State v. Dethman

• Decision Date: 21 December 2010
• Docket Number: No. DA 10-0179.,DA 10-0179.
• Citation: 245 P.3d 30,2010 MT 268,358 Mont. 384
• Parties: STATE of Montana, Plaintiff and Appellee, v. Stanley D. DETHMAN, Defendant and Appellant.
• Court: Montana Supreme Court

245 P.3d 30 358 Mont. 384 2010 MT 268 STATE of Montana, Plaintiff and Appellee, v. Stanley D. DETHMAN, Defendant and Appellant. No. DA 10-0179. Supreme Court of Montana. Submitted on Briefs Nov. 17, 2010. Decided Dec. 21, 2010.

For Appellant: Colin M. Stephens, Smith & Stephens, P.C., Missoula, Montana.

For Appellee: Steve Bullock, Montana Attorney General, Sheri K. Sprigg, Assistant Attorney General, Helena, Montana, Lewis Smith, Powell County Attorney, Deer Lodge, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Stanley D. Dethman (Dethman) appeals from a jury verdict in the Third Judicial District Court, Powell County, convicting him of assault on a peace officer and resisting arrest. We affirm.

ISSUES

¶ 2 A restatement of the issues on appeal is as follows:

¶ 3 1. Did the District Court abuse its discretion when it denied Dethman's motion for substitution of counsel and allowed Dethman to proceed pro se?

¶ 4 2. Did the District Court err by failing to include the full mens rea requirement for the crime of assault on a peace officer in the jury instructions?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 Dethman was charged by Information with offenses of: Driving Under the Influence of Alcohol (DUI) in violation of § 61-8-401, MCA; Assault on a Peace Officer in violation of § 45-5-210, MCA; and Resisting Arrest in violation of § 45-7-301, MCA. Public Defender Ben Krakowka (Krakowka) was assigned to represent Dethman. At his arraignment on September 23, 2008, Dethman, appearing with Krakowka, pled not guilty to all three counts.

¶ 6 On February 5, 2009, Dethman filed a motion to remove Krakowka as his counsel stating "Mr. Krakowka will not defend me in the manner in which I feel I need to be defended. Mr. Krakowka refuses to present witnesses, testimony, and evidence that I have asked for." To his motion, Dethman attached prior correspondence with the Regional Public Defender Office requesting substitute counsel, in which the office denied his request after investigating Dethman's complaints.

¶ 7 On February 10, 2009, the District Court held a hearing regarding Dethman's motion for substitution of counsel at which Dethman, Krakowka, and the prosecutor were all present. The court deniedDethman's motion for substitution of counsel based on the public defender office's denial of Dethman's request for new counsel, as well as the court's belief and observations that Krakowka was providing effective, unbiasedcounsel to Dethman. The court warned Dethman that firing Krakowka meant he had to either hire his own attorney or proceed pro se. The court recited the dangers and disadvantages of proceeding pro se, asked Dethman repeatedly if he understood the pitfalls of representing himself, confirmed that Dethman was competent to make the decision to fire Krakowka, and allowed Dethman to state on the record why Krakowka should be replaced. At the conclusion of the hearing, the court granted Dethman's request to fire Krakowka, but appointed Krakowka as standby counsel for Dethman's February 17, 2009 trial.

¶ 8 The trial began as scheduled, with Krakowka appearing as Dethman's standby counsel. During a conference immediately preceding voir dire, Dethman conferred with Krakowka twice—once when he pled nolo contendere to the DUI charge and again in determining if anything else needed to be addressed prior to trial. During voir dire, Dethman deferred to Krakowka, stating "Your Honor, I'm not experienced at [voir dire] and I really don't know how to go about it. So I suppose that I would rather ask that either you do it or that Mr. Krakowka do it." Therefore, Krakowka conducted voir dire on Dethman's behalf.

¶ 9 Once a jury had been impaneled and the trial began, Dethman gave his own opening statement. However, during the course of the trial Krakowka accompanied and assisted Dethman during sidebars, and advised Dethman when to object during the State's case-in-chief. In fact, during a chamber conference the District Court admonished Krakowka for assisting, reminding him that as standby counsel he may only assist Dethman upon request. However, the court also went on to remind Dethman that he can "just reach over and gesture to [Krakowka] and he'll come, you can ask him whatever you want." During Dethman's case-in-chief, Dethman took the stand as the primary witness for his own defense; Krakowka conducted the direct examination by reading questions prepared by Dethman, introduced evidence and published exhibits previously introduced by Dethman, and acted as Dethman's attorney during the State's cross-examination of Dethman to "protect [Dethman's] rights."

¶ 10 At the conclusion of his case-in-chief, Dethman requested Krakowka's assistance settling jury instructions. Ultimately, Dethman was found guilty by a jury of assault on a peace officer (a felony) andresisting arrest (a misdemeanor). For the DUI to which Dethman pled nolo contendere, he was sentenced to Powell County Jail for sixty days with all but ten days suspended, and fined $600. For the felony assault, Dethman was sentenced to Montana Department of Corrections for ten years, with five years suspended. For resisting arrest, he was sentenced to Powell County Jail for sixty days, with all but ten days suspended, and fined $500. All sentences were to run concurrently.

STANDARDS OF REVIEW

¶ 11 We review a district court's ruling on requests to substitute counsel for abuse of discretion. State v. Racz, 2007 MT 244, ¶ 13, 339 Mont. 218, 168 P.3d 685. The test for abuse of discretion is "whether the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice." Tarlton v. Kaufman, 2008 MT 462, ¶ 19, 348 Mont. 178, 199 P.3d 263 (quoting Kiely Constr. L.L.C. v. City of Red Lodge, 2002 MT 241, ¶ 92, 312 Mont. 52, 57 P.3d 836). The parties disagree on the appropriate standard of review of a district court's ruling on a defendant's request to proceed pro se. However, because we conclude that Dethman's decision to proceed without Krakowka for part of his trial is subsumed in the issue of the District Court's denial of Dethman's motion to substitute counsel, a separate standard of review is unnecessary.

¶ 12 We review for abuse of discretion whether the jury instructions given by the district court, as a whole, fully and fairly instructed the jury regarding applicable law. Peterson v. St. Paul Fire & Marine Ins. Co., 2010 MT 187, ¶ 22, 357 Mont. 293, 239 P.3d 904 (citations omitted). To prevail, the party alleging error on the part of the district court's jury instruction must show prejudice,"and prejudice will not be found if the jury instructions in their entirety state the applicable law of the case." Murphy Homes, Inc. v. Muller, 2007 MT 140, ¶ 74, 337 Mont. 411, 162 P.3d 106.

DISCUSSION

¶ 13 Issue One. Did the District Court abuse its discretion when it denied Dethman's motion for substitution of counsel and allowed Dethman to proceed pro se?

¶ 14 On appeal, Dethman presents a two-pronged challenge to the District Court's ruling that Dethman was not entitled to substitute counsel. First, he argues the court's initial inquiry into his request forsubstitution of counsel was inadequate. On this point, the State contends that the District Court's initial inquiry into Dethman's request was adequate, and the court did not err when it determined Dethman's claims were not "seemingly substantial" so as to warrant an additional hearing. Second, Dethman argues that by denying his motion for substitute counsel and requiring him to either continue with Krakowka or fire Krakowka and hire another attorney or proceed pro se, the court violated his right to assistance of counsel because Dethman did not unequivocally waive that right. The State argues that Dethman's request to dismiss Krakowka and proceed pro se, albeit with Krakowka as standby counsel, was unequivocal. For the reasons below, we affirm the District Court on this issue.

A. The District Court did not abuse its discretion when it denied Dethman's motion for substitution of counsel.

¶ 15 The Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution guarantee criminal defendants the right to effective assistance of counsel; indigent defendants are entitled to representation by appointed counsel at the public's expense. Gideon v. Wainwright, 372 U.S. 335, 342-45, 83 S.Ct. 792, 795-97, 9 L.Ed.2d 799 (1963); State v. Walker, 2008 MT 244, ¶ 16, 344 Mont. 477, 188 P.3d 1069 (citing State v. Okland, 283 Mont. 10, 14, 941 P.2d 431, 433 (1997)). However, "the right to assistance of counsel does not grant defendants the right to counsel of their choice." State v. Craig, 274 Mont. 140, 149, 906 P.2d 683, 688 (1995) (quoting State v. Colt, 255 Mont. 399, 404, 843 P.2d 747, 750 (1992)). 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. State v. Pepperling, 177 Mont. 464, 472, 582 P.2d 341, 346 (1978); see also Craig, 274 Mont. at 148-49, 906 P.2d at 688; Colt, 255 Mont. at 404, 843 P.2d at 750. Once counsel has been appointed and is rendering effective assistance, an indigent defendant "has the choice of (1) continuing with counsel so appointed, or (2) having his counsel dismissed and proceeding on defendant's own, pro se." Craig, 274 Mont. at 149, 906 P.2d at 688 (citations omitted).

¶ 16 When a defendant complains about ineffective assistance of appointed counsel and requests new counsel, a district court must make "adequate initial inquiry" as to whether defendant's allegations are "seemingly substantial." State v. Happel, 2010 MT 200, ¶ 14, 357 Mont. 390, 240 P.3d 1016; State v. Gallagher, 1998 MT 70, ¶ 15, 288 Mont. 180, 955 P.2d 1371 ( Gallagher I ). A district court conducts"adequate initial inquiry" when it...