State v. Johnson

Decision Date12 February 2019
Docket NumberDA 17-0195
Citation435 P.3d 64,394 Mont. 245,2019 MT 34
Parties STATE of Montana, Plaintiff and Appellee, v. Todd Michael JOHNSON, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: Chad Wright, Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Scott D. Twito, Yellowstone County Attorney, Brett Linneweber, Deputy County Attorney, Billings, Montana

Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Todd Michael Johnson (Johnson) appeals from a criminal conviction in the Thirteenth Judicial District Court, Yellowstone County, arguing the court abused its discretion by denying his request for substitution of counsel. We affirm and address the following issue on appeal:

Did the District Court abuse its discretion by not substituting the defendant’s counsel?
FACTUAL AND PROCEDURAL BACKGROUND

¶2 In September 2014, the State charged Johnson, an indigent defendant, with felony aggravated assault. The District Court initially appointed attorney Michael Usleber to represent Johnson, but appointed substitute counsel John Hud in April 2015. Johnson’s felony aggravated assault charge was one of multiple pending criminal cases against him, and Hud represented Johnson in each. Johnson consistently indicated he would not waive his speedy trial rights and objected to continuance requests. The court held a trial in one of Johnson’s cases in June 2015, at which Hud represented Johnson.

¶3 The court scheduled Johnson’s felony aggravated assault trial for August 13, 2015. In July 2015, Hud suffered a serious leg injury that rendered him unavailable for Johnson’s scheduled trial. The court continued the trial and, on August 14, 2015, held a status hearing to discuss Johnson’s representation. David Duke, regional manager of the public defender’s office, appeared on Johnson’s behalf and reported that Hud was unavailable until October. Duke further explained that Hud told him "that Mr. Johnson has concerns and criticisms of [Hud] and his representation." Duke stated he would defer to the court regarding whether Johnson should receive new counsel.

¶4 The court asked for Johnson’s input. Johnson stated he told both Usleber and Hud that he opposed postponing his trial dates. He further reported that he had been trying, unsuccessfully, to get ahold of Hud for the last two months, stating that Hud did not respond to Johnson’s phone calls or letters. Johnson stated he did not know what was going on in any of his cases. Regarding Duke’s comment that Johnson had concerns with Hud’s representation, Johnson stated he had not expressed any concerns about Hud’s representation and assumed Hud was "putting words in [his] mouth."

¶5 The court told Johnson that it did not want to interfere with his representation but had noticed certain body language between Hud and Johnson at Johnson’s last trial. The court stated that, if Johnson continued with Hud as his attorney, nothing could happen until October. The court similarly noted that, if substitute counsel were appointed, it would likely take that person until October to catch up with the case. The court then looked at its schedule and discussed its upcoming trials. Johnson further explained his concerns to the court:

Your Honor, I don’t ... want to do anything that would cause me to inadvertently waive my right to a fast and speedy trial.... I’ve been trying to get my attorney to file for a motion to dismiss for lack of speedy trial and he[’s] ... refusing to do so.... [I]t’s caused some great concern to me that ... the last two attorneys I’ve had are refusing to file motions that I’ve asked them to file. And it seems like they’re doing a pretty good job of prolonging my situation after I’ve asked them numerous times not to do so. At this point, I have no idea what to do. They don’t listen to anything I’m saying.... I don’t even know if it would help my situation to get new counsel.... I honestly don’t know what to do.

¶6 After listening to Johnson’s concerns, the court described its schedule to Johnson, explaining that criminal trials rotate on six-week cycles with each judge having two designated weeks. The court determined October 19th was the soonest it could realistically reset Johnson’s trial. Johnson clarified which case would be going to trial and expressed frustration because, in the past, he did not know which case was going to trial. Johnson ultimately maintained Hud as counsel and the District Court reset trial for October 19th.

¶7 On October 19, 2015, Hud appeared with Johnson for the scheduled jury trial. During pretrial discussions, Johnson asked to address the court. Without the State present, Johnson expressed his dissatisfaction with Hud’s representation and requested the court appoint substitute counsel:

Your Honor, at this time I think it would be unfair for me to proceed with this trial with Mr. Hud as my defense counsel as he has failed to perform his duties as an attorney. He hasn’t filed any pretrial motions I’ve asked or conducted any interviews with witnesses in this matter. He has seen me less than two times ... with each visit lasting less than an hour, and he has even gone to the point of changing his number to avoid me.
I have with my supporting documents ... to support my claim that Mr. Hud has failed me as an effective defense attorney either due to incompetence or an unimaginable case load, which is neither my fault. I would ask at this time that these proceedings be postponed until a later date for good cause shown and during which time Mr. Hud is removed as my counsel of record and I be given a new attorney or given a second chair so that I may retain my Sixth Amendment right to effective assistance of counsel, Your Honor.

¶8 Following Johnson’s complaints, the District Court asked Hud if he had any comments. Hud stated that some of what Johnson said was accurate while some was not, but that he was not certain to what extent he should respond. The court responded by reviewing Johnson’s representation in the case. In April 2015, the court substituted Usleber, the attorney it initially appointed Johnson, with Hud. In August 2015, Johnson complained about Hud’s representation but ultimately decided to proceed to trial with Hud as his counsel. The court pointed out the fact that the August conversation occurred months ago, but Johnson was renewing his complaints "minutes before we’re going to start the trial."

¶9 The court then denied Johnson’s request and told Johnson that he could either go to trial with Hud as his attorney or represent himself. The court also mentioned that it was not too late to discuss a plea agreement. Johnson responded that the only plea agreement Hud told him about was out-of-date. Hud then more specifically responded to Johnson’s allegations. He stated that he had not changed his phone number and did not know why Johnson believed he had. He further stated that he had explained to Johnson that he has an obligation to not file frivolous motions. He explained that two Fridays ago he had a heated, almost two-hour long meeting with Johnson. He further explained that their last meeting was cut short when Johnson stormed out of the meeting, angry with Hud. Hud reported that Johnson provided him with the names of two witnesses, both of whom Hud spoke with.

¶10 The District Court reiterated its earlier ruling denying Johnson’s request for substitute counsel: "Okay. Well, it’s 9 o’clock, it’s time for trial, so any motion regarding new counsel is denied. So let’s go out there." Hud then asked Johnson if Johnson wanted to represent himself, and the court stated, "My impression from you was that you were not going to represent yourself; is that correct?" Johnson replied, "That’s correct, Your Honor," and the case proceed to trial at which Hud represented Johnson. The jury found Johnson guilty of felony aggravated assault.

¶11 On February 29, 2016, the parties convened for sentencing, at which time Hud advised the court that Johnson had filed a formal complaint against him. Hud thought it was inappropriate for him to continue to represent Johnson but that the public defender’s office was reluctant to assign new counsel so late in the case except for the purposes of filing an appeal. Hud stated that he tried to discuss Johnson’s presentence investigation report with Johnson, but it "got to the point that our communication has totally broken down, and I don’t think I should be representing him at this sentencing hearing." Hud continued, "I don’t think I can elaborate any more on that, certainly not with prosecutors in the courtroom, but to say the least, things got very heated."

¶12 The court excused everyone except for Hud and Johnson and then asked Johnson to explain the situation to the court. After a dialogue between the District Court, Johnson, and Hud, the court decided to appoint Johnson a new attorney and continued the sentencing hearing. Johnson was later sentenced to twenty years’ incarceration. He now appeals, arguing the District Court abused its discretion when it denied his October 19th request for substitute counsel.

STANDARD OF REVIEW

¶13 A request to substitute counsel is within the sound discretion of the district court, reviewed for an abuse of discretion. State v. Aguado , 2017 MT 54, ¶ 8, 387 Mont. 1, 390 P.3d 628 ; State v. Cheetham , 2016 MT 151, ¶ 13, 384 Mont. 1, 373 P.3d 45. A district court abuses its discretion if it acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. Cheetham , ¶ 13.

DISCUSSION

¶14 The United States Constitution and the Montana Constitution guarantee a criminal defendant the right to effective assistance of counsel. U.S. Const. amend. VI ; Mont. Const. art. II, § 24. The right to effective assistance of counsel does not, however, grant ...

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6 cases
  • State v. Rodriguez
    • United States
    • Montana Supreme Court
    • March 16, 2021
    ...conflict between counsel and the defendant; or (3) a complete breakdown in communication between counsel and the defendant." State v. Johnson , 2019 MT 34, ¶ 19, 394 Mont. 245, 435 P.3d 64. "A defendant is not entitled to substitute counsel based on a general claim of ineffective assistance......
  • State v. Hawk
    • United States
    • Montana Supreme Court
    • January 17, 2023
    ... ... of ineffective assistance of counsel ...          ¶22 ... Hawk was entitled to more than the chance to advocate for ... himself; he was entitled to adequate representation at all ... critical stages in the proceedings. In State v ... Johnson, 2019 MT 34, ¶ 20, 394 Mont. 245, 435 P.3d ... 64, we held that a district court assessing the need for ... substitute counsel must focus its inquiry of an alleged ... conflict or breakdown in the counsel-client relationship and ... determine whether the defendant demonstrated good cause ... ...
  • State v. Khongwiset
    • United States
    • Montana Supreme Court
    • August 25, 2020
    ...of his or her choice or to a meaningful relationship with counsel but is entitled to counsel that may mount an adequate defense. State v. Johnson , 2019 MT 34, ¶ 17, 394 Mont. 245, 435 P.3d 64. The defendant's right to substitute counsel arises only when a breakdown of the attorney-client r......
  • State v. Witkowski
    • United States
    • Montana Supreme Court
    • November 16, 2021
    ...of interest" or that an irreconcilable conflict or complete breakdown of communication exists between client and counsel. State v. Johnson , 2019 MT 34, ¶¶ 22 and 27, 394 Mont. 245, 435 P.3d 64. If not, the request has no merit and the inquiry ends. Johnson , ¶ 22; City of Billings v. Smith......
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