                                                                                      February 12 2013


                                      DA 12-0245

             IN THE SUPREME COURT OF THE STATE OF MONTANA

                                      2013 MT 34



IN THE MATTER OF:

J.S.W.,

          Respondent and Appellant.



APPEAL FROM:       District Court of the First Judicial District,
                   In and For the County of Lewis and Clark, Cause No. ADI 2012-22
                   Honorable Dorothy McCarter, Presiding Judge


COUNSEL OF RECORD:

            For Appellant:

                   Colin M. Stephens, Smith & Stephens, P.C., Missoula, Montana

            For Appellee:

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

                   Leo Gallagher, Lewis and Clark County Attorney, Michael Menahan,
                   Deputy County Attorney, Helena, Montana



                                               Submitted on Briefs: January 9, 2013

                                                          Decided: February 12, 2013




Filed:

                   __________________________________________
                                     Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     J.S.W. appeals an order of the District Court for the First Judicial District, Lewis

and Clark County, committing her to the Montana State Hospital in Warm Springs,

Montana, for a period not to exceed 90 days. We affirm.

¶2     J.S.W. raises two issues on appeal which we have restated as follows:

¶3     1. Whether this Court should apply the plain error doctrine to review J.S.W.’s

claim that her constitutional rights have been violated.

¶4     2. Whether J.S.W. was denied the effective assistance of counsel.

                          Factual and Procedural Background

¶5     J.S.W. voluntarily admitted herself to the Behavioral Health Unit (BHU) at

St. Peter’s Hospital in Helena, Montana, on March 2, 2012, after law enforcement

officers brought her to the hospital for a mental health assessment following a

disturbance. After six days of voluntary commitment, J.S.W. requested that she be

discharged. However, the Lewis and Clark County Attorney’s Office filed a petition with

the District Court requesting that J.S.W. be committed for further evaluation and

treatment. The petition alleged that J.S.W. had a mental disorder making her incapable of

caring for herself or of managing her own affairs, thus she required commitment.

¶6     That same day, J.S.W. appeared before the District Court. The court advised

J.S.W. of her rights, appointed a “friend of respondent” as specified in § 53-21-122(2)(b),

MCA, and appointed the Office of Public Defender to represent her. The court set a

hearing on the petition for commitment for the following day.


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¶7     The State’s only witness at the hearing was Susan Hemion, a psychiatric nurse

practitioner with the BHU at St. Peter’s Hospital. At the time of the hearing, it was as yet

undetermined from which mental disorder J.S.W. was suffering. Hemion testified that

the two working diagnoses for J.S.W. were “mood disorder not otherwise specified” and

“dementia.” According to Hemion, J.S.W. was experiencing “hyper verbal behavior,

hyper irritability . . . racing thoughts, [and] tangential thinking.”

¶8     Hemion also testified that J.S.W. had difficulty sleeping while at the BHU and that

she appeared agitated. In addition, Hemion testified to a number of behaviors exhibited

by J.S.W. while at the BHU which concerned Hemion, including J.S.W. spitting out her

medication, and invading the space of other patients. Hemion stated that during a recent

examination, J.S.W. forgot what she was talking about, could not stay on topic to answer

questions, and could not keep her train of thought longer than a few moments. Hemion

concluded that J.S.W. was “too disorganized to be able to do her daily activities safely,”

and that she was “a danger to herself and others.” Thus, Hemion requested that the

District Court commit J.S.W. to the Montana State Hospital for “a thorough evaluation”

and that she be involuntarily medicated.

¶9     After Hemion testified, the following exchange occurred between J.S.W.’s counsel

and the District Court Judge:

             [J.S.W.’s counsel]: Your Honor, I think [J.S.W.] would like to
       address the Court.
             THE COURT: For three minutes, and no more than three minutes.

J.S.W.’s counsel did not object to this time restriction. J.S.W. addressed the court under

the examination of counsel. J.S.W. was also cross-examined by the State’s counsel.


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¶10    At the conclusion of the hearing, the District Court determined that J.S.W.

suffered from a mental disorder that required treatment. The court also determined that

“the least restrictive, most appropriate alternative” was the Montana State Hospital in

Warm Springs. Consequently, the court committed J.S.W. to the Montana State Hospital

for a period not to exceed 90 days with a treatment order that included the involuntary

administration of medication. J.S.W. appeals.

                                        Discussion

¶11    As a preliminary matter, we note here, as we have done in numerous other cases,

that an appeal from an order of involuntary commitment is not moot even if the

individual has been released, since the issues raised would fall “under the ‘capable of

repetition, yet evading review’ exception to the mootness doctrine.” In re D.K.D., 2011

MT 74, ¶ 14, 360 Mont. 76, 250 P.3d 856 (citing In re D.M.S., 2009 MT 41, ¶ 10, 349

Mont. 257, 203 P.3d 776; In re Mental Health of D.V., 2007 MT 351, ¶¶ 30-32, 340

Mont. 319, 174 P.3d 503; Matter of N.B., 190 Mont. 319, 322-23, 620 P.2d 1228, 1231

(1980)).

                                          Issue 1.

¶12    Whether this Court should apply the plain error doctrine to review J.S.W.’s claim
       that her constitutional rights have been violated.

¶13    J.S.W. argues that the District Court violated her right to testify on her own behalf

when the court imposed an arbitrary time restriction on her testimony. Because J.S.W.’s

counsel did not object to the court’s time limitation at trial, J.S.W. argues that we should

review this alleged error under the doctrine of plain error.



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¶14    The State argues on the other hand that plain error review is not warranted here

because there was no error. The State contends that although the court initially indicated

that J.S.W.’s testimony would be limited to three minutes, in actuality the court did not

hold her to that three minutes and did not prevent her from testifying.         The State

maintains that the District Court properly exercised its discretion regarding the court’s

control over the mode and order of interrogating witnesses and presenting evidence.

¶15    Although we generally will not review issues raised for the first time on appeal,

we have determined that if a constitutional or substantial right is at issue, we may review

such a claim under the plain error doctrine. State v. Gunderson, 2010 MT 166, ¶ 99, 357

Mont. 142, 237 P.3d 74 (citing State v. Longfellow, 2008 MT 343, ¶ 19, 346 Mont. 286,

194 P.3d 694). We invoke plain error review “ ‘where failing to review the claimed error

may result in a manifest miscarriage of justice, may leave unsettled the question of the

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

judicial process.’ ” Gunderson, ¶ 99 (quoting State v. Taylor, 2010 MT 94, ¶ 12, 356

Mont. 167, 231 P.3d 79).

¶16    When an individual raises the plain error doctrine to request review of issues that

were not objected to at the district court level, our review is discretionary. Gunderson,

¶ 99 (citing State v. Gray, 2004 MT 347, ¶ 13, 324 Mont. 334, 102 P.3d 1255; State v.

Daniels, 2003 MT 247, ¶ 20, 317 Mont. 331, 77 P.3d 224). Furthermore, we have

repeatedly stated that we will use plain error review sparingly on a case-by-case basis.

Gunderson, ¶ 99 (citing State v. Hayden, 2008 MT 274, ¶ 17, 345 Mont. 252, 190 P.3d

1091; State v. Rosling, 2008 MT 62, ¶ 77, 342 Mont. 1, 180 P.3d 1102).


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¶17    The plain error doctrine establishes a two-part test with the burden on the criminal

defendant, or in this case, the person facing involuntary commitment,1 to meet both parts

of that test. Gunderson, ¶ 100 (citing State v. Whipple, 2001 MT 16, ¶ 32, 304 Mont.

118, 19 P.3d 228). Under this test, we ask two questions: (1) does the alleged error

implicate a fundamental right; and (2) would failure to review the alleged error result in

one of the three consequences mentioned above. Gunderson, ¶ 100. “[A] mere assertion

that constitutional rights are implicated or that failure to review the claimed error may

result in a manifest miscarriage of justice is insufficient to implicate the plain error

doctrine.” Gunderson, ¶ 100; see also State v. Mitchell, 2012 MT 227, ¶ 10, 366 Mont.

379, 286 P.3d 1196.

¶18    In the case sub judice, J.S.W. has identified a constitutional right that is applicable

to these sorts of proceedings. The Fifth Amendment to the United States Constitution

and Article II, Section 25 of the Montana Constitution guarantee an individual the right

against self-incrimination. A necessary corollary to the right against self-incrimination is

the right to testify in one’s own behalf. Rock v. Arkansas, 483 U.S. 44, 52, 107 S. Ct.

2704, 2709 (1987). “ ‘Every criminal defendant is privileged to testify in his own

defense, or to refuse to do so.’ ” Rock, 483 U.S. at 53, 107 S. Ct. at 2710 (quoting Harris

v. New York, 401 U.S. 222, 225, 91 S. Ct. 643, 645 (1971)).

¶19    In addition, the Fourteenth Amendment secures the right of a criminal defendant

to choose between silence and testifying in his own behalf. Rock, 483 U.S. at 51, 107

1
  An individual facing involuntary commitment has all of the rights guaranteed by both
the United States Constitution and the Montana Constitution. Section 53-21-115, MCA.


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S. Ct. at 2708-09 (“The right to testify on one’s own behalf at a criminal trial has sources

in several provisions of the Constitution. It is one of the rights that ‘are essential to due

process of law in a fair adversary process.’ ” (quoting Faretta v. California, 422 U.S.

806, 819 n. 15, 95 S. Ct. 2525, 2533 n. 15 (1975)).

¶20    Thus, while the State is correct that a district court does have discretion to manage

courtroom proceedings, a court must do so mindful of a party’s constitutional rights. See

e.g. State v. Couture, 2010 MT 201, ¶ 78, 357 Mont. 398, 240 P.3d 987; State v. Garcia,

2003 MT 211, ¶¶ 32-33, 317 Mont. 73, 75 P.3d 313.

¶21    Nevertheless, in the instant case, while J.S.W.’s claim does implicate her

fundamental right to testify, thereby meeting the first prong of the test for plain error

review, she has failed to establish any factual basis for her contention that her right to

testify was violated. While we do not condone the District Court’s statement that J.S.W.

was limited to three minutes, the record reflects that the court did not cut J.S.W. off and

her counsel appeared to have sufficient time to develop the line of questioning he felt best

served his client. Moreover, the Judge encouraged additional questioning by J.S.W.’s

counsel, and also allowed the State to question J.S.W. The transcript clearly reflects this:

             [J.S.W.’s counsel]: Your Honor, I think [J.S.W.] would like to
       address the Court.
             THE COURT: For three minutes, and no more than three minutes.
       [Emphasis added.]

J.S.W.’s counsel then proceeded to question J.S.W. for a short time after which the

following transpired:

              [J.S.W.’s counsel]: I guess I have no further questions, Your Honor.
              THE COURT: Okay. Anything?


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              [The State’s counsel]: Could I ask a couple of questions?
              THE COURT: Sure.

The State then asked J.S.W. a few questions at the end of which the following

occurred:

              [The State’s counsel]: I don’t have any further questions.
              THE COURT: Okay. Anything else?
              [J.S.W.’s counsel]: That’s it, Your Honor.

¶22    J.S.W. has failed to persuade this Court that there is any error to review, let alone

that a failure to review would result in a manifest miscarriage of justice, leave unsettled

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

integrity of the judicial process. In contrast, see e.g. State v. West, 2008 MT 338, ¶ 30,

346 Mont. 244, 194 P.3d 683 (concluding that the factual circumstances identified by

West constituted “a quintessential example of ‘where failing to review the claimed error

at issue . . . may compromise the integrity of the judicial process’ ”).

¶23    To the extent J.S.W.’s theory on appeal is that the District Court’s statement

imposing a three-minute limitation is itself a due process violation, without regard to

what actually transpired on the record subsequent to the court’s statement, J.S.W. has not

cited any legal authority supporting this as a constitutional violation. As we indicated

above, “a mere assertion that constitutional rights are implicated or that failure to review

the claimed error may result in a manifest miscarriage of justice is insufficient to

implicate the plain error doctrine.” Gunderson, ¶ 100.

¶24    Because J.S.W. has failed to meet both prongs of the test for plain error review,

we hold that plain error review of this issue is not warranted.



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                                          Issue 2.

¶25    Whether J.S.W. was denied the effective assistance of counsel.

¶26    J.S.W. argues that she was denied the effective assistance of counsel when her

counsel failed to object to the District Court’s imposition of a time restriction on J.S.W.’s

testimony. Claims of ineffective assistance of counsel are mixed questions of law and

fact which this Court reviews de novo. State v. Miner, 2012 MT 20, ¶ 10, 364 Mont. 1,

271 P.3d 56 (citing Gunderson, ¶ 66; Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90,

183 P.3d 861).

¶27    In her brief on appeal, J.S.W. relies on Strickland v. Washington, 466 U.S. 668,

104 S. Ct. 2052 (1984), the traditional test for evaluating ineffective assistance of counsel

claims, to evaluate her claim. This Court has determined, however, that Strickland is

inappropriate to evaluate involuntary civil commitment proceedings because Strickland

fails to adequately protect the liberty interests of the person facing involuntary

commitment. In re T.J.F., 2011 MT 28, ¶ 33, 359 Mont. 213, 248 P.3d 804 (citing In re

C.R.C., 2009 MT 125, ¶ 16, 350 Mont. 211, 207 P.3d 289).

¶28    Instead, the proper role of an attorney in involuntary commitment proceedings is

“to represent the perspective of the respondent and to serve as a vigorous advocate for the

respondent’s wishes.” T.J.F., ¶ 33 (citing C.R.C., ¶ 18). To that end, we look to the

following five “critical areas” to measure effective assistance of counsel in these types of

proceedings: (1) appointment of counsel; (2) counsel’s initial investigation; (3) counsel’s

interview with the patient-respondent; (4) the patient-respondent’s right to remain silent;

and (5) counsel’s role as an advocate for the patient-respondent. T.J.F., ¶ 33.


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¶29     We will consider the entire record and evaluate each factor “based on the facts and

circumstances of the entire case.” In re C.R., 2012 MT 258, ¶ 28, 367 Mont. 1, 289 P.3d

125 (quoting C.R.C., ¶ 19). We will vacate an order of involuntary commitment upon a

substantial showing of evidence that counsel did not effectively represent the

patient-respondent’s interests pursuant to the foregoing standards. C.R., ¶ 28 (citing

C.R.C., ¶ 16; In re Mental Health of K.G.F., 2001 MT 140, ¶ 91, 306 Mont. 1, 29 P.3d

485).

¶30     In the instant case, J.S.W.’s claim implicates only the fourth and fifth factors—

J.S.W.’s right to remain silent (or, in this case, her right to testify), and counsel’s role as

an advocate for J.S.W. Neither J.S.W.’s briefs nor the record as a whole indicate any

insufficiency regarding the first three factors.

¶31     Based upon our review of the record, we conclude that J.S.W. has failed to make a

“substantial showing of evidence that counsel did not effectively represent [J.S.W.’s]

interests.” C.R., ¶ 28. In his cross-examination of Hemion, the State’s witness who was

advocating for J.S.W.’s commitment to the Montana State Hospital, counsel effectively

elicited that Hemion had no first-hand knowledge of J.S.W.’s driving, or J.S.W.’s

abilities in daily tasks such as cooking and cleaning.         In addition, under counsel’s

cross-examination, Hemion conceded that J.S.W. had secured her own food and lodging

in Helena, and that J.S.W. had voluntarily checked herself into the BHU. Hemion also

conceded under cross-examination that J.S.W. did not display any physical danger to

others during her time in the BHU, nor did she demonstrate any level of self harm.




                                          10
Moreover, while Hemion had testified to J.S.W.’s disorganized thought processes, in his

direct examination of J.S.W., counsel was able to keep J.S.W. focused.

¶32    J.S.W.’s allegation of error on counsel’s part was counsel’s failure to object to the

court’s statement that J.S.W.’s testimony would be restricted to three minutes. However,

as we indicated in the previous issue, J.S.W. testified under both direct and

cross-examination, thus the court did not actually restrict her testimony.

¶33    Additionally, in the final few pages of her opening brief on appeal, J.S.W. notes

that the following exchange took place after the District Court pronounced judgment:

              [J.S.W.]: Your Honor, I have something to say. May I say it?
              THE COURT: Yes.
              [J.S.W.]: May my attorney assist me?

                     (Discussion off the record.)

             [J.S.W.]: Ma’am, --
             THE COURT: We are done.
             [J.S.W.]: I would like to request that instead of going to Warm
       Springs that you send me to three months in St. Peter’s Hospital, the
       behavior mod unit, because --
             THE COURT: You talk that over with your lawyer.

                     (End of proceedings.)

Although J.S.W. includes this excerpt from the record at the end of her issue regarding

ineffective assistance of counsel, J.S.W. does not indicate just how counsel was

ineffective here. Instead, J.S.W. returns to her contentions from the first issue that the

District Court erred in limiting her testimony.

¶34    Nevertheless, the court had already indicated, based on the testimony presented,

that the least restrictive, most appropriate placement for J.S.W. was at Warm Springs



                                         11
State Hospital. Moreover, even though J.S.W. expressed her wish to be committed to the

BHU at St. Peter’s Hospital, the reason the State filed its petition for involuntary

commitment for J.S.W. in the first place was because J.S.W. requested to be discharged

from that facility.

¶35    We conclude that the record as a whole demonstrates that J.S.W.’s counsel served

as “a vigorous advocate” for J.S.W.’s wishes. T.J.F., ¶ 33. Consequently, we hold that

J.S.W. was not denied the effective assistance of counsel.

¶36    Affirmed.


                                                       /S/ Laurie McKinnon



We Concur:

/S/ Beth Baker
/S/ Patricia Cotter
/S/ Michael E Wheat
/S/ Brian Morris




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