State v. Heavygun

• Decision Date: 24 May 2011
• Docket Number: No. DA 10–0388.,DA 10–0388.
• Citation: 360 Mont. 413,2011 MT 111,253 P.3d 897
• Parties: STATE of Montana, Plaintiff and Appellee,v.Gary Duane HEAVYGUN, Defendant and Appellant.
• Court: Montana Supreme Court

360 Mont. 413

253 P.3d 897

2011 MT 111

STATE of Montana, Plaintiff and Appellee,

v.Gary Duane HEAVYGUN, Defendant and Appellant.

No. DA 10–0388.

Supreme Court of Montana.

Submitted on Briefs April 20, 2011.Decided May 24, 2011.

For Appellant: Joslyn Hunt, Chief Appellate Defender; Eileen A. Larkin, Assistant Appellate Defender, Helena, Montana.For Appellee: Steve Bullock, Montana Attorney General; Mardell Ployhar, Assistant Attorney General, Helena, Montana, John Parker, Cascade County Attorney; Susan Weber, Deputy County Attorney, Great Falls, Montana.Justice MICHAEL E. WHEAT delivered the Opinion of the Court.

[360 Mont. 414] ¶ 1 Gary Duane Heavygun (Heavygun) was found guilty by a jury in the Eighth Judicial District Court, Cascade County, of deliberate homicide, DUI, violation of an order of protection, criminal endangerment, driving while the privilege to do so is suspended or revoked, and tampering with physical evidence. Heavygun appeals, raising two issues: 1) was his right to be present at all critical stages of his criminal proceeding violated, and 2) did he receive ineffective assistance of counsel? We affirm on the first issue and find the second appropriate for postconviction proceedings.

¶ 2 Heavygun was charged with deliberate homicide and various other offenses after the stabbing death of his friend, Justin Wells, on January 25, 2009. Because Heavygun appeals two limited issues, we do not discuss the events of January 25, 2009. For clarity's sake, we note that Heavygun does not challenge the factual basis of his convictions, but rather urges that the alleged errors require reversal of his conviction.

¶ 3 Heavygun sought to be present at his omnibus hearing, held on August 5, 2009. On July 29, 2009, Heavygun filed a Motion to Transport Defendant to Omnibus Hearing, saying “Defendant would like to be present for his Omnibus Hearing.” That motion was denied, and the omnibus hearing proceeded as scheduled, without Heavygun's presence and without a record being made, other than the statutorily required memorandum. On August 10, 2009, several days after the omnibus hearing, Heavygun filed Defendant's Objection to Denial of Defendant's Motion to be Present at the Omnibus Hearing, in which he renewed his request to be present, arguing he had the right to be present and that his omnibus hearing should have been on the record. His motion was denied. The District Court's order stated:

This Court has addressed this issue on motion of this counsel a number of times before. Nothing has changed.

The omnibus hearing is a creature of statute. It is not a critical stage of the proceedings.

Section 46–13–110 MCA providing for the omnibus hearing specifically provides that ‘[T]he presence of the Defendant is not required, unless ordered by the Court.’ This statute has never been held to be unconstitutional nor has the Supreme Court of the State of Montana otherwise ruled that the Defendant has a right to be present, or a record kept.

It is the practice in this Court that no substantive issues are determined at the omnibus hearing. The hearing is conducted as a procedural conference and, as contemplated in subsection (4) of the statute a detailed memorandum of the matters covered is prepared subsequent thereto. That is the case here. A record is not necessary nor required. The proceeding basically covers disclosure. The procedure for substantive motions is clearly laid out in the memorandum.

This method of conducting omnibus hearings is a longstanding practice in this jurisdiction.

As a practical matter, requiring the presence of defendants at omnibus hearings would create a substantial logistical problem.

¶ 4 A second omnibus hearing was held on March 3, 2010, after the State filed an Amended Information. Heavygun was not present, and it does not appear that any objection was raised by defense counsel.

¶ 5 Heavygun was represented by six different attorneys from the Office of the State Public Defender. Three were attorneys-of-record, while the other three appeared sporadically on behalf of the attorneys-of-record. Heavygun raised concerns about his representation before the District Court, saying during a March 30, 2010, status hearing, at which his attorney failed to appear, “I'm going to need somebody that's going to represent me.” The District Court noted Heavygun's concerns and rescheduled the hearing.

¶ 6 At the rescheduled status hearing, held April 5, 2010, Heavygun again raised concerns about his representation by his current and former counsel. Heavygun, through his attorney, informed the court that his prior counsel postponed trial dates on several occasions without his consent and as a remedy sought to have all charges dismissed for lack of speedy trial based on ineffective assistance. Heavygun's motion was denied, with the District Court noting “[m]aybe there's an ineffective assistance of counsel claim there that might be urged at some later date.” Heavygun himself stated at the close of the hearing that there were “a lot of motions that didn't get filed” and that he was unable to “communicate with my defender” but was ready to go to trial.

STANDARD OF REVIEW

¶ 7 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. Charlie, 2010 MT 195, ¶ 21, 357 Mont. 355, 239 P.3d 934 (citing State v. Berosik, 2009 MT 260, ¶ 27, 352 Mont. 16, 214 P.3d 776.).

¶ 8 Ineffective assistance of counsel claims raise mixed questions of fact and law which we review de novo. Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d 861; State v. Rovin, 2009 MT 16, ¶ 24, 349 Mont. 57, 201 P.3d 780. We will review ineffective assistance claims on direct review when the claims are based solely on the record. Rovin, ¶ 24. However, if 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. State v. Sartain, 2010 MT 213, ¶ 30, 357 Mont. 483, 241 P.3d 1032.

DISCUSSION

¶ 9 Was Heavygun's right to be present at all critical stages of his criminal proceeding violated when he was not allowed to be present at his omnibus hearing?

¶ 10 Heavygun argues that the District Court violated his constitutional and statutory rights to be present at all critical stages of his trial when it refused his request to be present at an omnibus hearing, and thus his convictions should be reversed. Heavygun urges this Court to hold the omnibus hearing a critical stage of the proceedings. The State counters that we should decline to review Heavygun's argument because he does not challenge the constitutionality of § 46–13–110, MCA. Alternatively, the State argues that the omnibus hearing is not a critical stage, and even if it was, Heavygun was not prejudiced by his absence.

¶ 11 Both the United States Constitution and the Montana Constitution guarantee the defendant's right to be present at the criminal proceedings against him. U.S. Const. amend. VI; Mont. Const. art. II, § 24; Charlie, ¶ 40. A defendant also has a due process right to be present in person whenever his presence has a reasonably substantial relation to the fullness of his opportunity to defend against the charge. Charlie, ¶ 40; State v. Price, 2009 MT 129, ¶ 21, 350 Mont. 272, 207 P.3d 298.

¶ 12 The fundamental right to be present applies, without exception, at all “critical stages” of the proceedings. Price, ¶ 22. A “critical stage” is any step of the proceeding where there is potential for substantial prejudice to the defendant. Charlie, ¶ 40; State v. Matt, 2008 MT 444, ¶ 17, 347 Mont. 530, 199 P.3d 244 (overruled on other grounds by Charlie, ¶ 45 ¹); Ranta v. State, 1998 MT 95, ¶ 17, 288 Mont. 391, 958 P.2d 670. “Critical stages” include, but are not limited to: a telephone conference discussing the impact of newly discovered evidence on the defendant's trial, Charlie, ¶ 41; an in-chambers conference discussing evidentiary issues and a motion to dismiss, Matt, ¶¶ 19–20; individual, in-chambers voir dire of jurors, Berosik, ¶ 32.

¶ 13 When considering whether a district court has violated a defendant's right to be present, we generally first consider whether the defendant was excluded from a “critical stage” of the proceeding. Price, ¶ 23. Where a district court has violated a defendant's right to be present, that violation alone does not constitute automatic reversible error. Id. at ¶ 24. When the record shows the defendant was not prejudiced, we have affirmed. Id.

¶ 14 Section 46–13–110, MCA, governs omnibus hearings. That section provides:

(1) Within a reasonable time following the entry of a not guilty plea but not less than 30 days before trial, the court shall hold an omnibus hearing.

(2) The purpose of the hearing is to expedite the procedures leading up to the trial of the defendant.

(3) The presence of the defendant is not required, unless ordered by the court. The prosecutor and the defendant's counsel shall attend the hearing and must be prepared to discuss any pretrial matter appropriate to the case, including but not limited to:

(a) joinder and severance of offenses or defendants, 46–11–404, 46–13–210, and 46–13–211;

(b) double jeopardy, 46–11–410, 46–11–503, and 46–11–504;

(c) the need for exclusion of the public and for sealing records of any pretrial proceedings, 46–11–701;

(d) notification of the existence of a plea agreement, 46–12–211;

(e) disclosure and discovery motions, Title 46, chapter 15, part 3;

(f) notice of reliance on certain defenses, 46–15–323;

(g) notice of seeking persistent felony offender status, 46–13[360 Mont. 418] –108;

(h) notice of other crimes, wrongs, or acts, 46–13–109;

(i) motion to suppress, 46–13–301 and 46–13–302;

(j) motion to dismiss, 46–13–401 and 46–13–402;

(k) motion for change of place of trial, 46–13–203...