State v. Hendershot, 04-429.

• Decision Date: 21 February 2007
• Docket Number: No. 04-429.,04-429.
• Parties: STATE of Montana, Plaintiff and Respondent, v. James Ralph HENDERSHOT, III, Defendant and Appellant.
• Court: Montana Supreme Court

153 P.3d 619

2007 MT 49

336 Mont. 164

STATE of Montana, Plaintiff and Respondent, v. James Ralph HENDERSHOT, III, Defendant and Appellant.

No. 04-429.

Supreme Court of Montana.

Submitted on Briefs October 12, 2006.

Decided February 21, 2007.

For Appellant: Kristina Guest, Assistant Appellate Defender, Helena, Montana.

For Respondent: Mike McGrath, Montana Attorney General, Joslyn M. Hunt, Assistant Attorney General, Helena, Montana George H. Corn, Ravalli County Attorney, T. Geoffrey Mahar, Deputy County Attorney, Hamilton, Montana.

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

¶ 1 James Ralph Hendershot III (Hendershot) was charged with felony aggravated assault, felony assault with a weapon, and misdemeanor partner or family member assault after a physical altercation with his wife, Denise. As a result of these charges, the Twenty-First Judicial District Court, Ravalli County, revoked Hendershot's deferred sentence for a previous felony theft conviction and sentenced him to ten years at Montana State Prison (MSP) with five years suspended. A jury subsequently found him guilty of the three assault charges. He was then sentenced to ten years with the Department of Corrections (DOC) with five suspended. This sentence was to run consecutively to his theft sentence. During his criminal assault proceedings, Hendershot requested a new attorney. The District Court denied his request. He appeals the District Court's refusal to grant his request for a new attorney. He also appeals the sentence requirement obligating him to pay court-appointed counsel costs and jury costs. We reverse and remand.

ISSUE

¶ 2 The dispositive issue on appeal is whether the District Court abused its discretion in refusing Hendershot's request for new counsel.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 On June 9, 2003, Hendershot and his wife Denise had a violent physical altercation in which Denise was injured and required medical evaluation and treatment. After an investigation, the State charged Hendershot, on or around June 24, 2003, with felony aggravated assault, felony assault with a weapon, and misdemeanor partner or family member assault The District Court appointed public defender Mark McLaverty (McLaverty) to represent Hendershot. At his initial court appearance on June 25 with McLaverty, Hendershot pled not guilty to all charges.

¶ 4 Hendershot and Denise were on felony probation for theft at the time of the assault incident. As a result of the charges involved in this case, the State moved to revoke Hendershot's prior probation. McLaverty was also appointed to represent him in the revocation proceeding. At the revocation hearing on July 16, 2003, attorney Mike Montgomery (Montgomery), an associate with McLaverty's law firm, appeared with Hendershot because McLaverty was having knee surgery.

¶ 5 At the close of the probation revocation hearing, the District Court determined that Hendershot violated his probation. The prosecutor asked the court to commit Hendershot to DOC for 10 years with five suspended, and Montgomery, on behalf of Hendershot, agreed with the prosecutor's recommendation. The District Court nonetheless followed the sentencing recommendations of Hendershot's probation officer and sentenced Hendershot to MSP for 10 years, with five suspended, for felony theft.

¶ 6 In a letter to Judge Langton dated July 17, 2003, Hendershot complained he had been inadequately represented at his probation revocation hearing. He stated that Montgomery mistakenly thought the revocation hearing was Hendershot's initial appearance; therefore, he instructed Hendershot to say nothing and Hendershot complied. Hendershot further noted in the letter that Montgomery failed to ask questions of the witnesses and made no mention of Hendershot's mental disorder which Hendershot believed was "to a large degree ... the cause of the events" resulting in his assault charges. Hendershot requested a new hearing or a sentence change. The District Court forwarded a copy of Hendershot's letter to McLaverty but did not respond to Hendershot's request.

¶ 7 On July 25, 2003, McLaverty attended an omnibus hearing with respect to the instant case. He signed an omnibus hearing memorandum stating that Hendershot would assert the affirmative defense of justifiable use of force, as well as generally deny the charges. A status hearing was held on September 17, 2003. At that time, McLaverty informed the Court that a plea agreement had been reached. Based on this representation, the District Court set a change of plea hearing.

¶ 8 For the scheduled change of plea hearing held on October 1, 2003, Hendershot was transported from MSP to the Ravalli County Detention Center in Hamilton, Montana to attend the hearing. At the hearing McLaverty informed the court that Hendershot no longer wished to change his plea but in fact wished to proceed to trial. McLaverty also asked that Hendershot remain in jail in Hamilton pending trial so he would be able to communicate with counsel more easily than if he were returned to the prison in Deer Lodge. The District Court granted this request. The trial was scheduled for December 8, 2003.

¶ 9 Between the revocation hearing of July 16, 2003, and September 11, 2003, Denise undertook an aggressive letter-writing campaign to Judge Langton seeking a reduction of Hendershot's theft sentence. She wrote at least seven letters to the court, most of which are in the record, and all of which asked the District Court to reconsider its sentence, primarily based on Hendershot's ill health. She maintained that her injuries were not serious, and that not all of them were inflicted by her husband. She asked the court to place Hendershot on extended probation rather than prison time. On September 26, 2003, Denise wrote a letter to Montana Attorney General Mike McGrath, in which she claimed that prosecutor Geoff Mahar had threatened her with revocation of her probation if she did not answer questions to his satisfaction during Hendershot's revocation hearing. She claims she wanted to tell "the truth about what happened on 6-9-03" but neither Mahar nor the court gave her that opportunity at the hearing.

¶ 10 Subsequently, on October 27, 2003, Hendershot wrote a letter to the District Court requesting a new attorney. He complained that: (1) McLaverty had done little or nothing on his behalf; (2) McLaverty knew that Mahar had threatened Denise before the revocation hearing and that Denise had lied about the incident but McLaverty had not acted on this evidence; (3) McLaverty had not filed a petition for rehearing on Hendershot's behalf as Hendershot had requested, and (4) McLaverty was incompetent. He also expressed his displeasure with Montgomery, whom he stated was incompetent, was unprepared for the revocation hearing, and had not asked his wife questions that could have elicited a more truthful explanation of the events.

¶ 11 The District Court set a hearing on Hendershot's request for new counsel for November 12, 2003. At the hearing, Montgomery again appeared instead of McLaverty. Hendershot repeated his complaints regarding what had occurred at the probation revocation hearing. He stated that Denise was coerced into falsely testifying against him, that some of her injuries were either work-related or self-inflicted, and that McLaverty knew but failed to act on this information. He claimed that Denise told McLaverty prior to the probation revocation hearing that the State threatened her, but that she did not tell him (Hendershot) until after he went to prison.

¶ 12 When asked by the court if he wanted to respond to Hendershot's allegations, Montgomery, on behalf of McLaverty, replied that as public servants, they try to give the best representation to their clients but that frequently the clients do not like to hear what they have to say. Montgomery disagreed with Hendershot's characterizations of his performance, but concluded that "communication between me, my office, and my client has broken down to such an irreparable state that we wouldn't be able to go forward from this point on if the Court should decide to keep us on. For that reason, on behalf of McLaverty & Associates, Mark McLaverty and myself, we ask to be removed and discharged from our duties."

¶ 13 Ravalli County Attorney George H. Corn represented the State at the hearing. He contended that Hendershot engineered his complaint regarding McLaverty to frustrate the prosecution. Corn asked that the District Court take note that Hendershot failed to request new counsel for three and a half months after he was supposedly dissatisfied. Corn also asked that Hendershot's request for new counsel be granted only if he waived his right to a speedy trial.

¶ 14 When the District Court asked why he waited so long to request a different lawyer, Hendershot explained that while he had learned in September that his wife had lied during the revocation hearing, he had worked since that time trying to get McLaverty to represent him vigorously. He said he had written McLaverty a letter requesting a visit, but McLaverty visited with him only once over a period of several months, that being on the morning of October 1, 2003. As an example of McLaverty's ineffective representation, Hendershot claimed that McLaverty scheduled the October 1, 2003, change of plea hearing without first establishing that Hendershot desired to plead guilty.

¶ 15 Upon further inquiry by the court, Hendershot acknowledged that the appointment of new counsel would require a delay in the trial, but he refused to waive his right to a speedy trial. He said he would need advice of counsel before making such a determination.

¶ 16 The District Court denied Hendershot's request to appoint a different lawyer stating:

I guess where I'm at here, Mr. Hendershot, is I don't find your allegations particularly credit worthy and I don't find you a particularly credible person and I think your complaints,...