State v. Clary, 2012 MT 26

Clary was charged with aggravated burglary and two counts of assault with a weapon in Cascade County (Aug. 13, 2009).
Public Defender Olson was appointed; Omnibus hearing occurred without Clary after a bail-related transport motion was denied.
Olson sought speedy-trial dismissal and disclosed Clary’s claimed lack of prep time and limited contact with counsel (about 30 minutes in seven months).
Clary complained he was denied attendance at the omnibus hearing and sought to proceed pro se, signing a Waiver of Right to Counsel after warnings about the dangers of self-representation.
Court determined the omnibus hearing was not a critical stage requiring Clary’s presence; after waiving counsel, Clary proceeded to trial pro se with Olson as standby counsel; the jury convicted on all counts.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was Clary’s absence from the omnibus hearing a violation of his right to be present at all critical stages?	State argues omnibus was non-critical; no prejudice shown.	Clary contends Omnibus hearing was critical and his absence prejudicial.	No violation; omnibus not a critical stage; harmless prejudice presumed only for critical-stage violations.
Whether the district court erred in allowing Clary to proceed pro se without further inquiry into his complaints about counsel.	State contends no abuse; waiver was knowing and voluntary.	Clary argues ineffective assistance concerns warranted further inquiry.	District Court did not abuse; waiver Knowing and voluntary; no substitute counsel requested.
Was Clary denied effective assistance of counsel based on alleged minimal attorney contact?	State asserts record insufficient to prove deficient performance.	Clary asserts 30 minutes over seven months constitutes ineffective assistance.	Direct-appeal review denied; record undeveloped; issue remanded for postconviction relief if pursued.

State v. Heavygun, 2011 MT 111 (Mont. 2011) (plenary review for right-to-be-present issues; mixed law/fact for ineffectiveness)
State v. Colt, 255 Mont. 399 (Mont. 1992) (waiver of counsel; knowing and intelligent waiver; standards for proceeding pro se)
State v. Charlie, 2010 MT 195 (Mont. 2010) (structural defect; prejudice presumption; critical-stage analysis)
State v. Matt, 2008 MT 444 (Mont. 2008) (definition of critical stages; examples including in-chambers conferences and evidentiary issues)
State v. Happel, 2010 MT 200 (Mont. 2010) (adequate initial inquiry when defendant seeks new counsel; seemingly substantial claim)
State v. Finley, 1996 MT 126 (Mont. 1996) (substance-over-form; harmless error where later proceedings addressed concerns)
State v. Smith, 281 Mont. 133 (Mont. 1997) (substitute-counsel inquiry; when not requested, no duty to sua sponte)