                                                                                        December 30 2011


                                         DA 11-0273

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2011 MT 326N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

PASCAL REDFERN,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Fourth Judicial District,
                      In and For the County of Missoula, Cause No. DC 10-509
                      Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Pascal Redfern (self-represented); Missoula, Montana

               For Appellee:

                      Steve Bullock, Montana Attorney General; C. Mark Fowler, Assistant
                      Attorney General; Helena, Montana

                      Fred Van Valkenburg, Missoula County Attorney; Susan E. Boylan,
                      Deputy County Attorney, Missoula, Montana




                                                  Submitted on Briefs: November 23, 2011

                                                              Decided: December 30, 2011


Filed:

                      __________________________________________
                                        Clerk
Justice Jim Rice 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 quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Pascal Redfern appeals from the dismissal, by the Fourth Judicial District Court,

Missoula County, of the appeal from his convictions in Justice Court of driving while

license suspended and for failing to carry proof of insurance.         He claims that his

counsel’s ineffective assistance led to the dismissal of his appeal, and also challenges his

convictions on the merits.     Due to irregularities and omissions in the proceedings

regarding the status of Redfern’s appointed counsel, we reverse the dismissal of

Redfern’s appeal and remand for further proceedings.

¶3     Redfern appealed to the District Court on November 22, 2010. The District Court

scheduled a trial on November 29, 2010, and a pre-trial conference on November 24,

2010. According to court minutes, Redfern appeared at the pre-trial conference and

requested a continuance of the trial date to have more time for preparation. The District

Court thus continued the trial, rescheduled the pre-trial conference for December 9, 2010,

and “directed the Defendant to go to the Public Defenders [sic] office today and apply for

their services.” At the December 9 pre-trial conference, the minutes indicate that Redfern

appeared and “[a]lso present was Public Defender Ed Sheehy.” Sheehy advised the court

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that Redfern’s application for appointment of counsel had been submitted, but that

because Redfern was self-employed, his tax returns would also be required, and they had

not yet been received. The minutes indicate that the court directed Redfern to submit his

tax returns and scheduled an omnibus hearing for December 30, 2010.

¶4     On December 20, 2010, Public Defender Myshell Uhl appeared as Redfern’s

counsel and, the next day, moved for continuance of the omnibus hearing due to a

conflict in her schedule. The District Court entered an order granting the motion and

ordering that “the Status Hearing currently set for Thursday, December 30, 2010 at

10:30 a.m. is vacated and continued to 1-13-11 at 10:30 a.m.” Uhl sent a letter, dated

December 19, to Redfern notifying him that she had been assigned to represent him,

advising him of the hearing on December 30 and that his appearance was required, and

asking him to contact her office to make an appointment with her prior to that hearing. A

copy of the letter, signed by Uhl, is attached to Redfern’s brief on appeal. The letter did

not advise Redfern of Uhl’s scheduling conflict, nor that she would move for a

continuance of the hearing.

¶5     Redfern’s brief indicates that he contacted Uhl’s office in response to her letter but

that no appointment was scheduled before December 30, that Uhl sought the continuance

without consulting him, and that, therefore, Redfern filed a “Notice of Ineffective

Counsel Objection to Move of Status Conference” on January 6. An unsigned copy of

such a document is attached to Redfern’s brief. It states, in part:

       Since the Order of this Court granting defendant the use of the public
       defender, I have yet as of this date, January 6, to meet with any counsel to
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      discuss my case. . . . [Redfern explains his attempts to contact counsel.] I
      get an Order from the Court just after Christmas dated December 22 stating
      that the conference was moved from December 30 to January 13, again,
      without any consultation with me. If this is how the public defender’s
      office works, I tremble at those defendants who really need representation.
      I, hereby, file my first claim of ineffective counsel due to lack of
      communication, and object to the moving of the December 30th date
      without my approval.

(Emphasis added.) This document is not contained in the District Court record and, thus,

we have no record of its actual filing. However, the court minutes for the January 13,

2011 omnibus hearing, conducted seven days later and attended by Redfern, state that

“the Court advised counsel of a letter received from the Defendant and a discussion was

held amongst the parties on the Defendant making an appointment with the Public

Defender’s Office.” No other document which would constitute the “letter” referred to

by the minutes is contained in the District Court file. Neither is there any indication of

any action taken in response to Redfern’s complaint. We note that the State does not

object or otherwise mention Redfern’s attachment of this document and his discussion

about it in his brief. The court rescheduled the omnibus hearing for January 27, 2011.

¶6    Redfern appeared with Uhl at the omnibus hearing on January 27, 2011. The

minutes indicate that the court ordered the omnibus memorandum to be filed and set a

trial scheduling conference for March 10, 2011. Although this date is recorded in the

minutes, Redfern states that he was not given notice about this conference and, further,

was not notified that Public Defender Paulette Ferguson would appear instead of Uhl for

the conference.   The minutes for the March 10 conference indicate that Ferguson

appeared for Uhl, but say nothing about Redfern’s presence. Redfern states that he did
                                            4
not attend the conference, and notes correctly that the record reflects no objection by the

County Attorney to his absence. Ferguson indicated that a requested police report had

not been provided by the State and, upon Ferguson’s motion, the trial scheduling

conference was continued to April 14, 2011. The minutes indicate that copies of the

minutes were sent to the State and the Public Defender’s office.

¶7     On April 6, 2011, an Omnibus Hearing Memorandum was filed. It was signed by

counsel for the State and by Uhl, and counsel stipulated to its entry, which was ordered

by the District Court. Redfern states he was not contacted about the filing or contents of

this document, having had no communication with his counsel between January 27 and

the dismissal of his appeal. The Omnibus Memorandum states that the Defendant would

file no pretrial motions, which Redfern argues did not reflect his wishes. The Omnibus

Memorandum further states:

                          XI. APPOINTMENT OF COUNSEL

               As the court-appointed counsel for the Defendant, I acknowledge
       that this appointment includes the trial of this matter in District Court, post-
       trial motions, sentencing and, absent specific permission to withdraw, an
       appeal to the Montana Supreme Court if the Defendant elects to appeal and
       I do not deem such an appeal to be frivolous. In the event the Defendant
       wishes to proceed with an appeal I believe has no merit, I will proceed
       pursuant to the provisions of 46-8103(2) [sic], MCA. If the Defendant
       elects not to appeal, the Defendant and I will sign a written notice of
       “Election Not to Appeal” and I will file the “Election Not to Appeal” with
       the Court.

¶8     At the trial scheduling conference on April 14, 2011, Uhl appeared but Redfern

did not. The minutes indicate that the State moved to dismiss the appeal for Redfern’s

failure to appear, and the District Court granted the motion. On May 9, 2011, Redfern
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filed a “Motion for Reinstatement of Appeal Trial” which asked the District Court to

“reconsider the dismissal of the defendant’s appeal.” This motion explained that Redfern

was not notified of the conference by his counsel, that he had no communication with his

counsel about the preparation of the Omnibus Memorandum, and that it was the Justice

Court, not his counsel, which had advised him that his appeal had been dismissed. The

motion states that Uhl’s secretary told Redfern that, under office policy, a letter should

have been sent to him after he missed the March 10 hearing, and that the secretary did not

understand why this was not done.         The motion indicates that Redfern set up an

appointment with Uhl to discuss the dismissal and confronted her at that time about her

handling of the case. Redfern filed a notice of appeal two days later, on May 11, 2011,

and the District Court could then take no action on his request for reconsideration.

¶9     When a defendant raises an ineffective assistance claim before the court, which by

all appearances occurred here, “a district court must conduct an adequate initial inquiry in

order to determine whether the allegations are seemingly substantial.” State v. Edwards,

2011 MT 210, ¶ 29, 361 Mont. 478, 260 P.3d 396 (citations omitted). “Where a district

court fails to conduct ‘even a cursory inquiry,’ the inquiry is inadequate and remand is

justified.” Edwards, ¶ 29 (citation omitted). It may be that the court made such an

inquiry at the January 13 omnibus hearing, but the minutes simply do not reflect that.

The record reflects Redfern’s attendance at all proceedings through January 27, after

which he claims he received no notices and had no communication with his counsel. The

Omnibus Memorandum states that the defendant would file no motions, which Redfern

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states was done without his knowledge or consent.         Importantly, the Memorandum

reiterates counsel’s statutory and constitutional obligation to represent Redfern

throughout the proceeding, including on an appeal to this Court, unless obtaining

permission to withdraw or filing an “Election Not to Appeal” signed by counsel and

Redfern. See State v. Rardon, 2001 MT 77, ¶¶ 3-4, 305 Mont. 78, 22 P.3d 1132 (internal

citation omitted) (“A criminal defendant has a constitutional right to counsel on a direct

appeal. . . . Section 46-8-103, MCA, requires that assigned counsel continue to represent

a defendant until final judgment, including any proceeding upon direct appeal to this

Court, unless relieved by order of the court that assigned counsel to the case.”). That did

not happen—Redfern is representing himself on appeal, despite there being no record of

his counsel being relieved of her duties.

¶10    Although the record is admittedly sparse, our review leads us to the conclusion

that reversal and remand is necessary. It is not clear that an “initial inquiry” was made

into Redfern’s initial ineffectiveness claim, that the dismissal of his case was not due to

his counsel’s failure to notify him, and that his counsel was properly relieved of her

continuing obligation to represent him. Upon remand, the District Court will conduct an

inquiry, as provided by case law, into Redfern’s complaints concerning his representation

by the Public Defender. See e.g. Edwards, ¶ 29; State v. Happel, 2010 MT 200, ¶ 14, 357

Mont. 390, 240 P.3d 1016. Upon resolution of the issue of Redfern’s representation, the

matter may proceed to trial or other disposition in the normal course.




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¶11   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.

Reversed and remanded for further proceedings in accordance herewith.

¶12

                                                    /S/ JIM RICE

We concur:


/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS




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