No. 01-312 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2002 MT 202 

STATE OF MONTANA, 

Respondent and Respondent, 

v. 

LARRY ADAMS, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twenty-First Judicial District, 

In and for the County of Ravalli, 

The Honorable Jeffrey H. Langton, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Larry Adams, Deer Lodge, Montana (pro se) 

For Respondent: 

Mike McGrath, Montana Attorney General, Pamela P. Collins, Assistant 

 Montana Attorney General, Helena, Montana; George H. Corn, Ravalli 

 County Attorney, Hamilton, Montana 

Submitted on Briefs: March 21, 2002 

 Decided: September 5, 2002 

Filed: 

__________________________________________ 

Clerk 
2 

Justice Patricia O. Cotter delivered the Opinion of the Court. 

¶1 Following a jury trial in the Twenty-First Judicial District 

Court, Ravalli County, Appellant Larry Adams was convicted of 

aggravated assault, criminal possession of dangerous drugs, 

criminal possession of drug paraphernalia, and possession of a 

switchblade knife. Adams filed a petition for postconviction 

relief which raised ineffective assistance of counsel and a 

constitutional challenge to his enhanced sentence for the use of a 

dangerous weapon during the commission of the aggravated assault. 

The District Court denied Adams’ petition and Adams appeals. We 

reverse. 

¶2 The sole issue on appeal is whether the District Court erred 

when it denied Adams’ petition for postconviction relief. 

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On October 2, 1998, the State charged Adams by information 

with attempted deliberate homicide, a felony, in violation of § 45-

4-103, MCA; obscuring the identity of a machine, a misdemeanor, in 

violation of § 45-6-326, MCA; possession of a switchblade knife, a 

misdemeanor, in violation of § 45-8-331, MCA; criminal possession 

of dangerous drugs, a felony, in violation of § 45-9-102, MCA; and 

criminal possession of drug paraphernalia, a misdemeanor, in 

violation of § 45-10-103, MCA. With the aid of his court-appointed 

counsel, Adams pled not guilty to all of the charges on October 28, 

1998. On May 20, 1999, Adams’ counsel filed a motion to withdraw 

which the District Court subsequently granted. Adams agreed to 
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waive his right to a speedy trial until substitute counsel could 

proceed. The District Court appointed substitute counsel for Adams 

in approximately June of 1999. 

¶4 The case proceeded to a jury trial on September 20, 1999. On 

September 21, 1999, the jury found Adams guilty of aggravated 

assault, a lesser included offense of attempted deliberate 

homicide; not guilty of obscuring the identity of a machine; guilty 

of possession of a switchblade knife; guilty of criminal possession 

of dangerous drugs; and guilty of criminal possession of drug 

paraphernalia. Following a sentencing hearing on December 1, 1999, 

the District Court sentenced Adams to twenty years in the Montana 

State Prison for the aggravated assault conviction, five years in 

the Montana State Prison for the criminal possession of dangerous 

drugs conviction; six months in the Ravalli County Detention Center 

for the possession of a switchblade knife conviction; and six 

months in the Ravalli County Detention Center for the possession of 

drug paraphernalia conviction. Pursuant to § 46-18-221, MCA, the 

District Court sentenced Adams to an additional ten years in the 

Montana State Prison for using a “dangerous weapon” during the 

commission of the aggravated assault. The District Court ordered 

the sentences to run consecutively and precluded Adams from parole 

eligibility until he attained the age of sixty-five. 

¶5 On February 24, 2000, Adams’ attorney drafted a letter to 

Adams which stated: 

[U]pon reviewing your case, I do not believe that we have 

a reasonable basis for an appeal. If you still want to 

appeal your case you need to contact Mr. William Hooks of 

the state appellate defender office in Helena, Montana, 

who will review your case for any possible appellate 
4 

issues. Also, you need to file any notice of your appeal 

to the Montana Supreme Court within ten days after you 

receive this copy of your judgement. 

On March 1, 2000, Adams’ counsel filed a motion entitled “Defense 

Attorney’s Motion to be Removed as Counsel of Record” which 

insisted that “no reasonable avenues of appeal” existed. The 

District Court ordered Adams to respond to his attorney’s motion 

within ten days of receiving service of the motion. Adams failed 

to respond to the motion and on March 29, 2000, the District Court 

removed Adams’ attorney as counsel of record. 

¶6 On October 16, 2000, Adams, acting pro se, filed a petition 

for postconviction relief in the District Court. Adams’ petition 

alleged ineffective assistance of his original court-appointed 

counsel due to that attorney’s failure to file a motion to dismiss 

for lack of a speedy trial. Adams’ petition also alleged 

ineffective assistance of his subsequently appointed trial counsel 

for (1) offering a lesser included instruction on aggravated 

assault to the jury and (2) failing to file an appeal to this 

Court following Adams’ convictions. Finally, Adams’ petition 

alleged that the District Court imposed the sentence enhancement 

for use of a dangerous weapon in violation of his constitutional 

rights. Therefore, Adams requested that the District Court set 

aside the aggravated assault conviction and sentence enhancement. 

On January 3, 2001, the District Court denied Adams’ petition for 

postconviction relief. Adams appeals. 

STANDARD OF REVIEW
5 

¶7 We review a district court’s denial of a petition for postconviction relief to determine 

whether the court’s findings of fact are clearly erroneous and whether its conclusions of law 

are correct. State v. Hanson, 1999 MT 226, ¶ 9, 296 Mont. 82, ¶ 9, 988 P.2d 299, ¶ 9. 

DISCUSSION

¶8 Did the District Court err when it denied Adams’ petition for 

postconviction relief? 

¶9 Adams argues that § 46-8-103, MCA, clearly requires that 

appointed counsel continue representation until final judgment, 

which includes appellate review by this Court, unless counsel is 

relieved by court order. Adams recognizes that the District Court 

entered an order purporting to relieve his attorney of continued 

representation. However, Adams maintains that his attorney failed 

to comply with the mandatory statutory procedure for withdrawal 

from appointed representation. Therefore, Adams insists that the 

withdrawal was ineffective, and that his attorney was therefore 

obligated to pursue a direct appeal. He further contends that his 

attorney’s failure to pursue a direct appeal constitutes 

ineffective assistance of counsel. Consequently, Adams claims that 

he should not have been barred from raising the relevant issues for 

review in postconviction relief proceedings. 

¶10 The District Court cited § 46-21-105(2), MCA, and Kills on Top 

v. State (1995), 273 Mont. 32, 901 P.2d 1368, for the proposition 

that claims which could reasonably have been raised on direct 

appeal are procedurally barred from consideration in postconviction 

proceedings. The District Court noted that Adams had sixty days 
6 

from the entry of judgment to file a direct appeal pursuant to Rule 

5(b), M.R.App.P. The District Court determined that “Adams failed 

to file an appeal to the Montana Supreme Court within the specified 

60-day period, and furthermore, has offered the Court no reasons 

for his failure to do so.” Therefore, the District Court concluded 

that Adams is “barred from making his claim for postconviction 

relief.” 

¶11 We are aware of the principle contained in § 46-21-105(2), 

MCA, that “grounds for relief that were or could reasonably have 

been raised on direct appeal may not be raised, considered, or 

decided in a [postconviction relief] proceeding . . . .” However, 

this principle must be observed in conjunction with a defendant’s 

right to the effective assistance of counsel on a first appeal. 

See Hans v. State (1997), 283 Mont. 379, 408, 942 P.2d 674, 691-92. 

 

¶12 Section 46-8-103(1), MCA, governs the duration of appointed 

representation as follows: 

When counsel has been assigned, the assignment is 

effective until final judgment, including any proceeding 

upon direct appeal to the Montana supreme court, unless 

relieved by order of the court that assigned counsel or 

that has jurisdiction over the case. 

Section 46-8-103(2), MCA, is a codification of the Anders v. 

California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, 

procedure which appointed counsel must undertake to withdraw from 

appellate representation. It provides: 

If counsel finds the defendant’s case on appeal to 

be wholly frivolous, counsel shall advise the court of 

that fact and request permission to withdraw. The 

request to withdraw must be accompanied by a memorandum 
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referring to anything in the record that might arguably 

support the appeal. The defendant is entitled to receive 

a copy of counsel’s memorandum and to file a reply with 

the court. 

Section 46-8-103(2), MCA. In State v. Rogers, 2001 MT 165, ¶ 27, 

306 Mont. 130, ¶ 27, 32 P.3d 724, ¶ 27, we stated that “[f]ollowing 

the Anders procedure protects a defendant’s right to effective 

assistance of counsel on appeal.” A logical extension of this 

statement is the converse notion, i.e., a failure to follow the 

Anders procedure frustrates the right to effective assistance of 

counsel on appeal. 

¶13 As indicated above, Adams’ trial counsel filed a motion to 

withdraw on March 1, 2000. This same attorney also drafted a 

letter advising Adams to contact the Appellate Defender’s Office in 

the event he wanted to pursue an appeal. On March 7, 2000, the 

District Court ordered Adams to respond to his attorney’s motion. 

Adams failed to respond to the motion and the District Court 

removed Adams’ attorney from the case on March 29, 2000. The State 

contends that Adams sufficiently understood the consequences of 

inaction and had ample opportunity to preserve his right to direct 

appeal. Since Adams failed to respond, the State insists that 

Adams voluntarily waived his right to appeal and is, thus, barred 

from raising the relevant issues in postconviction relief 

proceedings. 

¶14 The State admits that Adams’ attorney “only partially complied 

with the procedure set forth in § 46-8-103, in that his request to 

withdraw was not accompanied by a ‘memorandum referring to anything 

in the record that might arguably support the appeal.’” 
8 

Nevertheless, the State attempts to justify this oversight with its 

notification and voluntary waiver position. We cannot accept the 

State’s proposition. 

¶15 We do not believe that Article II, Section 24, of the Montana 

Constitution and its supporting statutory and case law contemplate 

“partial compliance” with those procedural safeguards designed to 

preserve a litigant’s right to appeal and right to effective 

assistance of counsel on appeal. In fact, § 46-8-103(2), MCA, 

provides that appointed counsel “must” include the requisite 

memorandum with his or her motion to withdraw. This compulsory 

language contains no ambiguity which might support the State’s 

“partial compliance” theory. 

¶16 The accompanying memorandum requirement in § 46-8-103(2), MCA, 

serves a vital function. It notifies prospective pro se litigants 

of potentially viable issues for appellate review. It also 

provides assistance to a court deliberating over the merit of a 

motion to withdraw from appellate representation. As we stated in 

Rogers, ¶ 26, “a defendant’s right to appellate counsel must be 

safeguarded and allowing counsel to be the final judge of the 

merits of an appeal does not adequately safeguard this right.” The 

State’s “partial compliance” proposition would effectively transfer 

the legal practitioner’s statutory obligation to the untrained and 

unsuspecting pro se litigant. In light of the potential 

consequences, we believe this is too high a burden to place upon 

someone unfamiliar with the nuances of appellate procedure. 
9 

¶17 In short, Adams’ attorney failed to comply with the 

requirements of § 46-8-103(2), MCA, and, therefore, could not 

effect a valid withdrawal. It follows that since Adams’ counsel 

did not effect a valid withdrawal and did not file a notice of 

appeal on Adams’ behalf, Adams’ trial counsel failed to preserve 

Adams’ right to appeal. Failure to preserve a defendant’s right to 

appeal when he has requested notice be filed is error. Rogers, ¶ 

24. And when, but for counsel’s deficient performance, defendant 

would have appealed, such error is prejudicial. Rogers, ¶ 24. 

¶18 The State argues that “it cannot be said that, but for 

counsel’s failure to file a memorandum, Adams would have appealed.” 

 With his petition for postconviction relief, Adams filed an 

“Affidavit in Support of Petition for Postconviction Relief.” In 

the affidavit, Adams states, “After affiant was sentenced by this 

court, on or about December 1, 1999, affiant requested that [his 

attorney] appeal his conviction to the Montana Supreme Court and 

[his attorney] failed to do so.” Further, on appeal, Adams 

contends that the letter from his attorney and the District Court’s 

order which demanded a response to his attorney’s motion contained 

conflicting information which led him to believe that his 

opportunity to file a notice of appeal had expired. We conclude 

that there is sufficient evidence in the record to indicate that 

but for counsel’s deficient performance, Adams would have filed an 

appeal. Accordingly, we hold that the District Court erred when it 

denied Adams’ petition for postconviction relief as procedurally 

noncompliant. 
10 

¶19 In Hans, 283 Mont. at 410, 942 P.2d at 693, we held that all 

claims foreclosed from appeal because of counsel’s abandonment on 

appeal may be raised in a postconviction petition. Therefore, the 

exclusionary language in § 46-21-105(2), MCA, does not apply to the 

case at bar. 

¶20 Generally, a postconviction relief procedure is civil in 

nature and there is no constitutional requirement that counsel be 

appointed. State v. Bromgard (1997), 285 Mont. 170, 175, 948 P.2d 

182, 185. However, Adams would have been entitled to counsel on 

direct appeal and should not be precluded from such representation 

throughout the postconviction proceedings simply because his trial 

counsel failed to preserve his direct appeal. Section 46-8-

101(3)(c), MCA, provides that a “defendant, if unable to employ 

counsel, is entitled to have counsel assigned if the interests of 

justice would be served by assignment.” Here, in the interests of 

justice, we conclude that Adams is entitled to appointed counsel 

throughout the course of postconviction proceedings on remand. 

¶21 Although the District Court determined that Adams’ petition 

was procedurally barred, it proceeded to analyze the merits of the 

allegations contained therein. However, Adams did not have the 

benefit of counsel in preparing his petition for postconviction 

relief. Therefore, on remand, the District Court must consider 

anew, upon briefs filed by counsel, the substantive issues 

presented for review. 

¶22 In Petition of Hans, 1998 MT 7, 288 Mont. 168, 958 P.2d 1175 

(Hans II), a case procedurally similar to the one at bar, we 
11 

delineated what substantive issues a party could present for review 

in postconviction proceedings in cases such as this. We stated: 

[I]n the future, a defendant whose counsel has abandoned 

his or her appeal should raise, in one petition for 

postconviction relief, the claim that counsel was 

ineffective in abandoning the appeal, all claims that 

could have been raised on direct appeal, and all claims 

that would normally be appropriate in a petition for 

postconviction relief, including challenges to the 

validity of the sentence under § 46-21-101, MCA, and 

other ineffective assistance claims. 

Hans II, ¶ 19. However, in Hans II, we indicated that we had 

already ruled on the ineffective assistance allegation for 

abandoning the direct appeal. Therefore, on remand, Hans was given 

leave to raise two types of issues in his amended petition for 

postconviction relief: (1) those issues that could have been raised 

in a direct appeal but for counsel’s abandonment of his appeal; and 

(2) those issues properly raised in a petition for postconviction 

relief that have not already been raised. Hans II, ¶ 17. 

¶23 As in Hans II, we have already ruled on Adams’ allegation of 

ineffective assistance of counsel for failure to preserve his 

direct appeal. Accordingly, on remand, Adams is given leave to 

raise those direct appeal and postconviction relief issues 

delineated in Hans II. In summary, we reverse the District Court’s 

judgment to the extent it concluded that Adams’ petition for 

postconviction relief was procedurally barred. We remand this case 

for the appointment of counsel and for further proceedings 

consistent with this Opinion. 

/S/ PATRICIA COTTER 
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We Concur: 

/S/ KARLA M. GRAY 

/S/ JAMES C. NELSON 

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER