                                                                                             May 19 2015


                                         DA 13-0777
                                                                                          Case Number: DA 13-0777

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2015 MT 133



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

DENNIS LEO SCHOWENGERDT,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Third Judicial District,
                      In and For the County of Powell, Cause No. DC 12-55
                      Honorable Ray Dayton, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Wade Zolynski, Chief Appellate Defender; Gem K. Mercer, Assistant
                      Appellate Defender; Helena, Montana

               For Appellee:

                      Timothy C. Fox, Montana Attorney General; Mardell Ployhar, Assistant
                      Attorney General; Helena, Montana

                      Lewis K. Smith, Powell County Attorney; Deer Lodge, Montana




                                                  Submitted on Briefs: April 1, 2015
                                                             Decided: May 19, 2015


Filed:

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

¶1       Dennis Leo Schowengerdt (Schowengerdt) appeals from the judgment and

sentence entered by the Third Judicial District Court, Powell County, following the entry

of his guilty plea to the charge of deliberate homicide. Schowengerdt challenges the

denial of his request for the appointment of new counsel and alleges his right to effective

assistance of counsel was violated. We remand for further proceedings on a limited

issue.

¶2       The parties raise the following issues on appeal:

         1. Did the District Court adequately inquire into Schowengerdt’s complaint that
            defense counsel had rendered ineffective assistance of counsel?

         2. Did Schowengerdt receive ineffective assistance of counsel?

                   FACTUAL AND PROCEDURAL BACKGROUND

¶3       On December 10, 2012, the State filed an information charging Schowengerdt

with one count of deliberate homicide.           The State alleged by affidavit that on

December 8, 2012, just before midnight, Schowengerdt repeatedly stabbed his wife, Tina

Schowengerdt, resulting in her death. The affidavit further stated that, the following

morning, Schowengerdt entered the Powell County Law Enforcement Center and

provided a full confession.

¶4       On January 2, 2013, Steven Scott (Scott) of the Office of the State Public

Defender (OPD) was assigned as counsel for Schowengerdt. On January 17, Scott filed a

“Notice of Intention” in which he advised that Schowengerdt intended to plead not guilty

and assert the affirmative defense of justifiable use of force. However, on April 2,
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Schowengerdt agreed to plead guilty to deliberate homicide, without the benefit of a plea

agreement. In a handwritten statement, Schowengerdt admitted killing his wife: “I

knowingly stabbed Tina Schowengerdt with a knife causing her death. This occurred on

12/8/12.” During the ensuing change of plea hearing, Schowengerdt indicated that he

was satisfied with the services of his attorney and was voluntarily entering his plea.

During the plea colloquy, Schowengerdt stated he did not want to proceed to trial because

“I can’t handle it.” Schowengerdt admitted that he stabbed Tina with a knife knowing

that it would cause her death. The District Court accepted Schowengerdt’s guilty plea,

and the matter was set for sentencing.

¶5    On June 12, Schowengerdt sent a handwritten letter to the District Court, seeking

the appointment of new counsel. The letter stated as follows:

      I am Requesting a Withdraw as My Attorney at this time Mr Steve Scott

      I AM Requesting For proper Reputation in My case

Two days later, Scott filed a motion for withdrawal of Schowengerdt’s guilty plea. In his

supporting brief, Scott explained: “Mr. Schowengerdt, during a visit with his attorney,

Mr. Scott, stated he wants to withdraw his plea of guilty and proceed onto trial in this

case. Mr. Schowengerdt indicated he made a mistake when he entered into the plea and

now wishes to withdraw his plea and proceed to trial.” Scott further added, “It is my duty

as a licensed attorney in Montana to point out to the Court there is not any case law in

Montana to support Mr. Schowengerdt’s position as to the withdraw of plea.”




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¶6     On June 17, the District Court ordered Scott to submit a memorandum explaining

Scott’s position regarding his continued representation of Schowengerdt and the “Public

Defender’s position with respect to providing Schowengerdt with new counsel.” Scott

did so, stating that he had “no problem with continuing to represent” Schowengerdt and

that he did not believe there had been a breakdown of the attorney-client relationship, and

describing the process by which Schowengerdt could file a complaint with OPD.

¶7     On July 2, the District Court convened a hearing to address Schowengerdt’s letter

for change in representation. The court stated to Schowengerdt that it was unclear from

his letter why he did not want Scott to be his attorney, after which the following colloquy

occurred:

       [Schowengerdt]: Can I explain it to you?

       [Court]: Go ahead.

       [Schowengerdt]: All right. Early on, back in December, might have been
       January, but it was early on—

       [Court]: Well, Mr. Schowengerdt, let me stop you there. You’re starting to
       tell a story. I’m going to remind you that you have a right to remain silent.
       The things you say in court can wind up to be to your prejudice in the
       future.

       [Schowengerdt]: It seems like I’ve already spoke about everything that’s
       got me here.

Thus, at the point Schowengerdt was going to explain his dissatisfaction with his

assigned counsel, the court interrupted him and Schowengerdt was never provided

another chance to speak to the issue.        Instead of inquiring into Schowengerdt’s


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objections, the court directed him to follow the OPD’s process for obtaining substitute

counsel:

       [Scott]: Dennis, do you want a different attorney from the Public
       Defender’s Office?

       [Schowengerdt]: Yes.

       [Court]: All right. If that’s what you’re driving at, you need to
       communicate with the Public Defender’s Office rather than me and tell
       them why you think you should have a different lawyer, and then they will
       tell me whether or not they’ll give you one.

                                               .   .   .

       [Court]: If they do not give you a different lawyer, then you have—we’re
       going to be looking at: Okay, am I going to let Mr. Scott off the hook in
       this case or not?

¶8     On August 27, the District Court conducted a hearing on Schowengerdt’s motion

to withdraw his plea. At the outset of the hearing, the court inquired whether the issue of

Schowengerdt’s representation had been resolved. Scott explained that the OPD had

denied Schowengerdt’s request for a new counsel, and that Schowengerdt had not

administratively appealed the decision. The court then responded:

       All right. So the matter is concluded then. The matter has run its course.
       We had a hearing. We made it apparent to Mr. Schowengerdt what
       procedure he was to follow. He followed the procedure. A decision was
       made. It has not been appealed, and Mr. Steven Scott remains
       Schowengerdt’s attorney.

       So we’ll proceed, then, to the Defendant’s motion to withdraw his plea of
       guilty on the singular charge of deliberate homicide.

¶9     In contrast to its prior statements, the District Court did not inquire further into the

basis for Schowengerdt’s complaints concerning his counsel. Moving to argument on the
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motion to withdraw the guilty plea, Scott stated he did not “have anything to add beyond

what is in the motion in this matter.” Scott explained: “It was during a visit with

Mr. Schowengerdt that he asked me . . . to file a motion to withdraw his plea. He did not

have a basis to give to me as to why he felt his plea should be withdrawn. . . . It was

simply that Mr. Schowengerdt changed his mind and would like to be able to withdraw

his plea.”

¶10    Following Scott’s statement, the court gave Schowengerdt an opportunity to

address the withdrawal of his plea. Schowengerdt indicated that he was “not prepared for

this,” and then stated: “I don’t think I’m guilty. I know what the outcome was, but I

think I was fighting for my life.”     Scott concluded by stating: “all I have is that

Mr. Schowengerdt has asked me to file the motion to withdraw his guilty plea.           I

don’t have any case law on my side to support that motion, but we’re just simply

asking—Mr. Schowengerdt is simply asking he be allowed to withdraw his plea and

continue to trial.”

¶11    The District Court denied Schowengerdt’s motion to withdraw his plea,

concluding that the “Defendant has not in any way asserted his plea of guilty was

involuntary and there is no basis in the record to conclude Defendant’s guilty plea was

involuntary.” The District Court sentenced Schowengerdt to life in the Montana State

Prison.

¶12    Schowengerdt appeals.




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                              STANDARD OF REVIEW

¶13   We review a district court’s denial of a request for substitution of counsel for an

abuse of discretion. Halley v. State, 2008 MT 193, ¶ 11, 344 Mont. 37, 186 P.3d 859.

¶14   “Ineffective assistance of counsel claims raise mixed questions of law and fact that

we review de novo.” State v. Savage, 2011 MT 23, ¶ 20, 359 Mont. 207, 248 P.3d 308.

                                     DISCUSSION

¶15 1. Did the District Court adequately inquire into Schowengerdt’s complaint that
defense counsel had rendered ineffective assistance of counsel?

¶16   Schowengerdt challenges the adequacy of the District Court’s inquiry into his

request for new counsel. He argues that the court failed to inquire into his complaints

concerning his representation to determine if they were “seemingly substantial.” The

State counters that the District Court conducted an adequate inquiry because

Schowengerdt did not appeal the decision of the OPD and Schowengerdt failed to

“provide specific complaints about” his counsel, instead only making “vague statements

about wanting proper representation or not thinking that he had been represented

properly.” Alternatively, the State argues, citing our decision in State v. Edwards, 2011

MT 210, 361 Mont. 478, 260 P.3d 396, that “[e]ven if the district court did not conduct

an adequate initial inquiry, that does not require reversal because Schowengerdt did not

raise a complaint that communications had broken down or that he feared his counsel

would fail to effectively represent him going forward to sentencing.”

¶17   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.
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Const. art. II, § 24. If a defendant asserts a claim of ineffective assistance of counsel, and

requests the appointment of new counsel, the “district court must conduct an ‘adequate

initial inquiry’ to determine whether the defendant’s claim is ‘seemingly substantial.’”

State v. Happel, 2010 MT 200, ¶ 14, 357 Mont. 390, 240 P.3d 1016 (citing State v.

Gallagher, 1998 MT 70, ¶ 15, 288 Mont. 180, 955 P.2d 1371). We have explained the

“threshold issue to determine whether a complaint is substantial is not whether counsel

was ineffective, but rather whether the district court made an adequate inquiry into the

defendant’s claim.” Happel, ¶ 14 (citing State v. Gazda, 2003 MT 350, ¶ 30, 318 Mont.

516, 82 P.3d 20). We have found it to be “reversible error where a district court fails to

make an initial inquiry into a defendant’s complaints about counsel.” City of Billings v.

Smith, 281 Mont. 133, 137, 932 P.2d 1058, 1061 (1997). The district court’s inquiry is

adequate so long as the “court considers the defendant’s factual complaints together with

counsel’s specific explanations addressing the complaints.” State v. Rose, 2009 MT 4,

¶ 96, 348 Mont. 291, 202 P.3d 749 (superseded in part on other grounds, State v. Stops,

2013 MT 131, 370 Mont. 226, 301 P.3d 811) (citing City of Billings, 281 Mont. at

136-37, 932 P.2d at 1060). However, if the district court “fails to conduct ‘even a

cursory inquiry,’ such an effort is inadequate and justifies remand of the case for further

proceedings.” Happel, ¶ 14 (citing State v. Weaver, 276 Mont. 505, 511-12, 917 P.2d

437, 441-42 (1996)).

¶18    Here, the District Court erred by failing to conduct an adequate inquiry into

Schowengerdt’s complaints.       After entering his guilty plea, Schowengerdt sent the

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June 12 letter to the District Court asking to have his counsel removed from his case.

Although the letter was short and Schowengerdt’s writing skills were minimal, the letter

made clear that Schowengerdt was asking for new counsel to be substituted for Scott.

Schowengerdt confirmed that intention during the subsequent hearing. However, after

asking Schowengerdt about his concerns, the District Court interrupted Schowengerdt as

he attempted to give an explanation. The court ordered Schowengerdt to follow the

OPD’s process for appointment of new counsel.           The court stated that additional

proceedings would be conducted if OPD denied Schowengerdt’s request. However,

when the OPD administratively denied the request, the court ruled that the matter was

concluded and conducted no additional proceedings.

¶19    The District Court plainly did not consider Schowengerdt’s complaints as it did

not permit Schowengerdt an opportunity to offer them during the hearing. The record

does not indicate what Schowengerdt’s objections were to Scott’s representation.

Instead, the District Court merely deferred to the OPD’s administrative process on the

issue of whether Schowengerdt was entitled to new counsel.               While the OPD

administrative process may be helpful in resolving some conflicts that arise in the

assignment of counsel, it does not supplant judicial procedures that ensure that a criminal

defendant is provided the constitutional right to counsel. The District Court failed to

follow these procedures when it neglected to inquire into Schowengerdt’s complaints

concerning his representation.




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¶20    The State argues that the court’s error does not require reversal based on State v.

Edwards. There, the defendant requested new counsel after being convicted at trial, and

the district court, upon receipt of Edwards’ post-trial motion, failed to inquire into his

complaints prior to sentencing. Edwards, ¶ 29. Despite the court’s error, we concluded

that remand was unnecessary because Edwards’ complaints related solely to the alleged

ineffectiveness of his counsel at trial, and he had failed to argue that “he feared counsel

would fail to effectively represent him going forward to sentencing.” Edwards, ¶ 29.

The State argues that Schowengerdt’s complaints here were similarly inadequate to

require inquiry by the District Court.

¶21    However, we are not able to determine whether Schowengerdt’s complaints here

were sufficient because he was not provided an opportunity to explain them. And, unlike

Edwards, Schowengerdt argues that his counsel would not be able to effectively represent

him going forward with his motion to withdraw his plea in the event the matter is

remanded. Schowengerdt requests “the opportunity to present his motion to withdraw his

guilty plea to the district court through constitutionally effective counsel.” Consequently,

the District Court’s failure to adequately inquire into his complaints necessitates a

remand for further proceedings on this issue.

¶22    2. Did Schowengerdt receive ineffective assistance of counsel?

¶23    Given our resolution of Issue 1, it is not necessary to address Issue 2 at this time.

The proceedings on remand may well render moot any claim of ineffective assistance of

counsel.

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                                    CONCLUSION

¶24   Upon remand, the District Court must adequately inquire into Schowengerdt’s

complaints about his assigned counsel to determine whether his complaints are seemingly

substantial and necessitate a hearing to determine the validity of Schowengerdt’s

allegations and the need for substitution of counsel. If the court determines that new

counsel is warranted, then, in accordance with the relief sought by Schowengerdt, he will

have “the opportunity to present his motion to withdraw his guilty plea to the district

court” with new counsel. We express no opinion on the merits of Schowengerdt’s

motion to withdraw his guilty plea. If, on the other hand, the court determines that

Schowengerdt has not presented seemingly substantial complaints about his counsel, or is

otherwise not entitled to new counsel, then the judgment and sentence are affirmed,

subject to Schowengerdt’s right to appeal the District Court’s determinations made on

remand, and his preserved issue concerning ineffective assistance of counsel.        See

Weaver, 917 P.2d at 441-42, 276 Mont. at 512.

¶25   Remanded for further proceedings as stated herein.



                                                /S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA


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