IN THE MATTER OF: J.S.
DA 16-0156
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 214, August 30, 2017
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis And Clark, Cause No. CDI 16-21 Honorable James P. Reynolds, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Chief Appellate Defender, Kristen L. Peterson, James Reavis (argued), Assistant Appellate Defenders, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Mardell Ployhar (argued), Assistant Attorney General, Helena, Montana
Leo J. Gallagher, Lewis and Clark County Attorney, Helena, Montana
For Amicus Curiae:
Beth Brenneman (argued), Roberta R. Zenker, Disability Rights Montana, Helena, Montana
Alex Rate, Legal Director ACLU of Montana, Missoula, Montana
Argued and Submitted: June 28, 2017
Decided: August 30, 2017
Filed:
Clerk
¶1 J.S. challenges her involuntary commitment to the Montana State Hospital (MSH) ordered by the First Judicial District Court, Lewis and Clark County. The only issue J.S. raises on appeal is whether she was denied the effective assistance of counsel. We address J.S.‘s claim of ineffective assistance of counsel and, in doing so, reconsider by what
FACTUAL AND PROCEDURAL BACKGROUND
¶2 J.S. suffers from bipolar disorder. On January 30, 2016, an ambulance transported J.S. to St. Peter‘s Hospital after she was found in the middle of Lincoln Road in Helena. J.S. had been “clipped” by a car and hit by the car‘s mirror. She sustained several cuts and abrasions. Because she was extremely psychotic and delusional, the emergency room physician contacted Western Montana Mental Health Center (WMMHC) to do an evaluation. Kim Waples (Waples), a mental health professional with WMMHC, conducted an evaluation and concluded that J.S. was in need of emergency detention. Waples contacted the County Attorney who filed a petition for J.S.‘s involuntary commitment. Pending trial on the State‘s petition, J.S. was detained at MSH and reassessed. Based on the reassessment, the State dismissed its petition and J.S. was discharged to the community.
¶3 Several days later, on February 9, 2016, J.S. called 911 requesting help to get to the Center for Mental Health. An officer transported J.S. there, but the Center for Mental Health informed J.S. that she could not be seen for two days. The officer was concerned about J.S. and asked her to go to the hospital, which J.S. agreed to do. While at the hospital, emergency room staff contacted Kristina Gillespie (Gillespie), a mental health professional, because J.S. was unable to communicate due to her extreme level of psychosis and delusional thinking. She was paranoid, irritable, and unable to consent to voluntary treatment. Additionally, J.S. had a serious wound on her leg which was not being treated. Based on Gillespie‘s evaluation, J.S. was detained on an emergency basis at the Journey Home, a local mental health center. Thе State filed a petition to have J.S. involuntarily committed. Trial was held on February 11, 2016.
¶4 Justin Kennedy (Kennedy), a nurse at the Journey Home who has experience with skin and wound issues, treated J.S. Kennedy testified J.S. had two “dime-sized” open areas which were 70 percent necrotic, or dead, tissue. The wound bed was at a high risk of infection, which, if not treated correctly, could lead to loss of J.S.‘s leg or J.S. becoming septic. Treatment of the wound required J.S. to change the dressings twice a day and take two antibiotics, one of which J.S. had to take four times a day and the other two times a day. J.S. would need to maintain supplies, which might be difficult given Kennedy‘s understanding that J.S. was homeless. Kennedy testified that he explained to J.S. the regimen for changing her dressings and the frequency and need to take her antibiotics; however, when he stepped away for five minutes and returned to reassess whether she understood, J.S. was unable to repeat the regimen to Kennedy. She could not restate the names of the antibiotics or how often she was supposed to take them. She could not state how often she was to change her dressings. Kennedy testified that J.S.‘s mental illness was definitely playing a part in her inability to adequately care for her wound.
¶5 Waples conducted J.S.‘s evaluation in preparation for trial. In Waples‘s report to the court she indicated that J.S. was highly agitated, aggressive, and “postur[ing] towards another resident in the [emergency detention] unit.” J.S. denied any history of mental illness and when asked if she had ever been treated for a mental illness, responded emphatically that she had not.1 Waples noted an extensive history of mental illness, suicide attempts, and prior commitments. During trial, Waples testified that J.S. was suffering from unspecified bipolar and related disorder, which could not be stabilized without psychotropic medications. She presented as manic. She was delusional, agitated, and irritable. Her thoughts were disorganized, punctuated by moments of clarity, but then becoming disorganized again. Waples explained that while some people present as delusional all the time, some will have moments of clarity. J.S. was grandiose and had tangential speech. During Waples‘s evaluation of J.S., J.S. would start to answer questions, but then her thoughts would “derail[]”
¶6 Waples testified that MSH was the least restrictive placement for J.S. because her history showed she does not think she has a mental illness. Waples opined that J.S. would not seek treatment if she did not believe she was ill. Waples testified outpatient community based programs such as the Program for Assertive Community Placement, the Journey Home, or St. Peter‘s Behavioral Health Unit were not appropriate because they are voluntary and would require J.S. to seek help. Waples testified that J.S. told her she did not need help or need to take psychotropic medications.
¶7 The recоrd indicates that J.S.‘s counsel attended Waples‘s evaluation of J.S. at the Journey Home and also obtained an independent examination from another professional person, Dr. Bowman Smelko (Dr. Smelko). J.S.‘s counsel chose not to present testimony from the independent evaluation. On cross-examination of Waples, J.S.‘s counsel established many facts in support of her client‘s position that the petition should be dismissed, including J.S. had called 911 on her own, seeking transportation to the Center for Mental Health; J.S. agreed to go to the hospital with police; J.S. understood the need to take care of her wound; J.S. voluntarily took her medications during her prior detention at MSH; J.S. voluntarily took medication to stabilize her acute mental distress while at St. Peter‘s Hospital prior to transfer to the Journey Home; and J.S. was not responsible for knowing the timing of her medications when someone else was responsible for giving them to her. J.S.‘s counsel argued that the court should dismiss the petition because J.S. had sought help when needed and accepted help each time it was offered. J.S.‘s counsel vigorously maintained that being homeless and not taking care of medical problems is insufficient for the State to meet its burden to show that a person should be involuntarily committed.2 Counsel also consistently
¶8 The District Court found counsel‘s argument on behalf of J.S. compelling and expressed its unwillingness to order commitment to MSH simply because a person is homeless and unable to take сare of medical needs. Although the court agreed that J.S. initiated a call for services, the court nonetheless found the State had established J.S.‘s mental disorder was interfering with her ability to care for her severe infection. The court
lamented that it had no alternatives other than MSH, having ascertained that the Journey Home was not an option, but determined that J.S.‘s history supported a conclusion that J.S. would not take her medication, which was necessary to stabilize her mental disorder. The court‘s conclusion was supported by its finding that “the respondent‘s inability to consent to voluntary medication and her recent track record make her inappropriate for community based placement.”
STANDARD OF REVIEW
¶9 Issues of due process and right to counsel in a civil commitment proceeding are subject to plenary review. In re Mental Health of T.M., 2004 MT 221, ¶ 7, 322 Mont. 394, 96 P.3d 1147. Claims of ineffective assistаnce of counsel are mixed questions of law and fact that this Court reviews de novo. In re J.S.W., 2013 MT 34, ¶ 26, 369 Mont. 12, 303 P.3d 741.
DISCUSSION
¶10 J.S. argues that she was denied the effective assistance of counsel during her involuntary commitment proceeding in each of the areas of representation identified in In re Mental Health of K.G.F., 2001 MT 140, 306 Mont. 1, 29 P.3d 485. We take this opportunity to consider our decision in K.G.F.; the principles upon which the right to counsel are premised; and the standards enunciated in K.G.F. to assess whether a person has been deprived of that right.
¶11 In K.G.F. we addressed for the first time whether a respondent in an involuntary commitment proceeding has a constitutional right to effective assistance of counsel and, if so, how such effectiveness should be measured. We recognized that the Legislature had declared that a purpose of our laws governing the treatment of the seriously mentally ill was to “ensure that due process of law is accorded any person coming under the provisions of this part.”
¶12 We also acknowledged in K.G.F. that the Legislature had established other due process rights to be afforded persons in civil commitment proceedings. These additional safeguards include the right to a professional person of the person‘s own choosing,
¶13 We also noted in K.G.F. that the rights afforded a person in a civil commitment proceeding correspond to many “criminal” due process rights. See K.G.F., ¶ 33 (“[I]n numerous respects the procedural due process rights of an involuntary commitment patient-respondent are identical to those afforded an accused criminal defendant . . . .“) Although а civil commitment proceeding is not criminal, it nonetheless involves important individual interests, not at risk in a usual civil case. Here, statutory protections under Title 53, chapter 21, MCA, were established by the Legislature “because of the calamitous effect of a commitment . . . .” In re Shennum, 210 Mont. 442, 450-51, 684 P.2d 1073, 1078 (1984). See also Foucha v. Louisiana, 504 U.S. 71, 80, 112 S. Ct. 1780, 1785 (1992) (stating that freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary government action); Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 902 (1976) (stating that due process is “flexible and calls for procedural protections as the particular situation demands“). Thus, the civil commitment statutes provide numerous procedural protections akin to those in a criminal prosecution, and which are not otherwise afforded a party in a civil proceeding.
¶14 In K.G.F., this Court explained that “where a state statute affords an individual subject to involuntary commitment with the right to сounsel, the legislature could not have intended that counsel could be prejudicially ineffective.” K.G.F., ¶ 30. The Court concluded that the statutory right to counsel under Title 53, chapter 21, MCA, provides an individual subject to an involuntary commitment proceeding the right to effective assistance of counsel. “In turn, this right affords the individual with the right to raise the allegation of ineffective assistance of counsel in challenging a commitment order.” K.G.F., ¶ 31. The Court‘s conclusion that the statutory right of counsel could not be realized unless it was the right to effective assistance of counsel was sound and remains well-reasoned. We continue to endorse such a conclusion and its underlying rationale.
¶15 In K.G.F. we also recognized that the statutory right to counsel “explicitly and implicitly garner protection under both the federal and the Montana constitutions.” K.G.F., ¶ 27. Importantly, and in our judgment correctly, K.G.F. rejected the notion that the right to counsel flows from the Sixth Amendment to the United States Constitution or
¶16 Those courts that have recognized the right to effective assistance of counsel in involuntary commitment proceedings have premised the right on each particular state statute providing for counsel, as well as due process requirements оf both federal and state Constitutions. All courts recognizing a right to counsel in civil commitment proceedings have drawn on Sixth Amendment precedent established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), and its progeny, to inform the due process inquiry and determine whether counsel has acted effectively in protecting the guarantee of a fair trial. In K.G.F., however, we rejected the standard enunciated in Strickland concluding that it “simply does not go far enough to protect the liberty interests of individuals . . . who may or may not have broken any law, but who, upon the expiration of a 90-day commitment, must indefinitely bear the badge of inferiority of a once ‘involuntarily committed’ person with a proven mental disorder.” K.G.F., ¶ 33. In K.G.F. the Court concluded “our legal system of judges, lawyers, and clinicians has seemingly lost its way in vigilantly protecting the fundamental rights of such individuals,” K.G.F., ¶ 42, and determined there was an “obvious systematic failure of the involuntary civil commitment hearing process itself.” K.G.F., ¶ 49. The Court stated its “аim” was “on the failure of the system as a whole, one that through the ordinary course of the efficient administration of a legal process threatens to supplant an individual‘s due process rights ....” K.G.F., ¶ 49. The Court rejected Strickland‘s presumption of reasonable professional assistance because such a presumption was flawed in a proceeding that “routinely accepts--and even requires--an unreasonably low standard of legal assistance and generally disdains zealous, adversarial confrontation.” K.G.F., ¶ 35.
¶17 Although the Legislature had already set forth numerous procedural safeguards, which effectively distinguished civil commitment proceedings from usual civil cases, in K.G.F. this Court nonetheless “enhance[d]” these statutory protections by “adopt[ing] certain portions” of the National Center for State Courts’ Guidelines for Involuntary Civil Commitment. K.G.F., ¶ 70. We identified five “critical areas” and established specific tasks for counsel to undertake in order to effectively represent a client. Generally, those areas are described as follows: (1) there must be an immediate appointment of competent counsel with specialized training or supervised on-the-job training in the duties, skills, and ethics of representing civil commitment respondents, K.G.F., ¶ 71; (2) specific tasks required of counsel during the initial investigation were set forth by the Court, K.G.F., ¶¶ 74-75; (3) specific tasks and inquiries related to the client interview and how it was to be conducted were established by the Court, K.G.F., ¶¶ 77-80; (4) the right of the patient to have counsel present during the evaluation by the professional person and the right to remain silent were explained, K.G.F., ¶¶ 81-83; and (5) the Court set forth numerous requirements concerning counsel‘s vigorous advocacy, establishing a presumption that the client wishes not to be involuntarily committed, K.G.F., ¶¶ 84-89.
¶18 Upon thorough consideration, we are convinced that many of the circumstances which impelled this Court to reject Strickland, have proven unfounded. Our reasons are several. First, the record frequently will not contain the details of counsel‘s training and qualifications, or discussions with the respondent. The record similarly will not contain evidence of the attorney‘s investigations or strategy. Thus, evidence pertaining to many of the “critical areas” of representation identified in K.G.F. is not susceptible to direct review on a challenge to an involuntary commitment. Second, we reject that there is “an unreasonably low standard of legal assistance” provided respondents in civil commitment proceedings. We have found little evidence of such in the numerous involuntary commitment proceedings reviewed by this Court since K.G.F. Third, civil commitment proceedings were contemplated by the Legislature
¶19 We affirm our conclusion in K.G.F. that the Sixth Amendment and
measure or standard enunciated in K.G.F. for assessing whether a person has been deprived of that right. Some examination of Strickland—the standard by which effectiveness of counsel is universally measured by other states in civil commitment proceedings—is necessary.
¶20 In Strickland, the Supreme Court “recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial.” 466 U.S. at 684, 104 S. Ct. at 2063. However, the “guarantees [of] a fair trial [occur] through the Due Process Clauses” which are informed by “the several provisions of the Sixth Amendment, including the Counsel Clause . . . .” Strickland, 466 U.S. at 684-85, 104 S. Ct. at 2063. The Sixth Amendment‘s Counsel Clause thus infоrms the due process inquiry by advising that “a fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding.”4 Strickland, 466 U.S. at 685, 104 S. Ct. at 2063. Based on principles of due process, the Supreme Court recognized that the right to the assistance of counsel “envisions counsel‘s playing a role that is critical to the ability of the adversarial system to produce just results.” Strickland, 466 U.S. at 685, 104 S. Ct. at 2063. Hence, the Sixth Amendment informs the due process inquiry and defines the “basic elements of
trial.” Strickland, 466 U.S. at 685, 104 S. Ct. at 2063. “In giving meaning to the requirement [of effective assistance of counsel], however, we must take its purpose—to ensure a fair trial—as the guide.” Strickland, 466 U.S. at 686, 104 S. Ct. at 2064. Accordingly, “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannоt be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S. Ct. at 2064.
¶21 The Supreme Court determined that “specific guidelines are not appropriate.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The right to effective assistance of counsel “relies instead on the legal profession‘s maintenance of standards sufficient to justify the law‘s presumption that counsel will fulfill the role in the adversary process....” Strickland, 466 U.S. at 688, 104 S. Ct. at 2064-65. “Prevailing norms of practice as reflected in American Bar Association standards and the like . . . are guides to determining what is reasonable, but they are only guides.” Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. As explained in Strickland:
No particular set of detailed rules for counsel‘s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected indеpendence of counsel and restrict the wide latitude counsel must have in making tactical decisions . . . . Moreover, the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial.
466 U.S. at 688-89, 104 S. Ct. at 2065.
¶22 In order to prevail on an ineffectiveness claim under Strickland, a defendant must establish: (1) that counsel‘s performance was deficient; and (2) that the deficient performance prejudiced the defense, depriving the defendant of a fair trial. “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. Moreover, judicial scrutiny of attorney performance must be “highly deferential” since it is “all too tempting for a defendant to second-guess counsel‘s assistance after conviction or adverse sentence . . . [or] for a court . . . to conclude that a particular act or omission of counsel was unreasonable.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. In order to fairly assess attorney performance, every effort must be made “to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‘s challenged conduct, and to evaluate the conduct from counsel‘s perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Because of the countless ways to provide effective representation and the difficulties inherent in eliminating the distorting effects of hindsight, there is a “strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance . . . .” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
¶23 Strickland thus explains that the Sixth Amendment right to counsel is needed in order to protect thе fundamental right to a fair trial guaranteed by the Due Process Clause. In Strickland, the Sixth Amendment, including the Counsel Clause, defined the basic elements of the fair trial in a criminal prosecution. 466 U.S. at 684-85, 104 S. Ct. at 2063. Importantly, the interests of a criminal defendant “are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.” Addington v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 1808 (1979). This is accomplished under the Due Process Clause by requiring the State to prove guilt of an accused beyond a reasonable doubt. Addington, 441 U.S. at 423-24, 99 S. Ct. at 1808; In re Winship, 397 U.S. 358, 370, 90 S. Ct. 1068, 1076 (1970) (Harlan, J.,
¶24 “In a civil commitment state power is not exercised in a punitive sense.” Addington, 441 U.S. at 428, 99 S. Ct. at 1810; K.G.F., ¶ 63. While counsel has an adversarial role to play in the proceeding, “the legislated involuntary commitment process must, as a matter of public policy, strive to maintain the ‘therapеutic influence’ of the legal system on the individual.” K.G.F., ¶ 63 (citation omitted). There is no dispute that a civil commitment constitutes a significant deprivation of liberty, often involving the potential for compelled medication, which is among the historic liberties protected by the Due Process Clause. Vitek v. Jones, 445 U.S. 480, 492, 100 S. Ct. 1254, 1263 (1980) (citation omitted). Moreover, “an erroneous commitment is sometimes as undesirable as
an erroneous conviction.” Addington, 441 U.S. at 428, 99 S. Ct. at 1810. Civil commitment proceedings, however, employ an intermediate level or standard of proof—the “clear and convincing” standard—which is frequently invoked to protect important individual interests in civil cases. Montana requires that “physical facts” be proven beyond a reasonable doubt, and that the standard of proof as to all other matters is clear and convincing.
¶25 In consideration of the foregoing, we do not accept the proposition in K.G.F. that Strickland “simply does not go far enough to protect the liberty interests of individuals” who may be involuntarily committed, K.G.F., ¶ 33, when the Strickland standard is sufficient to protect the interests of a criminal defendant which “are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.” Addington, 441 U.S. at 423, 99 S. Ct. at 1808. The clear and convincing standard of proof required in a civil commitment is high because of the important individual interests at stake; it is still, however, a lesser standard of proof than in a criminal prosecution. While the liberty interest at stake in a civil commitment proceeding is significant, it is no greater than the liberty interest at stake in criminal cases where Strickland applies.
¶26 We also conclude the analysis and standard enunciated in Strickland is flexible and will allow professional norms and guidelines to be considered, but not determinative, in evaluating whether counsel‘s performance was reasonable considering all the circumstances. The “critical areas” of representation identified in K.G.F. mаy be useful and perhaps will provide guidance for determining what is reasonable in the context of prevailing professional norms and circumstances of a particular case. Importantly, we are cognizant that our function, here, is that of a court guided by our Constitution and statutes; not as a professional association, which functions to improve and monitor the quality of its profession based upon input from practitioners in particular fields of expertise. Our purpose is simply to ensure that a respondent has received the
¶27 We turn now to the case at hand. Aside from J.S.‘s contention that counsel misapprehended the district court‘s authority to order a community placement, a contention we cannot fairly draw from the record, J.S. argues that her counsel failed to investigate community placement options or, alternatively, failed to request a continuance of the disposition hearing to allow an adequate investigation into alternatives. First, our review of the record convinces us that J.S.‘s counsel was representing her client‘s wishes by seeking to have the petition dismissed with no community placement commitment at all. J.S.‘s counsel appreciated that it was the State‘s burden, not J.S.‘s, to establish by clear and convincing evidence that there was a need for commitment in the first instance. J.S.‘s counsel endeavored to hold the State to its burden. Despite the therapeutic purpose of a commitment proceeding, it nonetheless constitutes an effort by the State to deprive an individual of a significant liberty interest. The burden of proving that a commitment is necessary therefore remains with the State and a respondent has the right to require the State to meet its burden of proof.
¶28 Second, it remained clear that there were no appropriate community placement options for J.S., since she denied having a mental illness and did not believe she needed to take stabilizing medication.
¶29 J.S. also argues that her counsel failed to object to inadmissible hearsay evidence when Waples testified to background information that J.S. called 911 and voluntarily agreed to go to the emergency room. However, J.S.‘s counsel used these facts to argue the petition should be dismissed. J.S. also argues that her counsel‘s failure to immediately object to inadmissible hearsay evidence Waples provided regarding J.S.‘s behavior at the Journey Home, led the court to rely on the inadmissible testimony. The court though overruled the objection and considered it anyway, noting the information was from Waples‘s report which was the basis for Waples‘s opinion. The court‘s ruling on an objection which actually was made, especially in the context of a bench trial, does not establish deficient performance. Further, testimony that J.S. would not be accepted into the Journey Home was in response to a question specifically asked by the court.
¶30 J.S. contends she was denied the right to testify at trial and her right to remain silent during Waples‘s evaluation, specifically when the State relied upon her refusal to answer Waples‘s questions about how to take care of her wound. The record does not support J.S.‘s argument that J.S. was prevented from testifying or that J.S. wanted to testify because she was frustrated with her counsel‘s performance. Whilе remand remains an appropriate option under some circumstances, we do not find that those exist here. Regarding the State‘s reliance on J.S.‘s failure to answer Waples‘s questions about taking care of her wound during Waples‘s evaluation,
¶31 We conclude that J.S.‘s counsel effectively assisted J.S. in her civil commitment proceeding. J.S.‘s counsel held the State to its burden of proof and insisted on dismissal of the petition arguing that a person cannot be committed solely on the basis thаt they are homeless and have a severe medical condition. J.S.‘s counsel cannot be faulted for the lack of available resources and alternatives, due in part to her client‘s refusal to acknowledge her mental illness and the corresponding need for medication. The testimony established that J.S.‘s potentially life-threatening infection was exacerbated by her mental illness; an illness J.S. refused to acknowledge. J.S.‘s counsel competently and vigorously argued for J.S. and it is unnecessary to remand for an evidentiary hearing.
CONCLUSION
¶32 We affirm K.G.F. to the extent it recognized a statutory right to effective assistance of counsel and a right to counsel premised upon the federal Due Process Clause and Montana‘s right of due process contained in
¶33 Applying the foregoing to the case sub judice, we reject J.S.‘s claim that she did not receive the effective assistance of counsel during her commitment proceeding. J.S.‘s order of commitment is affirmed.
/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH
/S/ DIRK M. SANDEFUR
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE
Notes
The dialogue between the parties and the court was informal and, importantly, unclear as to which sections of Title 53 were being discussed. It appeared, at times, the parties were discussing diversion, which is a community placement that suspends the commitment hearing in such a manner that it is unnecessary for the court to make any findings pursuant to
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
In re Winship, 397 U.S. at 361-62, 90 S. Ct. at 1071 (citations omitted).