State v. Schowengerdt

May 19 2015
DA 13-0777
Case Number: DA 13-0777
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 133
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DENNIS LEO SCHOWENGERDT,
Defendant and Appellant.
APPEAL FROM: District Court of the Third Judicial District,
In and For the County of Powell, Cause No. DC 12-55
Honorable Ray Dayton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade Zolynski, Chief Appellate Defender; Gem K. Mercer, Assistant
Appellate Defender; 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
Submitted on Briefs: April 1, 2015
Decided: May 19, 2015
Filed:
__________________________________________
Clerk
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,
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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 Scott
I 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.”
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¶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
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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
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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.
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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.
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Const. art. II, § 24. If a defendant asserts a claim of ineffective assistance of counsel, and
requests the appointment of new counsel, the “district court must conduct an ‘adequate
initial inquiry’ to determine whether the defendant’s claim is ‘seemingly substantial.’”
State v. Happel, 2010 MT 200, ¶ 14, 357 Mont. 390, 240 P.3d 1016 (citing State v.
Gallagher, 1998 MT 70, ¶ 15, 288 Mont. 180, 955 P.2d 1371). We have explained the
“threshold issue to determine whether a complaint is substantial is not whether counsel
was ineffective, but rather whether the district court made an adequate inquiry into the
defendant’s claim.” Happel, ¶ 14 (citing State v. Gazda, 2003 MT 350, ¶ 30, 318 Mont.
516, 82 P.3d 20). We have found it to be “reversible error where a district court fails to
make an initial inquiry into a defendant’s complaints about counsel.” City of Billings v.
Smith, 281 Mont. 133, 137, 932 P.2d 1058, 1061 (1997). The district court’s inquiry is
adequate so long as the “court considers the defendant’s factual complaints together with
counsel’s specific explanations addressing the complaints.” State v. Rose, 2009 MT 4,
¶ 96, 348 Mont. 291, 202 P.3d 749 (superseded in part on other grounds, State v. Stops,
2013 MT 131, 370 Mont. 226, 301 P.3d 811) (citing City of Billings, 281 Mont. at
136-37, 932 P.2d at 1060). However, if the district court “fails to conduct ‘even a
cursory inquiry,’ such an effort is inadequate and justifies remand of the case for further
proceedings.” Happel, ¶ 14 (citing State v. Weaver, 276 Mont. 505, 511-12, 917 P.2d
437, 441-42 (1996)).
¶18 Here, the District Court erred by failing to conduct an adequate inquiry into
Schowengerdt’s complaints. After entering his guilty plea, Schowengerdt sent the
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June 12 letter to the District Court asking to have his counsel removed from his case.
Although the letter was short and Schowengerdt’s writing skills were minimal, the letter
made clear that Schowengerdt was asking for new counsel to be substituted for Scott.
Schowengerdt confirmed that intention during the subsequent hearing. However, after
asking Schowengerdt about his concerns, the District Court interrupted Schowengerdt as
he attempted to give an explanation. The court ordered Schowengerdt to follow the
OPD’s process for appointment of new counsel. The court stated that additional
proceedings would be conducted if OPD denied Schowengerdt’s request. However,
when the OPD administratively denied the request, the court ruled that the matter was
concluded and conducted no additional proceedings.
¶19 The District Court plainly did not consider Schowengerdt’s complaints as it did
not permit Schowengerdt an opportunity to offer them during the hearing. The record
does not indicate what Schowengerdt’s objections were to Scott’s representation.
Instead, the District Court merely deferred to the OPD’s administrative process on the
issue of whether Schowengerdt was entitled to new counsel. While the OPD
administrative process may be helpful in resolving some conflicts that arise in the
assignment of counsel, it does not supplant judicial procedures that ensure that a criminal
defendant is provided the constitutional right to counsel. The District Court failed to
follow these procedures when it neglected to inquire into Schowengerdt’s complaints
concerning his representation.
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¶20 The State argues that the court’s error does not require reversal based on State v.
Edwards. There, the defendant requested new counsel after being convicted at trial, and
the district court, upon receipt of Edwards’ post-trial motion, failed to inquire into his
complaints prior to sentencing. Edwards, ¶ 29. Despite the court’s error, we concluded
that remand was unnecessary because Edwards’ complaints related solely to the alleged
ineffectiveness of his counsel at trial, and he had failed to argue that “he feared counsel
would fail to effectively represent him going forward to sentencing.” Edwards, ¶ 29.
The State argues that Schowengerdt’s complaints here were similarly inadequate to
require inquiry by the District Court.
¶21 However, we are not able to determine whether Schowengerdt’s complaints here
were sufficient because he was not provided an opportunity to explain them. And, unlike
Edwards, Schowengerdt argues that his counsel would not be able to effectively represent
him going forward with his motion to withdraw his plea in the event the matter is
remanded. Schowengerdt requests “the opportunity to present his motion to withdraw his
guilty plea to the district court through constitutionally effective counsel.” Consequently,
the District Court’s failure to adequately inquire into his complaints necessitates a
remand for further proceedings on this issue.
¶22 2. Did Schowengerdt receive ineffective assistance of counsel?
¶23 Given our resolution of Issue 1, it is not necessary to address Issue 2 at this time.
The proceedings on remand may well render moot any claim of ineffective assistance of
counsel.
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CONCLUSION
¶24 Upon remand, the District Court must adequately inquire into Schowengerdt’s
complaints about his assigned counsel to determine whether his complaints are seemingly
substantial and necessitate a hearing to determine the validity of Schowengerdt’s
allegations and the need for substitution of counsel. If the court determines that new
counsel is warranted, then, in accordance with the relief sought by Schowengerdt, he will
have “the opportunity to present his motion to withdraw his guilty plea to the district
court” with new counsel. We express no opinion on the merits of Schowengerdt’s
motion to withdraw his guilty plea. If, on the other hand, the court determines that
Schowengerdt has not presented seemingly substantial complaints about his counsel, or is
otherwise not entitled to new counsel, then the judgment and sentence are affirmed,
subject to Schowengerdt’s right to appeal the District Court’s determinations made on
remand, and his preserved issue concerning ineffective assistance of counsel. See
Weaver, 917 P.2d at 441-42, 276 Mont. at 512.
¶25 Remanded for further proceedings as stated herein.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
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