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 HonorableWilliam 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:

### Justicewillaim 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 offenseof sexual intercoursewithout consent,a felony, and the court'sdesignationof appellant as a "dangerousoffender" 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 JohnAdams was appointed to represent appellant. Appellant pleaded notguilty to thecharge 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 appointhim new counsel. OnNovember 1, 1990, the District Court Judge directed Adams to seeboth the court andappellant 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,appellantmade a second request for new appointment of counsel to representhim 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 counselbe appointed, and the request was granted. The court imposed a sentence of 20 years imprisonment,with an additional threeyears for use of a weapon,tobe served consecutively. The court designated appellant

as a dangerous offender forpurposes 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 requestforappointmentof 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 iswithin 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. Statev. 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'smotion 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 tocontact a witness defendant had deemed crucial to the case. The court granted themotion and told defendant that shewould 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 complaintsconcerning counsel,and counsel did notappeartoanswer 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. Inthis instance, theappellant wrote a letterto 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 thematter. No hearing or subsequent action was taken until after the trial. Appellant did not make another request for a substitution of counsel until afterhis convictionduring the sentencinghearings. 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 theCountyJailwevisited 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 informedme 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 theyhad a "meaningfulrelationshipwand that therewas not a total breakdown of communication. Adams followed appellant's wishes to not accept a plea bargain. It canbe inferred from the facts that after the District Court's initial inquiry into appellant's complaint, any communication problems were resolved between appellant andAdams because appellant did not follow through onhis 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 awitnesswhom he could have called onhisbehalf. Moreover, appellant has not alleged which pretrial motions could have been raised. 

### A careful review of the trial transcript indicates Adamswas 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 anotherweek. At the time of sentencing,the court granted Adams' request to be dismissed as court-appointed counsel. We hold that the District Court's inquirywas sufficient and that it did not err in failingto substituteappointed 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 indetermining 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 amere recital of the statutory language 

### is required. The sentencing court must articulateitsreasons underlying itsdetermination. 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, 

### Iwill have to designate you as a dangerous offender for these purposes. I refuse to even consider the other matter because it wasn't broughtup 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, inaccordancewith Section46-18-404, 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 arenothing more than a recitationof 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 remandthis 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 

### CERTIFICATEOF

### SERVICE 

### Iherebycertifythatthefollowingorder

### wassentby United Statesmail,

### prepaid,tothe followingnamed:

William

### F.Hooks Appellate Defender CapitolOne

### Center 208North MontanaAve. Helena,

### MT59620 

### HON.MARC

### RACICOT,AttorneyGeneral PatriciaJ.Jordan,Assistant JusticeBldg. Helena,

### MT59620 

### DENNISPAXINOS,CountyAttorney ShelleyBriney,DeputyCountyAttorney P.O. Box 35025 Billings,

### MT59107 

### ED

### SMITH 

### CLERKOF

### THESUPREMECOURT 

### STATEOFMONTANA