaints regarding his attorney.

¶ 4 3. Whether Clary was denied effective assistance of counsel based on Clary's assertion that his attorney had spent only thirty minutes communicating with Clary over a seven-month period.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 5 On August 13, 2009, Clary was charged with Aggravated Burglary and two counts of Assault with a Weapon. The State asserted that on July 28, 2009, Clary entered the home of an acquaintance, Nathan Rolfs, engaged in an altercation, and struck Rolfs and his wife, Nichole Neuhaus, with the handle of an axe or hammer. Both Rolfs and Neuhaus were injured in the altercation.

¶ 6 On August 26, 2009, Public Defender Jeffry Olson was appointed to represent Clary. The day before the omnibus hearing, Olson filed a motion to have his client transported to the proceeding as Clary had not posted bail. The District Court did not rule on the motion and the omnibus hearing proceeded without Clary present.

¶ 7 On February 23, 2010, Olson filed a motion to dismiss on the grounds that Clary's right to a speedy trial had been violated. The court held a hearing on the motion the day the trial was scheduled to begin. Olson called Clary as a witness and asked him to explain how the delay and his pretrial incarceration had caused him hardship. In response, Clary stated:

Well, your honor, if I may read the brief before I testify to it. Counsel and I haven't had any opportunity to prepare for this case. I have seen my counsel probably about 30 minutes in about seven months. I'm prepared to go to trial pro se, but I would ask my defense counsel to recuse himself for lack of—of—trying to represent me.... I haven't really been brought up to speed. I've been sitting in jail, and I've got 20 pieces of paper as far as it goes for discovery. With them 20 pieces of paper, I wanted to represent myself in my own defense but I'm not going to let Jeff do it, it's impossible, no. He can't. He's not prepared. Every time I went to build my defense I've been shut down.

¶ 8 Clary also indicated he was denied the opportunity to attend his omnibus hearing. The following exchange then occurred between the court and Clary:

THE COURT: [I will] just explain a couple of things to you. Do you understand the omnibus hearing isn't even a hearing in front of a judge? It's a time when they meet with the law clerk and fill out a piece of paper. That's all that happens at an omnibus hearing.

CLARY: Right. He stipulated some stuff in there, and I didn't give him permission to stipulate anything.

THE COURT: Well, what he did was he asserted that he was going to raise a justifiable use of force defense for you, and that he was going to file a motion for speedy trial, if that became a problem and reserve the right to file any other motions that were appropriate for you. So I don't know that—I don't see that he stipulated anything or gave anything away that affected your ability to have—have the evidence presented to you [sic] at trial.

Now, in regards to his situation with you, he has filed a motion for a speedy trial. The jury instructions have been presented to the Court for a self-defense claim. It's my understanding that witness interviews have taken place and that Mr. Olson has represented to this Court that he's prepared to go forward on your behalf here today.

¶ 9 Clary voiced further concern, stating, “I don't know what the prosecutor is going to present in this case due to the fact that I've had these disclosure issues with Jeff Olson[.]” In response, Olson stated,

To the best of my knowledge, Your Honor, all the discovery, the documentary discovery that we've received from the state, has been copied and given to Mr. Clary ... I don't think there's anything that we've received from the state that we haven't provided to Mr. Clary. And also at this time I would like to go on the record and try and impress upon Mr. Clary that it's against my advice that he go—proceed with trial without me.

The court then advised Clary about the many dangers of representing himself and the benefits of being represented by counsel. Clary nonetheless insisted he would like to continue pro se. The court provided Clary time to review a Waiver of Right to Counsel, which Clary indicated he understood and then signed. The court concluded the speedy trial hearing and denied Clary's Motion to Dismiss.

¶ 10 The court also addressed Clary's contention regarding his absence from the omnibus hearing. It determined an omnibus hearing was not a critical stage of the proceedings because, in Cascade County, it “is simply a meeting with a law clerk wherein the attorneys fill out a written form, and there is no interaction with the Court other than the parties circling certain information.”

¶ 11 After the hearing, Clary represented himself during the trial. Pursuant to the court's instruction, Olson remained present as standby counsel for Clary. At the conclusion of the trial, the jury found Clary guilty on all three counts.

STANDARD OF REVIEW

¶ 12 “Whether a district court has violated a criminal defendant's right to be present at all critical stages of the defendant's trial is a constitutional matter and our review is plenary.” State v. Heavygun, 2011 MT 111, ¶ 7, 360 Mont. 413, 253 P.3d 897. We will not disturb a district court's finding that a defendant waived his right to counsel as long as substantial credible evidence exists to support that decision. State v. Colt, 255 Mont. 399, 407, 843 P.2d 747, 752 (1992). Claims of ineffective assistance of counsel present mixed issues of law and fact which we review de novo. Heavygun, ¶ 8. We will review such claims when they are based solely on the record. State v. Rovin, 2009 MT 16, ¶ 24, 349 Mont. 57, 201 P.3d 780. “[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.” Heavygun, ¶ 8.

DISCUSSION

¶ 13 1. Whether Clary's right to be present at all critical stages of his criminal proceeding was violated by his absence from the omnibus hearing.

[364 Mont. 57] ¶ 14 The United States Constitution and the Montana Constitution guarantee defendants the right to be present at the criminal proceedings against them. U.S. Const. amend. VI; Mont. Const. art. II, § 24. This right applies to all “critical stages” of the proceedings. State v. Price, 2009 MT 129, ¶ 23, 350 Mont. 272, 207 P.3d 298. “If a defendant was excluded from a critical stage in the proceedings, the prejudice against the defendant is presumed and the State bears the burden of proving the prejudice was harmless.” State v. Charlie, 2010 MT 195, ¶ 40, 357 Mont. 355, 239 P.3d 934. Further, if “the violation constitutes a ‘structural defect,’ the presumption of prejudice is conclusive.” Charlie, ¶ 40 (citation omitted).

¶ 15 We have defined a critical stage as “any step of the proceeding where there is potential for substantial prejudice to the defendant.” State v. Matt, 2008 MT 444, ¶ 17, 347 Mont. 530, 199 P.3d 244 (overruled on other grounds by Charlie, ¶ 45). Examples of proceedings we have found to be critical stages include: individual voir dire of jurors, State v. Berosik, 2009 MT 260, ¶ 32, 352 Mont. 16, 214 P.3d 776; an in-chambers conference on evidentiary issues and a motion to dismiss for insufficient evidence, Matt, ¶¶ 19–20; and a telephone conference with the court to discuss newly discovered evidence, in which defense counsel agreed to vacate the trial date so that he could evaluate the new evidence, Charlie, ¶¶ 7, 41.

¶ 16 The purpose of the omnibus hearing is “to expedite the procedures leading up to the trial of the defendant.” Section 46–13–110(2), MCA. The statute does not require the presence of the defendant, “unless ordered by the court.” Section 46–13–110(3), MCA.

¶ 17 It appears to be the usual practice of the Eighth Judicial District to conduct omnibus hearings by having both parties meet with a law clerk rather than with the district court judge. The State and the defense then indicate, on a standard form, information relevant to the given case, including motions they intend to file and affirmative defenses the defendant will raise. No verbatim transcript of the proceedings is made, and the only record of the hearing is the written responses of the parties on the memorandum provided. No substantive issues are addressed or ruled on at the hearing, which is in effect conducted as a scheduling conference. The memorandum states:

All pre-trial and miscellaneous motions (not otherwise limited herein) with supporting briefs, including requests for oral argument or evidentiary hearing, shall be filed no later than 4 weeks before trial ... Any motion not noticed in this order and/or not filed in conformity with this order will be allowed only for good cause shown. [Emphasis in original.]

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