State v. Schowengerdt

• Decision Date: 19 May 2015
• Docket Number: No. DA 13–0777.,DA 13–0777.
• Citation: 348 P.3d 664,379 Mont. 182,2015 MT 133
• Parties: STATE of Montana, Plaintiff and Appellee, v. Dennis Leo SCHOWENGERDT, Defendant and Appellant.
• Court: Montana Supreme Court

379 Mont. 182

348 P.3d 664

2015 MT 133

STATE of Montana, Plaintiff and Appellee

v.Dennis Leo SCHOWENGERDT, Defendant and Appellant.

No. DA 13–0777.

Supreme Court of Montana.

Submitted on Briefs April 1, 2015.

Decided May 19, 2015.

For Appellant: Wade Zolynski, Chief Appellate Defender; David Dennis ; Koan Mercer, Assistant Appellate Defenders; Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General; Mardell Ployhar, Assistant Attorney General; Helena, Montana, Lewis K. Smith, Powell County Attorney; Deer Lodge, Montana.

Opinion

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Dennis Leo Schowengerdt (Schowengerdt) appeals from the judgment and sentence entered by the Third Judicial District Court, Powell County, following the entry of his guilty plea to the charge of deliberate homicide. Schowengerdt challenges the denial of his request for the appointment of new counsel and alleges his right to effective assistance of counsel was violated. We remand for further proceedings on a limited issue.

¶ 2 The parties raise the following issues on appeal:

1. Did the District Court adequately inquire into Schowengerdt's complaint that defense counsel had rendered ineffective assistance of counsel?

2. Did Schowengerdt receive ineffective assistance of counsel?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 On December 10, 2012, the State filed an information charging Schowengerdt with one count of deliberate homicide. The State alleged by affidavit that on December 8, 2012, just before midnight, Schowengerdt repeatedly stabbed his wife, Tina Schowengerdt, resulting in her death. The affidavit further stated that, the following morning, Schowengerdt entered the Powell County Law Enforcement Center and provided a full confession.

¶ 4 On January 2, 2013, Steven Scott (Scott) of the Office of the State Public Defender (OPD) was assigned as counsel for Schowengerdt. On January 17, Scott filed a “Notice of Intention” in which he advised that Schowengerdt intended to plead not guilty and assert the affirmative defense of justifiable use of force. However, on April 2, Schowengerdt agreed to plead guilty to deliberate homicide, without the benefit of a plea agreement. In a handwritten statement, Schowengerdt admitted killing his wife: “I knowingly stabbed Tina Schowengerdt with a knife causing her death. This occurred on 12/8/12.” During the ensuing change of plea hearing, Schowengerdt indicated that he was satisfied with the services of his attorney and was voluntarily entering his plea. During the plea colloquy, Schowengerdt stated he did not want to proceed to trial because “I can't handle it.” Schowengerdt admitted that he stabbed Tina with a knife knowing that it would cause her death. The District Court accepted Schowengerdt's guilty plea, and the matter was set for sentencing.

¶ 5 On June 12, Schowengerdt sent a handwritten letter to the District Court, seeking the appointment of new counsel. The letter stated as follows:

I am Requesting a Withdraw as My Attorney at this time Mr Steve ScottI AM Requesting For proper Reputation in My case

Two days later, Scott filed a motion for withdrawal of Schowengerdt's guilty plea. In his supporting brief, Scott explained: “Mr. Schowengerdt, during a visit with his attorney, Mr. Scott, stated he wants to withdraw his plea of guilty and proceed onto trial in this case. Mr. Schowengerdt indicated he made a mistake when he entered into the plea and now wishes to withdraw his plea and proceed to trial.” Scott further added, “It is my duty as a licensed attorney in Montana to point out to the Court there is not any case law in Montana to support Mr. Schowengerdt's position as to the withdraw of plea.”

¶ 6 On June 17, the District Court ordered Scott to submit a memorandum explaining Scott's position regarding his continued representation of Schowengerdt and the “Public Defender's position with respect to providing Schowengerdt with new counsel.” Scott did so, stating that he had “no problem with continuing to represent” Schowengerdt and that he did not believe there had been a breakdown of the attorney-client relationship, and describing the process by which Schowengerdt could file a complaint with OPD.

¶ 7 On July 2, the District Court convened a hearing to address Schowengerdt's letter for change in representation. The court stated to Schowengerdt that it was unclear from his letter why he did not want Scott to be his attorney, after which the following colloquy occurred:

[Schowengerdt]: Can I explain it to you?

[Court]: Go ahead.

[Schowengerdt]: All right. Early on, back in December, might have been January, but it was early on—

[Court]: Well, Mr. Schowengerdt, let me stop you there. You're starting to tell a story. I'm going to remind you that you have a right to remain silent. The things you say in court can wind up to be to your prejudice in the future.

[Schowengerdt]: It seems like I've already spoke about everything that's got me here.

Thus, at the point Schowengerdt was going to explain his dissatisfaction with his assigned counsel, the court interrupted him and Schowengerdt was never provided another chance to speak to the issue. Instead of inquiring into Schowengerdt's objections, the court directed him to follow the OPD's process for obtaining substitute counsel:

[Scott]: Dennis, do you want a different attorney from the Public Defender's Office?

[Schowengerdt]: Yes.

[Court]: All right. If that's what you're driving at, you need to communicate with the Public Defender's Office rather than me and tell them why you think you should have a different lawyer, and then they will tell me whether or not they'll give you one.

...

[Court]: If they do not give you a different lawyer, then you have—we're going to be looking at: Okay, am I going to let Mr. Scott off the hook in this case or not?

¶ 8 On August 27, the District Court conducted a hearing on Schowengerdt's motion to withdraw his plea. At the outset of the hearing, the court inquired whether the issue of Schowengerdt's representation had been resolved. Scott explained that the OPD had denied Schowengerdt's request for a new counsel, and that Schowengerdt had not administratively appealed the decision. The court then responded:

All right. So the matter is concluded then. The matter has run its course. We had a hearing. We made it apparent to Mr. Schowengerdt what procedure he was to follow. He followed the procedure. A decision was made. It has not been appealed, and Mr. Steven Scott remains Schowengerdt's attorney.

So we'll proceed, then, to the Defendant's motion to withdraw his plea of guilty on the singular charge of deliberate homicide.

¶ 9 In contrast to its prior statements, the District Court did not inquire further into the basis for Schowengerdt's complaints concerning his counsel. Moving to argument on the motion to withdraw the guilty plea, Scott stated he did not “have anything to add beyond what is in the motion in this matter.” Scott explained: “It was during a visit with Mr. Schowengerdt that he asked me ... to file a motion to withdraw his plea. He did not have a basis to give to me as to why he felt his plea should be withdrawn.... It was simply that Mr. Schowengerdt changed his mind and would like to be able to withdraw his plea.”

¶ 10 Following Scott's statement, the court gave Schowengerdt an opportunity to address the withdrawal of his plea. Schowengerdt indicated that he was “not prepared for this,” and then stated: “I don't think I'm guilty. I know what the outcome was, but I think I was fighting for my life.” Scott concluded by stating: “all I have is that Mr. Schowengerdt has asked me to file the motion to withdraw his guilty plea. I don't have any case law on my side to support that motion, but we're just simply asking—Mr. Schowengerdt is simply asking he be allowed to withdraw his plea and continue to trial.”

¶ 11 The District Court denied Schowengerdt's motion to withdraw his plea, concluding that the “Defendant has not in any way asserted his plea of guilty was involuntary and there is no basis in the record to conclude Defendant's guilty plea was involuntary.” The District Court sentenced Schowengerdt to life in the Montana State Prison.

¶ 12 Schowengerdt appeals.

STANDARD OF REVIEW

¶ 13 We review a district court's denial of a request for substitution of counsel for an abuse of discretion. Halley v. State, 2008 MT 193, ¶ 11, 344 Mont. 37, 186 P.3d 859.

¶ 14 “Ineffective assistance of counsel claims raise mixed questions of law and fact that we review de novo.” State v. Savage, 2011 MT 23, ¶ 20, 359 Mont. 207, 248 P.3d 308.

DISCUSSION

¶ 15 1. Did the District Court adequately inquire into Schowengerdt's complaint that defense counsel had rendered ineffective assistance of counsel?

¶ 16 Schowengerdt challenges the adequacy of the District Court's inquiry into his request for new counsel. He argues that the court failed to inquire into his complaints concerning his representation to determine if they were “seemingly substantial.” The State counters that the District Court conducted an adequate inquiry because Schowengerdt did not appeal the decision of the OPD and Schowengerdt failed to “provide specific complaints about” his counsel, instead only making “vague statements about wanting proper representation or not thinking that he had been represented properly.” Alternatively, the State argues, citing our decision in State v. Edwards, 2011 MT 210, 361 Mont. 478, 260 P.3d 396, that “[e]ven if the district court did not conduct an adequate initial inquiry, that does not require reversal because Schowengerdt did not raise a complaint that communications had broken down or that he feared his counsel would fail to effectively represent him going forward to sentencing.”

¶ 17 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. If a defendant asserts a claim of ineffective assistance of counsel,...