State v. Gallagher

• Decision Date: 31 March 1998
• Docket Number: No. 96-378,96-378
• Citation: 955 P.2d 1371,288 Mont. 180
• Parties: STATE of Montana, Plaintiff and Respondent, v. Arvin Peter GALLAGHER, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1371

955 P.2d 1371

1998 MT 70

STATE of Montana, Plaintiff and Respondent, v. Arvin Peter GALLAGHER, Defendant and Appellant.

No. 96-378.

Supreme Court of Montana.

Submitted on Briefs Feb. 12, 1998.

Decided March 31, 1998.

William F. Hooks, Appellate Defender Office, Helena, for Appellant.

Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General; Helena, Brant Light, Cascade County Attorney; Julie Macek and Kirsten LaCroix, Deputy County Attorneys; Great Falls, for Respondent.

REGNIER, Justice.

¶1 Arvin Peter Gallagher appeals from the judgment and sentence entered on his conviction for felony assault by the Eighth Judicial District Court, Cascade County. We reverse and remand.

¶2 The sole dispositive issue on appeal is whether the District Court denied Gallagher his right to effective assistance of counsel by denying certain pretrial requests for appointment of substitute counsel.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 By way of an information filed October 14, 1993, the State charged Gallagher with one count of felony assault, in violation of § 45-5-202(2)(c), MCA. Gallagher appeared at his October 28, 1993, arraignment with court-appointed counsel, Susan Weber, and entered a plea of not guilty to the charge of felony assault. The District Court originally set trial for February 1, 1994, but continued that date at Gallagher's request. On January 14, 1994, Gallagher waived his right to a speedy trial.

¶4 On June 28, 1994, Weber filed a motion for substitution of counsel due to the fact that she was resigning as Public Defender and would be replaced by Lawrence LaFountain. The District Court granted Weber's motion the following day, and ordered that LaFountain be substituted as counsel for Gallagher.

¶5 On September 7, 1994, LaFountain filed a motion to continue the trial date due to a scheduling conflict. The court granted LaFountain's motion, resetting the trial for October 31, 1994. On the date set for trial, however, LaFountain authored a motion indicating that Gallagher had signed and filed a written plea agreement, and asking that the court schedule a change of plea hearing. Although the court granted LaFountain's motion and scheduled a change of plea hearing for January 26, 1995, that hearing was never held.

¶6 On August 2, 1995, the State filed a motion asking that the court schedule a second change of plea hearing. The court ¶7 LaFountain continued as counsel of record, appearing on Gallagher's behalf at a September 20, 1995, omnibus hearing during which the court established a January 22, 1996, trial date. On January 8, 1996, however, LaFountain filed a motion to continue the trial date yet again, and to withdraw as Gallagher's attorney. In a January 12, 1996, order, the District Court denied LaFountain's motion for a continuance, and denied his motion to withdraw as counsel of record, subject to reconsideration at the pretrial conference.

granted the State's motion, and scheduled another change of plea hearing for September 5, 1995. The court held the September 5, 1995, hearing as scheduled, but Gallagher indicated he had decided not to plead guilty and accordingly did not enter a change of plea. Instead, LaFountain put Gallagher on the witness stand and questioned him about his dissatisfaction with LaFountain's performance as defense counsel. Gallagher indicated to the court that he wished to have another attorney appointed to represent him.

¶8 In accordance with the District Court's order, Gallagher's trial began on January 22, 1996. On January 23, 1996, the jury returned its verdict, finding Gallagher guilty of felony assault. The court sentenced Gallagher to the Department of Corrections for a term of five years, all suspended. The court ordered that Gallagher be placed under the House Arrest Program through the Pre-release Center for the full period of his sentence, and ordered that he be subject to a number of additional conditions. The court entered its written Judgment of Conviction and Sentencing Order on April 1, 1996.

¶9 On May 31, 1996, LaFountain filed a notice of appeal on Gallagher's behalf. Gallagher did not file an appellate brief and, accordingly, we issued an order dated September 18, 1996, instructing Gallagher to demonstrate good cause for failure to prosecute his appeal. LaFountain responded to this Court's order on October 7, 1996, indicating he, unlike his client, felt the record contained no appealable issues. LaFountain additionally asked that we remand the case to the District Court to develop a record regarding Gallagher's complaints about his legal counsel. We denied LaFountain's request for remand, and ordered that he file either a motion to withdraw or an initial appellate brief. LaFountain subsequently filed a motion to withdraw as appellate defense counsel, along with a supporting Anders brief in which he again asked that this Court remand the case to District Court for a hearing on effectiveness of counsel. On March 20, 1997, we issued an order granting LaFountain's motion to withdraw, and concluded the case contained "appealable issues which may include the effectiveness of assistance of counsel." On March 25, 1997, the District Court appointed the Appellate Defender to represent Gallagher's interests on appeal.

STANDARD OF REVIEW

¶10 We have repeatedly recognized that it is within the sound discretion of the district court to rule on requests for the appointment of new counsel. City of Billings v. Smith (1997), 281 Mont. 133, 136, 932 P.2d 1058, 1060; State v. Craig (1995), 274 Mont. 140, 149, 906 P.2d 683, 688, cert. denied (1996), 517 U.S. 1195, 116 S.Ct. 1689, 134 L.Ed.2d 790; State v. Morrison (1993), 257 Mont. 282, 284, 848 P.2d 514, 516. Thus, absent an abuse of discretion, we will not overturn such a decision by the district court. City of Billings, 281 Mont. at 136, 932 P.2d at 1061; Craig, 274 Mont. at 149, 906 P.2d at 688; Morrison, 257 Mont. at 284, 848 P.2d at 516.

DISCUSSION

¶11 Did the District Court deny Gallagher his right to effective assistance of counsel by denying certain pretrial requests for appointment of substitute counsel?

¶12 On appeal, Gallagher argues the District Court erred in failing to conduct an adequate inquiry into his complaints about his attorney, LaFountain, and thereby denied him his constitutionally protected right to the effective assistance of counsel. More specifically, Gallagher argues the court erred because it did not adequately address his complaints, which included allegations that he and LaFountain had a severe personality conflict and were unable to communicate productively because LaFountain advocated that Gallagher plead guilty, while Gallagher persisted on going to trial.

¶13 In response, the State argues the District Court conducted an adequate inquiry into Gallagher's complaints, and that it thus did not abuse its discretion in denying LaFountain's January 8, 1996, motion to withdraw as counsel of record. The State points to the September 5, 1995, hearing during which LaFountain questioned Gallagher regarding his complaints about counsel, and argues the court made an adequate inquiry into Gallagher's concerns at that time and correctly decided that Gallagher had no substantial complaints.

¶14 We have recognized that even an indigent criminal defendant, like Gallagher, has a fundamental right, guaranteed by the Sixth Amendment to the United States Constitution and Article II, Section 24, of the Montana Constitution, to the effective assistance of counsel. See, e.g., City of Billings, 281 Mont. at 136, 932 P.2d at 1060. In the event that a criminal defendant presents a "seemingly substantial complaint" regarding the effectiveness of counsel, the court should conduct a hearing to address the merits of the defendant's claims and the request for substitution of counsel. City of Billings, 281 Mont. at 136, 932 P.2d at 1060. This Court has 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.' " City of Billings, 281 Mont. at 136, 932 P.2d at 1060 (quoting State v. Weaver (1996), 276 Mont. 505, 511, 917 P.2d 437, 441).

¶15 In other words, when first presented with allegations of ineffective assistance of counsel, the district court must make an adequate initial inquiry into the nature of those complaints and determine if they are seemingly substantial. We have recognized that such an initial inquiry may be adequate where the court "considered the defendant's factual complaints together with counsel's specific explanations addressing the complaints." City of Billings, 281 Mont. at 136-37, 932 P.2d at 1060 (citing State v. Craig (1995), 274 Mont. 140, 906 P.2d 683; State v. Morrison (1993), 257 Mont. 282, 848 P.2d 514). Conversely, we have found a district court's inquiry to be inadequate where it failed to make "even a cursory inquiry" into the defendant's complaints. State v. Weaver (1996), 276 Mont. 505, 511-12, 917 P.2d 437, 441; see also City of Billings, 281 Mont. at 139-40, 932 P.2d at 1062-63(holding inquiry inadequate where court refused to let the defendant explain his complaints and made no inquiry into the allegations). Only if the court concludes the defendant has presented seemingly substantial complaints about adequate counsel must it then hold a hearing to address the validity of those complaints. City of Billings, 281 Mont. at 141, 932 P.2d at 1063. If the court instead concludes, after an adequate initial inquiry, that the defendant has failed to present seemingly substantial complaints, it need not conduct a hearing on the merits. City of Billings, 281 Mont. at 141, 932 P.2d at 1063.

¶16 Thus, in the present case, we must first determine whether the District Court made an adequate initial inquiry into Gallagher's complaints about his cou...