State v. Robbins

• Decision Date: 19 November 1985
• Docket Number: No. 83-317,83-317
• Parties: STATE of Montana, Plaintiff and Respondent, v. Terry Lee ROBBINS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 227

708 P.2d 227

218 Mont. 107

STATE of Montana, Plaintiff and Respondent, v. Terry Lee ROBBINS, Defendant and Appellant.

No. 83-317.

Supreme Court of Montana.

Submitted on Briefs June 13, 1985.

Decided Sept. 23, 1985.

Rehearing Denied Nov. 19, 1985.

Terry Lee Robbins, pro se.

Mike Greely, Atty. Gen., Helena, G. Thomas Biglen, Co. Atty., Big Timber, for plaintiff and respondent.

HARRISON, Justice.

This is an appeal of a conviction from the District Court of the Sixth Judicial District, Sweet Grass County. Following a jury trial, Terry Lee Robbins was found guilty of two counts of burglary in violation of § 45-6-204, MCA, and one count of felony theft in violation of § 45-6-301, MCA. He was sentenced to ten years in the Montana State Prison under each of the burglary counts, to run consecutively, and to ten years under the felony theft count, to be served concurrently with the sentence for burglary. Defendant was designated a dangerous offender. We affirm.

Robbins and a companion, James Weaver, travelled together in a westerly direction across southern Montana in late July, 1982. They arrived in Big Timber the afternoon of August 3, 1982, and checked in as guests at the Grand Hotel. They were subsequently charged with burglarizing the game room in the hotel and a nearby sport shop in the early morning hours of August 4, 1982. The coin doors of various game machines in the hotel had been pried open and forty-seven pistols were missing from the sport shop.

The suspects were arrested by police in Twin Falls, Idaho, on August 6, 1982. Weaver pleaded guilty to the offenses charged. Robbins resisted extradition, but eventually was extradited to Montana and appeared in Sweet Grass County District Court September 20, 1982. The Honorable Jack Shanstrom, District Judge, appointed James Tulley defendant's counsel and a trial date was set. Tulley filed a motion for substitution of judge September 27, 1982. Consequently the trial date was vacated.

On September 30, 1982, Robbins moved pro se for dismissal of Tulley. In the meantime, Judge Shanstrom disqualified himself and Judge W. W. Lessley assumed jurisdiction over the cause. During the month of October Robbins filed numerous pro se motions, although at least one of those motions indicated he still considered Tulley to be acting as his counsel. The court acted on Robbins' motion for dismissal of counsel November 8, 1982. Prior to Tulley's dismissal however, Robbins pleaded not guilty to an amended information.

On November 15, 1982, the court ordered Robbins transferred to the custody of Missoula County authorities to answer theft charges against him there. Counsel was appointed for Robbins in Missoula, who negotiated with the Sweet Grass County Attorney regarding a plea bargain on the Missoula County charges. During the time Robbins was in custody in Missoula County, Judge Lessley retired and the Honorable Thomas Olson, newly elected District Judge, assumed his duties January 1, 1983. On January 6, 1983, Judge Olson ordered Robbins returned from Missoula County to Big Timber for a hearing on pending motions. Mr. Karl Knuchel assumed the duties of counsel for Robbins January 7, 1983. A trial date was set for February 23, 1983. Robbins, through his counsel, filed a motion to dismiss for lack of a speedy trial, which the court dismissed.

Robbins raises three issues on appeal:

(1) Whether he was denied his constitutional right to counsel.

(2) Whether he received effective assistance of counsel.

(3) Whether he was afforded his constitutional right to a speedy trial.

Robbins argues he was denied his constitutional right to counsel. He contends no counsel was appointed for him prior to his arraignment November 8, 1982, and therefore he was denied his right to assistance of counsel during a critical stage of the proceedings against him. The record shows this is not the case. Mr. James Tulley was appointed counsel September 20, 1982. Although Robbins filed a motion to dismiss counsel on September 30, 1982, it was not acted on until November 8, 1982. Further a subsequent motion filed by Robbins October 6, 1982, stated he was represented by Mr. Tulley. Mr. Tulley was present with Robbins at his arraignment November 8. Robbins acknowledged he was capable of entering a plea and did enter a plea of not guilty. Tulley registered no objection, with the understanding the court allow Robbins to file whatever subsequent motions might be necessary. Even if Mr. Tulley had been dismissed before Robbins entered a plea, the record indicates Robbins made an intelligent and informed plea. In any event, no prejudice resulted from the claimed absence of counsel. Robbins pled not guilty to all of the charges and did not forfeit any of his rights. In any critical stage of the proceedings a defendant may question failure to provide counsel only where potential substantial prejudice inheres in the absence of counsel. Cadena v. Estelle (5th Cir.1980) 611 F.2d 1385. See also United States v. Lacy (5th Cir.1971), 446 F.2d 511. A critical stage is any step of the proceeding where there is potential substantial prejudice to the defendant. United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; State v. Dieziger (Mont.1982), 650 P.2d 800, 39 St.Rep. 1734. Robbins has not shown, nor could he show he was prejudiced in any way at the time of his arraignment November 8.

Counsel was not appointed for Robbins before September 20 because he was in Idaho fighting extradition to Montana. Counsel was appointed for him at his first court appearance September 20. Robbins claimed a conflict of interest on the part of counsel and on September 30 filed a motion for his dismissal. The record shows counsel had done a "substantial amount" of investigative work prior to his dismissal November 8. In other words, Robbins was represented by counsel from September 20 until November 8. The court did not find a conflict of interest, but dismissed counsel because Robbins asked that he be dismissed. On November 15, Robbins was transferred to Missoula County where he was represented by court appointed counsel on the theft charges pending there. This counsel was acting on Robbins' behalf on the Sweet Grass County charges by attempting to have the charges dismissed as part of a plea bargain on the Missoula County charges.

When Robbins was returned from Missoula, Karl Knuchel was appointed counsel and immediately filed a motion for discovery. Mr. Knuchel had six and one-half weeks to prepare for the trial scheduled to begin February 23. Adequate time to prepare for trial is essential to the Sixth Amendment guarantee of effective representation of counsel. There is nothing to indicate he had insufficient time adequately to prepare. Had counsel been appointed earlier it would have been difficult to prepare for trial with Robbins in Missoula. Finally, there is no evidence Robbins was prejudiced by the late appointment of counsel.

The delay in appointment of Mr. Knuchel was not intentional. After Mr. Tulley had been dismissed, Robbins was transferred to Missoula County. Judge Lessley, who had assumed jurisdiction, retired and Judge Olson assumed jurisdiction over the case. Mr. Knuchel began working on the case within a day or two after Robbins returned from Missoula.

It is clear that Robbins was afforded his constitutional rights to counsel at all critical stages of the proceedings against him and any claimed denial of counsel for any period of time did not result in prejudice to him. Finally, "[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded [on appeal]," § 46-20-702, MCA. Robbins has failed to show violation of his right to counsel during the proceedings against him and therefore his claim is denied.

Robbins argues he did not have effective assistance of counsel. This contention, however, is contradicted by the record. The right to counsel is guaranteed by the Sixth Amendment to the United States Constitution and by Art. II, § 24 of the Montana Constitution. The court has interpreted these guarantees to mean effective assistance of counsel, State v. Bubnash (1961), 139 Mont. 517, 366 P.2d 155, and has adopted the "reasonably effective assistance" test stated as follows: "Persons accused of crime are entitled to the effective assistance of counsel acting within the range of competence demanded of attorneys in criminal cases." State v. Rose (1980), 187 Mont. 74, 86, 608 P.2d 1074, 1081. Challenging the effective assistance of counsel places a burden on a defendant to show "that the error allegedly committed by a lawyer resulted in prejudice to him and stemmed from neglect or ignorance rather than from informed professional deliberation." State v. Morigeau (Mont.1982), 656 P.2d 185, 189, 39 St.Rep. 2311, 2317.

Robbins' specific allegations of various failures of appointed counsel simply do not withstand scrutiny. There is no evidence in the record counsel refused to call defense witnesses. There is no evidence that even had certain witnesses been called they would have been more than "after the fact" witnesses. That is, the relevance of their testimony as to facts surrounding the commission of the crime would have been minimal at best. The record does not show appointed counsel opened the door to evidence of other crimes. Nor does the record support the need for a change of venue. Defense counsel argued lack of corroboration of accomplice Weaver's testimony, and he moved for a directed verdict for lack of corroboration of accomplice testimony. The record shows corroborative evidence was presented. Robbins' charge that counsel failed to move for suppression of certain evidence borders on the ridiculous. The primary evidence was the stolen guns, which were seized pursuant to a properly issued search warrant. Robbins actually volunteered to arresting officers that he had a gun on his person. There were no irregularities in Robbins'...