City of Missoula v. Fogarty

September 5 2013
DA 12-0300
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 254CITY OF MISSOULA,
Plaintiff and Appellee,
v.
MICHELLE RENEE FOGARTY,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause Nos. DC 12-25, DC 12-26,
DC 12-28, DC 12-29
Honorable Robert L. Deschamps, III, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Johnna K. Baffa, Van de Wetering Law Offices, P.C., Missoula, MT
For Appellee:
Timothy C. Fox, Montana Attorney General; Pamela P. Collins, Assistant
Attorney General, Helena, Montana
Jim Nugent, Missoula City Attorney; Tiffany Heaton, Deputy City Attorney,
Missoula, Montana
Submitted on Briefs: April 24, 2013
Decided: September 5, 2013
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 This appeal arises out of four misdemeanor criminal cases filed against Michelle
Renee Fogarty in the Missoula Municipal Court. The cases were heard in bench trials, all
held on the same day, at which Fogarty represented herself. Fogarty appealed her
convictions to the Fourth Judicial District Court, Missoula County, on grounds that she had
been denied her constitutional right to counsel. The District Court generally affirmed the
convictions, and Fogarty now appeals to this Court. We affirm.
BACKGROUND
¶2 The first of the four cases here on appeal was an October 2010 charge of no proof of
motor vehicle insurance. An attorney from the Missoula Office of Public Defender (OPD)
was appointed to represent Fogarty. Although she was represented by counsel, Fogarty filed
several rambling pro se documents in which she, among other things, complained that her
counsel was “accusatory and bullying” and was not properly representing her. At a March 9,
2011, status hearing, Fogarty told the court she had defended herself before, in a proceeding
in Minnesota, she had done a better job than the public defender, and she would be
proceeding pro se. Following a dialogue about Fogarty’s competence, Fogarty told the court
she would not cooperate with a mental health evaluation to determine if she was competent
to proceed to trial. “Being not trained as an attorney does not make you . . . have mental
disease.” The court appointed Robin Ammons as standby counsel to assist her, but Fogarty
declared she would not be asking Ammons for any help. Later, another contract public
defender (Sandefur) was appointed to represent Fogarty, but he subsequently withdrew on
2
grounds of a breakdown in the attorney-client relationship, and yet another contract public
defender took over. That attorney was allowed to withdraw upon his motion, filed at
Fogarty’s request.
¶3 In the meantime, in November of 2010, Fogarty was charged with resisting arrest and
violating a privacy in communication statute by electronically using profane/obscene
language with the purpose to harass. OPD filed a notice of appearance, followed by notice
of appearance by conflict counsel contracting with OPD. Again, although Fogarty was
represented by counsel, she filed voluminous rambling handwritten documents, including
complaints that her counsel was threatening her, and a request to meet with the judge
“regarding some appropriate legal representation.”
¶4 Also in the meantime, Fogarty was charged with criminal contempt and disorderly
conduct during a March 9, 2011, court appearance. A regional deputy public defender
entered notices of appearances of two private attorneys, in succession, who contracted with
OPD to represent Fogarty. The first of those two contract attorneys advised the court he had
concerns about Fogarty’s ability to assist in her defense and was in the process of
investigating this issue. He later was allowed to withdraw on grounds of a breakdown in the
attorney-client relationship. The next contract attorney (Foley) moved to withdraw on
grounds that Fogarty had created a conflict of interest by making allegations that Foley and
her law firm had acted unethically. Attorney Birdsong entered an appearance but later
moved to withdraw on grounds that Fogarty had told him she no longer wanted him to
represent her.
¶5 The fourth group of charges involved in this appeal arose in August of 2011, when
3
Fogarty was charged with disorderly conduct and resisting arrest in a Missoula restaurant. In
that case, the court granted two attorneys’ motions to be allowed to withdraw—the first, at
Fogarty’s request, and the second, due to conflicts of interest that arose after Fogarty made
complaints about the attorney. At that point, the court ordered that any further filings should
be sent to Fogarty personally.
¶6 On November 3, 2011, the Missoula regional OPD office filed notice that Lisa
Kauffman, a contract attorney with OPD, would be appearing for Fogarty in the first three of
the above four cases. Then, on November 7, 2011, Fogarty appeared in the Missoula
Municipal Court for a preliminary hearing on all four cases, held before retired District
Judge Harkin. Kauffman did not appear. The court asked Fogarty if she had a new attorney,
and Fogarty replied she felt she should represent herself at her trials, all four of which had
been scheduled for December 22, 2011. At that point, the following exchange occurred:
Judge: You want to represent yourself?
Fogarty: Yeah.
Judge: Okay, that’s fine. You have the right to do that and so all we need
now is for you to sign this little form here. And this is the form that will tell
you what day you should be getting your—
Fogarty: Here?
Judge: Yeah. Here’s your copy.
Fogarty: Okay.
Judge: And that’ll be—the day you should get your notice of the trial is
December 16.
Judge Harkin then went on to make sure Fogarty had information on all the evidence the
4
State would be using against her. Two days later, Kauffman moved to withdraw in the three
cases in which her appearances had been entered, on grounds that OPD had instructed her to
do so and that she had received notice from the Clerk of the Municipal Court that Fogarty
had indicated she wanted to proceed pro se.
¶7 On December 22, 2011, just before the first of the four bench trials began, the
Municipal Court judge reviewed with Fogarty the possible penalties for the offenses charged.
The court then asked Fogarty whether she had previous experience in trials. Fogarty
responded at some length on that and several related subjects, including describing the
Minnesota case in which she stated she had been forced to plead guilty. She also complained
that her right to speedy trial has been violated in the matters pending before the Municipal
Court. Fogarty stated, “I feel I should have an attorney that will effectively represent me, but
that has not happened.” The court responded:
[O]ne of the things is you can’t keep firing your lawyers. That’s the problem
because that’s pretty much a rejection of being represented by an attorney. . . .
What I’m only inquiring about is I want to make sure that you’re capable of
representing yourself. You seem to be very capable of that. You know the
penalties involved here. You’ve had experience with the legal system. You
are an articulate, thinking person and I think you can represent yourself.
Fogarty then replied that she did not want to “go to jail for a year based on all these cops
coming around the courtroom here and nobody else present. I’m a little concerned.” The
judge advised her that the officers in the courtroom were witnesses for the trials. After
Fogarty responded with complaints about corruption of police officers, the court stated, “I
determine that you are able to represent yourself today.”1
1
Despite the trial court’s specific determination that Fogarty was capable of representing herself,
5
¶8 Fogarty pled guilty to driving without insurance and the court fined her $250 on that
charge. Following the bench trials, the court found Fogarty guilty on all of the remaining
charges. It sentenced her to 10 days in jail for disorderly conduct; 180 days in jail, all
suspended, for criminal contempt; 10 days in jail for disorderly conduct and 180 days in jail
for resisting arrest, with 180 days suspended; 180 days in jail, suspended with conditions, for
violation of privacy in communications; and 180 days in jail, suspended, for resisting arrest.
¶9 On appeal, the Fourth Judicial District Court stated “It is clear from the record that
[Fogarty] is a disturbed person who has a great deal of difficulty dealing with other people.”
The court set forth the histories of the various cases before it on appeal. Relying on case
law regarding defendants who had not unequivocally requested to proceed pro se or waived
their right to counsel, but who were found to have effectively waived their right to counsel
by their dilatory conduct hindering the efficient administration of justice, the court
determined the Municipal Court had made the appropriate balancing decision between
Fogarty’s right to counsel and her “refus[al] to work with everyone appointed to represent
[her].” The court generally affirmed the judgments entered in the Municipal Court.
However, it set aside and dismissed Fogarty’s conviction of disorderly conduct during her
March 9, 2011, court appearance, on double jeopardy grounds.
the dissent asserts that her “mental health issues” or her “compromised mental health” were bases
enough to require reversal of the courts’ decisions below. Nothing in the record substantiates that
Fogarty was unable to proceed without counsel. Neither party nor any of the prior counsel moved
the court for an expert mental evaluation and, as noted, Fogarty specifically rejected the need for an
evaluation. As this Court has previously held, even when facing involuntary mental commitment,
individuals can nevertheless be fully competent to waive basic fundamental rights. In re R.W.K.,
2013 MT 54, 369 Mont. 193, 297 P.3d 318; In re P.A.C., 2013 MT 84, 369 Mont. 407, 298 P.3d
1166. If anything, the record shows that Fogarty was capable of deciding to represent herself.
6
STANDARDS OF REVIEW
¶10 Where there is a question of whether a defendant has waived her right to counsel, we
will not disturb the district court’s findings “as long as substantial credible evidence exists to
support that decision.” State v. Clary, 2012 MT 26, ¶ 12, 364 Mont. 53, 270 P.3d 88. We
defer to a trial court’s consideration of a request to appoint new counsel “and the court’s
determination will be sustained absent an abuse of discretion.” State v. Craig, 274 Mont.
140, 149, 906 P.2d 683, 688 (1995).
DISCUSSION
¶11 The Sixth Amendment to the United States Constitution and Article II, Section 24, of
the Montana Constitution guarantee persons charged with criminal offenses the right to the
assistance of counsel. Since Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963), an
indigent defendant in a criminal matter is entitled to have an attorney appointed at public
expense. Craig, 274 Mont. at 148, 906 P.2d at 688.
¶12 A defendant may, however, waive the right to counsel, as long as the court determines
the waiver is voluntary, knowing, intelligent, and unequivocal. Faretta v. California, 422
U.S. 806, 835, 95 S. Ct. 2525, 2541 (1975); § 46-8-102, MCA. No particular sort of
questioning or inquiry is required before a trial court allows a defendant to represent himself
or herself, so long as the court is satisfied that the defendant is “aware of the dangers and
disadvantages of self-representation, so that . . . ‘he knows what he is doing and his choice is
made with eyes open.’” State v. Langford, 267 Mont. 95, 99, 882 P.2d 490, 492 (1994),
quoting Faretta, 422 U.S. at 835, 95 S. Ct. at 2541. “In applying the Faretta standard, we
have repeatedly held that a trial court is not required to advise a defendant specifically of the
7
dangers and disadvantages of self-representation as long as the court makes inquiry of the
defendant to the extent it deems necessary to ensure that the defendant’s waiver of counsel is
voluntary, knowing, and intelligent.” State v. Insua, 2004 MT 14, ¶ 19, 319 Mont. 254, 84
P.3d 11.
¶13 Further, a defendant’s waiver of the right to counsel must be evaluated in light of the
record as a whole. United States v. Gerritsen, 571 F.3d 1001, 1008 (9th Cir. 2009). The
reviewing court may look to the circumstances of prior proceedings in the case to determine
whether the defendant’s waiver was knowing and voluntary. United States v. Erskine, 355
F.3d 1161, 1170 n.11 (9th Cir. 2004). “A properly-conducted Faretta colloquy need not be
renewed in subsequent proceedings unless intervening events substantially change the
circumstances existing at the time of the initial colloquy.” U.S. v. Hantzis, 625 F.3d 575,
580-81 (9th Cir. 2010).
¶14 In addition, a defendant who does not unequivocally request to proceed pro se and
does not expressly waive her right to counsel may effectively do so by failing to cooperate
with a court-appointed attorney. Craig, 274 Mont. at 148, 906 P.2d at 688; Hantzis, 625
F.3d at 583. And “[b]are unsupported allegations are insufficient to establish the total lack
of communication required to warrant appointment of new counsel.” Robinson v. State,
2010 MT 108, ¶ 22, 356 Mont. 282, 232 P.3d 403.
¶15 In the present case, Fogarty contends the Municipal Court clearly abused its discretion
when it made no inquiry at the November 7 hearing about the absence of her newly-
appointed attorney, Lisa Kauffman. She further contends that, because the court did not
enter a written order allowing Kauffman to withdraw, Kauffman was her attorney of record
8
on December 22, 2011.
¶16 At the outset of the November 7 hearing, Fogarty told the court she wished to proceed
pro se. As a result, and given the histories of these cases, any procedural errors by the court
in beginning that hearing without Kauffman’s presence and in failing to later enter a written
order granting Kauffman’s motion to be allowed to withdraw did not result in any
deprivations of Fogarty’s rights.
¶17 Fogarty argues the Municipal Court clearly abused its discretion in finding her
capable of representing herself at trial. We disagree. Fogarty had refused to pursue any
inquiry into a possible claim that she was mentally incompetent for purposes of defending
the charges against her. She told the court she had represented herself in criminal
proceedings before, in Minnesota. In discussing the current charges against her, while she
tended to ramble into other matters, she also was able to discuss the particulars of the current
charges, and certainly seemed to comprehend the possible penalties she faced if convicted.
A court cannot deny a request to represent oneself on the basis that the defendant would not
do so adequately. State v. Swan, 2000 MT 246, ¶ 18, 301 Mont. 439, 10 P.3d 102.
¶18 Fogarty cites State v. Hass, 2011 MT 296, ¶ 21, 363 Mont. 8, 265 P.3d 1221, for the
proposition that it is a violation of a criminal defendant’s constitutional right to counsel for a
court to allow the defense attorney to withdraw, without notice to the defendant, and then to
proceed to trial without first obtaining from the defendant a waiver of the right to counsel.
That is not the sequence of events that occurred in the present case, however.
¶19 The facts of this case are more similar to those in Hantzis. In that case, Hantzis was
charged with possession of methamphetamine with intent to distribute. He went back and
9
forth on whether he wanted to be represented by counsel or to proceed pro se, and he
personally filed many motions even when he was represented by counsel. The trial court
eventually granted Hantzis’s motion to proceed pro se. On appeal, Hantzis argued he had
been denied his right to counsel on grounds that the court’s Faretta colloquy with him had
been inadequate. The appeals court disagreed, stating that waiver of the right to counsel
must be evaluated in light of the record as a whole, and the court may look to the
circumstances of prior proceedings in the case to determine whether the defendant’s waiver
was knowing and voluntary. Hantzis, 625 F.3d at 580.
¶20 The dissent’s reliance on § 37-61-403, MCA, to support the argument that proper
change-of-attorney procedures were not followed here is misplaced. That statute allows for a
change of attorney “upon order of the court, upon application of either client or attorney.”
That is essentially the procedure that was followed here. At the November 7, 2011, hearing,
after Fogarty informed the court that she wanted to represent herself, the court indicated its
assent, saying “that is fine.” The judge then had Fogarty sign the preliminary hearing/pre-
trial order form, gave her a copy, and advised that she should receive her notice of trial by
December 16. Two days later, Fogarty’s latest appointed attorney filed a formal motion to
withdraw, indicating she had received a notice from the clerk of court that Fogarty was
proceeding pro se.
¶21 Moreover, the dissent’s comments in regard to the individual OPD counsel assigned
to Fogarty’s cases assume that courts assign the individual attorneys, rather than OPD as an
entity, to represent indigent criminal defendants. That is not the case. As a rule, OPD, not
the court, assigns the individual counsel to handle a case. See § 47-1-215(2)(b), MCA. The
10
necessity of this for managing OPD’s caseloads, particularly in busy courts of limited
jurisdiction, should be obvious. It is clear from the record in this case that the Municipal
Court intended OPD to be counsel of record.
¶22 Under the circumstances presented here, we conclude it was within the Municipal
Court’s discretionary authority to accept Fogarty’s decisions to represent herself in these
matters. Substantial credible evidence from the colloquies at the proceedings in which the
court determined Fogarty could represent herself, and also from the prior filings and
proceedings in the four actions here on appeal, supports the Municipal Court’s decision to
allow Fogarty to represent herself. Fogarty had gone back and forth about whether she
wished to represent herself or to rely on counsel to represent her. At hearings held on March
9, 2011, November 7, 2011, and December 22, 2011, she asked to be allowed to do so.
Fogarty had gone through several lawyers in each of the cases filed against her as a result of
communication problems between herself and the attorneys, or counsels’ conclusions that
they must withdraw due to ethical claims Fogarty had made against them. Just before her
trials began on December 22, 2011, Fogarty did not dispute the City’s statement that she had
fired Kauffman, nor did she disagree with the court’s statement that she had fired all of her
attorneys. To the extent that Fogarty did not expressly and unequivocally waive her right to
counsel because her decision was inconsistent over time, she effectively did so by failing to
cooperate with a series of court-appointed attorneys.
¶23 The Opinion of the District Court is affirmed.
/S/ MIKE McGRATH
11
We concur:
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ BRIAN MORRIS
/S/ PATRICIA COTTER
/S/ JIM RICE
Justice Laurie McKinnon, dissenting.
¶24 I dissent from the decision of the Court finding that Fogarty, a mentally ill defendant,
waived her right to counsel because she failed to cooperate with “a series,” Opinion, ¶ 22, of
court-appointed attorneys. The record does not support such a conclusion and the
appropriate inquiry to establish a knowing and intelligent waiver by Fogarty was never
conducted by the Municipal Court.
¶25 Fogarty undisputedly had mental health issues which were repeatedly raised by her
court-appointed counsel and the Municipal Court. The District Court noted at the onset of its
review that “[i]t is clear from the record that the Defendant is a disturbed person who has a
great deal of difficulty dealing with other people.” A review of the court records and
transcript of trial confirms this. There is a voluminous amount of correspondence and
assertions from Fogarty to the court describing judges, attorneys, and law enforcement as
“murderers,” “stalkers,” “child molesters,” and the like. Among Fogarty’s disjointed and
rambling communications, she references various other criminal actions allegedly committed
against her in other states, as well as abuse of her dogs in order to get her to plead guilty.
Her first attorney of record, Russell LaFontaine, raised Fogarty’s fitness to proceed in the
12
initial omnibus hearing memorandum filed on December 29, 2010. Fogarty’s mental health
was additionally questioned by the Municipal Court Judge who attempted to get Fogarty to
agree to a mental health evaluation. Although there appears to be no action taken by the
court, counsel or otherwise which affirmatively addresses Fogarty’s mental health,
indications of Fogarty’s compromised mental health are relevant in determining whether the
Municipal Court was correct in finding that Fogarty validly waived her right to counsel and
could represent herself at trial.
¶26 I agree that a defendant’s waiver of the right to counsel must be evaluated in light of
the whole record.1 United States v. Gerritsen, 571 F.3d 1001, 1008 (9th Cir. 2009).
Therefore, to the extent the record permits, the two hearings where there was an attempt by
the Municipal Court to address Fogarty’s right to counsel will be set forth in their entirety.
¶27 The court conducted a preliminary hearing on November 7, 2011, where Fogarty
appeared without counsel. The following inquiry was made by the court:
Clerk: She has a new attorney, Judge. I don’t know where the attorney
is.
Judge: Do you have a new attorney?
1
The Court suggests that because no motion was filed for an expert mental evaluation, that
Fogarty’s mental health was not an issue in these proceedings. This is contrary, however, to
the requirement that the record be considered in its totality. There is little dispute, as found
by the District Court, that Fogarty is a “disturbed person” who has “great difficulty getting
along with other people.” Additionally, the Municipal Court Judge and Fogarty’s first
counsel questioned her mental capacity on the record and in pleadings. The pleadings,
substitutions, and correspondence from Fogarty clearly suggest Fogarty’s mental health was
compromised. The totality of the record must be reviewed to determine whether a waiver of
a fundamental right was valid. Hence the issue is not whether Fogarty could legally waive
her right to counsel, a matter not in dispute, In re R.W.K., 2013 MT 54, 369 Mont. 193, 297
P.3d 318, but whether, considering the totality of the record, Fogarty’s waiver was
knowingly, voluntarily, and intelligently made following an inappropriate inquiry by the
court.
13
Fogarty: You know, I uh don’t and I uh have not been in contact with
the public defender’s office. I’ve received nothing in the mail. And I just, you
know, I’ve done jail time for most of what I’ve been ticketed for; I just feel
like I should represent myself.
Judge: You want to represent yourself?
Fogarty: Yeah.
Judge: Okay, that’s fine. You have the right to do that and so all we
need now is for you to sign this little form here. And this is the form that will
tell you what day you should be getting your . . . .
Fogarty: Here?
Judge: Yeah. Here’s your copy.
Fogarty: Okay.
Judge: And that’ll be – the day you should get your notice of the trial is
December 16. If you don’t get it by December 23, call us. And he’ll have an
omnibus form for you to fill out and sign, and then we’ll be ready for your trial
when it’s set.
. . .
Fogarty: I appreciate the fact the public defender’s office didn’t even
attempt to come and pretend to represent me today.
¶28 The Municipal Court subsequently scheduled Fogarty’s trials for December 22, 2011.
On December 22, 2011, the Municipal Court proceeded with Fogarty’s trials in the absence
of court-appointed counsel.2 The court explained which of Fogarty’s cases were on the
docket, and Fogarty was provided with a handout designed to assist defendants proceeding
without counsel. Fogarty was advised of the maximum penalties for her alleged crimes and
she was asked whether she “had experience in trials before since [she was] representing
2
Although Fogarty’s most recent court-appointed counsel had filed a motion to withdraw,
the record does not reflect that a court order was issued allowing counsel to withdraw from
Fogarty’s cases. On December 22, 2011, the Municipal Court inquired of the City Attorney
whether they could locate Fogarty rather than proceed in absentia as the State requested.
Within a few minutes, Fogarty was located by law enforcement and brought to the court.
Fogarty claimed she had never received notice that her trials were scheduled for that day.
Notably, this appears plausible since the trials were held the day before Fogarty had been
instructed to call to inquire about her scheduled trial date. Thus, Fogarty was not prepared
for the trials on December 22, 2011.
14
[her]self.” Fogarty responded that she was only representing herself because of the
corruption of the judges, attorneys and law enforcement. She rambled on about threats and
harassment and being intimidated while in her jail cell with comments about her dogs. The
Municipal Court determined “[w]hat this tells me is that you do have some experience in the
legal system – some of it good, and some of it not so good . . . . You seem to be able to
handle yourself quite well . . . .” Fogarty responded that “I feel I should have an attorney
that will effectively represent me, but that has not happened.” The Municipal Court
indicated that Fogarty’s “firing of [her] attorneys is a rejection of representation,” and found
that Fogarty was able to proceed without counsel at her trial. The court stated:
One of the things is you can’t keep firing your lawyers. That’s the
problem because that’s pretty much a rejection of being represented by an
attorney.
. . .
What I’m only inquiring about is I want to make sure that you’re
capable of representing yourself. You seem to be very capable of that. You
know the penalties involved here. You’ve had experience with the legal
system. You are an articulate, thinking person and I think you can represent
yourself.
These statements, together with those made during the hearing on November 7, 2012,
comprise the record relating to Fogarty’s waiver of her right to counsel.
¶29 Courts will indulge every reasonable presumption against the waiver of the
fundamental right to assistance of counsel. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct.
1019, 1023 (1938); see also Brewer v. Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 1242
(1977). In Johnson, the Supreme Court explained:
[W]e do not presume acquiescence in the loss of fundamental rights. A
waiver is ordinarily an intentional relinquishment or abandonment of a
15
known right or privilege. The determination of whether there has been
an intelligent waiver of the right to counsel must depend, in each case,
upon the particular facts and circumstances surrounding that case,
including the background, experience, and conduct of the accused.
Johnson, 304 U.S. at 464, 58 S. Ct. at 1023 (internal quotation marks and footnote omitted).
“The record must show . . . that an accused was offered counsel but intelligently and
understandingly rejected the offer. Anything less is not a waiver.” Carnley v. Cochran, 369
U.S. 506, 516, 82 S. Ct. 884, 890 (1962).
¶30 The Supreme Court set forth the criteria for a valid waiver of the right to counsel in
Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525 (1975). Faretta does not mandate that a
specific colloquy or questioning occur—only that the trial court satisfy itself that the
defendant is aware of the dangers and disadvantages of self-representation, that the defendant
knows what he or she is doing, and that the choice to proceed without counsel is made with
open eyes. Faretta, 422 U.S. at 835, 95 S. Ct. at 2541; see also State v. Colt, 255 Mont. 399,
403, 843 P.2d 747, 749-50 (1992).
¶31 After the Supreme Court’s decision in Faretta, this Court adopted the requirement
that “the request to represent oneself must be unequivocal.” State v. Langford, 267 Mont.
95, 99, 882 P.2d 490, 492 (1994). We noted in Langford:
“If the court appoints counsel, the defendant could, on appeal, rely on his
intermittent requests for self-representation in arguing that he had been
denied the right to represent himself; if the court permits
self-representation the defendant could claim he had been denied the
right to counsel. . . . The requirement of unequivocality resolves this
dilemma by forcing the defendant to make an explicit choice. If he
equivocates, he is presumed to have requested the assistance of
counsel.”
16
Langford, 267 Mont. at 100, 882 P.2d at 493 (emphasis added) (quoting Adams v. Carroll,
875 F.2d 1441, 1444 (9th Cir. 1989). In addition, the trial court must ensure the defendant is
competent to abandon his right to assistance of counsel and proceed pro se. Colt, 255 Mont.
at 403, 843 P.2d at 749-50.
¶32 The record in the instant case indicates that Fogarty was very dissatisfied with her
counsel and, in fact, attributed assaultive and abusive behavior to many of them. The record
also reveals Fogarty had difficulty getting along with her appointed counsel and that several
attorneys cited a breakdown in the attorney-client relationship as a reason necessitating their
withdrawal from representation. Without question, Fogarty appears to have been a
challenging client to represent. Nevertheless, it is the obligation of counsel and the court to
ensure that defendants, despite challenges to representation presented by their mental health,
receive their constitutional right to the effective assistance of counsel.
¶33 What is clear from the questioning of Fogarty at her trial, and at the several hearings
conducted prior to trial, is that she wanted to be represented by an attorney, but believed the
attorneys appointed had been ineffective. Fogarty remained steadfast in her position that
none of the attorneys appointed thus far were competent; that she desired to have counsel
represent her; and that she accepted she would have to represent herself if she were only
appointed counsel that was ineffective. Fogarty appreciated that she could potentially
receive a year incarceration and, in response to questioning from the court, stated that “I feel
I should have an attorney that will effectively represent me . . . .” In light of Fogarty’s
request for counsel at the start of her December 22, 2011 trial, and upon consideration of her
statements regarding counsel made at other times during these proceedings, I conclude that
17
Fogarty did not make an unequivocal request to represent herself sufficient to satisfy
Langford. As we stated in Langford, it is presumed that a defendant who equivocates has
requested the assistance of counsel. Langford, 267 Mont. at 102, 882 P.2d at 494. Fogarty’s
objections were not that she wanted to represent herself, but rather that she wanted effective
counsel to represent her.
¶34 Even were we to assume that Fogarty made an unequivocal request to represent
herself, there does not exist in the record before us substantial and credible evidence to
support the Municipal Court’s determination that Fogarty acted voluntarily, knowingly, and
intelligently in waiving her right to counsel. While this Court does not require that a trial
court adhere to a rigid set of requirements in ascertaining a valid waiver of the right to
counsel, there must exist substantial and credible evidence ensuring that “the defendant is
competent to abandon his right” and proceed pro se. Colt, 255 Mont. at 403, 843 P.2d at
749. Competence does not necessarily mean that “he have the skill and experience of a
lawyer,” but it does mean that the defendant’s relinquishment of his right to counsel “must
not only be voluntary, but also made knowingly and intelligently.” Colt, 255 Mont at 403-
04, 843 P.2d at 750 (citing State v. Plouffe, 198 Mont. 379, 385, 646 P.2d 533, 536 (1982)).
¶35 Further, we held in State v. Hartsoe, 2011 MT 188, 361 Mont. 305, 258 P.3d 428, that
an accused “must ‘be made aware of the dangers and disadvantages of self representation[,]
[so that the record will establish that he knows what he is doing and his choice is made with
eyes open].’ ” Hartsoe, ¶ 39 (brackets in original) (quoting Colt, 255 Mont at 407, 843 P.2d
at 751). We have noted that
18
[t]he test focuses, not on what a defendant was told, but on a determination
that a defendant understands his decision and is proceeding voluntarily. This
is a stricter and higher standard, thus satisfying any increased measure of
protection provided under the Montana Constitution’s guarantees of the right
to counsel and to a fair trial.
State v. Insua, 2004 MT 14, ¶ 20, 319 Mont. 254, 84 P.3d 11.
¶36 In light of this precedent, I do not believe the record contains substantial evidence to
support a determination that Fogarty validly exercised her right to proceed without counsel.
While Fogarty was advised of the maximum penalties, she was not “made aware of the
dangers and disadvantages of self-representation.” Faretta, 422 U.S. at 835, 95 S. Ct. at
2541. The record does not support a determination that she was competent to exercise a
valid waiver or that the waiver was voluntarily and intelligently made.
¶37 The State argues, and the Municipal Court and District Court found, that Fogarty’s
behavior in “firing” her counsel was “to obstruct and delay the administration of justice in
her case” and waive her Sixth Amendment right to counsel. The District Court, citing as
authority for its position State v. Craig, 274 Mont. 140, 906 P.2d 683 (1995), and United
States v. Kelm, 827 F.2d 1319 (9th Cir. 1987), overruled in part by United States v. Heredia,
483 F.3d 913 (9th Cir. 2007), determined that “[d]efendants cannot be allowed to bring the
justice system to a halt by repeatedly demanding counsel but then refusing to work with
everyone appointed to represent them.” It is well-established that the right to assistance of
counsel does not grant to defendants the right to counsel of their choice. Craig, 274 Mont. at
149, 960 P.2d at 688.
¶38 In Craig we determined:
19
In refusing to cooperate with his appointed counsel and, at the same
time insisting that he was not asking to proceed pro se, Craig was
attempting to force the appointment of new counsel. This Court cannot
countenance such dilatory and manipulative tactics at the expense of the
efficient administration of justice.
Craig, 274 Mont. at 153, 906 P.2d at 691. We thus stated in Craig that “ ‘at some point a
criminal defendant can be deemed to have waived to a certain extent his constitutional right
to effective assistance by virtue of his unreasonable refusal to communicate with his
attorney,’ ” and that a “ ‘persistent unreasonable demand for dismissal of counsel [is] the
functional equivalent of a knowing and voluntary waiver of counsel.’ ” Craig, 274 Mont. at
152, 906 P.2d at 690 (quoting Thomas v. Wainwright, 767 F.2d 738, 743 (11th Cir. 1985).
Thus, we affirmed the district court’s conclusion that Craig was not denied the effective
assistance of counsel and that any compromise in counsel’s effectiveness was directly
attributable to Craig’s lack of cooperation. Craig, 274 Mont. at 155, 906 P.2d at 692.
Significantly, counsel in Craig was present throughout the trial and provided assistance. At
issue in Craig was a motion to substitute counsel made by the defendant. In the present
matter, counsel made the requests for substitution, not Fogarty.
¶39 Unlike Craig, the Municipal Court in this case effectively terminated, albeit without
an order, any appointment of counsel on Fogarty’s behalf by requiring that Fogarty proceed
on her own. Up to the time of trial, the court files reflect that Fogarty had counsel appointed
to represent her. Absent an unequivocal assertion by Fogarty that she desired to proceed
without counsel, any inquiry by the court should have taken place with counsel present. In
the presence of Fogarty’s counsel, the court could have inquired and determined whether to
(1) terminate appointment of counsel after a valid waiver by Fogarty pursuant to Faretta; (2)
20
determine that Fogarty, although not requesting to proceed without counsel has, through her
behavior, waived her right to counsel; or (3) continue Fogarty’s representation by court-
appointed counsel. If Fogarty continued to insist counsel was ineffective, then the court
could have assessed the validity of Fogarty’s assertions. See State v. Dethman, 2010 MT
268, 358 Mont. 384, 245 P.3d 30 (wherein we held that when a defendant complains about
the effective assistance of counsel, a district court must make an “adequate initial inquiry” as
to whether defendant’s allegations are “seemingly substantial.”).
¶40 This Court states that State v. Hass, 2011 MT 296, 363 Mont. 8, 265 P.3d 1221, does
not have the same “sequence of events that occurred in the present case.” Opinion, ¶ 18.
The Court does not explain how the “sequence” in each case materially differs. To the
contrary, we held in Hass that “the Justice Court’s actions of permitting Hass’s counsel to
withdraw, thereby leaving Hass without legal representation, and then proceeding to try,
convict, and sentence Hass to jail, without first obtaining from him a voluntary, knowing,
and intelligent waiver of his right to counsel, violated Article II, Section 24.” Hass, ¶ 21.
This is what happened in Fogarty’s case. The cases may be distinguished, however, upon
each defendant’s mental health—Fogarty showed significant signs of mental illness observed
by her counsel and the court.
¶41 Lastly, this Court finds support in the Ninth Circuit decision of United States v.
Hantzis, 625 F.3d 575 (9th Cir. 2010). Opinion, ¶ 19. In Hantzis, however, the court
inquired whether Hantzis understood the hazards of representing himself, whether he
understood the “severe disadvantage which may hurt [him] down the road,” and whether he
wanted either a public defender or to represent himself. Hantzis, 625 F.3d at 578. Each time
21
Hantzis replied unequivocally that he wanted to represent himself. Moreover, there were no
indications that Hantzis had any mental disabilities.
¶42 In the instant proceedings, all requests for substitution of counsel were made by the
attorneys themselves, on various grounds, presumably related to Fogarty’s conduct. In most
instances, there was no oversight from the Municipal Court or involvement from Fogarty
herself. No initial inquiry was conducted as required by Dethman to determine whether
counsel was ineffective or whether substitution should otherwise be granted. While Fogarty
insisted on “effective counsel,” any request by Fogarty to proceed without counsel, in light
of the November 7, 2011, and December 22, 2011 trial transcripts, is equivocal at best.
¶43 Against this background, I make the following additional observations. Counsel may
not withdraw from a criminal case involving an indigent defendant once they have
undertaken the responsibility of representation because they now determine a particular
client is difficult. Representing criminal defendants who are indigent, especially those who
are potentially mentally ill, is difficult and should not be undertaken lightly. At a minimum,
a record should have been made establishing the circumstances which prevented counsel
from continuing with their representation of Fogarty. In this manner, the Municipal Court
would have had the matter before it and could have begun the process of managing these
proceedings consistent with precedent regarding a valid exercise of the right to proceed pro
se or a valid substitution of counsel based upon claims of ineffectiveness.
¶44 The record of the “series” of attorneys should be assessed. On November 16, 2010,
Russell LaFontaine entered his appearance on behalf of Fogarty and remained in Fogarty’s
cases for two months. Without an order of the Municipal Court or consent from Fogarty,
22
LaFontaine filed his withdrawal, and on January 14, 2011, the appearance of Robin Ammons
was entered by the OPD.
¶45 Two months later, on March 15, 2011, the appearance of Patrick Sandefur was
entered as contract counsel for the OPD, also without a court order or consent from Fogarty
for the change of counsel. After citing a breakdown in the attorney-client relationship as
well as Montana Rule of Professional Conduct 1.6,3 Sandefur’s appearance was stricken by
the Municipal Court, and the OPD was ordered to appoint new counsel. Sandefur’s
withdrawal and the subsequent reappointment of the OPD were in compliance with § 37-61-
403, MCA,4 because they were effectuated pursuant to a Municipal Court order.
3
Rule 1.6 – Confidentiality of Information.
(a) A lawyer shall not reveal information relating to the representation
of a client unless the client gives informed consent, the disclosure is impliedly
authorized in order to carry out the representation or the disclosure is
permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a
client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to secure legal advice about the lawyer’s compliance with these
Rules;
(3) to establish a claim or defense on behalf of the lawyer in a
controversy between the lawyer and the client, to establish a defense to a
criminal charge or civil claim against the lawyer based upon conduct in which
the client was involved or to respond to allegations in any proceeding
concerning the lawyer’s representation of the client; or
(4) to comply with other law or court order.
4
Section 37-61-403, MCA, provides:
Change of attorney. The attorney in an action or special proceeding
may be changed at any time before or after judgment or final determination, as
follows:
(1) upon consent of both client and attorney, filed with the clerk or
entered upon the minutes;
(2) upon the order of the court, upon the application of either client or
23
¶46 On July 28, 2011, the OPD appointed Kathleen Foley. However, Foley withdrew one
month later on August 31, 2011, citing “numerous and scandalous allegations” made by
Fogarty against Foley’s firm. The Municipal Court issued an order granting Foley’s Motion
to Withdraw. On October 20, 2011, Gregory Birdsong entered his appearance on behalf of
Fogarty, but he filed a motion to withdraw on October 31, 2011, citing a breakdown in the
attorney-client relationship and Rule 1.6. In the four Municipal Court files for the four cases
pending against Fogarty at that time, only one contains an order signed by a Municipal Court
Judge allowing Birdsong’s withdrawal.
¶47 Finally, on November 4, 2011, Lisa Kaufman entered her appearance on behalf of
Fogarty; however, Kaufman was not present at the November 7, 2011 preliminary hearing.
The Court nevertheless proceeded to inquire of Fogarty regarding self-representation. Two
days later Kaufman filed a formal motion to withdraw after receiving an email from the clerk
of court that Fogarty was proceeding pro se. Our Opinion today suggests that this, as well as
the “series” of prior attorneys is an acceptable manner of handling indigent representation. I
do not concur with this view.
¶48 The number of substitutions in these proceedings is alarming, and, upon initial
inquiry, appear to indicate Fogarty is abusing the system by “firing” her counsel and
continuing to insist on representation. Clearly no defendant should be permitted to
manipulate the process in this manner. However, statutory requirements and case law exist
to protect against violations of the right to counsel and to protect counsel as well. Once
counsel have chosen to enter their appearance, any withdrawal must be made in accordance
attorney, after notice from one to the other.
24
with the provisions of § 37-61-403, MCA, and case law regarding substitution and waivers.
A motion that complies with § 37-61-403, MCA, and sets forth reasons for the request, will
normally suffice to gain court approval and allow a substitution of counsel. That these
proceedings occurred in an overburdened Municipal Court provides no exception to the law
regarding the right to counsel. It is my position that this is unacceptable in light of the
fundamental right that was at stake.
¶49 I respectfully dissent from the decision of the Court finding that Fogarty, a mentally
ill defendant, waived her right to counsel by failing to cooperate with a “series” of court-
appointed counsel.
/S/ LAURIE McKINNON
25