                                                                                          December 1 2015


                                           DA 14-0340

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2015 MT 331N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

KERMIT TY POULSON,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause Nos. DC-12-419(C) and
                        DC-11-014(A)
                        Honorable Ted O. Lympus, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad R. Vanisko, Assistant Appellate Defender; Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
                        Attorney General; Helena, Montana

                        Ed Corrigan, Flathead County Attorney, Kenneth Park, Deputy County
                        Attorney; Kalispell, Montana




                                                    Submitted on Briefs: October 21, 2015
                                                               Decided: December 1, 2015


Filed:

                        __________________________________________
                                          Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragaraph 3(c), 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 Pacific Reporter and Montana

Reports.

¶2     Kermit Ty Poulson appeals the order of the Eleventh Judicial District Court,

Flathead County, which revoked his suspended sentences and reimposed his two

consecutive two-year commitments to the Montana Department of Corrections (DOC) for

the convictions of felony criminal possession of dangerous drugs and felony

bail-jumping.   The two convictions were filed as separate appeals, and because the

appeals presented identical issues based on the same underlying facts, this Court granted

Poulson’s motion to consolidate the two appeals. We affirm the District Court’s order

revoking Poulson’s suspended sentences.

¶3     On August 9, 2012, Poulson pled guilty to felony criminal possession of

dangerous drugs. Judge Ted O. Lympus presided over the proceedings. Poulson failed to

appear at his sentencing hearing set for November 1, 2012, and he failed to appear at the

reset hearing on November 15, 2012. Because he missed the hearings, Poulson was

charged with, and pled guilty to, felony bail-jumping. Judge Heidi J. Ulbricht presided

over the proceedings for the bail-jumping charge. On August 7, 2013, Judge Lympus

held a hearing in aggravation or mitigation of sentence for both the possession and

bail-jumping convictions.    Attorney Nick Aemisegger represented Poulson.           Judge

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Lympus sentenced Poulson to two consecutive two-year commitments to the DOC for the

two convictions with all time suspended and subject to conditions.

¶4     On November 20, 2013, Poulson filed a pro se motion titled “Motion for re-trial,

law-suit, [h]earing for new evidence.”       Poulson requested a new trial, he alleged

“attorney misconduct” by Aemisegger, and he alleged “procedural error and inmate

mistreatment.” Poulson’s motion and accompanying affidavit alleged that Aemisegger

intimidated him, and that he had pled guilty against his will. Poulson alleged that he was

harassed and mistreated in jail and was not properly treated for his medical conditions.

On December 2, 2013, the State responded to Poulson’s motion as though it were a

motion to withdraw a guilty plea.

¶5     Also on December 2, 2013, the State filed a petition to revoke Poulson’s

suspended sentences, alleging that Poulson had violated multiple conditions of the

sentences. The alleged violations included failing to report to his probation officer and

traveling out of state without permission.

¶6     On December 11, 2013, attorney Timothy Wenz filed a notice of appearance as

counsel for Poulson for both the possession and the bail-jumping revocation proceedings.

On December 23, 2013, the District Court held a hearing on the State’s petitions to

revoke. District Court Judge David M. Ortley presided over the hearing. Wenz appeared

with Poulson. Poulson denied violating the conditions of his suspended sentences. Wenz

and Judge Ortley discussed Poulson’s pro se filing and the need for a hearing on the

matter. Judge Ortley suggested setting the revocation hearings far enough out to allow

for a hearing on Poulson’s motion to withdraw his guilty plea. Judge Ortley ordered a

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hearing on the revocation of Poulson’s suspended sentence for the possession conviction

at 9:00 a.m. on February 13, 2014, and another hearing to address the revocation of his

suspended sentence for the bail-jumping conviction at 1:00 p.m. on February 13, 2014.

¶7    Poulson then wrote two letters to Judge Ortley.       The first letter, postmarked

December 27, 2013, stated: “I would like for you to request that Tim Wenz be court

ordered to submit notarized Executive Clemency forms, or I will find conflict of interest

with his candor of professionalism and fire him and proceed pro se, or with another

attorney.” The second letter was entitled a “Writ of Habeas Corpus for non-secular

prosecution” and postmarked January 2, 2014. It stated: “I fire Tim Wenz and will set up

arbitration, mediation, [and] reconciliation [t]hrough the Uniformed Arbitration Act.

This is my writ.” The envelope for the second letter stated as follows: “I might fire Tim

Wenz [a]s council [sic] [b]ecause he is not [a] [r]eligious, Orthodox Jew. Please

[a]dmonish him to [r]epresent me zealously.” Copies of the letters were filed in the

District Court files for both the possession and the bail-jumping proceedings on

January 17, 2014.

¶8    On January 16, 2014, Judge Lympus filed an order vacating the hearings set by

Judge Ortley. Judge Lympus’ order stated that the hearing, now set for January 29, 2014,

would address the revocations, Poulson’s pro se motion to withdraw the guilty plea, and

Wenz’s January 15, 2014 motion to release Poulson on his own recognizance.

¶9    Judge Ortley presided over the January 29, 2014 hearing. Poulson refused to

appear at the hearing unless the Governor attended. Because the Governor did not attend,

neither did Poulson. During the hearing, Wenz suggested that Poulson was not fit to

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proceed due to his mental health.       Wenz also stated that Poulson filed a “writ of

habeas corpus” which was mailed to Judge Ortley. Judge Ortley stated: “I was just

handed . . . several pages of hand-printed things. . . . Yeah, so I’m not going to accept this

stuff. And there’s no evidence of it having been copied to the State.” The record is

unclear as to what precisely was handed to Judge Ortley during the hearing.

¶10    On January 30, 2014, Wenz moved for a psychiatric evaluation of Poulson and for

a continuance due to the evaluation. Judge Lympus granted the motion for the evaluation

and the continuance.      On February 3, 2014, Judge Lympus reset the hearing for

March 17, 2014.

¶11    On February 25, 2014, Poulson made another pro se filing entitled “Request

Appointed Council [sic] for Change of Plea” which stated: “I have been advised by

[K]ristina Neal . . . to request for counsel concerning [a] change of plea hearing.” The

filing further stated:

       P.S. I have [a] conflict of interest with Tim Wenz because he [is]
       communicating ex parte with [County Attorney] Ken Park. Also, he
       intimidates me, and doesn’t listen, called me handicapped, is a hateful
       person and I feel tension. I am leary [sic] of his conduct, he rushes me, etc.
       I feel reasonable apprehension.

Kristina Neal is the Conflict Coordinator for the Office of the State Public Defender

(OPD). On March 17, 2014, Neal moved for clarification of appointment of counsel for

Poulson.    OPD was appointed on December 6, 2013, to represent Poulson for the

revocation proceedings; OPD appointed Wenz on December 10, 2013. Neal inquired

whether the District Court intended to appoint OPD to represent Poulson on his pro se

motion to withdraw his guilty plea.

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¶12   On March 17, 2014, Judge Lympus presided over a hearing to address the

revocations, Poulson’s pro se filings, Wenz’s motion to release Poulson on his own

recognizance, and OPD’s motion to clarify representation. Poulson appeared with Wenz

as his counsel. Wenz reported that Poulson had not yet completed a psychological

evaluation, and that Poulson no longer wanted an evaluation.         Accordingly, Judge

Lympus withdrew the request for an evaluation.

¶13   Poulson interrupted Judge Lympus, the prosecutor, and Wenz several times during

the hearing. Poulson said he wanted to leave the courtroom and return to jail due to bias

and discrimination. Poulson stated: “I want to have change counsel before the change of

plea hearing.” Judge Lympus tried to explain that the change-of-plea matter had not been

addressed yet, but Poulson continually interrupted him. Poulson then left the hearing.

Wenz objected to proceeding without Poulson present.         Judge Lympus allowed the

proceeding to go forward, noting that Poulson had voluntarily left the courtroom.

¶14   The State moved to dismiss Poulson’s motion to withdraw his guilty plea. Wenz

stated that he was not sure whether or not he could comment on Poulson’s pro se filings;

however, Wenz reported that Neal believed Poulson was probably entitled to

representation on his motion to withdraw his guilty plea. Judge Lympus granted the

State’s motion to dismiss Poulson’s motion to withdraw his guilty plea. He determined

that this ruling rendered the motion for clarification of counsel moot. Judge Lympus then

addressed the State’s petition for revocation of Poulson’s suspended sentences.

¶15   At the conclusion of the March 17, 2014 hearing, Judge Lympus found that

Poulson violated the conditions of his suspended sentences and revoked both of his

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suspended sentences. Poulson was recommitted to the DOC for two years for the drug

conviction, and Judge Lympus reimposed the consecutive two-year DOC commitment

for the bail-jumping conviction. The court recommended a placement at the Missoula

Assessment and Sanction Center. Judge Lympus also denied Poulson’s motion to be

released on his own recognizance.      Poulson appeals the revocation of both of his

suspended sentences.

¶16   “We review a district court’s denial of a request for appointment of new counsel

for an abuse of discretion.” State v. Happel, 2010 MT 200, ¶ 11, 357 Mont. 390,

240 P.3d 1016. An abuse of discretion occurs when a district court acts arbitrarily

without the employment of conscientious judgment or exceeds the bounds of reason

resulting in substantial injustice. State v. Gallagher, 2001 MT 39, ¶ 4, 304 Mont. 215,

19 P.3d 817. “Claims of ineffective assistance of counsel present mixed issues of law

and fact which we review de novo.” State v. Clary, 2012 MT 26, ¶ 12, 364 Mont. 53,

270 P.3d 88.

¶17   “If a defendant asserts denial of effective assistance and requests appointment of

new counsel, a district court must conduct an adequate initial inquiry to determine

whether the defendant’s claim is seemingly substantial.” Happel, ¶ 14 (citations and

quotation marks omitted). “[T]he threshold issue to determine whether a complaint is

substantial is not whether counsel was ineffective, but rather whether the district court

made an adequate inquiry into the defendant’s claim.” Happel, ¶ 14 (citations omitted).

“[G]enerally, an initial inquiry may be adequate where the court considered the

defendant’s factual complaints together with counsel’s specific explanations addressing

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the complaints.” Happel, ¶ 19 (citations and quotation marks omitted). When a district

court fails to make such an inquiry, the matter must be remanded for further proceedings.

State v. Schowengerdt, 2015 MT 133, ¶ 21, 379 Mont. 182, 348 P.3d 664.

¶18    Poulson argues that the District Court erred by not conducting an inquiry into his

issues with his counsel. Poulson asserts that an inquiry was required because he alleged

ineffective assistance by Wenz in his pro se filings and letters to Judge Ortley, and he

requested appointment of new counsel during the March 17, 2014 hearing by stating: “I

want to have change counsel before the change of plea hearing.”

¶19    Poulson’s request for new counsel at the March 17, 2014 hearing pertained only to

his pro se motion to change his plea. Poulson has not appealed the denial of his pro se

motion to change his plea, and that matter is not before us. All that is before this Court

on appeal is the revocation of Poulson’s suspended sentences, and Poulson did not

request new counsel for these matters.

¶20    Poulson’s pro se filings and letters to the District Court, to the extent they sought

any ascertainable relief, did not request substitute counsel for the revocation proceedings.

Instead, they were abstract complaints and focused on his pro se motion to withdraw his

plea. “We have held that if a defendant does not request substitute counsel, the defendant

‘fail[s] to implicate the ‘seemingly substantial’ analysis and the need for a subsequent

hearing’ on his complaints about his lawyer.” Clary, ¶ 28 (quoting State v. Racz,

2007 MT 244, ¶ 20, 339 Mont. 218, 168 P.3d 685; and State v. Molder, 2007 MT 41,

¶ 33, 336 Mont. 91, 152 P.3d 722 (if a defendant does not request substitute counsel, a

separate hearing is not required)). Although Poulson complained in general terms about

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Wenz, he did not request that a different lawyer be appointed to represent him in the

revocation proceedings. Therefore, Poulson did not meet the requirements to trigger a

mandatory inquiry by the District Court into Poulson’s issues with his counsel. We

affirm the District Court’s revocation of Poulson’s suspended sentences.

¶21   We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review. The District Court’s interpretation and

application of the law were correct. The District Court’s ruling was not an abuse of

discretion. Affirmed.



                                                /S/ JAMES JEREMIAH SHEA

We Concur:

/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JIM RICE




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