State v. Winzenburg

• Citation: 411 Mont. 65,521 P.3d 752
• Decision Date: 13 December 2022
• Docket Number: DA 20-0502
• Parties: STATE of Montana, Plaintiff and Appellee, v. Nicholas Lee WINZENBURG, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

411 Mont. 65

521 P.3d 752

STATE of Montana, Plaintiff and Appellee,

v.Nicholas Lee WINZENBURG, Defendant and Appellant.

DA 20-0502

Supreme Court of Montana.

Submitted on Briefs: October 26, 2022

Decided: December 13, 2022

For Appellant: Chad Wright, Appellate Defender, Carolyn Gibadlo, Assistant Appellate Defender, Missoula, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Mardell Ployhar, Helena, Montana, Travis R. Ahner, Flathead County Attorney, Andrew C. Clegg, Deputy County Attorney, Kalispell, Montana

Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Nicholas Lee Winzenburg (Winzenburg) appeals his conviction and sentence for robbery entered in the Montana Eleventh District Court, Flathead County. We affirm.

¶2 We restate the following issues for review:¹

1. Did Winzenburg knowingly and voluntarily waive his right to counsel?

2. Should this Court exercise plain error review to address Winzenburg's unpreserved claim that the District Court should have given a specific unanimity instruction?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 The following facts were elicited through testimony at trial. On June 3, 2017, victim Solomon Franchi (Franchi) was driving to pick up his friend, Allison Boka (Boka), around midnight. On his way, he stopped to allow Winzenburg—a stranger—to cross the street. Winzenburg made a gesture that implied to Franchi that he needed a lighter. Because Franchi's car window was broken, he unlocked his door to help Winzenburg. Winzenburg opened the unlocked door and got into Franchi's car. Franchi agreed to give Winzenburg a ride, although he testified that he thought Winzenburg was "kind of scary" and "big." Winzenburg asked Franchi to take him to an apartment complex. Once they arrived at the apartment complex, Winzenburg went to a door but returned to the car after no one answered. He told Franchi, "I guess I'm mobbing with you." Franchi perceived this comment as Winzenburg telling him that he was going to hang out with Franchi for the rest of the night. Franchi did not want to hang out with Winzenburg but did not tell Winzenburg to leave because he did not want to be "impolite." Franchi proceeded to pick up Boka with Winzenburg in the car.

¶4 Boka was outside with a friend when Franchi and Winzenburg arrived at her house. Winzenburg exited the car and stood "very creepily behind" Franchi and Boka. Boka got into the car with Franchi and Winzenburg. She sat in the back seat. While they were driving, Winzenburg pulled out a can, which Franchi and Boka presumed to be an alcoholic beverage. Winzenburg told the two friends that he was recently released from prison. Franchi and Boka were intimidated and scared by this statement, so Franchi drove to the nearest grocery store parking lot to try to get Winzenburg out of the car and make him leave them alone.

¶5 After parking at the grocery store, Franchi told Winzenburg that he and Boka wanted to be left alone. Winzenburg responded, "You know what's happening, I'm robbing you." Franchi replied by handing Winzenburg money and asking again for him to leave them alone. Next, Winzenburg tried to take the keys from the car's ignition. However, Franchi was able to get the keys by grabbing a lanyard that was attached to them. Winzenburg ordered Franchi to leave his keys and phone and get out of the car. Winzenburg then threatened that he would drag Franchi out of the car if Franchi refused to comply, but Franchi took his keys and he and Boka ran from the car and called 911.

¶6 Officer Brian Struble (Struble) arrived at the grocery store after Franchi and Boka frantically flagged him down. Struble saw Winzenburg get out of the driver's seat of Franchi's car. Winzenburg walked over to Struble, and Struble arrested him. Winzenburg lied to Struble that he had known Franchi for ten years, and that Franchi and Boka walked away from the car after they had an argument. Winzenburg also gave Struble a false name. Struble talked with Franchi and Boka after Winzenburg's arrest and noticed that Franchi was visibly trembling. Franchi looked through his car and told Struble items were missing. Struble found the missing items on Winzenburg. Later, Franchi and Boka went to the police station and gave statements. A surveillance video obtained from law enforcement showed Franchi and Boka running from the car and was consistent with their statements to police.

¶7 At the end of June, Winzenburg appeared for a charge of robbery. The Justice of the Peace set bail at $50,000, appointed a public defender, and set his arraignment. Winzenburg's first counsel represented him until Winzenburg wrote a letter to the District Court ten days after charges were filed advising he no longer needed an attorney and that he would "be handling [his] case pro se." The District Court did not respond to his letter, but Winzenburg was assigned new counsel. While he was represented, Winzenburg also filed a pro se motion to dismiss his case. The Clerk of Court rejected the motion because he was represented by counsel at the time.

¶8 Winzenburg's next counsel was substituted at his arraignment on July 20, 2017. Winzenburg did not meet his new counsel before his arraignment. At the arraignment, the District Court was ready to hear argument for a bond reduction. However, Winzenburg's new counsel was not prepared to discuss bond reduction and so requested a continuance. During the arraignment, Winzenburg stated that he was "aware" of the maximum penalties and sentences for robbery based on his counsel's explanation to him. Winzenburg's counsel then told the District Court that Winzenburg "indicated he wishes to seek your approval to continue representing himself pro se."

¶9 The District Court asked Winzenburg why he desired to represent himself. Winzenburg replied, "Just dealing with the State as long as I have I just feel it's appropriate that I represent myself." The District Court asked Winzenburg whether he "understood the consequence of a robbery conviction," and told him that "the consequence for a robbery conviction is a term in the State prison of not less than two years or more than 40." Winzenburg responded, "Yes, ma'am." Again, the District Court asked Winzenburg, "And ... you could potentially be facing a significant sentence if you were convicted. You understand?" Winzenburg replied, "I do." After the District Court warned him about the "inherent disadvantages of representing [him]self," the State informed Winzenburg and the District Court that it was going to file a notice designating Winzenburg a persistent felony offender (PFO).

¶10 After this exchange, Winzenburg's counsel told the District Court that Winzenburg had reconsidered his decision to proceed pro se and would like to be represented. The District Court agreed that this decision was "the appropriate decision for [Winzenburg] to make at this point in time." The District Court also informed Winzenburg that the State will file a PFO notice that "will certainly change any sentencing options" if he was convicted. Winzenburg pleaded not guilty.

¶11 One week after the arraignment, Winzenburg appeared with counsel for a bond reduction hearing. The District Court left bond at $50,000. Subsequently, while still represented by counsel, the State filed a notice of intent to designate Winzenburg a PFO. The notice stated the penalty for a PFO—imprisonment for not less than 5 years or more than 100 years, or a fine of not less than $50,000 or both. The notice further provided that the first 5 years of the sentence could not be suspended or deferred.

¶12 On September 7, 2017, Winzenburg's counsel filed a motion to withdraw, explaining that Winzenburg wished to represent himself. The District Court held a Faretta hearing² on the motion. Once again, the District Court explained to Winzenburg, "you understand you're charged with robbery in this case, that has a sentence of not less than two years or more than 40, so you are facing a significant sentence if you were to be convicted, do you understand that?" Winzenburg affirmed, "I do." The District Court advised him about the "numerous disadvantages" of self-representation. The District Court asked Winzenburg why he wished to represent himself. Winzenburg explained that his public defender failed to meet with him after several requests because "apparently her caseload [was] too full." He further expressed that "it's important that I represent myself" because she also failed to file a motion after he asked her to do so. She told him she did not file the motion because "she was on another case." After hearing his explanation, the District Court told Winzenburg that he may be able to substitute counsel if he believes that he had a breakdown in communication with his current counsel. The District Court also informed Winzenburg that if he were to proceed pro se that he would be at a significant disadvantage because he would face an experienced prosecutor at trial and must still comply with the criminal code and trial procedures. For a second time, the District Court advised Winzenburg that his maximum penalty was 40 years and the mandatory minimum remained two years. Winzenburg acknowledged the potential penalties and still confirmed he wanted to proceed without counsel.

¶13 The District Court found that Winzenburg unequivocally, knowingly, intelligently, and voluntarily waived his right to counsel, and allowed Winzenburg to represent himself with standby counsel. The District Court also told Winzenburg that it would consider his motion to dismiss that he had previously tried to file pro se. The District Court held a status hearing before trial that confirmed Winzenburg still wanted to represent himself. The court again advised him that it was in his "best interest to proceed with counsel."

¶14 At trial, Winzenburg represented himself with standby counsel. Winzenburg declined to conduct voir dire, even though the District Court offered that standby counsel could conduct voir dire. The District...