                                            No. 01-454

                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2002 MT 157N


STATE OF MONTANA,

               Plaintiff and Respondent,

         v.

WILLIAM CASPAR CRAWFORD,

               Defendant and Appellant.




APPEAL FROM:          District Court of the Eleventh Judicial District,
                      In and for the County of Flathead,
                      The Honorable Katherine R. Curtis and Stewart Stadler, Judges presiding.



COUNSEL OF RECORD:

               For Appellant:

                      Matthew J. Sisler, Missoula, Montana

               For Respondent:

                      Mike McGrath, Montana Attorney General, C. Mark Fowler, Assistant
               Montana Attorney General; Thomas J. Esch, Flathead County Attorney,
         Edward Corrigan, Deputy Flathead County Attorney, Kalispell, Montana



                                                          Submitted on Briefs: January 24, 2002
                                                                     Decided: July 16, 2002
Filed:



                      __________________________________________
                                        Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent but shall be filed as a

public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number, and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2     Respondent State of Montana filed an Information in the

Eleventh      Judicial       District      Court,      Flathead       County,      charging

Appellant William Crawford with the felony offenses of criminal

production or manufacture of dangerous drugs and use or possession

of property subject to criminal forfeiture.                            Prior to trial,

Crawford moved to substitute his court-appointed counsel and the

District Court denied his motion.                   A jury subsequently convicted

Crawford of both offenses.                  Following trial, Crawford filed a

“Motion for Mistrial” based, in part, on allegations of ineffective

assistance of his court-appointed counsel.                         The District Court

denied Crawford’s motion.               Crawford appeals the District Court’s

denial of his motion to substitute counsel and his “Motion for

Mistrial.”       We affirm.

¶3     We address the following restated issues on appeal:

¶4   1.   Did the District Court err when it denied Crawford’s
pretrial motion to substitute his court-appointed counsel?

¶5   2.   Did the District Court err when it denied Crawford’s
“Motion for Mistrial” without holding an evidentiary hearing?




                                              2
               FACTUAL AND PROCEDURAL BACKGROUND

¶6   On August 22, 2000, the State filed an Information against

William    Crawford,   charging    him     with   one   count       of   criminal

production    or   manufacture    of   dangerous    drugs,      a    felony,    in

violation of § 45-9-110(1), MCA, and one count of use or possession

of property subject to criminal forfeiture, a felony, in violation

of § 45-9-206(1), MCA.           With the aid of his court-appointed

counsel, Crawford pled not guilty to the offenses on September 7,

2000.

¶7   On October 26, 2000, Crawford’s father filed a motion on

Crawford’s behalf which requested that the District Court “order

the firing of my attorney” as Crawford did not “feel that he can

adequately represent my interests.”          Essentially, the motion was

based on ineffective assistance of counsel allegations.                        The

District Court denied Crawford’s motion on November 16, 2000, and

the case proceeded to trial.        On December 21, 2000, a jury found

Crawford guilty of both offenses.

¶8   On December 29, 2000, stemming from a rather acrimonious
attorney-client relationship, Crawford’s attorney filed a motion to

withdraw as counsel for Crawford.          The District Court granted the

motion and ordered the chief public defender to appoint new counsel

for Crawford.      On January 16, 2001, Crawford’s father filed a

“Motion for Mistrial” on Crawford’s behalf based, in part, on

allegations of ineffective assistance of his previously appointed

counsel.     On February 15 and March 1, 2001, during duly reported

probation violation proceedings, the District Court entertained


                                       3
“open discussion regarding the Motion for Mistrial that was filed

by the defendant’s father.”         Following the discussion, the District

Court denied Crawford’s motion.

¶9    It   is    difficult   to    determine   just   what   issues   Crawford

presents for our review.          Crawford’s opening brief states that he

“is appealing the lower court’s convictions of criminal production

of dangerous drugs and use or possession of property subject to

criminal forfeiture against him, alleging ineffective assistance of

counsel.”       This statement, as well as other passages in Crawford’s

brief, appear to raise an ineffective assistance of counsel claim

on direct appeal.         However, he frames the issue on appeal as

“Whether [the] lower court erred by failing to hold an evidentiary

hearing    regarding    William’s     motion   for    mistrial   (motion   for

ineffective assistance of counsel) and by denying William’s motion

to dismiss his court appointed attorney, when counsel rendered

ineffective assistance to William Crawford.”             In accordance with

Crawford’s stated issue for review, we presume that Crawford

appeals the District Court’s denial of his pretrial motion to

substitute, and the denial, without hearing, of his “Motion for

Mistrial.”
                             STANDARD OF REVIEW

¶10   It is within the sound discretion of a district court to rule

on requests for substitution of appointed counsel and we will not

disturb such a ruling absent an abuse of discretion.                  State v.

Gallagher, 2001 MT 39, ¶ 4, 304 Mont. 215, ¶ 4, 19 P.3d 817, ¶ 4.

A district court’s determination of whether to grant a motion for a

mistrial must be based on whether the defendant has been denied a

                                        4
fair and impartial trial.    Harding v. Deiss, 2000 MT 169, ¶ 19, 300

Mont. 312, ¶ 19, 3 P.3d 1286, ¶ 19.           We review a grant or denial of

a motion for mistrial to determine whether the district court

abused its discretion.    Harding, ¶ 19.           In evaluating discretionary

rulings, we consider whether the district court acted arbitrarily

without employment of conscientious judgment or exceeded the bounds

of reason resulting in substantial injustice.                Gallagher, ¶ 4.
                                 DISCUSSION

                                  ISSUE 1
¶11 Did the District Court err when it denied Crawford’s pretrial
motion to substitute his court-appointed counsel?

¶12   Crawford contends that “[w]hen the court denied his motion and

forced [him] to be represented by [the court-appointed attorney],

[his] rights to due process of law were substantially and adversely

affected, as the actions and inactions of [his] court appointed

attorney resulted in prejudice to [him] . . . .”              However, Crawford

does not expand on how the District Court erred when it denied his

pretrial   motion   or   offer    any       authority   in    support   of    this

assertion.   Crawford simply recites a laundry list of purported

representational    inadequacies        in    an   attempt    to   document   his

ineffective assistance of counsel allegation.

¶13   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

right to counsel is fundamental and applies with equal force to all

persons, regardless of their ability to compensate an attorney.

City of Billings v. Smith (1997), 281 Mont. 133, 136, 932 P.2d


                                        5
1058, 1060.     A district court should substitute counsel if it

appears that failure to do so would substantially impair or deny

the defendant’s constitutional right to the assistance of counsel.

 State v. Weaver (1996), 276 Mont. 505, 511, 917 P.2d 437, 441.

¶14   In the event that a criminal defendant presents a “seemingly

substantial complaint” regarding the effectiveness of counsel, the

court should conduct a hearing to address the merits of the

defendant’s claims and the request for substitution of counsel.

State v. Gallagher, 1998 MT 70, ¶ 14, 288 Mont. 180, ¶ 14, 955 P.2d

1371, ¶ 14.   In determining if the defendant presented a seemingly

substantial complaint about counsel, the district court must make

an adequate inquiry into the defendant’s complaints.      Weaver, 276

Mont. at 511, 917 P.2d at 441.        We have recognized that such an

initial inquiry may be adequate where the court “considered the

defendant’s factual complaints together with counsel’s specific

explanations addressing the complaints.”       City of Billings, 281

Mont. at 136-37, 932 P.2d at 1060.      If, after an adequate initial

inquiry, the court concludes that the defendant has failed to

present seemingly substantial complaints, it need not conduct a

hearing on the merits.    See City of Billings, 281 Mont. at 141, 932

P.2d at 1063.     On appeal, the threshold issue in determining

whether a substantial complaint exists is “not whether counsel was

ineffective, but whether the District Court erred in failing to

make an adequate inquiry into [a defendant’s] claim of ineffective

assistance of counsel.”    Weaver, 276 Mont. at 511, 917 P.2d at 441.
¶15   Crawford filed his “Motion to Fire My Attorney” on October 26,

2000.   In the motion, Crawford expressed dissatisfaction with the

                                  6
purportedly nonexistent communication between he and his attorney

and   a   general   distrust   for   his   court-appointed   counsel.   On

November 16, 2000, the District Court held a status hearing for the

case, at which time it addressed Crawford’s motion.

¶16   At the status hearing, the District Court, Crawford, and

Crawford’s attorney engaged in the following discussion:

           District Court: Mr. Crawford’s father filed a motion
      with regard to his continued – his son’s continued
      representation by you.

           Crawford’s attorney: There are several things about
      the case that he’s dissatisfied about. There is some
      information he’s requested that we don’t quite have yet.
       We don’t have the crime lab report back yet. . . .
           There are some search issues that Mr. Crawford has
      that he would like to have a hearing on, and I believe
      what we would have to probably do then is potentially
      expedite a suppression hearing and motion so those
      matters could be fully heard.

            He’s got some grave concerns about the way the
      search was carried out, some concerns about whether it
      was done properly, whether a warrant was served properly,
      and he hasn’t gotten adequate answers to those yet, and
      I’m not sure that we have got all the information that we
      need to get those answers. We’re working on that at this
      time.

      . . . .

           . . . He was concerned that – as you can see in his
      motion, that the preliminary was waived without his
      specific acknowledgment of that.      That is probably
      correct. This case had absolutely no reason to have a
      preliminary hearing, so I didn’t have a preliminary
      hearing.

           The omnibus form I filled out . . . . [Crawford] was
      upset that he was not able to do that with me . . . . I
      did explain to him that that was not a hearing, as such,
      because we don’t hold those in that fashion, but that it
      is a form that is filled out by counsel . . . . He was
      given [a] copy of that when it was done . . . .

           . . . I’m prepared to carry on with the case and
      continue with it and do what needs to be done.

                                      7
     Crawford: I mean I have been here almost six months
. . . . He’s waived everything; I have not waived
anything. He just told me about ten minutes ago that
he’s not going to file any motions or anything on my
search warrant because he believes that it was true and
valid.

. . . .

     He has yet to sit down and go through any of my
paperwork with me. He will tell me what is going to go
on ten minutes before it goes on. If that’s justice in
this country, I want out of it. This is not right.

     Crawford’s attorney: I didn’t tell him that I
wouldn’t file motions. I certainly discussed what I feel
the merit of his various concerns are with him . . . .
But that certainly does not mean, regardless of whether I
might feel merit-wise whether a motion might be
successful or not, that we will not pursue that motion.
     I didn’t tell him I wouldn’t file motions on his
behalf. We have discussed whether I think they will be
successful, as we do with all our clients.

     District Court: [C]an you sit down with Mr. Crawford
for a lengthy period of time between now and next
Wednesday and go over his paperwork with him and discuss
his case with him?

     Crawford’s attorney: Yes, I certainly can, Judge.

. . . .

     District Court: I’m not going to grant your father’s
motion to fire your attorney.     I’m going to and have
requested [your attorney] to sit down for a lengthy
period of time and go over your case with you between now
and next Wednesday.

. . . .

Your lawyer has the obligation to learn from you what he
needs to know about the case, and to analyze it within
the context of the law – which only he knows, not you –
and to make a determination as to whether it’s a
potentially well-taken motion or not.     And he has an
obligation to his profession and to the Court to not file
that motion if he thinks it’s not well-taken. Okay? So
that’s the line that [your attorney] has to walk, all
right?


                           8
      . . . .
           Okay. I believe – at least I don’t see anything at
      this point that suggests to me that [your attorney] is
      not going to adequately represent you.

      . . . .

           Mr. Crawford, if [your attorney] makes arrangements
      to sit down with you, and if you go over your case, and
      if you still have dissatisfactions with him that are
      derived not from your attitude at this point but from
      further failures which you perceive on his behalf, you
      need to make sure that you let [the Court] know about
      those. Okay. Thank you.


¶17         As it turns out, counsel for Crawford did file a motion

to suppress as Crawford requested.                  The motion was heard and

denied.      Crawford     does   not     appeal     from    the     denial      of   his

suppression motion.

¶18         Based on the foregoing, it is clear that the District

Court considered Crawford’s factual complaints together with his

attorney’s specific explanations regarding the complaints.                           The

District    Court’s   investigation       into      the    matter    was   certainly

sufficient to qualify as an “adequate initial inquiry.”                              The

District Court presumably found that Crawford did not present

seemingly    substantial    complaints      in      his    motion    to    substitute

counsel and, therefore, denied the motion.                    We hold that the

District    Court   did   not    abuse    its     discretion      when     it   denied

Crawford’s motion to substitute counsel.

                                   ISSUE 2

¶19       Did the District Court err when it denied Crawford’s
“Motion for Mistrial” without holding an evidentiary hearing?

¶20   Crawford states that “[w]ithout receiving notice that his

motion would be heard and without reviewing a response brief to his

                                                9
motion, [he] found that the lower court entertained his motion for

mistrial during the court’s March 1, 2001, dispositional hearing.”

 Crawford   complains   that   the   District   Court   did   not   hold   an

evidentiary hearing to address the issues raised in his “Motion for

Mistrial” and, instead, ruled that the matter “should be taken up

on appeal.”     Therefore, Crawford insists that “[a]s [he] has

considerable ineffective assistance claims, this cause should be

remanded to the district court for entry of findings relative to

those ineffective assistance of counsel claims.”         From what we can

deduce, we believe that Crawford has asked us to review the

February 15 and March 1, 2001 proceedings in the District Court to

determine whether the District Court erred when it denied his

motion for mistrial without holding an evidentiary hearing.
¶21   The State contends that we should decline to address this

issue on appeal because Crawford has not provided a tape or

transcript of the District Court’s ruling on his “Motion for

Mistrial” and Crawford failed to notify the State of any intent to

exclude the tape or transcript from the appellate record.           Crawford

did not file a reply brief responding to the State’s contentions.

¶22   Rule 9, M.R.App.P., provides in relevant part:

           (a) Composition of the record on appeal.         The
      original papers and exhibits filed in the district court,
      the transcript of proceedings, if any, and a certified
      copy of the docket entries prepared by the clerk of the
      district court shall constitute the record on appeal in
      all cases. It is the duty of a party seeking review of a
      judgment, order or proceeding to present the supreme
      court with a record sufficient to enable it to rule upon
      the issues raised. Failure to present the court with a
      sufficient record on appeal may result in dismissal of
      the appeal and/or the imposition of some other
      appropriate sanction. [Emphasis added.]


                                     10
¶23   In the minute entries for the February 15 and March 1, 2001

proceedings, the Deputy Clerk of Court indicated that “[a] verbatim

record was created by [an] Official Court Reporter.”       Further,

Crawford’s opening brief contains four citations to the March 1,

2001 transcript.    Therefore, we presume that a transcript of the

proceedings exists.   However, Crawford has not provided it for our

review on appeal.     Moreover, he did not serve the State with a

description of the parts of the transcripts he intended to exclude

from the appellate record.
¶24   Crawford quotes a passage from the pertinent transcript in

reference to the District Court’s justification for denying his

motion.   However, we cannot verify the quoted passage’s accuracy or

be sure that it documents the District Court proceedings and

underlying rationale in full.     Crawford also maintains that he

“documented the facts supporting his ineffective assistance claims

in his January 16, 2001, motion for mistrial, and in his October

26, 2000, motion to dismiss his attorney and, as the facts are

documented in the lower court’s record, the ineffective assistance

claims are reviewed on appeal before this Court.”          Yet, the

assertions in Crawford’s motions are not “facts,” but simply

allegations which do not establish a sufficient record for our

review of the District Court’s judgment, as contemplated in Rule 9,

M.R.App.P.    As Crawford has failed to provide a record of the

relevant District Court proceedings, we have no means to review the

grounds for or adequacy of the District Court’s consideration of

Crawford’s “Motion for Mistrial.”     Therefore, we cannot resolve

this issue on appeal.

                                 11
¶25   As     noted   above,       Crawford    recites    an   extensive     list   of

approximately        twenty-eight       ineffective     assistance    of     counsel

allegations in his opening brief.               However, his claims rest upon

conclusory allegations only.            Crawford cites only the contents of

his father’s “Motion for Mistrial” as a basis for his ineffective

assistance of counsel claims.                Thus, he provides the Court with

self-serving averments of misconduct, but no citations to the

official record which would enable the Court to properly review his

claims.
¶26   Rule 23(e), M.R.App.P., requires that “[w]henever a reference

is made in the briefs to the record, the reference must be to

particular     parts    of    the    record,    suitably      designated,    and   to

specific pages of each part . . . .”              Crawford’s citations to his

“Motion for Mistrial” in support of his ineffective assistance

allegations     simply       do   not   constitute      references   to     suitably

designated parts of the record.              Without such specific references

to the record, we cannot possibly assess the validity of Crawford’s

conclusory allegations.

¶27   For the foregoing reasons, we affirm the District Court’s

denial of Crawford’s motion to substitute counsel and decline to

address whether the District Court erred when it denied Crawford’s

“Motion for Mistrial” without holding an evidentiary hearing.


                                         /S/ PATRICIA COTTER


We Concur:

/S/ KARLA M. GRAY

                                          12
/S/ JIM RICE
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART




                          13
