DA 12-0353

IN THE SUPREME COURT OF THE STATE OF MONTANA

2013 MT 292N

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

THOMAS JEFFERSON PETERSEN,

 Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,

In and For the County of Lewis and Clark, Cause No. CDC 2011-157

Honorable Kathy Seeley, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Wade Zolynski, Chief Appellate Defender; Kristen L. Larson, Assistant

Appellate Defender; Helena, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General; Micheal S. Wellenstein,

Assistant Attorney General; Helena, Montana

Leo J. Gallagher, Lewis and Clark County Attorney; Helena, Montana

Submitted on Briefs: September 26, 2013

 Decided: October 8, 2013

Filed:

__________________________________________

Clerk

October 8 2013
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Justice Laurie McKinnon 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 list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 The State charged Thomas Jefferson Petersen in the First Judicial District Court, 

Lewis and Clark County, with driving a motor vehicle while under the influence of 

alcohol or drugs, a felony, in violation of § 61-8-401, MCA, and unlawful possession of

an open alcoholic beverage container in a motor vehicle, a misdemeanor, in violation of 

§ 61-8-460, MCA. These offenses were committed on or about October 18, 2010.

¶3 Petersen was assigned a public defender and entered pleas of not guilty. Trial was 

held December 13, 2011, and the jury found Petersen guilty of both charges. On the DUI 

offense, the District Court sentenced him to the Montana Department of Corrections for 

13 months, followed by a 5-year suspended sentence. On the open-container charge, the

court imposed a $100 fine and surcharges of $75. Petersen now appeals.

Issue 1

¶4 The first issue Petersen raises is that the District Court did not conduct an adequate 

initial inquiry into his pretrial request for new counsel. Petersen sent a letter to the court,

dated December 9, 2011, expressing “a great deal of concern about my counsel.” He 

alleged that counsel was not ready for trial and did not seem to want to defend him. 

Petersen asserted that he had asked counsel to do “several things” for him, but that 

counsel had refused to do them and had threatened Petersen. Petersen opined that if 
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counsel was working on his case at all, “it is not for my side.” He stated that he had lost 

all trust in his counsel and asked to be provided with new counsel.

¶5 On the morning of trial, outside the presence of the prospective jurors and the 

prosecutor, the District Court acknowledged receipt of Petersen’s letter but noted that 

Petersen had failed to provide “anything specific” in the letter. Petersen replied that his 

“specific” concern related to the bottle of whiskey found in the van he had been driving 

when he was stopped. He claimed the bottle had not been fingerprinted, and he opined 

that one or more police officers had lied or tampered with evidence. The court observed 

that Petersen could make this argument to the jury, but that it was not a sufficient basis 

for replacing his counsel. The court asked Petersen’s counsel (Morgan) directly whether 

he was prepared for trial, and Morgan stated that he was.

¶6 The District Court then advised Petersen that he had a right to counsel, but not a 

right to pick his counsel. The court found that, “at least from what has been presented 

here, [Morgan] is providing you with a defense.” The court told Petersen that he could 

either proceed with Morgan or represent himself. The court apprised Petersen of the 

“dangers and disadvantages” of representing himself. The court noted that it had 

reviewed the file and “it looks like a tough case for the defense.” Morgan also interjected

during this colloquy that “it’s very dangerous to proceed pro se” and “my advice, on the 

record, is that that’s not an appropriate move.”

¶7 Petersen indicated that he did not want to represent himself. He maintained, 

however, that he had the right to put on a defense and call witnesses. In addition to the 

fingerprinting issue mentioned above, he complained that “I see no witnesses here on my
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behalf. They never even asked me about witnesses, so I assumed they were doing some 

sort of investigation.” The District Court asked Petersen whether he had some witnesses 

he wanted to call, and the following colloquy ensued:

THE DEFENDANT: Well, I certainly think that the little gal that 

works at the AAA Towing should be called, because when they towed the 

van, they thought it was for a wreck, and it was impounded. And the 

officer said it wasn’t impounded. And stuff was missing. And she was 

fired within the next week, anyway.

There’s a lot of strange things --

THE COURT: How is that relevant to whether you were driving 

under the influence?

THE DEFENDANT: I -- I was not driving under the influence, 

Your Honor.

THE COURT: How is that relevant to whether or not you were 

driving under the influence?

THE DEFENDANT: It was a frame-up, in my opinion, Your 

Honor. I had nothing to drink since about 2:00, and I had two beers and 

that’s it. Nothing.

THE COURT: And you had a breath test and a blood test that came 

back over .20.

THE DEFENDANT: And I think that’s a question, too.

THE COURT: Well, I think we’re going to proceed with the trial at 

this point, Mr. Morgan.

MR. MORGAN: That’s fine, Your Honor.

THE COURT: Mr. Morgan will be representing you. If you 

determine that you want to take over your defense, we can talk about that 

later. But at least for voir dire, Mr. Morgan is going to be representing you. 

You have not stated sufficient reason in my presence to not have him 

represent you.

¶8 A criminal defendant has a constitutional right to effective assistance of counsel, 

and indigent defendants are entitled to representation by appointed counsel at the public’s 

expense. State v. Dethman, 2010 MT 268, ¶ 15, 358 Mont. 384, 245 P.3d 30. The right 

to effective assistance of counsel does not grant defendants a right to counsel of their 

choice, however. State v. Holm, 2013 MT 58, ¶ 18, 369 Mont. 227, 304 P.3d 365. So 
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long as appointed counsel is rendering effective assistance, a defendant may not demand 

dismissal or substitution of counsel simply because he or she lacks confidence in, or does 

not approve of, his or her appointed counsel. Dethman, ¶ 15.

¶9 When a defendant complains about ineffective assistance of appointed counsel and 

requests new counsel, a district court must make “adequate initial inquiry” as to whether 

the defendant’s allegations are “seemingly substantial.” Dethman, ¶ 16. A district court 

conducts an “adequate initial inquiry” when it considers the defendant’s factual 

complaints together with counsel’s specific explanations and makes some sort of critical 

analysis of the complaint. Dethman, ¶ 16. The defendant has the burden of establishing

a “seemingly substantial” complaint. See Dethman, ¶ 16.

¶10 Here, Petersen notably waited until four days before trial to register what appear to 

be longstanding complaints about his counsel. The gist of Petersen’s complaints was that 

the charges against him were the product of a “frame-up” and that his counsel was either 

unprepared for trial or working for the prosecution. Petersen proffered no material facts 

to substantiate these allegations, however. Nor did he provide any basis for disbelieving 

Morgan when Morgan stated to the judge that he was prepared for trial. Petersen failed 

to identify any witnesses whom Morgan could have called to provide relevant testimony, 

and Petersen failed to provide any credible reason for concluding that Morgan may have 

been ineffective in not having the whiskey bottle fingerprinted. Petersen also did not 

allege a total breakdown of communication with counsel. See Dethman, ¶ 16. Petersen’s 

complaints, in short, lacked any specific factual support.
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¶11 Petersen contends that under Dethman, ¶ 16, the District Court was required to 

obtain defense counsel’s specific explanations regarding Petersen’s complaints. That is 

not what Dethman says, however. The court was required to conduct a “critical analysis” 

of Petersen’s complaints. Dethman, ¶ 16. Petersen’s complaints about “frame-ups” and 

conspiracies by the police, the prosecution, and his own counsel were utterly groundless. 

There was no need for the court to obtain explanations from Morgan. We conclude that 

the District Court did not abuse its discretion in denying Petersen’s request to substitute 

counsel. Dethman, ¶ 11.

Issue 2

¶12 As a second issue on appeal, Petersen challenges the District Court’s imposition of 

a condition (on his suspended sentence) that he pay the costs of assigned counsel in the 

amount of $800. See § 46-8-113, MCA. Petersen contends that the court’s “implicit” 

finding that he had the ability to pay this amount is clearly erroneous. Petersen did not 

raise this objection in the District Court, however, and we generally refuse to review on 

appeal an issue to which the party failed to object in the trial court. State v. Kotwicki, 

2007 MT 17, ¶ 8, 335 Mont. 344, 151 P.3d 892. Just as a sentencing court’s outright 

failure to consider the defendant’s ability to pay must be brought to the court’s attention

in order to preserve the issue for appeal, Kotwicki, ¶¶ 21-22, so must a sentencing court’s 

reliance on allegedly erroneous factual findings about the defendant’s ability to pay.

Issue 3

¶13 As a final matter, Petersen contends that the District Court’s written judgment 

does not conform to the oral pronouncement of sentence in that the written judgment does 
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not credit Petersen’s misdemeanor fine with time served as the court orally ordered. The 

State concedes this claim. Petersen also contends that the District Court lacked statutory 

authority to order Petersen to pay $75 in surcharges for his misdemeanor open-container 

conviction. The State likewise concedes this claim. We accordingly reverse the 

$75 surcharge and remand with instructions to strike this illegal component of Petersen’s 

sentence. State v. Heafner, 2010 MT 87, ¶ 11, 356 Mont. 128, 231 P.3d 1087. We also 

remand with instructions to modify the written judgment to reflect that Petersen’s 

$100 misdemeanor fine is credited with time served. State v. Hoots, 2005 MT 346, ¶ 35, 

330 Mont. 144, 127 P.3d 369.

¶14 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. As 

to Issue 1, Petersen has not shown an abuse of discretion in the District Court’s denial of 

his request to substitute counsel. As to Issue 2, Petersen failed to preserve the issue for 

appellate review. As to Issue 3, we reverse in part and remand for corrections to 

Petersen’s sentence as specified above in ¶ 13.

¶15 Affirmed in part, reversed in part, and remanded with instructions.

/S/ LAURIE McKINNON

We Concur:

/S/ MIKE McGRATH

/S/ MICHAEL E WHEAT

/S/ PATRICIA COTTER

/S/ BRIAN MORRIS