                                                                                              11/21/2017


                                          DA 15-0629
                                                                                         Case Number: DA 15-0629

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2017 MT 285



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

BARTON HOWARD,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Nineteenth Judicial District,
                       In and For the County of Lincoln, Cause No. DC 14-37
                       Honorable James B. Wheelis, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Chad M. Wright, Chief Appellate Defender; Helena, Montana

                For Appellee:

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

                       Bernard Cassidy, Lincoln County Attorney; Libby, Montana



                                                   Submitted on Briefs: September 20, 2017

                                                              Decided: November 21, 2017


Filed:

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

¶1       Barton Howard (Howard) appeals from the judgment entered by the Nineteenth

Judicial District Court, Lincoln County, convicting him of Criminal Endangerment under

§ 45-5-207, MCA. We affirm, addressing the following issues:

         1. Is Howard’s claim of judicial bias reviewable for plain error?

         2. Is Howard’s claim of ineffective assistance of counsel reviewable on direct
            appeal?

                    FACTUAL AND PROCEDURAL BACKGROUND

¶2       On March 31, 2014, at around 11:45 p.m., Debbie Wiherski called 911 to report her

72-year-old husband, Jerome Wiherski (Wiherski), had been attacked at their home.

Lincoln County Sheriff’s officers responded to the residence and observed Wiherski had

suffered substantial injuries, including a swollen eye, broken nose, head injuries, and a

swollen right abdomen. Wiherski told officers that someone had knocked on his door and,

when he opened it, pulled him onto the porch and beat him, then kicked him while he was

on the ground. The officers established that Howard was the potential attacker, and drove

to his residence. They interviewed Howard without giving him a Miranda1 warning.

Howard admitted attacking Wiherski in retaliation for Wiherski’s alleged attempt to

sexually assault Howard’s partner. Howard confirmed that Wiherski was on the ground

during the attack and did not fight back. This conversation was captured on an officer’s

pocket recorder.




1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                               2
¶3     The State charged Howard with aggravated assault, and the Honorable James B.

Wheelis presided over the case. On May 5, 2014, Noel Larivee from the Office of the State

Public Defender (OPD) appeared as Howard’s counsel at the arraignment. At the omnibus

hearing, Larivee raised the affirmative defense of justifiable use of force. On June 30,

Scott Hilderman, private counsel, filed a notice of substitution of counsel as Howard’s new

counsel of record. Hilderman filed a motion to suppress, arguing Howard’s statements to

police were not voluntary and his Miranda rights had been violated.                      Hilderman

subsequently moved to vacate the hearing on the motion and instead requested a change of

plea hearing. However, at the change of plea hearing on January 5, 2015, Howard changed

his mind and decided not to change his plea to the charge. Thus, the matter was put back

on the trial calendar.

¶4     On January 15, Hilderman filed an unopposed motion to withdraw as counsel, to

which Howard had consented. The District Court granted the motion to withdraw, and on

January 26 conducted a hearing to discuss Howard’s representation. The District Court

asked, “Mr. Howard, as far as I recall, you are now representing yourself, correct?”

Howard replied, “Yes, Sir.” The District Court offered only a brief admonition about some

of the dangers of self-representation, following which Howard decided he wanted

representation by a public defender.2 He thereafter filed a motion for appointment of



2
  As part of his judicial bias argument, Howard cites the District Court’s failure to fully advise him
at this appearance about the dangers of self-representation, pursuant to Faretta v. California, 422
U.S. 806 (1974) (requiring a defendant “should be made aware of the dangers and disadvantages
of self-representation, so that the record will establish that he knows what he is doing and his
choice is made with eyes open.”) (citation omitted). However, Howard thereafter elected to be
represented by counsel and not represent himself, and thus the advisory issue was satisfactorily
resolved. It is not raised as an independent issue on appeal.
                                              3
counsel. However, at a March 2 status conference, Howard changed his mind, stating he

only wanted standby counsel. The District Court told Howard that he either had to

represent himself or be represented by an attorney from the OPD. Howard chose to

represent himself, which the District Court permitted following a warning to Howard about

the dangers of self-representation based upon Faretta.

¶5       Howard filed a Motion to Compel Discovery, claiming difficulty getting his case

files from prior counsel, although he did not explicitly claim ineffective assistance of

counsel. The State filed for issuance of Gillham3 protective orders to allow Hilderman and

Larivee to advise the Court what discovery information they had provided to Howard.

Over Howard’s objection, the District Court issued the Gillham orders and heard testimony

from Larivee, who testified he provided Howard all the discovery materials in his

possession as well as copies of correspondences between him and Howard. During the

hearing, Larivee directly questioned Howard to confirm that Larivee provided all the

discovery documents to Howard, during which Howard confirmed that Larivee’s testimony

was correct and stated that he was more concerned with Hilderman’s representation than

Larivee’s representation.

¶6       Representing himself, Howard filed a motion to suppress his statement to law

enforcement given at his residence, wherein he reasserted the Miranda claim and added an

allegation that the State had tampered with the audio recording. Howard included a report

from Primeau Forensics, which opined that, although the recording of Howard’s statement

might have been part of a longer recording session, it could not determine whether there


3
    In re Gillham, 216 Mont. 279, 704 P.2d 1019 (1985).
                                             4
had been interruptions in recording, and that an examination of the original recording may

provide additional information. The court held a suppression hearing on the motion and

appointed counsel to represent Howard for purposes of the hearing. Attorney Charles

Sprinkle appeared as counsel.4 The court thereafter denied the motion, finding Howard’s

statement to police was admissible because he was not in custody for Miranda purposes

when he admitted to assaulting Wiherski. The court also found the recording had not been

edited and concluded sufficient foundation supported its admission.

¶7     Howard also filed a motion to dismiss, alleging the Information failed to establish

probable cause he committed aggravated assault. The court denied the motion, concluding

there was probable cause that Howard committed the offense.

¶8     On March 19, OPD notified the court that Timothy Baldwin would thereafter

represent Howard. Baldwin submitted several pleadings and motions that were opposed

by the State, and for which the District Court conducted a hearing attended by Baldwin but

not by Howard. The District Court ruled it would exclude Howard’s audio recording expert

because the expert could not verify that the recording had been altered in any way.

Baldwin’s motion to preclude the testimony of physician assistant Joseph Chopyak

concerning the nature of Wiherski’s injuries, because he was not qualified to offer an

opinion, was denied by the District Court, which found that the “scope of Chopyak’s

licensure in his medical practice does not limit his capacity to testify as an expert on the

scope, extent, nature, course, and duration” of Wiherski’s injuries. Baldwin filed an



4
  OPD was then determining Howard’s eligibility for public defender services pursuant to his
pending application.
                                         5
amended witness list, naming Howard’s father, Robert Howard, with the explanation that

Robert would testify “regarding the time of day that the defendant was with him on the

date of the alleged assault,” an apparent alibi defense. The State moved to exclude alibi

evidence because the defense was not raised at the omnibus hearing. Baldwin did not

object to the State’s motion, but stated that Howard was requesting that he pursue the issue.

Baldwin then made the following statement during the hearing:

       COURT: . . . [O]n the State’s motion about precluding the Defendant from
       raising an alibi defense and calling Robert Howard, any argument about that?

       BALDWIN: Your Honor, I need to put something on the record so the Court
       can make a ruling based on what I am presenting. I don’t object to the State’s
       motion with regard to an alibi. Without revealing client/attorney confidential
       information, I need to put the Court on notice that there is a potential that Mr.
       Howard will want to testify at the trial regarding an alibi. I am not going to
       ask the questions regarding an alibi, and so if Mr. Howard insists on
       testifying in that regard, I would have to ask the Court that he be able to
       testify in a narrative fashion. Because, I again, I’m not going to ask those
       kinds of questions, nor am I going to be arguing that defense theme at trial.
       But I think that as a matter of record the Court probably has to make a ruling
       as to if he does intend to do that what the Court will instruct either him or the
       jury on that issue.

       COURT: I don’t know if I would let him be called as a witness based on the
       information that you have offered that’s been offered. And I understand that
       you have a duty to your client to proceed, but on the other hand, my rulings
       at this stage would be that an alibi is too late. So if he intends, makes it
       known that he intends to testify regarding alibi, then I would keep him off
       the stand.

       BALDWIN: Okay.

       COURT: If there are other issues he might want to testify about, I don’t
       know what they would be but that would be different.

¶9     On May 19, Baldwin requested a hearing because Howard wanted to represent

himself and have Baldwin assigned as standby counsel. On May 21, the court held a


                                           6
hearing. Howard was late and the District Court began the proceeding in his absence.

Howard ultimately appeared and confirmed that he wanted to represent himself. The

District Court explained that if, on the day of trial, Howard wanted to represent himself,

standby counsel would not be permitted. The District Court provided Faretta warnings

about the rights Howard was waiving by proceeding pro se, reminded him of Baldwin’s

limited role, and confirmed Howard’s decision to represent himself was knowing and

voluntary.

¶10   On May 26, the jury trial began. During the pretrial conference, the State moved to

exclude Robert Howard’s testimony because it was unable to arrange an interview with

Robert.   The court granted the request.     Howard then notified the court he wanted

Baldwin’s legal representation, explaining that his self-representation was premised upon

a trial strategy involving calling Robert to testify, which had now been denied. Baldwin

was called to again represent Howard.

¶11   Before the conclusion of voir dire, the parties reached a plea agreement that called

for the State to amend the charge to felony criminal endangerment and Howard to enter a

no contest plea, and preserved Howard’s right to challenge the court’s pretrial rulings on

appeal. Following a plea colloquy, the court accepted Howard’s no contest plea and set

sentencing for August 3.

¶12   On June 1, Baldwin requested a hearing to address Howard’s latest request to

represent himself and to withdraw his plea. On June 8, the court held a hearing and Howard

explained that he had changed his mind about these matters since the hearing was set: he

now wanted Baldwin to continue as his attorney, and his plea to remain.


                                         7
¶13    On June 12, Baldwin filed a motion addressing the following matters: a renewed

request by Howard to withdraw his plea; appointment of new counsel; and a possible

Gillham order. Baldwin explained that he could not “in good faith” represent Howard

regarding his change of plea, and suggested that new counsel be appointed. Baldwin

sought a Gillham order permitting him to testify in the event Howard asserted ineffective

assistance of counsel against him as a basis for withdrawal of the plea. At a hearing on

June 22, Howard asserted his plea should be withdrawn because he did not understand he

would be found guilty upon a no contest plea. The District Court denied Howard’s motion

to withdraw his plea, reasoning that he voluntarily, knowingly, and willingly entered his

plea. The District Court ordered Howard to appear at sentencing. Baldwin remained as

counsel.

¶14    Prior to sentencing, Howard filed two pro se motions seeking to represent himself

and a pro se motion asking to withdraw his guilty plea. At the August 10 hearing in

aggravation and mitigation of sentence, Howard retracted his request to proceed pro se,

stating it was merely a strategy to get pro se documents into court. Howard then asked the

court to reconsider his request to withdraw his plea, but had no additional evidence to offer,

so the court denied the request.

¶15    At sentencing, Baldwin advocated for a deferred sentence for Howard by

emphasizing what he thought were mitigating circumstances, including that Wiherski had

“made a pass” on Howard’s partner. Baldwin contended that witnesses had “exaggerated”

Howard’s conduct in the case. In response, the District Court stated, “You do have to recall

that I saw Mr. Wiherski . . . a few days [after the assault].” Baldwin replied, “Right, Your


                                          8
Honor, and I recognize that. But I think that—and those injuries I think were fairly, you

know, exact.”     Baldwin noted that the initial injuries were not as serious as later

developments that involved Wiherski seeking medical care for bleeding in the brain. The

court agreed, stating that he would “not consider Mr. Chopyak’s testimony about the later

consequences of the injuries to Mr. Wiherski” in sentencing Howard. The District Court

imposed a ten-year sentence to the Department of Corrections, with five years suspended.

¶16    At no time during the proceedings did Howard state a claim of judicial bias against

the District Court. Howard appeals.

                                STANDARD OF REVIEW

¶17    When a defendant raises the plain error doctrine to request our review of issues that

the defendant did not raise before the district court, our review is discretionary. State v.

Stutzman, 2017 MT 169, ¶ 13, 388 Mont. 133, 398 P.3d 265 (citation omitted).

¶18    Claims of ineffective assistance of counsel that are reviewed on direct appeal

present mixed questions of law and fact, which we review de novo. State v. Nuessle, 2016

MT 335, ¶ 9, 386 Mont. 18, 385 P.3d 952 (citations omitted).

                                        DISCUSSION

¶19    1. Is Howard’s claim of judicial bias reviewable on appeal for plain error?

¶20    Howard raises no claims of substantive legal error on appeal, despite the detailed

account of his trial proceedings set forth in his briefing. Instead, he asserts judicial bias, in

that “the presiding judge created an atmosphere of hostility against Howard as he was

trying to test the State’s case and present a defense.” Howard’s argument is based upon

the District Court’s comments, rulings, and his perception that he was treated adversely.


                                            9
¶21    His appellate theory notwithstanding, the record requires Howard to acknowledge,

in understatement, that he “demanded more from the criminal justice system than the

average defendant.” More accurately, Howard was a difficult litigant who abused the

judicial system, wasted judicial resources, imposed unreasonable burdens upon lawyers

and personnel, and mocked the core judicial purpose of seeking truth. It should not be

surprising that his appeal is an attempt to shift all attention away from his own actions and

place blame elsewhere.

¶22    Howard argues we should exercise plain error review of his claim of judicial bias,

which he bases upon the District Court’s: (1) granting of one of Howard’s motions to

represent himself without sufficiently advising him of the dangers of self-representation

under Faretta; (2) granting the State’s motion for issuance of Gillham orders; (3) subjecting

Howard to requirements, when he was representing himself, that went beyond those

imposed on other litigants, such as requiring him to turn over his expert report before it

was established the expert would be called to testify; (4) denying Howard’s motions to

withdraw his no contest plea; and (5) during sentencing, referring to having seen

Wiherski’s injuries while presiding over the protection proceeding. Howard asks that his

conviction be vacated and a new trial ordered.

¶23    Howard did not object or claim judicial bias or impropriety before the District Court,

so he did not preserve the issue for appeal. “A claim for disqualification of a judge must

be brought within a reasonable time after the moving party learns the facts forming the

basis for a claim that the judge should be disqualified. . . . If it is not brought within a

reasonable time, the claim is waived.” State v. Strang, 2017 MT 217, ¶ 18, 388 Mont. 428,


                                         10
401 P.3d 690 (citations omitted). Generally, this court does not address issues raised for

the first time on appeal. “We invoke plain error review sparingly, on a case-by-case basis,

according to narrow circumstances, and by considering the totality of the circumstances.”

Nuessle, ¶ 12. Obtaining plain error review of an unpreserved issue requires the appellant

to: “(1) demonstrate the claimed error implicates a fundamental right and (2) firmly

convince this Court that failure to review would result in a manifest miscarriage of justice,

leave unsettled the question of the fundamental fairness of the trial proceedings, or

compromise the integrity of the judicial process.” State v. Williams, 2015 MT 247, ¶ 16,

380 Mont. 445, 358 P.3d 127 (citing State v. Carnes, 2015 MT 101, ¶ 13, 378 Mont. 482,

346 P.3d 1120). “When the circumstances of a case do not warrant application of the plain

error doctrine, we need not address the merits of the alleged error.” Stutzman, ¶ 23.

¶24    Howard’s assertions of judicial bias are largely based upon the District Court’s

rulings. However, “judicial rulings alone almost never constitute a valid basis for a bias or

partiality motion.” Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994)

(citation omitted); see also § 3-1-805(1)(b), MCA (an affidavit of disqualification is

deemed not to have been made in good faith if it is based solely on rulings in the case).

¶25    Further, we question whether District Court made any Faretta error.            At the

January 26, 2015 hearing, Howard ultimately decided not to represent himself, so Faretta

warnings may not have been required. See State v. Insua, 2004 MT 14, ¶ 19, 319 Mont.

254, 84 P.3d 11 (“[i]n applying the Faretta standard, we have repeatedly held that a trial

court is not required to advise a defendant specifically of the dangers and disadvantages of

self-representation as long as the court makes inquiry of the defendant to the extent it deems


                                          11
necessary to ensure that the defendant’s waiver of counsel is voluntary, knowing, and

intelligent.”).5 While we have cautioned about the use of Gillham proceedings outside of

the postconviction context, State v. Cheetham, 2016 MT 151, ¶ 29, 384 Mont. 1, 373 P.3d

45, State v. Aguado, 2017 MT 54, ¶ 25, 387 Mont. 1, 390 P.3d 628, we have not adopted

an absolute bar to its use in trial proceedings. The considerable demands Howard placed

upon his attorneys, his claims of ineffectiveness, and his repeated dismissals of his counsel

may have put the conduct of the attorneys at issue. Regarding its comments about

Wiherski’s injuries, the District Court subsequently dialogued with counsel about the issue

and agreed to limit consideration of the injuries for purposes of sentencing to Chopyak’s

observations.

¶26    Howard’s assertion of bias is largely premised upon judicial rulings or upon a record

that does not convince us that his claim implicates a fundamental right, or that failure to

review the claim would result in a manifest miscarriage of justice, leave unsettled the

question of the fundamental fairness of the trial proceedings, or compromise the integrity


5
  We note that even if Faretta warnings were required when Howard subsequently decided to
represent himself, the court’s Faretta warnings, although brief, explained the hazards of
self-representation and were likely sufficient. Further, Howard’s multiple pro se filings and active
participation in his own defense, at times with and without the aid of counsel, are strong evidence
of his knowing, voluntary, and intelligent waiver of counsel. See United States v. Hantzis, 625
F.3d 575 (9th Cir. 2010). In Hantzis, the defendant hired, or was appointed, four different attorneys
and, while he was represented, filed multiple pro se documents. Hantzis later began representing
himself pro se, and the district court conducted a brief colloquy that explained the hazards of
self-representation. The next day, Hantzis changed his mind and stated he wanted his original
attorney to continue representing him. Soon thereafter, he filed another motion to proceed pro se.
Hantzis, 625 F.3d at 577-79. The appellate court found the colloquy adequate and Hantzis’ waiver
of counsel to be knowing, voluntary, and intelligent because he filed multiple pro se documents
and “actively and personally participated in his own defense from the outset of the case, sometimes
with, and sometimes without, the aid of counsel.” Hantzis, 625 F.3d at 580. Howard does not
claim that he was denied the right to counsel based on an involuntary waiver, but instead alleges
generally that an inadequate Faretta warning is evidence of bias.
                                             12
of the judicial process. Williams, ¶ 16. Therefore, we decline to undertake consideration

of the merits of the bias allegation pursuant to the plain error doctrine.

¶27 2. Is Howard’s claim of ineffective assistance of counsel reviewable on direct
appeal?

¶28    Howard argues that his appointed counsel presented testimony, evidence, and

confidential information in violation of his interests, thus violating their duty of loyalty,

citing to Baldwin’s statement in open court about his alibi defense. The State argues that

the record is not sufficiently developed to determine whether counsel has been ineffective.

¶29    The right to counsel in a criminal proceeding is protected by the Sixth Amendment

to the United States Constitution, as incorporated through the Fourteenth Amendment, as

well as Article II, Section 24 of the Montana Constitution. State v. Stratton, 2017 MT 112,

¶ 9, 387 Mont. 384, 394 P.3d 192. Before reaching the merits of an ineffective assistance

claim on direct appeal, this Court must determine whether the allegations are properly

before it. State v. Kougl, 2004 MT 243, ¶ 14, 323 Mont. 6, 97 P.3d 1095. We review

claims of ineffective assistance of counsel on direct appeal if the claims are based solely

on the record. State v. Clary, 2012 MT 26, ¶ 12, 364 Mont. 53, 270 P.3d 88. Consequently,

“[I]f the record does not demonstrate ‘why’ counsel did or did not take an action which is

the basis of the claim, the claim is more suitable for a petition for postconviction relief

where a record can be more fully developed.” Cheetham, ¶ 14 (citations omitted).

¶30    Howard argues Larivee improperly made statements about discovery related to the

defense investigator and improperly directly questioned Howard during a Gillham

proceeding. The record is unclear why Larivee made any statements beyond specifying all

the discovery materials he provided to Howard. Howard also argues his counsel Sprinkle

                                          13
was “unprepared” and “could not have developed any loyalty towards [Howard] given such

a limited appointment.” The record does not establish Sprinkle was unprepared nor does

it address his loyalty to Howard, and we note that Sprinkle was apparently appointed only

for the limited purpose of the suppression hearing. Finally, Howard argues his counsel

Baldwin improperly informed the court “Mr. Howard” was going to commit perjury by

providing information on a potential alibi defense. The State argues that, taken in context,

the statement is referring to Robert Howard, the Defendant’s father, and not Howard.

Because the substance of the exchange is not clear from the record, the record is insufficient

to allow review on direct appeal.

¶31    Howard’s ineffective assistance of counsel claims are not factually established in

the record before us. Therefore, we cannot address them on direct appeal. Howard may

pursue these claims in a petition for postconviction relief.

¶32    Affirmed.


                                                  /S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR




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