State v. Martz, 87-287
| Decision Date | 05 August 1988 |
| Docket Number | No. 87-287,87-287 |
| Citation | 233 Mont. 136,760 P.2d 65 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Robert Darrell MARTZ, Defendant and Appellant. |
| Court | Montana Supreme Court |
Larry Jent, Bozeman, for defendant and appellant.
Mike Greely, Atty. Gen., Betsy Brandborg, Asst. Atty. Gen., Helena Wm. Nels Swandal, County Atty., Livingston, Daniel B McGregor, Deputy County Atty., for plaintiff and respondent.
Defendant Robert Martz appeals his plea of guilty and subsequent conviction of tampering with physical evidence, a felony, in violation of § 45-7-207, MCA. Martz plead guilty to the charge on January 19, 1987, in the Sixth Judicial District, Park County, in accordance with a plea agreement and was released on his own recognizance until the sentencing hearing, scheduled for February 2, 1987. Martz was arrested for various misdemeanor crimes before sentencing. At the sentencing hearing, the District Court refused the suspended sentence recommended by the State. Martz received a sentence of four years in prison. We affirm.
Defendant raises four issues on appeal:
l. Whether the District Court properly denied defendant's motion for new counsel.
2. Whether defendant received effective assistance of counsel.
3. Whether the District Court properly accepted defendant's guilty plea to the felony charge of tampering with physical evidence.
4. Whether the defendant was entitled to withdraw his guilty plea following the District Court's rejection of the plea agreement.
At 1:10 a.m. on November 1, 1986, Robert Martz was arrested in Livingston, Montana, for obstructing a police officer. While being booked, the police officer discovered in Martz's pocket a cellophane packet containing a green substance. Martz attempted to wrest the packet from the police officer and a struggle ensued. Martz gained control and swallowed the packet. He was then charged by information with the felony of tampering with physical evidence, in violation of § 45-7-207(1)(a), MCA. The defendant later claimed that he was intoxicated at the time of arrest.
Defendant appeared initially on November 14, 1986, before Park County District Court Judge Byron Robb. At the appearance Public Defender Dan Yardley was appointed counsel to Martz. Judge Robb told defendant that if Martz negotiated a plea agreement with the State, according to § 46-12-204, MCA, the court had no duty to accept a recommended sentence and was not bound to allow any guilty plea withdrawal. Defendant was then arraigned on November 21, 1986, and plead not guilty to the counts charged in the information. On December 29, 1986, Yardley filed a motion to disqualify Judge Robb for prejudice against the defendant. Judge Robb denied the motion on the grounds that (1) the defendant failed to submit an affidavit in support of the motion, as required by § 3-1-805, MCA, and (2) there was no evidence of prejudice by the District Court.
Martz filed a motion pro se for dismissal of Yardley as his counsel claiming Yardley was incompetent in the area of criminal law. The motion was filed also on the grounds of prejudice and conflict of interest claiming Dan Yardley's brother Jack had prosecuted Martz previously, causing Jack to adversely influence Dan's counseling.
The District Court denied the motion after holding a hearing sua sponte to discuss defendant's reasons for his motion. Judge Robb stated there was no prejudice simply because Dan Yardley and Jack Yardley were brothers and Jack Yardley had prosecuted Martz in a completely separate action. In addition, the District Court also appointed Jack Yardley to act as co-counsel for Martz.
On January 16, 1987, the State and Martz negotiated a plea agreement in which defendant would plead guilty to the charges of tampering with physical evidence in exchange for a recommendation to Judge Robb by the State of a four-year suspended sentence.
Martz entered a change of plea on January 19, 1987, after a detailed colloquy between Judge Robb and Martz. The District Court informed the defendant of his right to an attorney and inquired as to whether he was satisfied with the representation. The District Court addressed the right to jury trial, the maximum penalty for the crime, and the charges filed. After accepting Martz's guilty plea, the District Court directed that defendant be released on his own recognizance until sentencing.
On January 24, 1987, prior to the sentencing hearing, defendant was arrested and charged with several misdemeanors, including theft and resisting arrest.
Sentencing was held February 2, 1987. After inquiring into the crimes charged to defendant while on his own recognizance, Judge Robb explained that he did not think a suspended sentence was proper under the circumstances and sentenced defendant to four years in the Montana State Prison.
The first issue brought forth on appeal is whether the District Court properly denied appellant Martz's request for new counsel. Appellant claims that Dan Yardley is (1) incompetent in the field of criminal law, and (2) was prejudiced in his representation because he was unduly influenced by his brother Jack, who prosecuted Martz previously. In the hearing held sua sponte by Judge Robb, the defendant was informed that Dan Yardley had been a practicing attorney for thirty years and had handled criminal cases in the past. He was therefore regarded as competent counsel.
Judge Robb also addressed the complaints of prejudice. According to the court, Jack Yardley had been employed in the past as both county attorney and public defender and understood well "representing people on both sides of the table." Prejudice and conflict of interest would be present only if Jack Yardley's prosecution of Martz and the charges at issue overlapped. The District Court denied the motion because the proceedings were entirely separate.
It is within the sound discretion of the trial court to rule on the substitution of counsel. Absent a showing of abuse of that discretion, the decision will not be overturned. State v. Long (1983), 206 Mont. 40, 45, 669 P.2d 1068, 1071, citing Good v. United States (9th Cir.1967), 378 F.2d 934, 935.
When considering a motion for substitution of counsel, the trial court must inquire adequately into the complaint of the defendant and must discover whether the conflict was so great that it resulted in a total lack of communication. Brown v. Craven (9th Cir.1970), 424 F.2d 1166; United States v. Mills (9th Cir.1979), 597 F.2d 693. The District Court discovered that although Martz and Dan Yardley did not have a "meaningful relationship," they had discussed the case at length. Morris v. Slappy (1983), 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610. Martz charges that Yardley gave little encouragement of winning the case. But the court found that this was evidence that Yardley and Martz had communicated and was sufficient to warrant retaining Yardley as Martz's counsel. We hold that the District Court properly denied the motion for substitution of counsel.
Issue two is whether the defendant received effective assistance of counsel from Dan Yardley and Jack Yardley. Appellant claims that his case was prejudiced because Dan and Jack Yardley were brothers and Jack would influence Dan into giving poor representation. Also, Jack Yardley was his attorney now even though Martz had been prosecuted by him before.
The court found no merit to the accusation that Dan Yardley's representation was insufficient. Martz himself admitted at the change of plea proceedings that he was not dissatisfied with his attorney. The District Court inquired into the effectiveness of counsel:
The Court: And you have had some question about Mr. Yardley's ability or competency to advise you concerning the matter, do you feel satisfied at this time with his services to you?
Mr. Martz: Yes.
The Court: And has he in fact gone over and discussed with you the written agreement here, the acknowledgement of rights?
Mr. Martz: Yes.
The Court: Do you feel that you do understand it all right?
Mr. Martz: Yes.
The Court: Any questions that you would have about it?
Mr. Martz: None.
Appellant now claims that he was prejudiced because his counsel failed to file an affidavit with the motion for disqualification of Judge Robb and failed to investigate all possible defenses. However, we held in State v. Forsness (1972), 159 Mont. 105, 110, 495 P.2d 176, 178, and State v. Rose (1980), 187 Mont. 74, 89, 608 P.2d 1074, 1082:
Claimed inadequacy of counsel must not be tested by a greater sophistication of appellate counsel, nor by that counsel's unrivaled opportunity to study the record at leisure and cite different tactics of perhaps doubtful efficacy. Success is not the test of efficient counsel, frequently neither vigor, zeal, nor skill can overcome the truth.
Martz's own words show that the assistance of counsel was sufficient.
Appellant also contends that Jack Yardley, who was appointed co-counsel after Judge Robb denied the motion, could not adequately defend Martz because Yardley had previously prosecuted him. Appellant relies heavily on In Re Petition of Lucero (1972), 161 Mont. 136, 504 P.2d 992, in which this Court held there was prejudice between the defendant and his attorney where the attorney had originally filed the charges in the same case as the acting deputy county attorney. But here, there is no prejudice. Jack Yardley's prosecution of Martz was a completely separate case from the one at issue. In Petition of Pepperling (1973), 162 Mont. 524, 525, 508 P.2d 569, 570, it was stated that:
It is not the law that the one-time prosecution of a defendant by a former county attorney forever prohibits that attorney from defending that individual on a separate and distinct criminal charge.
Where the District Court found no prejudice, we hold that Jack Yardley was properly appointed as co-counsel for appellant Martz, and that Martz received...
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