State v. Garner

• Decision Date: 08 November 2001
• Docket Number: No. 00-091.,00-091.
• Citation: 36 P.3d 346,306 Mont. 462,2001 MT 222
• Parties: STATE of Montana, Plaintiff and Respondent, v. Russell G. GARNER, Defendant and Appellant.
• Court: Montana Supreme Court

36 P.3d 346

2001 MT 222

306 Mont. 462

STATE of Montana, Plaintiff and Respondent, v. Russell G. GARNER, Defendant and Appellant.

No. 00-091.

Supreme Court of Montana.

Submitted on Briefs February 2, 2001.

Decided November 8, 2001.

William F. Hooks, Kristina Guest, Appellate Defender Office, Helena, MT, For Appellant.

Hon. Joseph P. Mazurek, Attorney General; Jim Wheelis, Assistant Attorney General, Helena, MT, Brant Light, Cascade County Attorney, Great Falls, MT, For Respondent.

Justice JIM REGNIER delivered the Opinion of the Court.

¶ 1 On November 15, 1999, Russell G. Garner filed a motion to withdraw his guilty pleas. The District Court denied his motion. Garner appeals. The following issues are dispositive:

1. Did the District Court violate Garner's due process rights by failing to hold a hearing to determine Garner's competence to stand trial?

2. Did the District Court abuse its discretion by denying Garner's motion to withdraw his guilty pleas?

3. Did Garner's motion to withdraw his guilty pleas constitute a critical stage of the proceedings?

¶ 2 We affirm.

BACKGROUND

¶ 3 On June 16, 1995, Russell Garner and Steven Newhouse were charged with the theft of a pickup truck. Garner was also charged with forgery. The State alleged that Newhouse and Garner stole a truck from Missoula, Montana, and that Garner later presented a stolen check at the EZ Money in Great Falls, Montana. Garner and Newhouse were prosecuted separately and Garner was the sole defendant on the forgery charge. After counsel was appointed to Garner, he entered a plea of not guilty.

¶ 4 The trial commenced on November 29, 1995, with Larry LaFountain appearing as counsel for Garner. The State called as witnesses the owner of the check, which Garner presented to EZ Money, and employees of EZ Money who identified Garner as the man who attempted to sign the stolen check. The owner of the pickup truck in question then testified that his truck had been missing for about ten days prior to the incident at EZ Money and that neither Garner nor Newhouse had his permission to use it.

¶ 5 John Sowell, a detective with the Great Falls Police Department, appeared next as a witness. He had responded to the incident at EZ Money and testified at trial that, after Garner was arrested and read his Miranda rights, Garler informed him that he had taken the truck from Missoula and picked up a friend in Bozeman several days later. During cross-examination of Sowell, LaFountain established that Newhouse was the only person seen driving the pickup and that Sowell was unable to obtain any fingerprints from the truck. LaFountain also established that Sowell's memory of his conversation with Garner was refreshed by looking at his report, which he dictated after the incident.

¶ 6 Following the prosecutor's redirect examination, LaFountain informed the court at a side-bar conference that Garner wished to question Sowell himself. After an objection by the prosecution, the court determined that it would take up the issue the following day. The next morning, LaFountain told the court that Garner wanted to "do part of the questioning of some of the [State's] witnesses." The State opposed the request. The court inquired if Garner wanted to represent himself. While LaFountain said that he did not, he indicated that he and Garner were in conflict over some of Garner's requests. The court told LaFountain that, unless Garner dismissed him as counsel, LaFountain had the authority to decide whether a question Garner posed was appropriate. The court ultimately denied Garner's request to examine the State's witnesses.

¶ 7 LaFountain then asked for a recess in order to file a motion to dismiss for lack of a speedy trial. The court denied the request. LaFountain again indicated that he and Garner were unable to cooperate. After further discussion, the court informed Garner that he needed to determine whether he wished to continue to be represented by LaFountain or whether he wished to represent himself. Garner informed the court that he wished to represent himself. After further questioning, Garner proceeded pro se and the court appointed LaFountain as standby counsel. Before the trial continued, LaFountain informed the court that he wished to question Garner on the stand about his medication. At this time, Garner clearly expressed his unhappiness with LaFountain's representation.

¶ 8 Following this exchange, Garner requested that the court recall those witnesses that had previously been excused. The court refused. The trial proceeded, and Garner cross-examined the remaining State witnesses. After the State rested, Garner moved to dismiss the case for lack of evidence. The court denied the motion and after a short break, the trial proceeded. Before Garner commenced his case-in-chief, the following conversation took place:

COURT: Mr. Garner, how are you coming?

GARNER: Good.

COURT: All right. I want to make sure that before we proceed any further, that you understand exactly what it is you're doing here. You know, of course, that the sixth amendment guarantees you the right to counsel?

GARNER: Yes.

COURT: And you've had counsel appointed for you?

GARNER: Yes.

COURT: Okay. Now, I want to make sure that you're aware of the nature of the charges against you. You understand that you're charged with theft and that you're charged with forgery.

GARNER: Yes.

COURT: Do you know what the penalties are for those offenses?

GARNER: Twenty years for forgery, up to 20 years and up to 10 years, and also Mrs. Macek is seeking persistent felony offender on me, so anywhere from 5 to 100 tacked on the end of that.

COURT: OK, I mean—

MACEK: Just as a correction to that, Your Honor, because Mr. Garner has already been declared as a persistent felony offender once, he actually, if convicted, is facing an additional minimum of 19 years to 100 years and that that sentence must run consecutively to his sentence on the underlying charges.

COURT: OK. The penalty then for theft is, I think you said 10 years.

GARNER: Yes.

COURT: In the Montana State Prison to on, up to 10 years and a fine of $50,000 or both. And for forgery, the penalty is imprisonment in the state prison for a term of not more than 20 years or a fine of not more than $50,000 or both. And then the persistent felony, or persistent offender issue is tacked on to that as a consecutive.

GARNER: Excuse me, Your Honor, I'd like to know what amendment guarantees me the right to a fast and speedy trial.

COURT: I'm not sure which one it is. But it's one of the first 10 amendments.

GARNER: Yes.

COURT: And you're aware of that. And you indicated that you intend to raise that as an issue. And you're certainly entitled to do that as grounds for an appeal if you should be convicted.

As you know, the order that I issued required that pretrial provisions be required four weeks before trial and your attorney discussed—

GARNER: And I asked him to.

COURT: I understand you asked him to and he said that he did not believe that the motion was well taken. He so chose in his capacity as counsel not to file that motion, which is his obligation to make the determination.

So, and I understand that's a concern that you have and that's apparently one of the reasons that you have elected to proceed—

GARNER: I'd like to ask for a mistrial on the grounds that I have been misrepresented about by my attorney.

COURT: That's not the basis for a mistrial and I am not going to grant—

GARNER: Ineffective assistance of counsel?

COURT: That's a matter for appeal. And I don't think that you've established— nor am I going to listen to that motion at this time.

GARNER: Okay.

COURT: The other thing that I want to make sure of is that you understand the pitfalls of trying to represent yourself.

GARNER: Yes, Your Honor. What I am trying to get across is that my lawyer was so, how would I put this? Did such a poor job that I, I have no way to continue this. I'm not prepared for this.

COURT: And so what you're telling me is that you don't feel competent to go forward individually?

GARNER: Oh, I feel competent. But with the information here, with the statements, now I need more time. I'm going to have to have time to be able to go through this, to get to a legal library. I'm being held in Montana State Prison. I have it there. I would like to postpone for at least six months or have a chance to prepare for this on my own.

¶ 9 After further discussion about LaFountain's ineffectiveness, Garner again indicated that he wanted more time to prepare. The court was unwilling to delay the trial for such a lengthy time. The court eventually agreed to recess until the afternoon in order for Garner to prepare.

¶ 10 In his case in chief, Garner recalled several police officers who had been present during his arrest. Upon examination of Detective Sowell and other officers, he elicited that his confession could not be confirmed by other officers and that certain statements made by Newhouse occurred before Miranda warnings were read.

¶ 11 Garner finally called himself to testify. The state objected to Garner giving a narrative statement. Therefore, Garner agreed to have LaFountain question him on the stand. Garner essentially testified that Newhouse picked him up in a pickup truck at a rest stop and instigated the check scam. He also indicated that he decided not to go through with cashing the check and that he abandoned the enterprise because it was wrong. After cross and redirect examination, Garner rested. ¶ 12 The court then initiated a discussion about instructions to the jury. Garner requested an instruction on a lesser charge. During the discussion, Garner interjected a number of times, including to opine that "nobody's following the law." After the court eventually denied Garner's request for jury instructions, Garner stated that he wished to plead guilty to both charges. After an extensive dialogue between the court and Garner, including questioning by the State and a remark by...