                                                                                          September 10 2013


                                          DA 12-0613

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 255



IN THE MATTER OF:

N.A.,

             Respondent and Appellant.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, Cause No. DDI 2012-61
                        Honorable James P. Reynolds, Presiding Judge


        COUNSEL OF RECORD:

                 For Appellant:

                        Jeanne M. Walker; Hagen & Walker, PLLC; Billings, Montana

                 For Appellee:

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

                        Leo J. Gallagher, Lewis and Clark County Attorney; Helena, Montana



                                                    Submitted on Briefs: June 19, 2013

                                                               Decided: September 10, 2013


        Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1     Respondent and appellant N.A. was committed to Montana State Hospital for 90

days by a District Court order. N.A. now appeals this order. We affirm.

                           STATEMENT OF THE ISSUES

¶2     The issues on appeal are as follows:

¶3    Did N.A.’s participation in his own defense reduce his attorney to mere “standby
counsel” in violation of § 53-21-119, MCA?

¶4    Was N.A. deprived of procedural due process when a professional evaluator failed
to submit a written report to the District Court and both parties?

¶5     Did the District Court correctly deny N.A.’s untimely motion for a jury trial?

¶6     Did the District Court abuse its discretion by denying N.A. a continuance?

¶7     Was N.A.’s counsel ineffective?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶8     Respondent N.A. has been diagnosed with paranoid schizophrenia. After some

treatment at the Phoenix House, professionals there became concerned that he was a

danger to himself and others. The State instituted an involuntary civil commitment

proceeding. At his initial appearance, N.A. was informed of his right to a jury trial and

the subsequent hearing that would occur, which would include a prehearing mental health

evaluation.   N.A. informed the District Court that he did not want evaluation by

professionals who had evaluated him in the past because he believed them to be guilty of

perjury. N.A. informed the court that he needed more time to find and choose an

evaluator.



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¶9     N.A. could not provide the name of his professional of choice, and found both the

State and public defender evaluators not to his liking. The court gave N.A. a one-day

continuance to obtain his chosen professional, but he failed to provide a name to his

attorney in time for her to contact the evaluator. When the commitment proceeding

resumed, the District Court found that N.A. had been given a reasonable choice of

evaluator, and denied N.A.’s motion for continuance.         After the State had finished

presenting its case, N.A. moved for a jury trial, which the court rejected as untimely.

¶10    Throughout the commitment hearing, N.A. had an unusual level of participation in

his defense. N.A. performed the overwhelming majority of cross examinations, and

delivered his own closing. N.A.’s attorney, Ms. Teal Mittelstadt (Mittelstadt), assisted in

cross examination, conducted direct examination of N.A., and addressed the District

Court concerning matters of legal significance.

¶11    After a full hearing and upon a finding that N.A. was a danger to himself, the

District Court committed N.A. to the Montana State Hospital for a period of 90 days.

N.A. now appeals that order.

                               STANDARD OF REVIEW

¶12    We review orders in civil commitment proceedings to determine whether findings

of fact are clearly erroneous and conclusions of law are correct. In re L.K.-S., 2011 MT

21, ¶ 14, 359 Mont. 191, 247 P.3d 1100. Issues of right to counsel in commitment

proceedings are subject to plenary review. In re K.G.F., 2001 MT 140, ¶ 17, 306

Mont. 1, 29 P.3d 485. We may review involuntary commitment proceedings for plain

error, regardless of whether an objection was made at trial. In re J.D.L., 2008 MT 445,

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¶¶ 6-7, 348 Mont. 1, 199 P.3d 805. This Court reviews a district court’s interpretation

and application of a statute to determine whether its conclusions of law are correct.

Estate of Donald v. Kalispell Medical Ctr., 2011 MT 166, ¶ 17, 361 Mont. 179, 258 P.3d

395. Claims of ineffective assistance of counsel present mixed issues of law and fact

which we review de novo. State v. Clary, 2012 MT 26, ¶ 12, 364 Mont. 53, 270 P.3d 88.

                                        DISCUSSION

¶13 Did N.A.’s participation in his own defense reduce his attorney to mere “standby
counsel” in violation of § 53-21-119, MCA?

¶14    N.A.’s primary argument is that his participation in the hearing made him

essentially pro se, constituting a waiver of his right to counsel in violation of

§ 53-21-119(1), MCA. Although he had an attorney present, N.A. contends that his

lawyer’s role was as standby counsel, which does not constitute “counsel” for the

purposes of effective representation.

¶15    This Court has recognized the Sixth Amendment right to self-representation, but

we are also mindful of the disadvantages confronting pro se parties. Halley v. State, 2008

MT 193, ¶ 20, 344 Mont. 37, 186 P.3d 859.            These disadvantages are especially

concerning in criminal and civil commitment proceedings, where the State seeks to

deprive an individual of their physical freedom. With this risk in mind, our Legislature

expressly prohibited waiver of the right to counsel in civil commitment proceedings.

Section 53-21-119, MCA. In regard to what constitutes “counsel,” this Court has held

that “standby” counsel do not qualify as counsel for the purposes of the Sixth




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Amendment. Halley, ¶ 22 (quoting United States v. Taylor, 933 F.2d 307, 313 (5th Cir.

1991).

¶16      Yet, not all client participation transforms effective counsel into standby counsel.

A defendant’s lawyer is reduced to standby counsel when she cannot (1) substantially

interfere with significant tactical decisions, (2) control the examination of witnesses, (3)

speak on matters of legal importance to the defendant, and/or (4) bear responsibility for

defendant’s defense. Halley, ¶ 22.

¶17      Here, N.A. had an unusual level of participation in his own civil commitment

proceeding, but his participation did not reduce his attorney to mere standby counsel.

N.A.’s attorney, Mittelstadt, exercised control over all parts of the proceeding, including

the questioning phase. Mittelstadt filed an untimely motion for jury trial and addressed

the District Court in the legal discussion of this motion. Mittelstadt also made motions

for a continuance during both days of the proceeding and addressed the court on this

issue, at one point even calling for the commitment hearing to recess so that she could

confer with her client. Mittelstadt conducted direct examination of N.A. and intervened

during N.A.’s cross-examinations to ask legally significant questions. When N.A. wished

to ask questions of a witness or to address the court in closing, he asked Mittelstadt. In

light of these facts, Mittelstadt had direct control over N.A.’s trial tactics, she had

supervisory control over the questioning of witnesses, and she had direct exchanges with

the court on matters of legal significance to N.A.’s case. This level of responsibility and

control demonstrates that Mittelstadt was not merely an “observer . . . who does not speak

for the defendant.” Taylor, 933 F.2d at 313.

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¶18    Finally, N.A. argues that the District Court recognized him as pro se on several

occasions. Indeed, the court told N.A. that “you are in effect representing yourself” and

identified Mittelstadt as co-counsel. When Mittelstadt asked for clarification on what

role N.A. should assume, the court replied that “I don’t have a problem with it either way.

It can go either way.” But the District Court’s designations and indifferences are not

dispositive in determining whether Mittelstadt was standby counsel. Rather, we consider

the actual nature of Mittelstadt’s control over N.A.’s defense, which was more

supervisory than standby.

¶19 Was N.A. deprived of procedural due process when a professional evaluator failed
to submit a written report to the District Court and both parties?

¶20    N.A. next argues that his procedural due process rights were violated when Kim

Waples (Waples) failed to file a written report with the court on her findings as to N.A.’s

mental health. N.A. raises this issue for the first time on appeal.

¶21    While this Court will generally not hear issues raised for the first time on appeal,

we may review involuntary commitment proceedings for plain error, regardless of

whether an objection was made at trial. J.D.L., ¶¶ 6-7. Plain error exists when an error

(1) implicates a fundamental right, and (2) leaves one firmly convinced that some aspect

of the trial would result in manifest miscarriage of justice, call into question the fairness

of the trial or proceeding, or compromise the integrity of the judicial process. State v.

Taylor, 2010 MT 94, ¶¶ 14-17, 356 Mont. 167, 231 P.3d 79.

¶22    Section 53-21-123, MCA, provides that respondents in civil commitment

proceedings must have a mental health examination conducted by a professional person

                                              6
after the initial hearing, and that person must file a written report of the examination to

the court with copies to both parties. Montana’s civil commitment laws are to be strictly

adhered to. In re T.J.D., 2002 MT 24, ¶ 20, 308 Mont. 222, 41 P.3d 323. These

procedures are necessary to guard against the calamitous effect that involuntary

commitment can have in depriving a person of liberty. In re Shennum, 210 Mont. 442,

450-51, 684 P.2d 1073, 1078 (1984).

¶23    However, not all errors of state law amount to deprivation of procedural due

process; rather, we employ a flexible balancing test to determine whether a particular

safeguard is required in a specific circumstance. Engle v. Isaac, 456 U.S. 107, 121 n. 21,

102 S. Ct. 1558, 1568 (1982); Matthews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893,

902-03 (1976). In civil commitment proceedings, this Court examines procedural due

process by weighing the risk of depriving an individual’s liberty against the probable

value of the procedure in question. In re E.T., 2008 MT 299 ¶¶ 27-29, 37, 345 Mont.

497, 191 P.3d 470. When foregoing a procedure does not cause substantial prejudice to a

party, the error is de minimus and does not affect an individual’s liberty interest. In re

O.R.B., 2008 MT 301, ¶ 30, 345 Mont. 516, 191 P.3d 482.

¶24    In O.R.B., this Court found a written report’s lack of recommendations did not

prejudice the respondent because all parties were effectively put on notice of the

recommendations.     O.R.B., ¶ 31.    Here, even if Waples’ report violated the statute

because she did not file it with the District Court, all parties had effective and sufficient

notice of Waples’ findings. Waples produced a report and relied on it at trial, giving the

court ample opportunity to hear her findings and conclusions about N.A.’s mental health.

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The fact that the District Court heard this in the form of testimony instead of in written

report does not risk N.A.’s fundamental right to due process. Second, N.A.’s attorney

retained an additional evaluator, Dr. Bowman Smelko (Smelko), who attended and

participated in the Waples examination. Smelko informed N.A.’s attorney that he would

not testify at trial because his findings and recommendations did not differ from Waples’

report. Like the appellant in O.R.B., N.A. claims that he could not prepare effectively,

but was confronted with sufficient evidence to put him on notice of his evaluator’s

testimony.

¶25    As such, Waples’ failure to file the report did not implicate N.A.’s procedural due

process rights under Matthews and E.T. While we recognize the possibility for this to

constitute prejudicial error in other circumstances, it does not amount to plain error in this

instance.

¶26    Did the District Court correctly deny N.A.’s untimely motion for a jury trial?

¶27    N.A. next argues that his right to a jury trial was violated when his attorney failed

to make a timely demand before the hearing date. N.A. contends that he informed his

previous public defender that he wanted a jury trial, and that his failure to demand a trial

was due to a combination of his previous lawyer’s inaction and his own ignorance of the

law.

¶28    We review a district court’s interpretation and application of a statute to determine

whether its conclusions of law are correct. Estate of Donald, ¶ 17. Section 53-21-125,

MCA, provides that respondents may request a jury trial at any time before the

commitment hearing.

                                              8
¶29    N.A. had ample opportunity and notice to inform the court and his lawyer of this

desire before the hearing. N.A. was advised of this right at his initial appearance on

September 10, and made no demand, nor did he mention his desire for a jury during the

first day of the commitment proceeding when he began to actively participate in his own

defense. N.A. first notified Mittelstadt that he desired a jury trial on September 12, after

the State had completed its case. While nothing in the record establishes that N.A.

actually made this request to his original attorney, even if he had, N.A. had sufficient

notice and opportunity to raise such a motion after he changed counsel. Thus, the District

Court correctly concluded that his demand was untimely under the statute.

¶30 Did the District Court abuse its discretion by denying N.A.’s motion for
continuance?

¶31    This Court reviews a district court’s interpretation and application of a statute to

determine whether its conclusions of law are correct. Estate of Donald, ¶ 17.

¶32    Section 53-21-118, MCA, provides that a respondent may secure a professional

person of their choosing to examine and testify to their mental health. A district court

must allow the respondent a reasonable choice of an available professional person

“[w]henever possible.” Section 53-21-118(2), MCA. We note that this statute only

contemplates “reasonable choice of an available professional person,” and does not

safeguard the demand for a more favorable but nameless professional. Additionally,




                                             9
district courts are not bound to continually delay a hearing due to a respondent’s

indecision concerning his evaluator.

¶33    Here, the District Court gave N.A. reasonable time and opportunity to secure the

evaluator of his choice. N.A. objected that he did not want to be evaluated by certain

professionals at his initial hearing on September 10, because he believed them to be

guilty of various crimes. N.A.’s attorney secured an independent evaluator through the

Office of the Public Defender, Dr. Smelko, in addition to the State’s evaluator, Waples.

N.A. told his attorney at the evaluation that he wanted neither Smelko nor Waples, but

could not give his attorney the name of his preferred evaluator. N.A. also had difficulty

identifying his preferred evaluator to the District Court on September 11, but eventually

asserted that he wanted “Dr. Smith” because he wanted an evaluator who was

“specifically favorable for me.”

¶34    The District Court granted a continuance until September 13 so that N.A. or his

attorney could contact an evaluator. However, N.A. told Mittelstadt of his actual choice

late the next day, and she was unable to contact the chosen evaluator before the

continuation of the hearing. By this point, the District Court had already given N.A. and

his counsel three days to choose and secure a favorable evaluator. The District Court

properly concluded that N.A. had been afforded a “reasonable choice” of evaluator, and

was not bound to continually delay the hearing due to N.A.’s indecision or inability to

obtain favorable evaluation.

¶35    Was N.A.’s counsel ineffective?



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¶36    As a final matter, N.A. argues that his counsel was ineffective for allowing him to

participate in his trial, for failing to make a timely motion for jury trial, and for failing to

obtain the evaluator of his choice. We review claims of ineffective assistance of counsel

de novo because they include mixed questions of fact and law. Clary, ¶ 13.

¶37    In K.G.F., we examined effective assistance of counsel in civil commitment with

five different factors:    (1) appointment of competent counsel, (2) counsel’s initial

investigation, (3) counsel’s interview with the client, (4) the presence of counsel during a

mental health evaluation, and (5) the role of the counselor as an advocate or adversary.

K.G.F., ¶¶ 71-89. It is unclear whether a challenge based on only one of these five

critical areas would meet K.G.F.’s threshold “substantial showing of evidence . . . that

counsel did not effectively represent the respondent’s interests.” In re C.R.C., 2009 MT

125, ¶ 19, 350 Mont. 211, 207 P.3d 289 (quoting K.G.F., ¶ 86).

¶38    N.A.’s complaints about his counsel’s assistance address only the fifth critical

area, and even these complaints fail to raise a substantial showing of ineffectiveness.

Mittelstadt was not an ineffective attorney for simply allowing N.A. to participate in the

proceeding, and in fact, she intervened several times to make motions and ask questions.

Although cross-examination and closing would probably have been more effective had

Mittelstadt conducted them exclusively, N.A. has not demonstrated that his lawyer was

ineffective for allowing him to participate in his defense. Second, the record establishes

that Mittelstadt did not know of N.A.’s desire for a jury trial until September 12, after the

State had concluded its case.       Thus her untimely motion was not due to her own

ineffectiveness. Third, Mittelstadt’s failure to obtain N.A.’s preferred evaluator was the

                                              11
result of N.A.’s inability to provide the name of his preference, which he finally provided

late the day before the hearing resumed.          As such, N.A.’s complaints amount to

ineffective use of counsel rather than ineffective assistance of counsel.

                                     CONCLUSION

¶39    N.A.’s participation at trial did not violate § 53-21-119, MCA. The failure to file

a professional report with the court was not sufficiently prejudicial to warrant procedural

due process relief. The District Court properly denied N.A.’s motions for continuance

and for a jury trial.

¶40    Finally, N.A.’s claims of ineffective assistance of counsel are not supported by

sufficient evidence that he was prejudiced by his attorney’s actions.

¶41    We affirm.


                                                  /S/ MICHAEL E WHEAT



We Concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ JIM RICE




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