No. 91-459 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

JAMES MORRISON, 

Defendant and AppellantAPPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

William F. Hooks, Appellate Defender Officer, 

Helena, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Patricia J. 

Jordan, Assistant Attorney General, Helena, 

Montana; Dennis Paxinos, Yellowstone County 

Attorney, Shelley Briney and Brent Brooks, 

Deputy County Attorneys, Billings, Montana 

Submitted on Briefs: December 22, 1992 

Decided: March 18, 1993 

Filed: 
Justice willaim E. Hunt, Sr., delivered the opinion of the Court. 

Appellant James Morrison appeals from a judgment of the 

Thirteenth Judicial District Court, Yellowstone County, convicting 

him of the offense of sexual intercourse without consent, a felony, 

and the court's designation of appellant as a "dangerous offender" 

for the purposes of parole. 

We affirm in part and remand. 

Appellant presents two issues for this Court's consideration: 

1. Did the District Court err in failing to hold a hearing 

regarding appellant's request for appointment of substitute 

counsel, thereby denying him effective assistance of counsel? 

2. Did the District Court err in failing to articulate its 

reasons for designating appellant as a "dangerous offender" for 

purposes of eligibility of parole as required by § 46-18-404, MCA? 

Appellant was charged with sexual intercourse without consent 

on September 14, 1990. At the arraignment hearing held on 

September 18, 1990, attorney John Adams was appointed to represent 

appellant. Appellant pleaded not guilty to the charge and remained 

incarcerated until trial began on February 26, 1991. 

After being incarcerated for approximately six weeks, on 

October 29, 1990, appellant wrote to the District Court Judge 

expressing his dissatisfaction with Adamst legal representation. 

In his letter, appellant complained that he had not been able to 

contact his court-appointed counsel to discuss the case and 

requested the court appoint him new counsel. On November 1, 1990, 

the District Court Judge directed Adams to see both the court and 
appellant about the matter and provided Adams with a copy of 

appellant's letter. No hearing was held on the matter and Adams 

continued as appellant's court-appointed counsel. Adams did not 

file any motions or a trial brief, and did not subpoena any 

witnesses on appellant's behalf. 

Following a jury trial, appellant was found guilty of the 

crime charged. The court ordered a presentence investigation 

report and set a sentencing date of March 20, 1991. 

On the day of sentencing, appellant made a second request for 

new appointment of counsel to represent him at the sentencing and 

on appeal. The minute entry reflects that the court denied the 

request and postponed sentencing until April 3, 1991. 

On April 3, 1991, the court appointed Art Thompson as 

co-counsel and postponed sentencing until April 10, 1991. 

Sentencing was held on April 10, 1991, at which time Adams 

asked to be relieved as counsel and that new counsel be appointed, 

and the request was granted. The court imposed a sentence of 

20 years imprisonment, with an additional three years for use of a 

weapon, to be served consecutively. The court designated appellant 

as a dangerous offender for purposes of parole eligibility. This 

Court appointed counsel for the purposes of this appeal. 

I. 

Did the District Court err in failing to hold a hearing 

regarding appellant's request for appointment of substitute counsel 

thereby denying him effective assistance of counsel? 
Appellant argues that the trial court's failure to hold a 

hearing upon his requests for appointment of new counsel warrants 

a reversal of the conviction. We have stated that it is within the 

sound discretion of the trial court to rule on the substitution of 

counsel and that we will not overturn a decision absent a showing 

of an abuse of discretion. State v. Martz (1988), 233 Mont. 136, 

139, 760 P.2d 65, 67. A defendant has the right to a "meaningful 

client-attorney relationship'' with his attorney. State v. Enright 

(1988), 233 Mont. 225, 229, 758 P.2d 779, 782 (quoting State v. 

Long (1983), 206 Mont. 40, 46, 669 P.2d 1068, 1071-72). Upon a 

showing of a seemingly substantial complaint about counsel, the 

district court should conduct a hearing to determine the validity 

of defendant's claim. Enrisht, 758 P.2d at 782. When the district 

court considers a motion for substitution of counsel, it must 

adequately inquire into the complaint of the defendant and must 

discover whether the conflict was so great that it resulted in a 

total lack of communication. Martz, 760 P.2d at 67. 

Appellant contends that the District Court has an affirmative 

duty to hold an evidentiary hearing upon a defendant's motion for 

substitution of counsel pursuant to Enrisht, 758 P.2d at 782. In 

Enrisht, the defendant appeared before the district court 13 days 

before trial requesting substitution of counsel on the basis that 

the client-attorney relationship had deteriorated to the point of 

animosity, that counsel had violated the confidentiality of the 

relationship, that counsel failed to appear at a meeting in which 

defendant had assembled all of her witnesses, and had failed to 
contact a witness defendant had deemed crucial to the case. The 

court granted the motion and told defendant that she would have to 

represent herself pro se. Pursuant to a motion by the county 

attorney's office, the court subsequently held a hearing to 

determine defendant's competency to represent herself. After the 

hearing, the court determined that she was competent to represent 

herself. The court failed to question defendant about her 

complaints concerning counsel, and counsel did not appear to answer 

the accusations. The court also failed to inform defendant of the 

hazards of self-representation. We held that it was reversible 

error because the District Court failed to hold a hearing in order 

to determine the validity of defendant's claims which in effect 

deprived her of the opportunity to make a meaningful choice to 

proceed pro se. This failure infringed upon defendant's right to 

effective assistance of counsel and a fair trial. Enriqht, 758 

P.2d at 782. 

In this instance, the appellant wrote a letter to the District 

Court approximately four months prior to trial requesting 

substitution of counsel because Adams had not yet spoken to him 

regarding the preparation of defense. The court told counsel to 

speak with his client and with the court regarding the matter. No 

hearing or subsequent action was taken until after the trial. 

Appellant did not make another request for a substitution of 

counsel until after his conviction during the sentencing hearings. 

At the April 10, 1991, sentencing hearing, Adams stated to the 

court: 
MR. ADAMS: Mr. Morrison is a man of Indian descent, as 

the Court notes. He is a man who has always been 

cooperative with me. 

When in the County Jail we visited a number of times 

and he has always been interested in trying to maintain 

and prove his innocence. At one time I presented to him 

and showed him that the County Attorney's Office was 

filing notice of persistent felony offender status. He 

informed me he wasn't interested in that fact because he 

was innocent. He has maintained his innocence 

throughout. It is hard to believe that he would not 

allow me to plea bargain or do anything because he 

insisted he was innocent. 

This testimony reveals that appellant and Adams did meet on 

several occasions and discussed the case, which demonstrates that 

they had a "meaningful relationshipw and that there was not a total 

breakdown of communication. Adams followed appellant's wishes to 

not accept a plea bargain. It can be inferred from the facts that 

after the District Court's initial inquiry into appellant's 

complaint, any communication problems were resolved between 

appellant and Adams because appellant did not follow through on his 

complaint until sentencing. Unlike Enriaht, appellant did not 

proceed through trial without counsel nor did appellant present 

seemingly substantial complaints as those contained in Enriaht. 

The omnibus hearing indicated that appellant would rely on a 

general denial defense and would take the stand on his behalf. 

Other than the witnesses called by the State, appellant has not 

named a witness whom he could have called on his behalf. Moreover, 

appellant has not alleged which pretrial motions could have been 

raised. A careful review of the trial transcript indicates Adams 
was prepared and conducted an adequate defense and appellant was 

not denied effective assistance of counsel. 

With regard to the court's denial of substitution of counsel 

at the sentencing hearing, the court did appoint co-counsel for 

appellant at the second hearing in which Adams did not appear, and 

postponed sentencing another week. At the time of sentencing, the 

court granted Adams' request to be dismissed as court-appointed 

counsel. We hold that the District Court's inquiry was sufficient 

and that it did not err in failing to substitute appointed counsel. 

Did the District Court err in failing to articulate its 

reasons for designating appellant as a "dangerous offender1' for 

purposes of eligibility of parole as required by 3 46-18-404, MCA? 

The designation of an offender as either nondangerous or 

dangerous is an important factor in determining parole eligibility. 

Section 46-18-404, MCA, governs the designation of nondangerous or 

dangerous offender. In State v. Belmarez (1991), 248 Mont. 378, 

381, 812 P.2d 341, 343, we stated: 

[A]n individual may be designated a dangerous offender, 

if, in the discretion of the sentencing court, he is 

determined to represent a substantial danger to other 

persons or society; however, more than a mere recital of 

the statutory language is required. The sentencing court 

must articulate its reasons underlying its determination. 

During the sentencing hearing, the District Court stated its 

reason for designating appellant a dangerous offender: 

And you admit that you have been convicted of a 

felony and, in my mind, I will have to designate you as 

a dangerous offender for these purposes. I refuse to 

even consider the other matter because it wasn't brought 
up to me until this time, persistent felony offender. I 

do nothing and do not consider it. The dangerous 

offender is a different section. 

The Judgment and Commitment order contain the following 

statements: 

Defendant is designated a dangerous offender for 

purposes of parole, in accordance with Section 46-18-404, 

Montana Code Annotated, and meets the requirements of 

that regulation. 

Sentence was imposed for the following reasons: 

1. The Court has considered the contents of the 

presentence report. 

2. The Court has considered the nature and 

seriousness of the offense. 

The above statements are nothing more than a recitation of the 

statutory requirement. The reasons stated in this case are even 

less detailed than those used in Belmarez. In addition, the court 

made no finding as to whether appellant represented a substantial 

danger to other persons or society. See Section 46-18-404(1)(b), 

MCA . 

Where there is substantial evidence to support a court's 

determination that an offender is dangerous, this Court has 

remanded the case to the district court for findings to support 

such a conclusion and without those findings this Court cannot 

determine whether there is an abuse of discretion. Belmarez, 812 

P.2d at 343. We cannot determine whether there was an abuse of 

discretion unless the District Court articulates its reasons for 

the designation of dangerous offender status. Therefore, we remand 
this case to the District Court for further proceedings on 

designating appellant as a dangerous offender. 

We affirm in part and remand for further proceedings 

consistent with this opinion. 

We concur: 
March 18, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

William F. Hooks 

Appellate Defender 

Capitol One Center 

208 North Montana Ave. 

Helena, MT 59620 

HON. MARC RACICOT, Attorney General 

Patricia J. Jordan, Assistant 

Justice Bldg. 

Helena, MT 59620 

DENNIS PAXINOS, County Attorney 

Shelley Briney, Deputy County Attorney 

P.O. Box 35025 

Billings, MT 59107 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA