                                                                                              01/02/2018


                                          DA 15-0704
                                                                                         Case Number: DA 15-0704

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2018 MT 2



CITY OF LIBBY,

               Plaintiff and Appellee,

         v.

SHAYNA HUBBARD,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Nineteenth Judicial District,
                       In and For the County of Lincoln, Cause No. DC 15-28
                       Honorable James B. Wheelis, Presiding Judge

COUNSEL OF RECORD:

                For Appellant:

                       Chad Wright, Chief Appellate Defender, Danny Tenenbaum, Assistant
                       Appellate Defender; Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                       Attorney General; Helena, Montana

                       Dean D. Chisholm, Libby City Attorney; Libby, Montana


                                                   Submitted on Briefs: November 1, 2017

                                                              Decided: January 2, 2018


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Shayna Hubbard (Hubbard) appeals from the judgment entered by the Nineteenth

Judicial District Court, Lincoln County, convicting her of driving with a suspended license

under § 61-5-212, MCA, and failing to show proof of liability insurance under § 61-6-302,

MCA. We affirm, addressing the following issue:

      Should Hubbard’s convictions be reversed because of ineffective assistance of
counsel?
              FACTUAL AND PROCEDURAL BACKGROUND

¶2     On November 8, 2014, Hubbard, an Oregon resident, and her cousin, Olivia Schultz

(Schultz), went to the Lucky Logger Casino in Libby to gamble. Hubbard was 19 years

old and could legally gamble, but only patrons who were 21 years old and older were

eligible to receive a gambling coupon, so she provided another person’s identification to a

casino employee to get the coupon. An employee who recognized Hubbard and knew she

was using another person’s identification called the police.

¶3     Officers John Powell and Brad Dodson went to the casino to investigate. Officer

Powell approached Hubbard and asked if she had used another person’s identification and

Hubbard confirmed she had. Officer Powell asked for her identification, and she gave him

both her own driver’s license from Oregon and the other person’s identification she had

used. Officer Powell confirmed that Hubbard had no outstanding warrants, but learned

that Hubbard’s Oregon driver’s license was suspended. Officer Powell informed Hubbard

that it is illegal to use another person’s identification, but decided not to cite her for the

offense. The officers then left the casino.

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¶4     Officer Powell got back into his vehicle and resumed his patrol, and a short while

later, observed Hubbard driving. He initiated a traffic stop because he knew her license

was suspended. Powell verified through dispatch that Hubbard’s license was suspended.

Hubbard was also unable to provide proof of insurance. Officer Powell arrested Hubbard

and cited her with driving with a suspended license and failing to provide proof of

insurance.

¶5     On November 12, Hubbard appeared in Libby City Court, pled not guilty to the

charges, and asked for appointment of a public defender. Attorney S. Charles Sprinkle

(Counsel) was appointed for the city court trial. On April 9, 2015, Hubbard was tried in

absentia in a bench trial in Libby City Court and was convicted on both counts. Counsel

filed a Notice of Appeal, asking for a trial de novo. A jury trial in district court was

scheduled for later that year. Counsel and Hubbard conversed by email, wherein Hubbard

explained her belief that Officer Powell had entrapped her by allegedly telling her to drive

from the casino, with knowledge her license was suspended, because her companion,

Schultz, had been drinking. Counsel thereafter filed an Omnibus Hearing Memorandum

in which he “reserve[d] the right to introduce evidence of entrapment as a defense[.]”

¶6     On July 31, Counsel moved to withdraw from Hubbard’s representation, citing

§ 46-8-103, MCA, and arguing that a new trial in District Court “would be frivolous or

wholly without merit.” Counsel filed a supporting memorandum and attached several

documents, including the email Hubbard had sent to him explaining why she believed she




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was entrapped. Counsel argued the entrapment defense would be frivolous, and the

problem with a mental state defense would be:

       The fact that it was obvious that [Hubbard] had to have driven to the location
       (Lucky Logger Casino) in total disregard of the fact that her license was
       suspended before she was even investigated for using a phony ID, told to
       leave the premises, and ultimately stopped for Driving While Suspended. In
       other words, Shayna Hubbard had a predilection to commit the crime of
       Driving While Suspended before she even arrived at the Lucky Logger
       Casino. This disregard of the status of her Driver’s License continued until
       she was pulled over by Officer Powell.

The District Court denied Counsel’s motion to withdraw, noting it was effectively an

Anders brief,1 and explained that Counsel was not required to present the entrapment

defense if it was frivolous.

¶7     The prosecution filed a motion in limine to exclude evidence of entrapment and used

Counsel’s memorandum to support their position. Counsel responded, arguing the court

should only grant the motion in limine if it concludes the defense does not apply. The court

denied the prosecution’s motion, reasoning that “[i]f the Defendant were to testify that an

officer told her that it would be proper for her to drive even though she had a suspended

license, but then arrested her once she commenced driving, then the question could be

submitted to the jury.” In September, before trial, the Office of the State Public Defender

(OPD) removed Counsel and reassigned Hubbard’s case to another attorney “due to a

1
  The process for withdrawal outlined in Anders v. California, 386 U.S. 738 (1967) is mirrored in
§ 46-8-103(2), MCA, which requires defense counsel who finds a case wholly frivolous to “. . . file
a motion with the court requesting permission to withdraw” wherein it “attest[s] that counsel has
concluded that an appeal would be frivolous . . . after reviewing the entire record and researching
applicable statutes, case law, and rules and that the defendant has been advised of counsel’s
decision and of the defendant’s right to file a response.” The motion must be “accompanied by a
memorandum discussing any issues that arguably support an appeal.”
                                              4
conflict” with Counsel that caused an “irretrievable break-down in the attorney-client

relationship.”

¶8     Trial was held on October 23, 2015. Hubbard testified she had been visiting from

Portland and staying with her father in Libby. She stated that Schultz drove from Kalispell

to Libby to see Hubbard. Hubbard testified Schultz drove Hubbard’s father’s car to the

casino. She also testified that, at the casino, Officer Powell told her and Schultz to leave

the premises, and recommended that Hubbard drive because Schultz had been drinking.

Hubbard testified she drove toward Town Pump intending to pick up food, but en route,

was pulled over by Officer Powell. Hubbard stated that she did not know that her license

was suspended until Officer Powell stopped her vehicle. On cross-examination, the

prosecutor asked Hubbard where she was living and she responded, “Portland, Oregon.”

The prosecutor then asked, “And then how did you get to Libby?” and Hubbard responded,

“I drove.” The prosecutor asked, “Was your driver’s license suspended when you drove

from Portland to Libby?” and she replied, “Apparently it was.” Schultz’ testimony

mirrored Hubbard’s, adding that, at the traffic stop, Officer Powell left her with Hubbard’s

vehicle and she drove it home, despite the fact she had been drinking.

¶9     Officer Powell testified that he neither asked Hubbard and Schultz to leave the

casino nor told Hubbard to drive. He testified he confiscated the identification Hubbard

used illegally at the casino and, at the traffic stop, ensured Schultz had a driver’s license

before allowing her to take the car. He stated he would not have allowed Schultz to take

the car if he believed she was under the influence of alcohol. Officer Dodson concurred

                                          5
that Officer Powell neither told Hubbard and Schultz to leave the casino nor told either one

of them to drive.

¶10    The District Court instructed the jury: “if before contact with law enforcement,

Shanya Hubbard [had] an intent or disposition to commit the crime charged, then she was

not entrapped, even though an officer provided a favorable opportunity to commit the crime

or made committing the crime easier or even participated in acts essential to the crime.”2

The jury found Hubbard was not entrapped and found her guilty of both offenses.

¶11    Hubbard appeals.

                                  STANDARD OF REVIEW

¶12    Claims of ineffective assistance of counsel are questions of law and fact which this

Court reviews de novo. Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d 861.

                                         DISCUSSION

¶13 Should Hubbard’s convictions be reversed because of ineffective assistance of
counsel?

¶14    The Sixth Amendment of the United States Constitution and Article II, Section 24

of the Montana Constitution guarantee criminal defendants the right to effective assistance

of counsel.      Generally, to establish ineffectiveness, a defendant must show that

(1) counsel’s representation fell below an objective standard of reasonableness and




2
  See also § 45-2-213, MCA (“[a] person is not guilty of an offense if the person’s conduct is
incited or induced by a public servant or a public servant’s agent for the purpose of obtaining
evidence for the prosecution of the person. However, this section is inapplicable if a public servant
or a public servant’s agent merely affords to the person the opportunity or facility for committing
an offense in furtherance of criminal purpose that the person has originated.”).
                                             6
(2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688,

694, 104 S. Ct. 2052, 2065, 2068 (1984).

¶15    Hubbard argues, and the State does not contest, that Counsel violated his duties of

loyalty and confidentiality to her. Counsel supported his motion to withdraw with an email

he received from Hubbard explaining her view on trial strategy, which is protected client

information, and described her defense as frivolous. The right to counsel contemplates the

assistance of an attorney devoted “solely to the interests of his client.” Von Moltke v.

Gillies, 332 U.S. 708, 725-26, 68 S. Ct. 316, 324 (1948). An attorney’s duty of loyalty is

“perhaps the most basic of counsel’s duties.” State v. Jones, 278 Mont. 121, 125, 923 P.2d

560, 563 (1996) (citing Strickland, 466 U.S. at 692, 104 S. Ct. at 2067). An attorney also

owes a duty of confidentiality to clients. See M. R. Pro. Cond. 1.6. “. . . [A] defense

attorney’s disclosure of confidential information in violation of Rule 1.6, MRPC,

necessarily implicates the attorney’s duty of loyalty as well as the defendant’s

constitutional right to effective assistance of counsel.” Jones, 278 Mont. at 125, 923 P.2d

at 563. Counsel’s disclosure here violated his duties of loyalty and confidentiality, and fell

below an objective standard of reasonableness, establishing the first prong of the Strickland

analysis.3




3
 We have admonished appellate counsel, who file an Anders motion to withdraw, that counsel’s
“brief must not argue against his client, but must discuss any issues which would arguably support
an appeal.” McClanahan v. State, No. OP 07-0207, Or. (Mont., Apr. 18, 2007). The same practice
should be honored when moving to withdraw in the trial court.
                                               7
¶16    Hubbard broadly argues that her counsel “completely abandon[ed] his duty” and

had a conflict of interest, requiring prejudice to be presumed under Strickland and United

States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039 (1984), commonly known as the “Cronic

exception” or “Cronic error.”4 United States v. Roy, 855 F.3d 1133, 1144 (11th Cir. 2017).

Such cases involve attorney conduct that is so “egregiously prejudicial that ineffective

assistance of counsel will be presumed.” Frazer v. United States, 18 F.3d 778, 785 (9th

Cir. 1994) (citation omitted). This exception is “narrow,” Florida v. Nixon, 543 U.S. 175,

190, 125 S. Ct. 551, 562 (2004), and requires that “the attorney’s failure to test the

prosecutor’s case . . . must be complete.” Bell v. Cone, 535 U.S. 685, 697, 122 S. Ct. 1843,

1851 (2002); accord Riggs v. State, 2011 MT 239, ¶ 13, 362 Mont. 140, 264 P.3d 693;

State v. Peart, 2012 MT 274, ¶ 24, 367 Mont. 153, 290 P.3d 706 (noting Cronic analysis

is confined to “extremely limited situations.”). “In the wake of Bell, courts have rarely

applied Cronic, emphasizing that only non-representation, not poor representation, triggers

a presumption of prejudice.” Miller v. Martin, 481 F.3d 468, 473 (7th Cir. 2007), opinion

amended by 223 Fed. Appx. 489 (7th Cir. 2007) (per curiam); see also Childress v.

Johnson, 103 F.3d 1221, 1229 (5th Cir. 1997); (noting that attorney error, even when

egregious, almost always requires analysis under the Strickland test).




4
 Hubbard briefly states that an “actual conflict of interest” was here demonstrated, but does not
present a developed actual conflict argument. In such cases, “[p]rejudice is presumed only if the
defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual
conflict of interest adversely affected his lawyer’s performance.’” Strickland, 466 U.S. at 692,
104 S. Ct. at 2067 (citation omitted). We do not separately address this contention.
                                              8
¶17     In Jones, we held that prejudice was presumed where defense counsel moved to

withdraw and made statements violating his duty of loyalty and confidentiality, but then

continued to represent the defendant at trial when his motion was denied. Jones, 278 Mont.

at 134, 923 P.2d at 568. In State v. Bekemans, 2013 MT 11, ¶ 34, 368 Mont. 235, 293 P.3d

843, we contrasted Jones and concluded prejudice should not be presumed when counsel

violates the duty of loyalty or confidentiality pretrial, but new counsel is appointed before

trial, explaining that:

        the prejudice that the defendant presumptively suffered in Jones was not that
        the judge heard counsel’s remarks, but that the same attorney who abandoned
        him continued to serve as counsel throughout his trial.

Bekemans, ¶ 34. Because the defect was cured, prejudice was not presumed, and Bekemans

was required to prove actual prejudice in support of his ineffectiveness claim. Bekemans,

¶ 34.

¶18     Hubbard argues that, as in Jones, counsel completely abandoned her and violated

his duty of loyalty by revealing confidential information, which constituted Cronic error

and a presumption of prejudice. However, OPD, recognizing a conflict between counsel

and Hubbard had arisen that caused an “irretrievable breakdown” of the attorney/client

relationship, substituted another attorney to represent Hubbard. Unlike in Jones, where the

“same attorney who abandoned [the client] continued to serve as counsel throughout his

trial[,]” new counsel was assigned to Hubbard for the remainder of the proceeding.

Bekemans, ¶ 34; see also Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991) (noting

that the remedy for “a conflict of interest, an irreconcilable conflict, or a complete

                                          9
breakdown of communication between the attorney and the defendant” is “substitution of

counsel.”). We find no indication in the record, nor does Hubbard argue, that subsequent

counsel also “entirely fail[ed] to subject the prosecution’s case to meaningful adversarial

testing.” Cronic, 466 U.S. at 659, 104 S. Ct. at 2047. Thus, as in Bekemans, trial counsel’s

errors, while violating his duties of confidentiality and loyalty, did not result in complete

abandonment of Hubbard, because she was provided substitute counsel for trial. Therefore,

the Cronic exception—which requires “the attorney’s failure to test the prosecutor’s case”

to be “complete,” Bell, 535 U.S. at 697, 122 S. Ct. at 1851—does not apply here, and

Hubbard must demonstrate actual prejudice. Bekemans, ¶ 34; see also United States v.

Swanson, 943 F.2d 1070, 1073 (9th Cir. 1991) (a showing of actual prejudice under the

second prong of Strickland is required when the “fundamental fairness of the challenged

proceeding has not been affected” and “the integrity of the legal process has not been

jeopardized.”).

¶19    Under Strickland’s prejudice prong, the reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different, “is

a probability sufficient to undermine confidence in the outcome.” Robinson v. State, 2010

MT 108, ¶ 12, 356 Mont. 282, 232 P.3d 403 (citing Strickland, 466 U.S. at 694, 104 S. Ct.

at 2068). The prejudice inquiry focuses on whether counsel’s deficient performance

renders the trial result unreliable or the proceedings fundamentally unfair. Riggs, ¶ 12

(citation omitted).




                                         10
¶20    Hubbard argues that her counsel revealed inculpatory information that was not

previously in the city court record, which the prosecution used to file a motion in limine to

prevent the entrapment defense. She also argues the improperly disclosed information

prejudiced her during trial, because it gave the prosecution the idea to inquire into where

she lived and how she arrived in Libby, prior to the incident at the casino.

¶21    Although the prosecution filed a motion in limine seeking to exclude entrapment

evidence, the District Court denied the motion and, further, gave an instruction regarding

the entrapment defense to the jury. Hubbard presented an entrapment defense and the jury

considered whether entrapment applied. Thus, Hubbard’s counsel’s disclosure did not

prejudice her ability to present an entrapment defense or undermine the outcome of the

proceeding.

¶22    Counsel’s improper disclosure to the prosecution included the statement that “it was

obvious that [Hubbard] had to have driven to the location (Lucky Logger Casino) in total

disregard of the fact that her license was suspended before she was even investigated[.]”

Hubbard argues the prosecution premised its case on this disclosure. However, contrary to

Counsel’s statement, both Hubbard and Schultz testified at trial that Schultz, not Hubbard,

drove to the casino on the night in question. The prosecution did not contest this point, and

did not argue that Hubbard had driven that night. Similarly, Hubbard surmises that

Counsel’s disclosure prejudiced her by giving the prosecution the idea to inquire about how

she got to Montana from Oregon, but the record indicates otherwise. First, Counsel’s

improper disclosure did not reference Hubbard’s travel from Oregon to Montana. Further,

                                         11
through discovery, the prosecution already had learned that Hubbard lived in Oregon and

had driven a vehicle registered in Oregon. It was entirely reasonable that the prosecution,

in proving a case of driving with a suspended license—and in proving a disposition to drive

to defeat the entrapment defense—would inquire how Hubbard got to Montana in an

Oregon-licensed vehicle. The State’s argument on appeal, that Hubbard’s conviction was

not premised upon “any evidence that was improperly divulged by [counsel],” is correct.

¶23    We conclude that Counsel’s disclosure did not render the trial result “fundamentally

unfair” or “unreliable.” See Riggs, ¶ 12; Robinson, ¶ 12. Hubbard cannot show that there

is a reasonable probability that, but for her counsel’s unprofessional errors, the result of the

proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

¶24    Affirmed.



                                                   /S/ JIM RICE


We concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ BETH BAKER




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