                                                                                               April 26 2016


                                           DA 14-0207
                                                                                            Case Number: DA 14-0207

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2016 MT 96



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

ROBERT LEE CRAWFORD,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Twentieth Judicial District,
                        In and For the County of Lake, Cause No. DC 12-49
                        Honorable James A. Manley, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Chief Appellate Defender, Chad R. Vanisko, Assistant
                        Appellant Defender, Helena, Montana

                For Appellee:

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

                        Steven Eschenbacher, Lake County Attorney, James Lapotka, Deputy
                        County Attorney, Polson, Montana



                                                    Submitted on Briefs: February 17, 2016

                                                               Decided: April 26, 2016


Filed:

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

¶1    Robert Lee Crawford appeals his conviction from the Twentieth Judicial District

Court, Lake County, for criminal possession of dangerous drugs. We affirm.

¶2    We address the following issues on appeal:

      (1) Whether the District Court erred in denying Crawford’s motion to suppress
          evidence of methamphetamine that law enforcement officers found on
          Crawford’s person after conducting a search incident to his arrest for
          violating the terms of his parole.

      (2) Whether Crawford received ineffective assistance of counsel when his counsel
          did not file proposed findings of fact and conclusions of law following the
          evidentiary hearing relating to Crawford’s suppression motion.

      (3) Whether the District Court abused its discretion by denying Crawford’s third
          discovery request.

      (4) Whether the District Court erred by denying Crawford’s posttrial motion to
          dismiss based upon the Court’s failure to arraign him on the Second Amended
          Information.

      (5) Whether the District Court adequately addressed Crawford’s complaints
          concerning his assigned counsel.

                FACTUAL AND PROCEDURAL BACKGROUND

¶3    On December 23, 2010, Crawford was released on parole in Butte-Silver Bow

County after his incarceration at the Montana State Prison for multiple drug-related

felony convictions. As a condition of his parole, a travel restriction was imposed upon

Crawford, which required that he obtain written permission from his parole officer,

Karley Kump (Officer Kump), before travelling outside the counties of Silver Bow,

Beaverhead, Jefferson, and Deer Lodge.




                                          2
¶4    On March 13, 2012, Flathead Tribal Police Officer Casey Couture (Officer

Couture) was on patrol in Lake County when he observed a vehicle with a single

operating headlight. Officer Couture initiated a traffic stop and identified Crawford as

the driver of the vehicle. Officer Couture noticed that there were four passengers in the

vehicle, one of whom Officer Couture recognized as Asa Lehrke (Lehrke) based upon

Lehrke’s prior involvement in the sale of illegal drugs. Officer Couture arrested Lehrke

on an outstanding warrant and issued a warning to Crawford regarding his inoperative

headlight. While being transported, Lehrke told Officer Couture that two of the men in

the vehicle were armed robbery suspects and another one of the men produced

methamphetamine.

¶5    After returning to the Flathead Tribal Police Station, Officer Couture searched the

Montana Correctional Offender Network database and learned that Crawford was on

parole in Silver Bow County. Officer Couture contacted the Butte-Silver Bow County

Probation and Parole Office and left a voice message, inquiring as to whether Crawford

was in violation of his parole. Officer Kump returned Officer Couture’s call and spoke

with Northwest Drug Task Force Agent Arlen Auld (Agent Auld). Officer Kump advised

Agent Auld that Crawford was in violation of his parole, explaining that Lake County

was outside his assigned travel district and Crawford did not have permission to travel

outside the district. Officer Kump requested that Officer Couture arrest Crawford for

violating the terms of his parole, and Agent Auld relayed this information to Officer

Couture.




                                           3
¶6    On March 17, 2012, while on patrol in Lake County, Officer Couture and Lake

County Sheriff’s Deputy Levi Read (Deputy Read) observed Crawford’s vehicle pull into

a local gas station. Based upon the information received from Officer Kump, Officer

Couture and Deputy Read initiated a traffic stop of Crawford’s vehicle and placed

Crawford under arrest for violating his parole. After conducting a search incident to

arrest, the officers discovered two vials in Crawford’s pants pocket. Subsequent testing

at the Montana State Crime Lab revealed that the vials contained methamphetamine.

¶7    On March 29, 2012, the State charged Crawford by Information with criminal

possession of dangerous drugs with the intent to distribute. The Court subsequently

arraigned Crawford on that charge.       On April 25, 2012, the State amended the

Information and added a charge of felony criminal forfeiture. On August 17, 2012, the

State filed a Second Amended Information, dismissing the charge of criminal forfeiture

and reducing the charge of criminal possession with intent to the lesser-included offense

of criminal possession of dangerous drugs. The District Court did not arraign Crawford

on the Second Amended Information.

¶8    On July 26, 2013, Crawford filed a third request for discovery in which he

requested that the State provide copies of email exchanges between law enforcement and

parole officers and information regarding Lehrke as an informant.         Crawford also

maintained that the arrest video the State provided was not the original video, and

Crawford requested he be allowed to view the original video because he believed that the

video produced by the State had been altered. The District Court denied Crawford’s




                                           4
request, concluding that the State had complied fully with its discovery obligations under

§ 46-15-322, MCA.

¶9     On February 5, 2013, Crawford filed a motion to suppress the evidence of

methamphetamine found on his person and alleged that the arresting officers had no

authority to detain him. Crawford maintained that the search was unlawful because the

arresting officers used Crawford’s parole status as a false pretense for their real intent,

which Crawford argued was to seek out a purported “meth lab.” After Crawford and the

State submitted briefing, the District Court conducted a hearing on Crawford’s motion to

suppress. The State thereafter filed proposed findings of fact and conclusions of law with

the District Court, but Crawford’s trial counsel did not.      The District Court denied

Crawford’s motion to suppress, concluding that Officer Couture and Deputy Read

lawfully arrested Crawford for violating the terms of his parole and the officers

performed a legal search incident to arrest whereupon they discovered the two vials of

methamphetamine.

¶10    On the first day of trial on December 2, 2013, Crawford requested that he be given

a copy of the Second Amended Information. The court informed Crawford that he would

need to discuss the Second Amended Information with his attorney, which led to the

following exchange regarding Crawford’s trial counsel:

       Court: Mr. Crawford, you have very able counsel. You would be
       well-advised to work through him and in front of the jury let him—

       Crawford: I don’t have a whole lot of faith here, your Honor.

       Court: Well, he’s a very competent attorney



                                            5
      Crawford: I’m the one facing 100 years here.

¶11   On the second day of trial on December 3, 2013, Crawford and the District Court

again engaged in an exchange regarding Crawford’s counsel:

      Court: Mr. Stenerson has been your attorney since August. Have you been
      satisfied with the services of Mr. Stenerson?

      Crawford: He has been my attorney since November of 2012. And he has
      done more in my case than anybody else has. But as far as things getting
      done in a timely manner, things being followed through with, no. I think—
      I feel strongly there’s prejudice against me because there’s items that have
      been brought in in front of the jury, a whole file full of pictures that—

      Court: As to the claim of ineffective assistance of counsel, given the fact
      that Mr. Stenerson, it sounds like, has done a professional job and he has
      been your counsel for a year now, there isn’t anything that at this stage of
      the proceedings would lead a court to say that this—that this has been
      proven. This is going to require a separate hearing. It’s going to require a
      written motion, and we are not going to do that in mid trial.

      Crawford: I was going say, we’re at trial, and I have tried to bring these
      issues up.

¶12   On December 3, 2013, a jury found Crawford guilty of criminal possession in

violation of § 45-9-102, MCA. The District Court sentenced Crawford as a persistent

felony offender and committed him to the Montana State Prison for a term of 20 years,

with 10 of those years suspended.

¶13   On December 31, 2013, Crawford filed a posttrial motion to dismiss, arguing that

the State’s failure to arraign him on the Second Amended Information constituted

reversible error. The District Court denied the motion, concluding that, because the

Second Amended Information merely dropped one charge, reduced another charge to a

lesser-included offense, and did not add any new charges, the Second Amended



                                           6
Information included no substantive amendments. The court explained that pursuant to

§ 46-11-205, MCA, a defendant is required to be arraigned on an amended information

only if an amendment is substantive.

¶14    Crawford timely appealed.

                               STANDARD OF REVIEW

¶15    We review a district court’s ruling on a motion to suppress to determine whether

its findings of fact are clearly erroneous and its interpretation and application of the law

are correct. State v. Fischer, 2014 MT 112, ¶ 8, 374 Mont. 533, 323 P.3d 891.

¶16    Ineffective assistance of counsel claims are mixed questions of law and fact that

this Court reviews de novo. State v. Crosley, 2009 MT 126, ¶ 27, 350 Mont. 223, 206

P.3d 932.

                                       DISCUSSION

¶17 (1) Whether the District Court erred in denying Crawford’s motion to suppress
evidence of methamphetamine that law enforcement officers found on Crawford’s person
after conducting a search incident to his arrest for violating the terms of his parole.

¶18    Both the Fourth Amendment to the United States Constitution and Article II,

Section 11 of the Montana Constitution protect individuals from unreasonable searches

and seizures. Under Montana law, warrantless searches are per se unreasonable. State v.

Galpin, 2003 MT 324, ¶ 54, 318 Mont. 318, 80 P.3d 1207. However, when a lawful

arrest is made, a police officer may conduct a search incident to arrest without a warrant

and “reasonably search the person arrested and the area immediately within his reach in

order to locate any weapons the person might use or any evidence that might otherwise

be destroyed.” Galpin, ¶ 54.


                                             7
¶19    Crawford argues that the District Court erred by denying his motion to suppress

the evidence of methamphetamine found on his person because “the arresting officers

used his parole status as a false pretense for their real intent, which was to conduct a

criminal investigation and seek out a purported ‘meth lab.’” Although Crawford does

not dispute that the arresting officers possessed sufficient cause to arrest Crawford for

violating the terms of parole under § 46-23-1023(2), MCA, Crawford contends that the

search incident to his arrest was nonetheless unlawful under the so-called “stalking

horse” theory.1 Citing this Court’s decision in State v. Fritz, 2006 MT 202, 333 Mont.

215, 142 P.3d 806, and the Ninth Circuit Court of Appeals’ decision in United States v.

Harper, 928 F.2d 894 (9th Cir. 1991), Crawford maintains that pursuant to the stalking

horse theory, an otherwise lawful parole search may be invalidated under the Fourth

Amendment if the search was not for a parole purpose, but was a mere subterfuge for a

criminal investigation. Thus, Crawford asks this Court to inquire into the subjective

motivations of the arresting officers—Officer Couture and Deputy Read—to determine

whether the officers intended to detain Crawford for a “parole purpose” or intended to

detain him for a “criminal investigative purpose.” If the officers intended the former

Crawford concedes that the search was lawful, but if the officers actually intended the

latter then according to Crawford the search was unlawful.




1
    The term “stalking horse” is often used to refer to a “decoy.” Safire’s New Political
Dictionary 750 (1993). See also Webster’s Third New International Dictionary 2221 (1976) (“1:
a horse or a figure like a horse behind which a hunter stalks game 2: something used to cover up
a secret project: MASK, PRETENSE”).


                                               8
¶20    We decline Crawford’s request to inquire into the subjective motivations of

Officer Couture and Deputy Read to determine the legality of his arrest for a number of

reasons. First, we have never adopted the stalking horse theory to invalidate an otherwise

lawful parole search. In Fritz, the defendant maintained that an otherwise lawful search

was unlawful because the “police officers . . . used the probation officers as subterfuge

for a criminal investigation.” Fritz, ¶ 13. However, contrary to Crawford’s contention,

we did not recognize in Fritz the validity of the stalking horse theory. The facts in Fritz

simply did not require us to do so because there was no merit to Fritz’s argument that the

officers were not conducting a valid criminal investigation unrelated to Fritz’s status as a

probationer. Fritz, ¶ 13. Thus, it was unnecessary in Fritz to consider the validity of the

stalking horse theory.

¶21    Second, our precedent has long established that inquiry into the subjective

motivations of law enforcement, necessarily required by the stalking horse theory, is

inappropriate in assessing the validity of an arrest. In State v. Farabee, 2000 MT 265,

302 Mont. 29, 22 P.3d 175, we made clear that an otherwise lawful traffic stop under

either the Fourth Amendment or the Montana Constitution remained valid despite the

subjective motivations of the individual officers involved. We reasoned that the United

States Supreme Court had expressly rejected such an inquiry into the subjective

motivations of law enforcement in its decision in Whren v. United States, 517 U.S. 806,

116 S. Ct. 1769 (1996), and we concluded that nothing in Article II, Section 11 of the

Montana Constitution provided an independent justification for deviating from the United

States Supreme Court’s decision. Farabee, ¶ 30. We explained that our precedent


                                             9
clearly demonstrates that “the lawfulness of a traffic stop under the Montana Constitution

depends on whether the officer had a particularized suspicion that an occupant of the

vehicle has committed or is committing an offense,” not on the actual motivations of

individual officers. Farabee, ¶ 30.

¶22    Third, notwithstanding Crawford’s citation to the Ninth Circuit’s decision in

Harper, we have not been supplied, nor has our research discovered, any authority from

other jurisdictions supporting the stalking horse theory. In the wake of the United States

Supreme Court’s decision in United States v. Knights, 534 U.S. 112, 122 S. Ct. 587

(2001), the Ninth Circuit overruled its decision in Harper, see United States v. Stokes,

292 F.3d 964, 967 (9th Cir. 2002) (explaining that the “circuit’s line of cases holding

searches of probationers invalid on the ground that they were subterfuges for criminal

investigations is, in that respect, no longer good law”), and federal and state courts alike

have followed suit in repudiating the stalking horse theory. In Knights, a unanimous

Supreme Court overturned a Ninth Circuit decision that had invalidated a search of a

probationer on the basis that the search was not for probationary purposes, but was a

mere subterfuge for a criminal investigation. See United States v. Knights, 219 F.3d

1138, 1145 (9th Cir. 2000). The Supreme Court upheld the search as supported by

reasonable suspicion in light of the totality of the circumstances and expressly stated that

“there is no basis for examining official purpose.” Knights, 534 U.S. at 122, 122 S. Ct. at

593. Since the Supreme Court’s decision in Knights, those courts that have addressed the

continued validity of the stalking horse theory have concluded that Knights dealt the

theory a fatal blow, reasoning that “when [the Supreme Court] rejected any challenge


                                            10
based on the ‘actual motivations’ of the officers, the Court confirmed that the Fourth

Amendment does not require a stalking horse inquiry.” United States v. Brown, 346 F.3d

808, 812 (8th Cir. 2003). Accord United States v. Reyes, 283 F.3d 446, 463-64 (2d Cir.

2002); United States v. Williams, 417 F.3d 373, 378 (3d Cir. 2005); Stokes, 292 F.3d at

967; United States v. Tucker, 305 F.3d 1193, 1199-1200 (10th Cir. 2002); State v.

Kottman, 2005 S.D. 116, ¶ 14, 707 N.W.2d 114; Helphenstine v. Commonwealth, 423

S.W.3d 708, 716 (Ky. 2014).

¶23   Lastly, even if we were to breathe new life into the stalking horse theory, we

would not extend its application to the facts of this case. Although the exact parameters

of the theory are ill-defined, the underlying premise of the theory was to prevent parole

officers from using their parole authority to conduct a home visit and a subsequent

warrantless search to help law enforcement evade the Fourth Amendment’s warrant and

probable cause requirements for police searches and seizures.          United States v.

Richardson, 849 F.2d 439, 441 (9th Cir. 1988). Here, however, the law enforcement

officers did not conduct a home visit or a warrantless search of Crawford’s home.

Rather, the officers arrested Crawford outside of his home pursuant to § 46-23-1023(2),

MCA, for violating the terms of his parole. Section 46-23-1023(2), MCA, provides that

“[a]ny probation and parole officer may arrest the parolee without a warrant or may

deputize any other officer with power to arrest to do so by giving the officer oral

authorization . . . .” Accordingly, based upon this statutory procedure and authorization

from Crawford’s parole officer, Crawford’s arrest was lawful. After making the arrest,

the officers conducted a lawful search incident to arrest of Crawford and discovered the


                                           11
methamphetamine. We know of no case, nor does Crawford cite a case, wherein the

stalking horse theory has been applied to invalidate an otherwise lawful search incident to

arrest outside of the parolee’s home. Thus, the stalking horse theory, assuming its

validity, would not be applicable to the facts of this case where the law enforcement

officers were not attempting to gain entry into Crawford’s home.

¶24    We decline to inquire into the subjective motivations of Officer Couture and

Deputy Read.        Because the officers lawfully arrested Crawford pursuant to

§ 46-23-1023(2), MCA, for violating the terms of his parole, the search incident to his

arrest was lawful. Accordingly, the District Court did not err in denying Crawford’s

motion to suppress the evidence of methamphetamine found on his person.

¶25    (2) Whether Crawford received ineffective assistance of counsel when his counsel
did not file proposed findings of fact and conclusions of law following the evidentiary
hearing relating to Crawford’s suppression motion.

¶26    Both the Sixth Amendment to the United States Constitution and Article II, § 24

of the Montana Constitution guarantee an individual the right to the effective assistance

of counsel in all criminal prosecutions. We review claims of ineffective assistance of

counsel using the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104

S. Ct. 2052 (1984). State v. Gunderson, 2010 MT 166, ¶ 67, 357 Mont. 142, 237 P.3d 74.

The test requires that a defendant show: (1) that counsel’s performance fell below an

objective standard of reasonableness, and (2) that a reasonable probability exists that, but

for counsel’s errors, the result of the proceeding would have been different. Gunderson,

¶ 67. Because a defendant must satisfy both prongs of the Strickland test, “if a defendant




                                            12
makes an insufficient showing regarding one prong of the test, there is no need to address

the other prong.” Gunderson, ¶ 68.

¶27    Crawford argues that his trial counsel provided ineffective assistance of counsel

by failing to file proposed findings of fact and conclusions of law following the

evidentiary hearing relating to his motion to suppress the evidence of methamphetamine

found on his person. He maintains that his counsel’s failure in this regard caused him

substantial prejudice.

¶28    In light of our resolution of Issue I, we cannot agree with Crawford that he was

prejudiced by his counsel’s failure to file proposed findings of fact and conclusions of

law. Crawford’s sole argument for invaliding the search at both the suppression hearing

and in his briefing to the District Court was that the arresting officers used the parole

officer as a stalking horse. Similarly, on appeal, Crawford offers no explanation for

invalidating the search other than the stalking horse theory. As we have rejected the

stalking horse theory, Crawford cannot establish that he was prejudiced.         Even if

Crawford’s counsel had submitted proposed findings of fact and conclusions of law and

better articulated the stalking horse theory, the theory was fatally flawed. Thus, given

our resolution of Issue I, Crawford’s argument that he was prejudiced by his counsel’s

performance necessarily fails.

¶29 (3) Whether the District Court abused its discretion by denying Crawford’s third
discovery request.

¶30    Crawford argues that the District Court abused its discretion by denying

Crawford’s third discovery request. He maintains that the State unlawfully withheld: (1)



                                           13
email communications between law enforcement and parole officers; (2) documentation

regarding Lehrke as an informant; and (3) an original recording of the arrest.

¶31    The State counters that it complied with discovery by providing all relevant

information in its possession. The State maintains that email communications between

law enforcement and the parole officers as well as any documentation regarding Lehrke

are irrelevant to Crawford’s guilt as to the offense charged. Regarding the original

recording of the arrest, the State maintains that no video exists other than the video it

provided in discovery.

¶32    In all criminal cases the prosecution has a long-established constitutional duty

under the United States Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83, 83

S. Ct. 1194 (1963), to provide to the defense any exculpatory or impeachment evidence

in its possession. McGarvey v. State, 2014 MT 189, ¶ 16, 375 Mont. 495, 329 P.3d 576

(citing State v. Ellison, 2012 MT 50, ¶ 15, 364 Mont. 276, 272 P.3d 646; State v.

Cooksey, 2012 MT 226, ¶ 34, 366 Mont. 346, 286 P.3d 1174). The Montana Legislature

has further adopted a statutory scheme that places affirmative duties on the prosecution to

provide evidence to the defendant. Section 46-15-322, MCA. Section 46-15-322(1)(e),

MCA, requires the State, upon request, to produce “all material or information that tends

to mitigate or negate the defendant’s guilt as to the offense charged . . . .” Additionally,

if the defense requests evidence under subsections (1)(a) through (1)(d) or (2)(a) through

(2)(c) of § 46-15-322, MCA, the State has an obligation to disclose relevant evidence

regardless of whether the evidence is exculpatory or inculpatory. State v. Hatfield, 269

Mont. 307, 312, 888 P.2d 899, 902 (1995). The party seeking to establish a Brady


                                            14
violation or a violation of statutory disclosure bears the burden of establishing a violation.

State v. Giddings, 2009 MT 61, ¶ 48, 349 Mont. 347, 208 P.3d 363.

¶33    We agree with the State that Crawford has failed to show that the State suppressed

exculpatory or otherwise relevant evidence. Crawford maintains that correspondence

between law enforcement and parole officers was relevant to show that the arresting

officers concealed their true intent to investigate the purported meth lab and that the

information “would have assisted in the aforementioned ‘stalking horse’ defense.” This

information may have been relevant to the stalking horse theory advanced during the

suppression motion of these proceedings, but its relevance to Crawford’s guilt or

innocence regarding whether he had methamphetamine on his person when arrested has

not been advanced. And, as explained above, we reject the stalking horse theory under

the facts of this case. Thus, any information concerning the subjective motivations of the

arresting officers was irrelevant and not exculpatory evidence during proceedings related

to Crawford’s suppression motion.        Regarding information related to Lehrke as an

informant, Crawford does not attempt on appeal to explain the relevance of the

information requested or specify what information or document he is actually requesting.

Lehrke did not testify at trial or at the suppression hearing and any information regarding

the officers’ motivation in arresting Crawford is irrelevant.       We are thus unable to

conclude that the information was potentially exculpatory and relevant to Crawford’s

“guilt as to the offense charged.” Section 46-15-322(1)(e), MCA.

¶34    Lastly, with respect to Crawford’s claim that he was unable to view the original

video, Crawford failed to introduce evidence, at the suppression hearing or at trial,


                                             15
casting doubt on the authenticity of the video provided by the State. Crawford did not

provide expert testimony demonstrating that video produced by the State was not an

original. Nor did Crawford elicit any testimony from law enforcement showing an

original video existed. Therefore, we conclude that Crawford has failed to demonstrate

that the State withheld relevant evidence as to the offense charged. The District Court

did not abuse its discretion in denying Crawford’s third discovery request.

¶35 (4) Whether the District Court erred by denying Crawford’s posttrial motion to
dismiss based upon the Court’s failure to arraign him on the Second Amended
Information.

¶36    Section 46-11-205, MCA, provides:

       (1) The court may allow an information to be amended in matters of
       substance at any time, but not less than 5 days before trial, provided that a
       motion is filed in a timely manner, states the nature of the proposed
       amendment, and is accompanied by an affidavit stating facts that show the
       existence of probable cause to support the charge as amended. A copy of
       the proposed amended information must be included with the motion to
       amend the information.

       (2) If the court grants leave to amend the information, the defendant must
       be arraigned on the amended information without unreasonable delay and
       must be given a reasonable period of time to prepare for trial on the
       amended information.

       (3) The court may permit an information to be amended as to form at any
       time before a verdict or finding is issued if no additional or different
       offense is charged and if the substantial rights of the defendant are not
       prejudiced.

¶37    We have explained that under § 46-11-205(2), MCA, “a defendant must be

arraigned on any amendment to the information of substance.” State v. Geren, 2012 MT

307, ¶ 64, 367 Mont. 437, 291 P.3d 1144. However, a defendant need not be arraigned

under § 46-11-205(3), MCA, on any amendment to the information as to form. Geren,


                                            16
¶ 64. To differentiate between amendments of form and substance, “we examine whether

an amendment to an information or complaint alters the nature of the offense, the

essential elements of the crime, the proofs, or the defenses.” Geren, ¶ 59 (quoting State

v. Scheffer, 2010 MT 73, ¶ 38, 355 Mont. 523, 230 P.3d 462) (internal quotation marks

omitted).

¶38    Crawford argues that the District Court’s failure to arraign him on the Second

Amended Information constitutes reversible error. Although Crawford concedes that

based on our decision in State v. Adkins, 2009 MT 71, 349 Mont. 444, 204 P.3d 1, the

State did not substantively amend the information by reducing the charge of criminal

possession with intent to the lesser-included offense of criminal possession, he maintains

that the State did substantively amend the information by dismissing the charge of

criminal forfeiture.

¶39    We disagree with Crawford that the State substantively amended the information

by dismissing the charge of criminal forfeiture. In Adkins, we explained that when the

State amends an information to charge an alternate, lesser included offense which is

supported by an identical factual basis, such an amendment is not a “substantive change[]

to the information” under § 46-11-205, MCA.          Adkins, ¶¶ 16-17.     In light of our

conclusion in Adkins that an amendment which adds a lesser-included offense is not a

substantive amendment, we have no trouble concluding that an amendment which

dismisses a charge is also not a substantive amendment. Indeed, considering that the

purpose of the information is to “apprise the accused of the charges against him,” Geren,

¶ 55, it would make little sense to conclude that the dismissal of a charge is a substantive


                                            17
change to the information. Such a conclusion would require a district court to arraign a

defendant on a non-existent charge.       The State did not substantively amend the

information within the meaning of § 46-11-205, MCA, by reducing the charge of

criminal possession with intent to the lesser-included offense of criminal possession and

by dismissing the charge of criminal forfeiture. The District Court correctly denied

Crawford’s posttrial motion to dismiss.

¶40 (5) Whether the District Court adequately addressed Crawford’s complaints
concerning his assigned counsel.

¶41    Crawford argues that the District Court erred by failing to conduct an “adequate

initial inquiry” into his complaints concerning his trial counsel. Crawford maintains that

after he complained that he did not have “faith” in his counsel and that his counsel’s

performance had caused him “prejudice” the court should have inquired into his

complaints to determine whether they were “seemingly substantial” pursuant to State v.

Gallagher, 1998 MT 70, ¶ 14, 288 Mont. 180, 955 P.2d 1371. The State counters that an

initial inquiry was not required under the facts of this case because Crawford never

requested that the District Court appoint new counsel. Alternatively, the State argues that

the District Court conducted an adequate initial inquiry into Crawford’s complaints.

¶42    The United States Constitution and the Montana Constitution guarantee a criminal

defendant the right to effective assistance of counsel. U.S. Const. amend. VI; Mont.

Const. art. II, § 24. We have explained that “[i]f a defendant asserts denial of effective

assistance and requests appointment of new counsel, a district court must conduct an

‘adequate initial inquiry’ to determine whether the defendant’s claim is ‘seemingly



                                            18
substantial.’” State v. Happel, 2010 MT 200, ¶ 14, 357 Mont. 390, 240 P.3d 1016. In

the event that the initial inquiry “reveals a seemingly substantial complaint, the court

must hold a hearing to address the validity of the complaints, and appoint separate

counsel to represent the defendant.” Happel, ¶ 14. When a defendant does not request

substitute counsel, however, “the defendant ‘fails to implicate the “seemingly substantial”

analysis and the need for a subsequent hearing’ on his complaints about his lawyer.”

State v. Clary, 2012 MT 26, ¶ 28, 364 Mont. 53, 270 P.3d 88 (quoting State v. Racz, 2007

MT 244, ¶ 20, 339 Mont. 218, 168 P.3d 685) (brackets omitted).

¶43    Here, while Crawford complained to the District Court about his counsel, there is

no evidence in the record showing that Crawford ever requested that the District Court

appoint new counsel.2 Crawford never filed a motion requesting the District Court do so.

Nor did Crawford ever make an oral request at any of the pretrial hearings or during trial.

Absent “a request for another attorney, the District Court was not required to conduct

further inquiry into the matter.” Clary, ¶ 28. Based on the record before us, we conclude

that the District Court did not err.

¶44    Affirmed.

                                                   /S/ LAURIE McKINNON




2
   Crawford also argues that he sent the District Court several handwritten documents that he
refers to as “kites.” Crawford maintains that in the kites he requested new counsel. However,
Crawford concedes that the kites were not admitted in the record, and it is unclear whether the
District Court ever saw or was made aware of the documents. To the extent Crawford is
attempting to rely on these “kites,” non-record-based trial issues must be addressed first in a
postconviction relief proceeding rather than on direct appeal. State v. Bateman, 2004 MT 281,
¶ 23, 323 Mont. 280, 99 P.3d 656.


                                              19
We Concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ BETH BAKER




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