Wilson v. State, 98-595.

• Decision Date: 05 November 1999
• Docket Number: No. 98-595.,98-595.
• Parties: Nick Lenier WILSON, Petitioner and Appellant, v. STATE of Montana, Respondent and Respondent.
• Court: Montana Supreme Court

989 P.2d 813

1999 MT 271

Nick Lenier WILSON, Petitioner and Appellant, v. STATE of Montana, Respondent and Respondent.

No. 98-595.

Supreme Court of Montana.

Submitted on Briefs May 13, 1999.

Decided November 5, 1999.

Chad Wright, Appellate Defender Office; Helena, Montana, for Appellant.

Hon. Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General; Helena, Montana, Kim Christopher, Lake County Attorney; Mitchell A. Young, Deputy County Attorney; Polson, Montana, for Respondent.

Justice TERRY N. TRIEWEILER delivered the Opinion of the Court.

¶ 1 Petitioner Nick L. Wilson was convicted of burglary and felony theft in the District Court for the Twentieth Judicial District. Wilson later filed a pro se petition for postconviction relief alleging ineffective assistance of counsel. The District Court appointed the Montana Appellate Defender to represent Wilson. Wilson then moved for summary judgment. The District Court conducted a combined hearing to consider the summary judgment motion and the postconviction petition. The District Court granted Wilson's motion for summary judgment and concluded it had erred by denying him a hearing when he requested substitution of counsel, but denied his petition for postconviction relief on the basis that Wilson had received a fair trial. Wilson appeals the denial of his petition for postconviction relief. We reverse and remand for further proceedings consistent with this opinion.

¶ 2 The sole issue on appeal is:

Did the District Court err when it based its decision on counsel's performance at trial, rather than whether Defendants' motion for substitution should have been granted?

FACTUAL BACKGROUND

¶ 3 Nick Wilson and Burton Pendleton were arrested January 21, 1995. Both men were charged with burglary and theft on February 16, 1995, and both were appointed the same public defender, Benjamin Anciaux.

¶ 4 Anciaux testified that although he did not recall the dates, he interviewed both Wilson and Pendleton. Wilson testified that he first spoke with Anciaux by phone for five to ten minutes a day or two after the deputy sheriff told him the court had appointed Anciaux to represent him. The State dropped its charges against Pendleton and listed him as a potential witness against Wilson in its Information filed March 6, 1995.

¶ 5 Wilson met Anciaux in person for the first time shortly before Wilson's arraignment March 8, 1995. At the arraignment, without consulting Anciaux, Wilson complained that Anciaux had a conflict of interest because Anciaux represented both Wilson and Pendleton. Wilson requested a new lawyer. The county attorney instructed Wilson that he had dismissed the charges against Pendleton and that there was no longer a conflict of interest. Wilson said nothing further. Wilson testified that Anciaux said nothing on the record at the arraignment, but when Wilson finished speaking and sat down, Anciaux called him a "fucking idiot." Wilson testified that he was the only person in the courtroom to hear Anciaux's remark.

¶ 6 On March 29, 1995 Anciaux met Wilson at the jail and presented him with a written plea proposal, which Wilson rejected. It included a recommended sentence of 30 years with 10 years suspended. Wilson told Anciaux that he would plead guilty to misdemeanors or accept a 10-year prison sentence. Wilson testified that Anciaux then left the room and returned a short time later telling Wilson "no" to his counter offer. Anciaux testified that this was the only time he recalled discussing plea negotiations with Wilson, but that his notes indicated that he had discussed a plea agreement with Wilson on three occasions.

¶ 7 Wilson completed three inmate special request forms asking to speak to Judge C.B. McNeil. His second request on April 19, 1995 was accompanied by a letter requesting a new lawyer. In the letter, Wilson complained that Anciaux was prejudiced against him and disinterested in his case. Specifically, Wilson claimed that Anciaux verbally insulted him at the arraignment and failed to deliver a copy of the case file, which Wilson had requested. Without the benefit of a hearing, Judge McNeil denied Wilson's request for a new lawyer and gave Wilson three options: hire his own lawyer, proceed pro se, or continue with Anciaux as his lawyer. Wilson continued with Anciaux.

¶ 8 Wilson asserts that he lacked substantive contact with Anciaux and that Anciaux failed to keep him informed about the progress of his case. He contends that he and Anciaux had a breakdown in communication prior to trial. As a result, Wilson claims, he was denied effective assistance of counsel.

¶ 9 The State responds that Wilson met with Anciaux several times and that Wilson and Anciaux communicated sufficiently well to present an adequate defense. The State also argues that Wilson's relationship with Anciaux did not prejudice Wilson at trial. The District Court agreed.

ISSUE

¶ 10 Did the District Court err when it based its decision on counsel's performance at trial, rather than whether Defendants' motion for substitution should have been granted?

STANDARD OF REVIEW

¶ 11 The standard of review of a district court's conclusions of law is whether the court's interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686; see also Kreger v. Francis (1995), 271 Mont. 444, 447, 898 P.2d 672, 674

; Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-04.

¶ 12 An indigent criminal defendant has a fundamental right to effective assistance of counsel guaranteed by the Sixth Amendment, the due process clause of the Fourteenth Amendment, and the Montana Constitution. U.S. Const. amend. VI; Powell v. State of Alabama (1932), 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158; Mont. Const. art. II, § 24 ("In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel.. . ."). The purpose of the right to counsel is to insure that the defendant receives a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674. To insure the defendant a fair trial counsel must be effective. Strickland, 466 U.S. at 686,104 S.Ct. at 2063. In Strickland, the United States Supreme Court established a two-part test to determine when counsel is ineffective:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial. . . .

466 U.S. at 687, 104 S.Ct. at 2064 (emphasis added). Generally, the defendant must establish both parts of the test to prevail. State v. Jones (1996) 278 Mont. 121, 133, 923 P.2d 560, 567. However, in some cases counsel's performance is so deficient a presumption of ineffectiveness arises and the second part of the test becomes unnecessary. United States v. Cronic (1984), 466 U.S. 648, 660, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657. "[O]nly when surrounding circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel's actual performance at trial." Cronic, 466 U.S. at 661, 104 S.Ct. at 2048.

¶ 13 In this case, the District Court found that Wilson was not prejudiced by Anciaux's performance. The District Court applied the second part of the Strickland test, but failed to inquire into the possibility that Anciaux's performance raised a presumption of ineffectiveness.

¶ 14 Specifically, the District Court concluded:

3. That Wilson failed to raise seemingly substantial complaints about Anciaux's performance as trial counsel. Wilson's complaint that Anciaux did not like him is insufficient to establish a breakdown in communications sufficient to affect counsel's performance. Wilson's complaints about the frequency of his contact with Anciaux failed to establish any lack of diligence on Anciaux's part, and Wilson was unable to describe how Anciaux could have established a better defense at trial.

. . . .

8. That Wilson failed to show that, but for his attorney's performance, the outcome of the trial would have been different.

¶ 15 However, as stated in Powell v. Alabama, the pretrial period is critical:

[D]uring perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself.

287 U.S. at 56, 53 S.Ct. at 59-60.

¶ 16 For example, Wilson had a right not only to effective representation at trial; he had a right to meaningful representation during plea bargaining. In this case, the State offered a 30-year sentence with 10 suspended. Wilson rejected that offer and was ultimately sentenced to 50 years with 10 suspended — twice the actual time. Anciaux testified that Wilson's chances at trial were "slim to none." However, there is no evidence that he communicated that fact to Wilson prior to his rejection of the State's offer.

¶ 17 While a presumption of ineffectiveness can arise under other circumstances, in the context of this case, the presumption could have arisen: (1) by an actual conflict of interest or (2) by an irreconcilable conflict. United States v. Moore, 159 F.3d 1154, 1158 (9th Cir.1998); see also Jones, 278 Mont. at 133,

923 P.2d at 568. In either case, once the presumption is established the defendant does not need to satisfy the second part of the Strickland test. Moore, 159 F.3d at 1158; Frazer v. United States (9th Cir.19...