r--6ta•--df 

DA 18-0621

IN THE SUPREME COURT OF THE STATE OF MONTANA

2021 MT 297N

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

JAY DONALD WITKOWSKI,

 Defendant and Appellant.

APPEAL FROM: District Court of the Seventeenth Judicial District,

In and For the County of Valley, Cause No. DC-2017-05

Honorable Yvonne Laird, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender, Deborah S. Smith, Assistant Appellate 

Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Mardell Ployhar, Assistant 

Attorney General, Helena, Montana

Dylan J. Jensen, Valley County Attorney, Brant Light, Special Deputy 

County Attorney, Glasgow, Montana

Submitted on Briefs: June 9, 2021

 Decided: November 16, 2021

Filed:

__________________________________________

Clerk

11/16/2021

Case Number: DA 18-0621
2

Justice Dirk Sandefur delivered the Opinion of the Court. 

¶1 Pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, we decide this 

case by memorandum opinion. It shall not be cited and does not serve as precedent. The

case title, cause number, and disposition will be included in our quarterly list of noncitable 

cases published in the Pacific Reporter and Montana Reports. 

¶2 Jay Donald Witkowski appeals his October 2017 judgment of conviction in the 

Montana Seventeenth Judicial District Court, Valley County, on the offense of deliberate

homicide, a felony in violation of § 45-5-102(1)(a), MCA. We affirm except for remand 

for entry of an amended judgment of conviction striking/omitting various specified 

conditions of sentence. 

¶3 In February 2017, the State charged Witkowski with the deliberate homicide of 

Evelynn Garcia. It alleged that, in the early evening of December 31, 2016, Witkowski 

stabbed Ms. Garcia multiple times while she was sitting in the passenger seat of his car, 

clubbed her in the head with a tire iron, ran her over with his car, and then left her for dead 

in the middle of a remote section of highway in Valley County. Following appointment of 

two public defenders as co-counsel, Witkowski pled not guilty and the case proceeded in 

advance of jury trial scheduled for August 21, 2017. On August 15, 2017, the day before 

a scheduled motions hearing a week before trial, Witkowski signed a written plea 

agreement, and accompanying written acknowledgment and waiver of rights, calling for 

him to plead guilty as charged in return for a joint sentencing recommendation for a 70-year
3

prison term, a consecutive 10-year term for use of a dangerous weapon,

1

and no restriction 

on parole eligibility. In his written acknowledgement and waiver, Witkowski specifically 

acknowledged, inter alia, that he fully understood his various constitutional and other trial 

rights, that his counsel fully explained those rights and advised him in regard thereto, and 

that he fully understood the terms and effect of the plea agreement and the waiver effect of 

a guilty plea. The acknowledgment further asserted that his ability to understand his rights

and thus make a “knowing, intelligent, and voluntary decision or plea” was not diminished 

or impaired, that he had “not been threatened, coerced, forced, intimidated, or [unduly] 

influenced” to waive his rights and change his plea “in any way,” that he “freely and 

voluntarily” entered into the plea agreement, that he “had ample time and opportunity to 

discuss [his] case with [his] attorneys,” and that he had “received the full benefit of their 

advice” and was thus “satisfied with [their] services.” 

¶4 At the time set for the motions hearing the next day, counsel advised the court of 

the plea agreement and, upon being sworn, Witkowski engaged in a supplemental record 

colloquy wherein he reiterated the acknowledgements and representations set forth in his 

prior written acknowledgment and waiver including, inter alia, that he was satisfied with 

the advice and representation provided by his counsel. He specifically denied having “any 

complaints at all regarding [his] attorneys” and then pled guilty to deliberate homicide

 

1 See § 46-18-221, MCA (2015) (dangerous weapon enhancement). 
4

pursuant to the plea agreement. The District Court accepted the change of plea and set 

sentencing for October 2, 2017. 

¶5 However, unmentioned at the change of plea hearing, and thus unbeknownst to the 

court when it accepted his change of plea, Witkowski had sometime the day before mailed 

to the court a handwritten ex parte letter in which he requested new counsel. Contrary to 

his representations in his written acknowledgment and waiver or rights that day, and his

sworn statements at change of plea hearing the next day, the ex parte letter asserted that he 

had not received adequate representation of counsel.2 The District Court received the ex 

parte letter the day after the change of plea hearing and set a hearing for September 20, 

2017. The order directed that Witkowski “shall be prepared to offer specifics to 

substantiate his complaints and Counsel . . . shall be prepared to respond.” 

¶6 At the September 2017 hearing, the District Court again advised Witkowski of his 

rights to remain silent and to consult with his current counsel before explaining the factual 

bases for his ex parte allegations. Without objection or request to first consult either with 

existing counsel or new counsel, Witkowski explained the various concerns that led him to 

write to the judge, then summarized by the court as assertions that his counsel “were not 

interested in [his] case,” “failed to file appropriate motions,” failed to remain “in contact,”

and “pressured [him] to take” the State’s plea agreement offer. Without exception or 

 

2 The record is unclear whether Witkowski wrote and mailed his August 15th letter to the court 

before or after he signed the plea agreement and accompanying acknowledgment and waiver of 

rights that same day. 
5

further elaboration, Witkowski acknowledged the court’s characterization of his ex parte

complaints.

¶7 As to the alleged disinterest of counsel, Witkowski generally explained without 

“specifics” that, at the time he wrote the letter, he “didn’t feel that [he] and [his] attorney 

were seeing eye-to-eye.” As to the motion practice complaint, he said that he was not 

satisfied at the time with the explanation as to why his contemplated motion for a change 

of venue would not be viable. He equivocated, however, that he was later “able to discuss 

[his] concerns with counsel” and realized that, “[a]t the time, [he] didn’t quite understand 

all the elements that go into it.” As to the sufficiency of contact with counsel, he stated 

that, “upon requesting to visit with . . . counsel,” it “just felt that . . . it took longer than it 

should have”—sometimes “up to three weeks or so.” When asked if he could “expand on” 

his ex parte assertion that he “felt pressured to take” the State’s plea agreement offer, he

said “no” and then again said “no” when asked if he still held that “contention.” 

¶8 In response to Witkowski’s statements, appointed counsel countered that they were 

both very much interested in defending him based on “what was at stake” and that they

“took it seriously.” Counsel further acknowledged that Witkowski wanted them to seek a 

change of venue, and that they may not have adequately explained the reasons for not doing 

so. Counsel explained, however, that “it just didn’t seem like we had the facts and the case 

law to file [the] [m]otion” and that “it would have [therefore] been . . . frivolous.” Counsel 

further acknowledged that they were unable to consult with Witkowski as frequently as 
6

they “would [have] like[d],” but asserted that their contact with him was nonetheless

“pretty regular and periodic,” to wit: 

[Counsel 1]: Your Honor, my physical office is in Billings. It’s five hours 

by car or I . . . have flown up here several times, and it was my 

effort to make . . . periodic, in-person contact with 

Mr. Witkowski as the case progressed. I also tried to make

myself available by phone whenever [he] called. . . . I can say 

that I probably didn’t visit jail as much as I would like to visit 

him, and that’s true of every case I’ve ever had, . . . but I think 

the contact was pretty regular and periodic.

. . .

[Counsel 2]: My office is a lot closer [in Wolf Point]. I took it upon myself 

to visit Jay whenever I would get a message that he’d want to 

visit, or at least talk on the phone, and when we couldn’t do

that we had written correspondence. I don’t think that, at least 

in my view, the delay in setting up any meeting that he wanted 

prejudiced his defense.

[Court]: Do you have any additional comment, Mr. Witkowski?

[Witkowski]: No, ma’am.

Counsel acknowledged further that it “was our opinion” that Witkowski should accept the 

State’s offer and that they so “advised him,” but that “the pressure was no different than 

the pressure that anyone would feel in his circumstances where” there were only “two bad 

options.” The following colloquy then ensued between the court and Witkowski: 

[Court]: [I] just want[] to make sure [I] ha[ve] a clear understanding of 

your current position. You are no longer alleging that you were 

pressured into entering into the [p]lea [b]argain [a]greement 

with the [S]tate? 

[Witkowski]: Yes, ma’am. 
7

¶9 In response to the court’s request for any input from the State, the prosecutor 

characterized the plea agreement as an attempt by defense counsel to benefit Witkowski 

by “limit[ing] [a] potential life without parole sentence.” After Witkowski responded

“[n]o, ma’am” to the court’s question as to whether he had “anything else you’d like the 

[c]ourt to consider,” the hearing came to a close on the following colloquy in pertinent part: 

[Court]: [I]t appears . . . that at times you may not have understood fully 

why [counsel] were making the recommendations they were 

making, but it does not rise to the level requiring the Court to 

go any further with your [ex parte] [m]otion [f]or [new 

counsel]. So, at this time, . . . it is up to you. You can proceed

. . . pro se, or you can proceed with [your current] counsel. You 

have expressed . . . that you are still able to communicate 

civilly and effectively with your counsel[,] so you were not 

entitled to [new counsel] at this time. 

[Witkowski]: I’d like to continue with counsel. 

In its subsequent written order denying the ex parte request for new counsel, the court 

further reasoned that: 

[It] considered the factual complaints of the [d]efendant and . . . specific 

explanations [of counsel] addressing each complaint. The Court found no 

showing of fact indicating that counsels’ performance was deficient or that 

any claimed deficiencies prejudiced Defendant. Therefore, the Court 

concluded that Defendant’s complaints were not seemingly substantial. 

Defendant was advised of the . . . determination and that . . . he could choose 

to continue pro se or with current counsel. [He] advised . . . [that] he intended 

to proceed with current counsel. 

¶10 On October 2, 2017, the court sentenced Witkowski in accordance with the parties’ 

joint recommendation to an unsuspended 70-year prison term, a consecutive unsuspended

10-year term as a weapons enhancement, and imposed specified victim restitution, a parole 
8

eligibility restriction (completion of two specified prison courses), various statutory fees, 

costs, charges, and specified “conditions.” Witkowski timely appeals. 

¶11 Upon a request for new appointed counsel, the court must make an initial inquiry as 

to the defendant’s underlying “factual complaints,” the “specific explanations” of counsel, 

and then assess whether the defendant has stated “a seemingly substantial complaint” either 

that counsel has “an actual conflict of interest” or that an irreconcilable conflict or complete 

breakdown of communication exists between client and counsel. State v. Johnson, 2019 

MT 34, ¶¶ 22 and 27, 394 Mont. 245, 435 P.3d 64. If not, the request has no merit and the 

inquiry ends. Johnson, ¶ 22; City of Billings v. Smith, 281 Mont. 133, 141, 932 P.2d 1058, 

1063 (1997). If so, the court must appoint independent counsel regarding the request, 

conduct an evidentiary hearing on the merits of the complaint(s), and then make specific 

findings of fact as to whether “an actual conflict of interest” exists between counsel’s 

representation of the defendant and any “active represent[ation]” of another, Johnson, 

¶¶ 19-20, 22, 27, and 30; State v. Christenson, 250 Mont. 351, 355, 820 P.2d 1303, 1306 

(1991) (citing Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 1719 (1980)), or 

whether “irreconcilable conflict” or a “complete breakdown in communication” exists 

between client and counsel, thus impairing their ability to “mount an adequate defense.” 

State v. Rodriguez, 2021 MT 65, ¶ 15, 403 Mont. 360, 483 P.3d 1080; State v. Khongwiset, 

2020 MT 215, ¶¶ 26 and 30, 401 Mont. 142, 471 P.3d 51; Johnson, ¶¶ 17, 19-20, 22-23,

27, and 30. A defendant is entitled to new appointed counsel only upon an affirmative 

finding on one of those criteria. Johnson, ¶¶ 17-20, 22, 27, and 30.
9

¶12 While the right to new appointed counsel on a sufficient finding is grounded in the 

fundamental right to effective assistance of counsel under the Sixth and Fourteenth

Amendments to the United States Constitution and Article II, Section 24, of the Montana 

Constitution, ineffective assistance of counsel (IAC) claims are properly cognizable only 

on direct appeal following conviction or on petition for postconviction relief, as applicable. 

Johnson, ¶¶ 16-17, 20, and 27. Moreover, while a defendant is entitled to appointment of 

independent counsel to assist in a hearing on the merits following a threshold determination 

of “seemingly substantial” reasons for a new counsel request, he or she has no 

constitutional right to independent counsel for the initial seemingly-substantial-reasons 

inquiry as it is merely a non-“critical-stage” preliminary inquiry into whether cause exists 

to trigger a “critical stage” hearing and adjudication on the merits of the request. State v. 

Gazda, 2003 MT 350, ¶¶ 26-33, 318 Mont. 516, 82 P.3d 20. See also State v. Glick, 2009 

MT 44, ¶¶ 14-15 and 24-25, 349 Mont. 277, 203 P.3d 796 (rejecting request for overrule

of Gazda due to lack of new authority or analysis demonstrating that the seeminglysubstantial-reasons inquiry is a “critical stage” proceeding for purposes of the 

constitutional right to effective assistance of counsel). As in Glick, Witkowski urges us to 

overrule Gazda, but has similarly not demonstrated that his cited supporting authority 

either conflicts with or otherwise undermines our holding and rationale in Gazda. 

Compare State v. Schowengerdt, 2018 MT 7, ¶¶ 10-14 and 25-26, 390 Mont. 123, 409 P.3d 

38 (affirming denial of new counsel request due to acquiescent waiver of defendant and 

independent counsel to court consideration and findings on unsworn factual complaints 
10

and counsel responses—prefatory note of discretionary appointment of independent 

counsel to assist in initial seemingly-substantial-reasons inquiry on remand following prior 

inadequate inquiry); Glick, ¶¶ 6, 15, and 24-25 (affirming finding on remand of no actual 

attorney-client conflict of interest in re new counsel request—prefatory note of prior 

remand for appointment of independent counsel and ultimate merits hearing on the asserted 

conflict of interest); State v. Rose, 2009 MT 4, ¶¶ 12-31 and 94-102, 348 Mont. 291, 202 

P.3d 749 (no abuse of discretion in failure to hold evidentiary hearing on merits of an

ultimately withdrawn IAC-based new counsel request—prefatory note of prior 

discretionary appointment of independent counsel for the initial seemingly-substantialreasons inquiry following multiple prior complaints and withdrawals of complaints 

regarding current and prior counsel); State v. Warclub, 2005 MT 149, ¶¶ 10-13, 16, and 

34, 327 Mont. 352, 114 P.3d 254 (holding that alleged dissatisfaction with counsel was 

immaterial to the voluntariness of the guilty plea on motion to withdraw—prefatory note 

of prior discretionary appointment of independent counsel, following a psych-eval, for the

second seemingly-substantial-reasons inquiry later asserted as a basis, inter alia, for the 

motion to withdraw guilty plea). 

¶13 We review the procedure used, and the initial inquiry and ultimate merits findings

made, on a new counsel request for an abuse of discretion. Schowengerdt, ¶ 16; Johnson, 

¶ 13. We review merits hearing findings of fact only for clear error. Schowengerdt, ¶ 16. 

¶14 Here, the record reflects that the District Court made an adequate initial inquiry as 

to the asserted factual bases for Witkowski’s ex parte request for new counsel, as well as
11

the specific explanations of counsel regarding each of his acknowledged complaints. We 

agree that the court’s subsequent written order erroneously referenced the apparent 

adequacy of “counsels’ performance” as a relevant consideration in its no-seeminglysubstantial-reasons finding. However, the record manifests that Witkowski made no 

allegation of an actual conflict of interest between counsels’ representation of him and any 

other, and that the focus of the court’s comprehensive hearing inquiry regarding his ex 

parte complaints, and the specific responses of counsel, was on whether an irreconcilable 

conflict or complete breakdown of communication existed between client and counsel. 

Regardless of Witkowski’s state of mind when he wrote his ex parte letter the day before 

he changed his plea, the change of plea hearing record and the record on the court’s

subsequent initial inquiry into his ex parte complaints clearly manifest no seemingly 

substantial basis upon which to conclude or suspect that his counsel had an actual conflict 

of interest in representing him, or that an irreconcilable conflict or complete breakdown of 

communication existed between client and counsel, whether at the time of Witkowski’s 

change of plea or the subsequent record inquiry into the factual bases of his pre-change of 

plea ex parte complaints. We hold that the District Court did not erroneously fail to appoint 

independent counsel to assist Witkowski at the initial inquiry into his ex parte complaints, 

fail to conduct an adequate initial inquiry into those complaints, or erroneously find that 

they had no seemingly substantial basis. 

¶15 Witkowski further asserts that the District Court erroneously imposed various parole 

conditions. While they may make non-binding recommendations to the Board of Pardons 
12

and Parole, district courts have no authority to impose conditions of parole except for those 

specifically and explicitly authorized by statute. State v. Ring, 2014 MT 49, ¶¶ 34-35, 374 

Mont. 109, 321 P.3d 800; State v. Heafner, 2010 MT 87, ¶¶ 5-6, 356 Mont. 128, 231 P.3d 

1087; State v. Burch, 2008 MT 118, ¶ 36, 342 Mont. 499, 182 P.3d 66. When no part of a 

sentence is deferred or suspended, imposed “conditions” of sentence are in effect 

conditions of parole, and thus not authorized unless specifically and explicitly authorized 

by statute. Ring, ¶¶ 34-35. 

¶16 Here, no part of Witkowski’s sentence is deferred or suspended. While not 

characterized as conditions of parole, the District Court nonetheless imposed 36 “terms and 

conditions” of sentence under subsection 3, most of which the State concedes are parole 

restrictions not authorized by statute (i.e., all except for 3(b)-(d), (m), and (n)). With the 

exception of subsection 3(m)(i),

3 Witkowski concurs.4

 Pursuant to the State’s concession, 

we hold that the District Court erroneously imposed all of the conditions of sentence 

imposed under subsection 3 of its written judgment of conviction and sentence except for 

subsections 3(b)-(d), (m), and (n). Pursuant to Heafner, ¶¶ 11-13, we thus remand for entry 

of an amended judgment of conviction and sentence striking/omitting all of the conditions 

of sentence imposed under subsection 3 except for 3(b)-(d), (m), and (n). 

 

3

See § 46-23-1031, MCA (obligation to pay costs of supervision on probation and parole). 

4 He further asserts that several other subsection 3 conditions are duplicative of various subsection 

2 conditions (i.e., subsections 3(l)-(m)/2(c)-(d), 3(o)/2(f), and 3(p) and (r)/2(e)), but acknowledges, 

however, that they are nonetheless authorized by statute. The State’s response to the redundancy

assertion is unclear, and neither party asserts that any such redundancy of statutorily authorized 

financial conditions will increase the amount of Witkowski’s liability thereunder. 
13

¶17 We decide this case by memorandum opinion pursuant to Section I, Paragraph 3(c) 

of our Internal Operating Rules. Affirmed except for remand for entry of an amended 

judgment of conviction as specified herein. 

/S/ DIRK M. SANDEFUR

We concur: 

/S/ JAMES JEREMIAH SHEA

/S/ LAURIE McKINNON

/S/ INGRID GUSTAFSON

/S/ JIM RICE