State v. Hammer

• Decision Date: 23 July 2013
• Docket Number: No. DA 12–0297.,DA 12–0297.
• Citation: 371 Mont. 121,305 P.3d 843
• Parties: STATE of Montana, Plaintiff and Appellee, v. Floyd Dennis HAMMER, Defendant and Appellant.
• Court: Montana Supreme Court

371 Mont. 121

305 P.3d 843

STATE of Montana, Plaintiff and Appellee,

v.Floyd Dennis HAMMER, Defendant and Appellant.

No. DA 12–0297.

Supreme Court of Montana.

Submitted on Briefs May 8, 2013.

Decided July 23, 2013.

For Appellant: Wade Zolynski, Chief Appellate Defender, Nicholas C. Domitrovich, Assistant Appellate Defender; Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Lynn Ployhar, Assistant Attorney General; Helena, Montana, Mitchell A. Young, Lake County Attorney; Polson, Montana.

Justice MICHAEL E. WHEAT delivered the Opinion of the Court.

[371 Mont. 122]¶ 1 Floyd Hammer (Floyd) appeals his conviction for Criminal Possession with Intent to Distribute by the Twentieth Judicial District Court, Lake County. Floyd specifically challenges the District Court's treatment of his pre-trial complaint concerning his trial counsel's failure to contact a certain witness, the Court's denial of his motion for a new trial, and the Court's assessment of fees, costs, and surcharges in the written judgment that were not included in the oral pronouncement of his sentence. We affirm the conviction but we also conclude that it is necessary to remand this case to the District Court with instructions to enter an amended judgment in conformance with its oral pronouncement of sentence and this Opinion.

ISSUES

¶ 2 1. Was the District Court's pre-trial inquiry into Hammer's complaint about his counsel sufficient?

¶ 3 2. Did the District Court err in denying Hammer's motion for a new trial?

¶ 4 3. Did the District Court err in assessing fees, costs, and surcharges when these amounts were not orally pronounced?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 Floyd was charged with criminal possession of dangerous drugs (methamphetamine) with intent to distribute by information on April 7, 2011. Floyd was appointed counsel. Two weeks before trial, Floyd sent a letter to the District Court stating that he was unhappy that his counsel had not contacted a potential witness named Cheryl Combs. The letter consequently requested that the Court appoint him new counsel. The Court held a meeting in chambers the morning of trial, September 26, 2011, to discuss the letter and Floyd's concerns. At the meeting, the following discussion took place between the Court, Lake County Attorney Mitchell Young and Floyd's counsel, Steven Eschenbacher (Eschenbacher):

MR. YOUNG: Your Honor, it appears that the Court received a letter from the defendant on September 12th of this year, 2011. Copies of that letter were sent to myself and the Public Defender's Office. The defendant expressed some dissatisfaction with his attorney over the calling of or failure to contact a witness named Sheryl Combs. And I spoke with Mr. Eschenbacher. Apparently that issue has been resolved. But I wanted to make a record of the fact that the defendant is not any longer complaining about the services of his attorney before we go forward with the trial.

MR. ESCHENBACHER: And I think that's appropriate, Your Honor, if you would go ahead and question Mr. Hammer.

THE COURT: Mr. Hammer, have you had enough time to talk with Mr. Eschenbacher in preparation for this case?

THE DEFENDANT: Yes, we have.

THE COURT: Does the information that's contained in this letter apply any longer?

THE DEFENDANT: No.

THE COURT: You're satisfied?

THE DEFENDANT: Yes, I am.

MR. YOUNG: Your Honor, I do want to make one further record and that is, to the best of my knowledge going through my file I have not received notice of witness Sharon [sic] Combs has not been noticed up as a witness.

MR. ESCHENBACHER: Your Honor, I filed a notice of witnesses that was just [sic] listed the State's witnesses and any exhibits they had. I'm planning on just attacking their case. I had talked to Ms. Combs and she wouldn't be—would only be required if there was a question of someone's testimony that needs to be corroborated or reviewed.

THE COURT: So it would be a rebuttal witness.

MR. ESCHENBACHER: If it's necessary.

MR. YOUNG: Surrebuttal. Because the defendant doesn't do rebuttal.

THE COURT: Okay. Well, it depends on who's calling when. But, yeah, you're really not supposed to do your own witnesses or attack them. All right, gentlemen, anything else?

MR. YOUNG: Not from the State, Your Honor.

THE COURT: Very well. Then we'll go on the record at nine o'clock.

This exchange was the only time that the Court addressed Floyd's concerns regarding Ms. Combs's use as a witness for his defense. At trial, Floyd's counsel did not call any witnesses. Instead, Eschenbacher attacked the State's case through the cross-examination of the State's witnesses. The jury subsequently found Floyd guilty of criminal possession with intent to distribute on September 27, 2011.

¶ 6 The day after trial, September 28, 2011, Floyd sent the Court another letter. Floyd's second letter requested that the Court appoint him a new attorney for an upcoming trial in another matter, DC 11–78. Hammer explained that he wanted a different attorney “[b]ecause of the out turn [sic] of my last trial, I strongly feel it is important that I receive a fair trial. I also Feel that if I had (Cheryl Combs) [sic] to testify at my last trial, it would of turned out Different.” This letter was apparently attached to DC 11–78, and not the present case, DC 11–38.

¶ 7 Benjamin Anciaux (Anciaux) was subsequently substituted as Floyd's counsel on October 31, 2011. Anciaux filed a motion for a new trial pursuant to § 46–16–702, MCA, on December 9, 2011. The motion claimed that Eschenbacher's failure to call Ms. Combs denied Floyd the opportunity to present “a major defense” because Ms. Combs would have testified that other people had actually possessed the dangerous drugs in question. The motion also alleged that the failure to call Ms. Combs amounted to ineffective assistance of counsel.

¶ 8 The District Court denied Floyd's motion for a new trial in a January 18, 2012 order. The Court found that the motion was untimely because it was filed after the 30 day statutory limit. See§ 46–16–702(2), MCA, (“The motion must be filed by the defendant within 30 days following verdict or finding of guilty and be served upon the prosecution.”). The Court also determined that Floyd acquiesced to Eschenbacher's trial strategy when he stated that he was satisfied with his communication with Eschenbacher and indicated that the concerns contained in his first letter no longer applied. The Court concluded that it could “go no further in a review of ‘ineffective counsel’ ” in light of these prior representations, and denied the motion.

¶ 9 Floyd was sentenced on January 26, 2012. At the hearing, defense counsel objected to several of the recommended conditions contained in the presentence investigation (PSI) report. Most relevant for our purposes are defense counsel's objections to the recommended imposition of various fees and costs. Defense counsel specifically objected to the recommended imposition of a $50 presentence investigation fee and a $2244.39 fee for jury costs, explaining that Floyd “has absolutely no assets; clothes on his back basically and maybe a few mementos[.]” The Court thereafter orally pronounced a sentence of 20 years in the Montana State Prison. The Court also stated that “with regard to paragraph 13 [the section of the PSI report recommending imposition of fees and costs] the Court suspended those unless the defendant can work given his age and the sentence of the Court.”

¶ 10 The Court signed the written judgment on March 19, 2012. The judgment ordered Floyd to be sentenced to Montana State Prison for 20 years, with no time suspended. The Court also recommended that “all the conditions recommended by Probation and Parole” in the PSI “should be conditions of the Defendant's parole.” These conditions provided for the assessment of the fees and fines that the Court had suspended in its oral pronouncement of sentence. However, the written judgment did not reflect the oral pronouncement's conditioning of the assessment of fees and costs on Floyd's later ability to find work.

¶ 11 Floyd filed a notice of appeal on May 10, 2012, appealing the Court's final written judgment entered March 19, 2012.

STANDARD OF REVIEW

¶ 12 We review a district court's denial of a request for the appointment of new counsel for an abuse of discretion. State v. Holm, 2013 MT 58, ¶ 16, 369 Mont. 227, 304 P.3d 365. A district court's denial of a motion for a new trial is also reviewed for an abuse of discretion. State v. Stewart, 2012 MT 317, ¶ 23, 367 Mont. 503, 291 P.3d 1187. Last, this Court reviews a district court's imposition of a sentence for legality only. State v. Kroll, 2004 MT 203, ¶ 12, 322 Mont. 294, 95 P.3d 717.

DISCUSSION

¶ 13 1. Was the District Court's pre-trial inquiry into Hammer's complaint about his counsel sufficient?

¶ 14 On appeal, Floyd contends that the District Court erred by failing to adequately inquire into his pre-trial letter requesting that he be appointed new counsel. Criminal defendants have a fundamental constitutional right to the effective assistance of counsel. U.S. Const. amend. VI; Mont. Const. art. II, § 24; State v. Meredith, 2010 MT 27, ¶ 50, 355 Mont. 148, 226 P.3d 571. However, indigent defendants cannot demand substitution of counsel if their appointed counsel has been providing effective assistance. State v. Dethman, 2010 MT 268, ¶ 15, 358 Mont. 384, 245 P.3d 30. Instead, 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 the defendant's allegations are “ seemingly substantial.” Dethman, ¶ 16;Holm, ¶ 19;State v. Gallagher, 1998 MT 70, ¶ 15, 288 Mont. 180, 955 P.2d 1371. A district court conducts “adequate initial inquiry” “when it considers the defendant's factual complaints together with counsel's specific explanations and makes some sort of critical analysis of the complaint.” Dethman, ¶ 16. Converse...