No. 95-261

IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA,

Plaintiff and Respondent,

v.

RANDY WEAVER,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Diane G. Barz, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William F. Hooks, Appellate Defender, Helena

Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Carol Schmidt, Ass't Attorney General,

Helena, Montana

Dale Mrkich, Deputy Yellowstone County Attorney,

Billings, Montana

Filed:

Submitted on Briefs: April 4, 1996

Decided: May 29, 1996
Justice Karla M. Gray delivered the Opinion of the Court.

Randy Weaver (Weaver) appeals from judgments and sentences of

the Thirteenth Judicial District Court, Yellowstone County, entered

on his convictions for the offenses of issuing bad checks, assault

and domestic abuse. We vacate the judgments and sentences and

remand with instructions.

Weaver raises the following issues on appeal:

1. Did the District Court abuse its discretion in failing to

rule on Weaver's motion to withdraw his guilty pleas?

2 . Did the District Court err in failing to inquire into

Weaver's contention that his counsel rendered ineffective

assistance?

On October 25, 1994, the State of Montana (State) charged

Weaver by Information with the following offenses: issuing bad

checks, a felony, in violation of § 45-6-316, MCA; assault, a

felony, in violation of § 45-5-202(2) (b), MCA; and domestic abuse,

a misdemeanor, in violation of § 45-5-206(l) (cl, MCA. Weaver pled

not guilty to all of the charges.

On January 26, 1995, the State moved for leave to amend the

Information against Weaver regarding the felony assault charge.

Weaver did not object and the District Court amended the

Information by interlineation; the felony assault charge was

dropped and Weaver was charged with assault, a misdemeanor, in

violation of § 45-5-201(l) cd), MCA. On that same day, Weaver

withdrew his not guilty pleas and pled guilty to the charges of

issuing bad checks and domestic abuse. He also pled guilty to the
misdemeanor assault charge contained in the amended Information.

Weaver signed an llAcknowledgement of Waiver of Rights by Plea of

Guilty" covering all three charges.

Weaver subsequently filed a document entitled "Application for

Plea Reversial [sic]" seeking either permission to withdraw his

guilty pleas or dismissal of all charges against him. He based his

request on allegations of prosecutorial misconduct and ineffective

assistance of court-appointed counsel. The following day, Weaver

filed a "Motion to Relieve Counsel" requesting that the District

Court allow him to proceed pro se.

On March 29, 1995, the District Court held a sentencing

hearing. The court asked Weaver if he had "any cause to show why

this Court should not pronounce your sentence at this time?"

Weaver replied that he did, and referred the court to his pending

motions. In response, the District Court stated:

The Court has reviewed most of the motions that have been

filed in these matters, and I don't see where they will

have anything to do with the sentencing in this matter,

Mr. Weaver.

The District Court proceeded to sentence Weaver on all three

charges. Weaver appeals.

1 . Did the District Court abuse its discretion in

failing to rule on Weaver's motion to withdraw his guilty

pleas?

Weaver argues on appeal that the District Court erred in

failing to rule on his motion. The State does not address Weaver's

argument per se. Rather, the State seems to assume that the

court's failure to ~~formallyU~ rule on Weaver's motion to withdraw

his guilty pleas constituted a denial of that motion. It argues,

3
on the merits, that the denial was not an abuse of discretion.

A t the outset, we cannot agree with the State's

characterization that the District Court denied Weaver's motion to

withdraw his guilty pleas. The District Court's statement that it

had "reviewed most of [Weaver's] motions" is insufficient to even

advise this Court that it was aware of, and had actually reviewed,

Weaver's motion to withdraw his guilty pleas. Moreover, the

District Court's statement that it did not "see where [the motion]

will have anything to do with sentencing in this matter . . I1 can

only be interpreted as a determination by the court that it would

not consider Weaver's motion. Had the District Court intended to

deny Weaver's motion on the merits, we are confident that it would

have met the requirement of State v. Milinovich (1994), 269 Mont.

68, 75, 887 P.2d 214, 218, that district courts "explain their

reasoning when refusing motions to withdraw guilty pleas." See

also State v. Azure (1977), 175 Mont. 189, 193, 573 P.2d 179, 182.

Consistent with that requirement, we have stated:

That a trial court has a right to exercise its discretion

does not mean that a trial court should not disclose the

reasons underlying a discretionary act. Absent these

reasons, we as an appellate court, are left to guess as

to why the trial court made a particular decision.

State v. Stumpf (1980), 187 Mont. 225, 226, 609 P.2d 298, 299.

Section 46-16-105(2), MCA, provides that 'I [al t any time before

or after judgment the court may, for good cause shown, permit the

plea of guilty to be withdrawn and a plea of not guilty

substituted." No set rule or standard exists under which a

district court considers a motion to withdraw a guilty plea; each

4
case must be considered in light of its unique facts. state v.

Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175, 177 (citing State v.

Radi (1991), 250 Mont. 155, 158-59, 818 P.Zd 1203, 1206).

We repeatedly have stated that a motion to withdraw a guilty

plea "rests within the District Court's discretion and the exercise

o f that discretion will not be disturbed absent an abuse of

discretion." State v. Miller 11991), 248 Mont. 194, 197, 810 P.Zd

308, 310; Benjamin v. McCormick (lYYO), 243 Mont. 252, 256, 792

P.2d 7, 10; State v. Mesler (1984), 210 Mont. 92, 96, 682 P.2d 714,

716 (emphasis added). Likewise, we have stated that It [tl he

granting or refusal of permission to withdraw a plea of guilty and

substitute a plea of not guilty rests in the discretion of the

District Court .I' State v. Arbgast (1983), 202 Mont. 220,

223, 656 P.2d 828, 830 (emphasis added).

Thus, while it is true that we generally defer to

discretionary decisions of district courts, this rule presupposes

that the court did, in fact, exercise its discretion. Indeed, our

abuse of discretion standard of review can only be premised on the

district court having exercised its discretion; otherwise, there is

nothing for us to review. Therefore, we conclude, as have courts

from other jurisdictions, that a court's failure to exercise its

discretion is, in itself, an abuse of discretion. &, e.q., State

v. Colton (Corm. 1995), 663 A.2d 339, 349; Johnson v. United States

(D.C. 19791, 398 A.2d 354, 363.

Accordingly, we hold that the District Court's failure to rule

on Weaver's motion to withdraw his guilty pleas prior to sentencing

5
constituted an abuse of the court's discretion. It is necessary,

therefore, to remand this case to the District Court for its

consideration and decision on Weaver's pending motion to withdraw

his guilty pleas. If the court grants Weaver's motion, then this

case will proceed to trial. If, on the other hand, the court

denies Weaver's motion, the court should provide its rationale for

the denial so that we have a basis upon which to review its

decision in the event of a subsequent appeal. See Stumof, 609 P.2d

at 299.

2 . Did the District Court err in failing to inquire into

Weaver's contention that his counsel rendered ineffective

assistance?

As previously stated, Weaver based his motion to withdraw his

guilty pleas, in part, on allegations of ineffective assistance of

counsel. Weaver attached a document captioned "Allegationsl' to his

motion to withdraw his guilty pleas in which he set forth the

following complaints regarding the performance and conduct of his

attorney:

(1) . . That [Weaver's] right to a "Preliminary

Hearing" as stated in M.C.A. was waived without [his]

consent. . . .

(2) . . That on the 26th day of January 1995, [Weaver]

was decieved [sic] by the Yellowstone County Public

Defender's Office by same withholding vitil [sic]

information, that had [he] seen this, he would have never

pled guilty.

. . .

(4) The Yellowstone County Public Defenders Office never

did prepare . his case for trial, that they had no

intentions of providing [him] with proper

representation[;l after [he] wrote to a District Court

Judge complaining of "inefficient counsel, and

professional misconduct" . . the Public Defender's

6
Office came to the Yellowstone County Detention Facility

and bombared [sic1 [him] with abusive language and

profanity.

(5) That [he] has proof of allegations stated above, and

has since filed motions with the Montana Bar Association,

seeking action against parties involved.

Weaver also filed a "Motion to Relieve Counsel" and requested that

the District Court "grant [him] a pro se' [sic] status, and thereby

relieve present council [sic] .'I

At the sentencing hearing, Weaver referred the District Court

to his pending motions, which included his motion to proceed pro se

and the ineffective assistance allegations attached to his motion

to withdraw his guilty pleas. The District Court did not consider

or rule upon Weaver's motion to "relieve" counsel; rather, the

court indicated that Weaver could pursue an ineffective assistance

claim through habeas corpus proceedings.

Weaver argues on appeal that the District Court erred by

failing to inquire into his allegations of ineffective assistance

of counsel. The State does not address Weaver's argument regarding

the court's failure to conduct an inquiry; rather, it sets forth

and discusses Weaver's burden of proof in establishing an

ineffective assistance claim and argues that, based on the record,

Weaver did not raise "substantial complaints" regarding his

counsel's representation. We agree with Weaver that the threshold

issue is not whether counsel was ineffective, but whether the

District Court erred in failing to make an adequate inquiry into

his claim of ineffective assistance of counsel.

The Sixth Amendment to the United States Constitution and
Article II, section 24 of the Montana Constitution guarantee a

criminal defendant the right to the assistance of counsel. The

assistance must be effective in order to give true meaning to that

right and to the right to a fair trial. See State v. Enright

(1988), 233 Mont. 225, 228, 758 P.2d 779, 781. The right is

fundamental and applies with equal force to all persons, regardless

of their ability to compensate an attorney. Enriqht, 758 P.2d at

781 (citing Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct.

792, 9 L.Ed.2d 799). Additionally, the right to the assistance of

counsel does not prohibit a defendant from rejecting the assistance

of counsel. Enriqht, 758 P.2d at 781 (citing State v. Strandberg

(1986), 223 Mont. 132, 724 P.2d 710).

District courts must conduct a hearing to determine the

validity of a defendant's claim of ineffective assistance of

counsel upon a showing of seemingly substantial complaints. &

State v. Finley (Mont. 1996), _ P.2d _, _, 53 St.Rep. 310,

318; State v. Morrison (1993), 257 Mont. 282, 285, 848 P.2d 514,

516; Enrisht, 758 P.2d at 782. Indeed, a district court should

substitute counsel if it appears that failure to do so would

substantially impair or deny the defendant's right to the effective

assistance of counsel. See Enriqht, 758 P.2d at 782 (citing Peters

v. State (1961), 139 Mont. 634, 636, 366 P.2d 158, 159).

"In determining if [the] defendant presented a seemingly

substantial complaint about counsel, it follows that the district

court must make an adequate inquiry into the defendant's

complaints." Finlev, 53 St.Rep. at 318. When a defendant files a

8
motion to remove his attorney based on allegations of ineffective

assistance, whether through a motion for substitution of counsel or

a motion to proceed pro se, the district court must make a critical

analysis of the defendant's complaints regarding his counsel and

make an initial determination of whether the defendant has

presented seemingly substantial complaints. See Finlev, 53 St.Rep.

at 318.

As with Weaver's motion to withdraw his guilty pleas, the

District Court's statement that it had "reviewed most of [Weaver's]

motions" is insufficient to even assure this Court that the

District Court actually reviewed Weaver's motion to remove his

court-appointed counsel. Most importantly, the record is devoid of

any indication that the court made even a cursory inquiry into

Weaver's complaints about his counsel's representation.

Accordingly, we conclude that the District Court erred in

failing to inquire into Weaver's allegations of ineffective

assistance of counsel and in failing to make an initial

determination of whether Weaver presented seemingly substantial

complaints. It is necessary, therefore, to remand this case to the

District Court so that it can make an adequate inquiry into

Weaver's allegations and determine whether he has presented

seemingly substantial complaints. If the court determines that

Weaver has presented seemingly substantial complaints, the court

will proceed accordingly and conduct a hearing to determine the

validity of Weaver's complaints. If, on the other hand, the court

determines that Weaver has not presented seemingly substantial

9
complaints, then the court will deny Weaver's motion to remove his

attorney. Finally, if the District Court ultimately denies the

defendant's motion, the court should provide its rationale so that

we have a basis upon which to review the decision in the event of

a subsequent appeal. & Stumof, 609 P.2d at 299.

We vacate the judgments and sentences and remand to the

District Court for further proceedings consistent with this

opinion, including the reinstatement of the judgments and sentences

in the event the court denies both Weaver's motion to withdraw his

guilty pleas and his motion to proceed pro se.

We concur:

Ju tices

10
May 29, 1996

CERTIFICATE OF SERVICE

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

following named:

William F. Hooks

Appellate Defender

Capitol Station

Helena, MT 59624

Hon. Joseph P. Mazurek, Attorney General

Carol Schmidt, Assistant Attorney General

Justice Building

Helena, MT 59620

Dale Mrkich, Deputy County Attorney

Yellowstone County Attorney’s Office

P.O. Box 35025

Billings, MT 59107

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA

BY:

Deputy,