*1
LONGJAW,
J.
TIMOTHY
Appellant,
Petitioner
MONTANA,
OF
STATE
Appellee.
Respondent
No. DA 11-0087.
August 8,
on Briefs
Submitted
30, 2012.
Decided October
For Hardin. Bullock, General; Attorney C. Steve Montana Appellee:
For Fowler, General; Helena; Fred Van Attorney Mark Assistant Marks, Deputy County Attorney; Jason Valkenburg, Missoula Attorney; Missoula. County Opinion the Court.
JUSTICE RICE delivered Timothy (Longjaw) J. jury A convicted in the Fourth and sexual intercourse without consent Judicial burglary argues should be District Court. his convictions reversed interest, his had a conflict of the District because regarding aggravated instructions modifying Court erred *2 deliberations, during jury and his was ineffective for burglary to obtain an medical The State concedes failing independent expert. instruction error on the issue requests Longjaw’s reversible and aggravated burglary conviction for be vacated on that basis. Because consent, was Longjaw also convicted sexual intercourse without remaining must undertake review of the two issues: Did 1. counsel have active Defendant’s conflict thаt requires reversal the sexual intercourse Defendant’s consent without conviction? 2. Did the counsel render by assistance Defendant’s ineffective obtain an failing independent to medical to aid in the expert defense?
FACTUAL AND PROCEDURAL BACKGROUND Longj aw charged was in December 2009 with burglary and Longjaw way sexual intercourse without consent. forced his into mentally of a apartment disabled woman with whom he was and acquainted sexually daughter assaulted her. The victim’s request police welfare check on her mother. When the police apartment, arrived found Longjaw asleep and intoxicated living room. said Longjaw ripped The victim off her bra and forced her to have sex him and repeatedly with asked the officers Longjaw apartment. remove from her The victim was aby examined registered Step nurse from the First program sexual assault at St. in Hospital registered Patrick’s Missoula. The nurse found that the injuries victim’s were with inconsistent consensual sex. Longjaw was of both chаrges convicted after trial in the Court,
Fourth Judicial District County, September Missoula Longjaw The District Court years sentenced to 40 the Montana aggravated burglary State Prison for years and 60 the Montana consent, State Prison for sexual intercourse without the sentences to concurrently. run Longjaw represented by attorneys was during pre-trial several
proceedings. Longjaw represented was first Katie Green from the Defender, Office of Public but due to a conflict interest betweеn office, and Longjaw Boggs another client of the William was contracted represent Longjaw Disagreements as conflict counsel. between Kilby to Jordan assigned arose, the case was Longjaw and Boggs and record Defender. The the Public the Office of Hood of Gregory and attorney-client these within conflicts personality there were indicates for leave to filed a motion 20,2010, Longjaw August On relationships. hearing on conducted a himself. Court The District represent rеquest. On denied and thereafter motion August questioning after and request, renewed his Longjaw August dangers understood determining granted his District Court self-representation, associated act as Kilby and Hoodwould request and directed trial. for the informed the District trial, Kilby and Hood morning of On the list, Haygood Jennifer the State’s witness that a witness on regional public their represented previously had been
(Haygood), matter, which related tangentially but office on a different defender said, “I think even as Kilby of interest. potential presented agency’s But it is our problem. have a might counsel we had been don’t,” potential adding that we Defender. The by the Office of the Public levels of review through two point at that on the conflict opinion it did not have an court stated it indicated would think about it further. The State would have to court, by the further was made as a No call witness. *3 During proceeded to trial. and the case briefly. her questioned as a witness and obtaining about expressed concеrns response In to ¶8 issues, conducted the District Court opinion medical and other second representing then who was hearing April Boggs, 2010. view, not be opinion might a second explained in his Longjaw, medical an interview with the anticipated he that necessary because but I’m opinion, the need for a second Step at First would “obviate staff inclined to he was not then Boggs of that.” indicated not certain to it unless the going “I’m not do opinion, stating a second request aget to the сase to to, important me I think it’s Court orders unless yet.” know that I’m not in a to opinion. just And second deliberations, asking a note to the court jury sent During jury person “[a] read: number which jury for clarification on instruction knowingly burglary person if the aggravated the offense of commits (emphasis ...” unlawfully occupied in an structure and remains enters added). changing jury instruction a note to the The court sent the offense of read: commits person “[a] number 7 to in an unlawfully enters or remains burglary person knowingly if the similarly The court (emphasis original). ...” occupied structure injury number 8. language modified the instruction
DISCUSSION
standby
1. Did the
counsel have an active
conflict of
Defendant’s
reversal
sexual intercourse
requires
interest that
the Defendant’s
of
consent conviction?
without
assistance
guaranteed
right
Criminal defendants are
to
of
the Sixth
of the United States
through
Amendment
II,
Article
24 of the Montana Constitution.
Constitution and
Section
Dennis,
v.
2010 MT
P.3d The to “conflict-free applied through Amendment is to states the Due Process Sixth Dennis, ofthe Fourteenth St. We review the Clause Amendment. 28. issue de interest novo. St. 19. authority a conflict nationally question State notes on the representation whether the to to right conflict-free extends counsel and the absence of Montana on the precedent point.
argues right that the should extend counsel and offers (Wash. McDonald, Washington 2001), support. P.3d 791 In McDonald, Washington Court of the right extended counsel, representation conflict-free holding presumed and reversal is when an actual conflict existed when reasonably or the trial court have should known about conflict McDonald, properly inquire but failed to the conflict. into P.3d at McDonald, Longjaw urges adoption of the stated in arguing rules “where raises an issue of conflict of to the district court, reversal should be automatic because of the fundamental seriousness of a Sixth Amendment violation.” the central issue briefed the parties, which we deem dispositive, is Thus, whether actual conflict existed in this case. assuming arguendo representation to conflict-free extends to turn to central issue. We decline further, unnecessary facts, to address under these the various rules analyses adopted Washington jurisdictions. other unique Noting public opposed “the nature of defender offices firms,” we private approach law held that “the better for analyzing *4 [the of interest purported conflicts within Office of Public case-by-case Dennis, Defender] is St. approach.” 32. “Under ¶¶ case-by-case proves if actual approach, defendant that an conflict exists, performance he or she must then demonstrate counsel’s Dennis, adversely (citing Illinois St. was affected conflict.” 29¶ 476 (Ill. 2004)). Thurston v. See also Morales, N.E.2d 514-15 808 v. (“[a] 1259 defendant
State,
MT
2004
conflict of interest
due to a
of counsel
ineffective assistance
claiming
interests;
(1)
conflicting
actively representеd
that counsel
show:
must
counsel’s
adversely affected
of interest
an actual conflict
existed, “weneed not
no actual conflict
If
determine
performance.”).
was
performance
if
determine
such
performance
counsel’s
examine
Dennis, 37.
conflict.” St.
by the ostensible
adversely affected
conflict,
to the
opposed
“[a]n
actual
explained
We have
Deschon,
MT
conflict, necessary.” State v.
of a
possibility
mere
I).
(Deschon
attorney
“A
defense
explained
attorney
place
as to
may diverge
point
at some
so
ofthe defendants
actual,
conflict of
is an
relevаnt
duties. There
under inconsistent
the defendants’
if,
representation,
of the
during the course
interests
or
legal
factual or
issue
to a material
diverge
respect
do
interests
Christian,
(quoting
at 992
App.
41 Cal.
4th
to a course of action.”
(1980)).
Sullivan,
U.S.
involvement by Longjaw. involvement asserted he is an actual conflict when attorney “Adefense has the detriment another client’s interests to advancing choice
to make a omitted). (citation Although a I, Deschоn 18¶ of his client’s interest.” here, we conclude that the may present have been potential wherein to an actual conflict progress did not circumstances make a choice to the detriment required to counsel were conflict, “examine we need not there is no actual Where interests. adversely was performance to determine if such performance counsel’s *5 by affected the ostensible conflict.” St. 37. ¶ 2. Did by the counsel render assistance ¶18 Defendant’s ineffective failing to obtain an independent expert medical to aid in the defense? “In considering ineffective assistance of ¶19 counsel claims on direct appeal, we the apply two-pronged by test set forth the United States (1984), 668, 104 Court in Strickland v. Washington Deschon, 32, 31, S. Ct. 2052.” State v. 2004 MT 320 Mont. 85 P.3d ¶ (Deschon II). (1) The defendant must establish “that counsel’s performance was deficient or fell objective below an standard of reasonableness,” “prejudice by demonstrating that there was that, probability errors, reasonable but for counsel’s the result of the proceeding II, would have been different.” Deschon 31. This Court may review a claim of ineffective assistance of appeal counsel on direct only “fully took, when the record explains why counsel or failed to take, providing II, action in a defense for the accused.” Deschon 32. White, In State v. 2001 MT ¶20 306 Mont. 30 P.3d explained question “the definitive that distinguishes and decides which non-record, actions are recоrd and whyl... which are [D]oes the fully explain why record particular counsel took the course of action?” (Emphasis original.) in When ineffective assistance of based, counsel claims are proper non-record avenue for review is through petition postconviction for Webster, relief. State v.
38, 9, 500. Longjaw ultimately represented himself at trial but claims that his counsel’s earlier failure to obtain an independent expert medical “to review the records of physiсal examination of alleged victim testify and to at trial” constitutes ineffective assistance. The record reveals April at the hearing, then- Boggs independent indicated an expert may medical not be
necessary because he necessary believed the information could be by obtained examination of the medical providers. Longjaw was represented by three other attorneys, but this statement Boggs only is the reference counsel to Thus, the issue in the recоrd. fully explain record does not “why” independent medical expert examination or ultimately was not by Longjaw’s obtained counsel, and the claim cannot be appeal. reviewed on Longjaw may pursue postconviction the claim in relief proceedings. response In to Longjaw’s challenge to the District Court’s revision
of the aggravated instructions for burglary during jury’s deliberations, the State “concedes under particular presented facts in this Longj aggravated reсord that aw’s burglary conviction should be reversed.” We therefore reverse Longjaw’s conviction for aggravated
battery. consent is intercourse without for sexual Longjaw’s conviction is reversed. We aggravated burglary His conviction for
affirmed. judgment. entry of an amended this matter for remand part, in and remanded. part, reversed Affirmed and MORRIS McGRATH, COTTER JUSTICES CHIEF JUSTICE concur. dissenting part. concurring part
JUSTICE NELSON to vacate conviction I with the Court’s decision concur the Court’s decision to affirm burglary, and with for I disagree from Issue 1 because dissent Issue adequately inquired trial into conclusion that the court Court’s view, my counsel. In by Longjaw’s raised conflict of interest *6 of interest obligations the same to avoid conflicts standby counsel has counsel. appointed do or retained as case, in appeal the State asserted its brief on In this A review of they had conflicts of interest.”
counsel “never announced contrary the is true. clearly in this case shows that transcript Kilby Region and Mr. Hоod from the Prior to the start of Ms. (OPD), acting who were as 2 OfficeofPublic Defender list, that there was a witness on the State’s witness informed Court Region OPD on Haygood, represented Jennifer who had been Kilby and Mr. Hood informed a matter related to case. Ms. witness, may Haygood the State not call as a although the court that Haygood daughter her a witness. was the Longjaw wanted to call as Kilby expressed Ms. and Mr. Hood concern the victim this case. colloquy of interest existed. The entirе opinions, in their the court and counsel follows: between Haygood]
MS. KILBY: is on the State’s Witness [Jennifer State was understanding Exhibit List. it was our her; represented our officehas going being to call the reason I, We, Haygood past. Ms. Mr. Hood and took this issue through agency’s two levels of review. It’s our belief this however, did, bring the just not a conflict of interest. We want to the Court felt otherwise. issue to Court case Well, point you’re simply THE COURT: at this [sic], Long long Mr. Jaw as going stop counsel. And I’m not calling a defense or what attorney, putting he’s his own from on appropriate. witnesses he thinks are Certainly. And that be what we were MS. KILBY: wouldn’t get- We wanted to requesting. the Court on notice in case put
MR. HOOD: We wanted to put back on the case and a something happens where we are know, the Court to just does exist. You wanted to alert possibility that. Well, right. you represent THE All did her in COURT: about. anything testifying that she’ll be connection with Tangentially, yes, MR. Your Honor. HOOD: And, Honor, said, MS. Your like I we’11-7think even as KILBY: problem. is our might agency’s counsel we have a But it levels of through that we don’t. We have been two review but, otherwise, if then- the Court feels point, guess,
THE At this I have an So I opinion. COURT: don’t Marks, you you anything point? Mr. do have want to add Honor, problem
MR. Your I believe MARKS: don’t there’s long as Mr. Long representing Kilby [sic] Jaw’s himself. As Ms. said, case, I do I my not intend call Ms. but don’t any see reason the defendant can’t. Well,
THE know. I don’t I’ll have COURT: to think about it. appreciate your bringing my [Emphasis this to added.] attention. The court made no further into the mattеr. all rights person has, “Of that an the right accused to be
represented by
pervasive
far the most
for it affects his
ability
any
right
Cronic,
assert
other
he
have.”
may
United States
(1984).
Furthermore,
104 S. Ct.
criminal defendant’s
to the
effective assistance
the right
representation.
includes
to conflict-free
v. St.
State
(citing
(1984), that effective assistance of both a duty counsel includes of and a loyalty duty to avoid conflicts interest. The pointed “[i]t ‘[a] has also out that settled well that criminal defendant is entitled loyalties whose undivided lie with the ” (7th 1997) States, client.’ Stoia v. United 109 F.3d Cir. (7th Barnes, 1059, 1065 (quoting 1990); United States 909 F.2d Cir. (7th 1986)). Ellison, States v. United 798 F.2d Cir. why I no standby required see reason counsel should be not
fulfill the same obligations basic for effective representation fact, appointed why or counsel. In appoint retained counsel at all if are representation to offer effective when upon do so? accused to Washington Supreme very The Court considered this issue of a defendant and standby counsel between ofinterest a conflict
whether
reversal of
justifying
prejudice
presumption
merited
the conflict
notified of
trial court was
when the
conviction
defendant’s
McDonald, 22
extent. State
nature and
inquire into its
but failed to
that even
(Wash.
case, the court determined
In that
P.3d 791
self-representation
right to
who is afforded
though a defendant
the obvious reason
for
of counsel
ineffective assistance
сannot claim
complete
and assumes
own counsel
has become his
the defendant
not mean
this does
representation,
for his own
responsibility
when
to the defendant
or duties
obligations
no
standby counsel has
court
court. The McDonald
by the
appointed
has been
standby counsel
to have conflict-free
possesses
that a defendant
stated
(1)
candid
counsel must be
standby counsel “because
(2)
fully
information/advice,
able to
forthcoming
providing
technical
nоtice, in the event termination
the accused on a moment’s
represent
necessary, and
able
self-representation
of the defendant’s
McDonald,
at 794-95.
attorney-client privilege.”
maintain
court’s
upheld
appellate
Supreme Court
Washington
holding
McDonald
conviction in
of the defendant’s
reversal
of a conflict of
should know
the trial court knows or
when
counsel,
an
it must conduct
the defendant and
between
an
After such
into the nature and extent
inquiry
conflict.
then
standby counsel and
may remove
the court
inquiry,
counsel,
appropriate
or take other
replace standby
substitute or
action
appropriate
and take
inquiry
to make an
action. Failure
bepresumed.
will
prejudice
reversible error and
constitutes
added).
McDonald,
(emphasis
481 allegations ‘seemingly as to defendant’s are whether ” 384, Dethman, MT 358 Mont. substantial.’ State v. 2010 ¶ 14, 200, 30 v. 2010 MT 357 (quoting Happel, 245 P.3d State Mont. ¶ 15, 390, 1016; 70, v. Gallagher, 240 P.3d State 1998 MT ¶ 1371). 180, P.2d occurs “adequate inquiry” 955 An initial when the complaints court together district “considers defendant’s factual sort specific explanations with counsel’s and makes some of сritical ” 14). analysis complaint. Dethman, (citing During ofthe 16 Happel, inquiry, duty such an is to a district court’s determine “whether great conflict is so to result in total lack a of communication.” Dethman, Hendershot, 49, 24, (citing 16 State v. 336 164, Furthermore, while, Supreme noted ordinarily, Court prejudice respect to the defendant must be shown with to deficient counsel, performance by there are certain where prejudice instances is such “when presumed, counsel is burdened an actual conflict Stricklаnd, 692, of interest.” 104 at U.S. at S. Ct. 2067. In such cases, prejudice presumed is “it is difficult to because measure the precise by conflicting effect on the of representation corrupted defense Strickland, 466 interests.” U.S. at S. Ct. at 2067. Moreover, case, Supreme in an earlier Court found the
following persuasive: considerations attorney
An representing two defendants in a criminal matter is position professionally ethically in the best and to determine probably when conflict of interest or will develop exists Second, course of a аttorneys trial. defense have the obligation, upon interests, discovering conflict of to the court at advise once the problem. Finally, attorneys court, are officers when the judge solemnly upon address matter before the court, their virtually declarations are made oath. under Arkansas, Holloway 475, 485-86, 435 U.S. 98 S. Ct. (internal omitted). and quotation citations marks Supreme Court Holloway concluded in that because of the
seriousness of a violation of a defendant’s right fundamental еffective assistance of reversal of a defendant’s conviction be should automatic in situations where counsel raised an issue of end, conflict of interest to the trial court. To stated that right have the assistance “is too fundamental indulge absolute to allow courts to in nice calculations as to the amount of prejudice arising from its denial.” Holloway, Thus, 435 U.S. at if 98 S. Ct. a defendant’s Sixth Amendment infringed, is presumed shown, and reversal independently it was of whether
regardless
(citing
Ct.
Gideon
able to case, instant the Court states standby for counsel. In the different no briefly [Haygood] record questioned 16 that “Longjaw at ¶ Haygood, nor is by standby regarding no involvement reveals the trial court by Longjaw.” asserted Because any such involvement by standby the conflict raised counsel based inquire not as to did case, why way no know testifying in this we have Haygood’s possibility questioning Haygood. was not more involved in questioning counsel could not assist with exists that attorney-client privilege regarding problems because of Haygood. representation counsel’s of at a addition, “[ajlthough In the Court asserted here, may presented have we conclude that potential conflict wherein progress not to an actual conflict circumstances did to make choice to the detriment of counsel were a the trial court did not make an again, interests.” Once because here, presented no potential into the have adequate knowing if an actual conflict existed. way of of are so basic that cannot be Certain conflicts interest ¶41 accurately prejudice presumed: after a be assessed should joint representation conflicting a case of interests the [I]n repeating-is in what the advocate finds himself evil-it bears doing, only from at trial but also as to compelled to refrain negotiations sentencing process. and in pretrial plea possible may possible identify It be in some cases to from the record the resulting attorney’s from an failure to undertake certain tasks, sentencing hearing even with record of trial but judge intelligently impact available it be difficult to would attorney’s representation on the of a client. And to attorney’s impact assess the conflict of interests on tactics, options, plea negotiations and decisions in would be virtually impossible. (Nelson, J., Dennis, (citing Holloway, 435 dissenting) U.S.
St. 490-91, 98 S. Ct. at had Dennis, this Court that the OPD established recognized In St. between clients protocols to handle conflicts
certain utilizing Regions different of the OPD system represent clients with Dennis, conflicts of interest. St. 22-24. pointed out ¶¶ Dennis, my dissenting opinion system in St. the OPD is burdened with (Nelson, J., significant flaws. St. dissenting); see also State, 21-39, 331 47, 128 Hendricks v. P.3d 1017 ¶¶ (Nelson, J., dissenting). Those flaws appeared again have in this case. I would remand this case for a charge new trial on the of sexual consent, intercourse without and I dissent from our failure to do so.