DA 10

- 0252 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 11 MT 159N
CITY OF BILLINGS, Plaintiff and Appellee,
v. SABAH OMRAN MALLAK, Defendant and Appellant.

APP EAL FROM: District C ourt of the Thirteenth Judicial District ,

In and For the County of Yellowstone , Cause No. DC 08

- 665 Honorable G. Todd Baugh , Presiding Judge
COUNSEL OF RECORD:

For Appellant: Joslyn Hunt, Chief Appellate Defender; Jennifer A. Hurley, Assistant Appellate Defender, Helena, Montana For Appellee : Steve Bullock, Montana Attorney General; C. Mark Fowler, Assistant Attorney General, Helena, Montana Brent Brooks, Billings City Attorney; Melanie S. Pfeifer, Deputy City Attorney, Billings, Montana

Submi tted on Briefs: May 11, 2011 Decided: June 28, 2011 Filed:

__________________________________________ Clerk June 28 20112

Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the PacificReporter and Montana Reports. ¶2 Sabah Mallak appeals from an order of the District Court, Thirteenth Judicial District, Yellowstone County, denying Mallak’s appeal and affirming the judgment of the Billings Municipal Court. We affirm. ISSUE ¶3 Mallak’s sole i ssue on appeal is whether the District Court correctly concluded that the Municipal Court did not err in denying his motions to substitute counsel. BACKGROUND ¶4 On July 16, 2008, Mallak was charged with misdemeanor assault pursuant to § 45

- 5
- 201(1)(a), MCA. He was assigned counsel by the Office of the Public Defender and
ev entually reassigned to attorney Jeffery Michael. Trial was scheduled for October 10, 2008. Mallak was incarcerated from August 22, 2008 to September 26, 2008, when he posted bail. ¶5 On Oct ober 10, 2008, the parties attended a pretrial conference. At conference, Mallak complained he had not spoken to Michael until that morning. The Municipal Court asked Mallak follow

-up questions and subsequently sought a response from Michael. After Mich ael responded, the Municipal Court concluded that Mallak’s complaint did not warrant action. The parties proceeded to trial, and a jury found Mallak guilty.3

¶6 On October 30, 2008, Mallak appeared at sentencing with Michael. B ef ore the hearing began, Michae l informed the Municipal Court that Mallak had attempted to relieve him as counsel that morning, but he refused to withdraw representation. Michael explained his intention to remain as counsel until he could file an appeal to the District Court. The Municipal Court considered the circumstances, determined Michael’s plan was reasonable, asked Mallak

if he understood , and proceeded to sentencing. ¶7 On October 31, 2008, Michael, filed an appeal in District Court on Mallak’s behalf and moved to withdraw as coun sel. His motion was granted , and Mallak was assigned new
c ounsel. In District Court, Mallak asserted that the Municipal Court failed to make adequate inquiries regarding his complaints ag ainst Michael. The District Court denied Mallak’s appeal and affirmed his conviction. Mallak appealed the District Court’s order to this Court. STANDARD OF REVIEW ¶8 “A request for substitution of appointed counsel is within the sound discretion of the district court, and this Court will not overrule such a ruling absent an abuse of discretion.” Robinson v. State , 2010 MT 108, ¶ 11, 356 Mont. 282, 232 P.3d 403. ¶9 District court review of a municipal court’s order or judgment is limited to review of the record and questions of law. City of Kalispell v. Miller, 2010 MT 62, ¶ 9, 355 Mont. 379, 230 P.3d 792. We review a district court’s conclusions of law to determine whether they are correct. Id. DISCUSSION4

¶10 Mallak argues that he sought substitution of counsel twice, and the Municipal Court erroneously denied his motion both times. First, he argues that the Municipal Court abused its discretion when it failed to hold a hearing on his seemingly substantial complaints raised at the pretrial conference. Second, Mallak argues the Municipal Court abused its discretion when it fail ed to conduct an adequate inquiry into his request for substitute counsel prior to sentencing. We address each contention in turn. ¶11 Criminal defendants have a fundamental right to effective assistance of counsel under the Sixth Amendment of the United Stat es Constitution, and Article II, section 24 of the Montana Constitution. State v. Happel , 2010 MT 200, ¶ 14, 357 Mont. 390, 240 P.3d 1016. When a defendant alleges ineffective assistance of counsel and requests appointment ofnew counsel, a court must co nduct an “adequate initial inquiry” in order to determine whether the defendant ’ s claim is “seemingly substantial.” Id. ¶12 To make an “adequate initial inquiry,” a court must analyze the defendant’s complaints and make some form of critical analysis. Happel , ¶ 14 (quoting State v. Finley , 276 Mont. 126, 143, 915 P.2d 208, 219 (1996), overruled on other grounds State v. Gallagher , 2001 MT 39, ¶ 21, 304 Mont. 215, 19 P.3d 817 ( Gallagher II )). A c ourt’s inquiry is adequate when a defendant’s factual complaintsare considered in conjunction with counsel’s specific explanations addressing the complaints. State v. Gallagher , 1998 MT 70, ¶ 15, 288 Mont. 180, 955 P.2d 1371 ( Gallagher I ). On the other hand, “if a district court fa ils to conduct ‘even a cursory inquiry,’ such an effort is inadequate and justifies remand of5

the case for further proceedings.” Happel , ¶ 14 (quoting State v. Weaver , 276 Mont. 505, 511

- 12, 917 P.2d 437, 441

- 42 (1996)). ¶13 When a court’s inquiry rev eals that a defendant’s complaints are se em ingly substantial, a hearing must be held to determine their validity. Happel , ¶ 14. Conversely, where a court’s inquiry determines that the complaints are not seemingly substantial, no hearing is required. Id. If a de fendant does not request substit ute counsel, a separate hearing is not required. State v. Racz , 2007 MT 244, ¶ 19, 339 Mont. 218, 168 P.3d 685; State v. Molder , 2007 MT 41, ¶ 33, 336 Mont. 91, 152 P.3d 722.

a. Mallak’s pre

- trial complaints ¶14 The Municipal Court did not abuse its discretion w hen it declined to hold a hearing on Mallak’s pre -trial complaints. F irst, the MunicipalC ourt conducted an adequate initial inquiry into Mallak’s complaints at the pre

-trial conference. Mallak’s complaints were that Michael used an investigator who had worked on a prior case Mallak had been involved in, and Michael had not spoken with Mallak until the morning of trial. Michael explained that his contact with the investigator was solely for information gathering purposes, and that he had been available to talk to Mallak for over a week preceding trial. ¶15 The record reflects that Mallak raised complaints to the Municipal Court, the Municipal Court made subsequent inquiries, and Michael addressed Mallak’s complaints. This inquiry was not less

-than

- cursory. Thus, the Municipal Court possessed sufficient information to accurately determine whether Mallak’s complaints were of a seemingly substantial nature. Gallagher I , ¶ 22.6

¶16 Second, the Municipal Court did not abuse its discretion when it determined that Mallak’s complaints did not warrant a separate hearing. The Municipal Court was confused by Mallak’s complaints and diligently asked follow up questions in order to ascertain exactly what Mallak wanted. Ultimately, Mallak asserted he was being d eprived of effective representation, but felt Michael was a “good attorney.” While Mallak’s statement reflects frustration with his circumstances, it cannot be construed as a request for substitution of counsel. In the absence of such a request, the Municipal Courtdid not abuse its discretion when it declined to hold a hearing on Mallak’s complaints. Molder , ¶ 33. b. Mallak’s pre

-sentencing complaints ¶17 Contrary to Mallak’s assertion, the Municipal Court did make an inquiry into Mallak’s request that Michael be rel ieved as counsel. The record reflects that Mallak declined the Municipal Court’s invitation to voice any complaints prior to sentencing. Michael, acting as Mallak’s representative, made the Municipal Court aware of Mallak’s dissatisfaction and request fo r substitute counsel. Michael offered his concerns about withdrawing at the sentencing stage. He had served as counsel through trial, was intimately familiar with the facts and circumstances , and was prepared to go through with sentencing. The Judge analyzed the situation, noted that Michael’s representation had been effectiv e thus far, and agreed that continued representation for the purposes of sentencing was a reasonable course of action. The Municipal CourtJudgethen inquired whether Mallak understood her position. This provided Mallak an opportunity to voice complaints, raise concerns, or articulate his own reasons for seeking Michael’s removal. I nstead, he responded7

affirmatively, abandoned his request for substitutiono f counsel, and acquiescedto continued representation by Michael. Mallak cannot complain of a less

-than

- cursory inquiry when he himself foreclosed upon further discussion. Nor has he demonstrated he was prejudiced by the decision to proceed with sentencing. B ased upon this reco rd, the Municipal Court’s decision to continue with sentencing, neither exceeded the bounds of reason, nor resulted in substantial injustice. Gallagher II , ¶ 4. ¶18 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. The issues in this case are legal and are controlled by settled Montana law, which the District Court correctly interpreted. ¶19 Affirmed. /S/ MIKE McGRATH We concur: /S/ BRIAN MORRIS /S/ MIC HAEL E WHEAT /S/ PATRICIA COTTER /S/ BETH BAKER