source: Caselaw Access Project

license: Public Domain

text:
    In the MATTER OF the Care and Treatment of Matthew C. CONE.
    No. 116,801
    Supreme Court of Kansas.
    Opinion filed February 22, 2019.
    Sam S. Kepfield, of Hutchinson, argued the cause and was on the brief for appellant.
    Bryan C. Clark, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with him on the briefs for appellee.
   Per Curiam:

Matthew Cone seeks review of the Court of Appeals' decision affirming his involuntary commitment under the Kansas Sexually Violent Predator Act (SVPA), K.S.A. 59-29a01 et seq. Cone challenges the Court of Appeals' holding that the district court did not abuse its discretion in finding that the actuarial tools used to estimate sex offenders' risk of reoffending met the Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), standard for admissibility of expert testimony. Cone also contends that the evidence was insufficient to support the jury's verdict that he met the SVPA's definition of a sexually violent predator. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

For acts committed in 2012, Cone was convicted of aggravated indecent solicitation of a child less than 14 years of age and sentenced to 36 months in prison. Shortly before his release from prison in November 2014, the State filed a petition to involuntarily commit Cone to the Larned State Hospital under the SVPA. To effect the commitment, the State had to prove that Cone met the definition of a sexually violent predator, which included establishing that he suffers from a mental abnormality or personality defect that makes him likely to commit repeat acts of sexual violence. The State planned to meet that burden through the use of expert witnesses who would rely in part on the Static-99R and Static-2002R tests, which are actuarial tools used to estimate sex offenders' risk of reoffending.

Before the SVPA jury trial, Cone sought to exclude evidence of the results of the Static-99R and Static-2002R tests by challenging their relevance and reliability. At the hearing on the admissibility of the Static tests, the district court heard testimony from all three experts who went on to testify at Cone's trial as well as two additional experts for the State, psychologists Dr. Derek Grimmell and Dr. Thomas Kinlen. The district court applied the Daubert standard, which was adopted in this state in 2014. See K.S.A. 2017 Supp. 60-456(b). Using the Daubert factors, the district court found it was more likely than not that the actuarial tests were scientifically reliable and admissible.

At trial, the State proffered the expert testimony of two doctors, Carol Crane and Angelina Johnson. Dr. Crane reviewed Cone's history, reviewed a police affidavit discussing one of Cone's victims' statements, interviewed Cone, and used the Static-99R and Static-2002R tools to determine Cone's risk of recidivism rate. Dr. Crane diagnosed Cone with pedophilic disorder and opined that he met the criteria for commitment as a sexually violent predator. Dr. Crane was concerned that Cone's sexual interest in children had not been sufficiently addressed; he had difficulties in relaying what he had learned in a sexual offender treatment program, which called into question whether he could utilize what he had learned in treatment when he was released into the community. The doctor also pointed to past incidents that demonstrated Cone's poor impulse control. For instance, when he was age 16, Cone and some friends set fire to a park bathroom. On another occasion, Cone broke into a house that he thought was abandoned and jammed a screwdriver into an electrical outlet.

Dr. Johnson also concluded that Cone is a sexually violent predator. In conducting her evaluation, Dr. Johnson relied on her review of Cone's records, a forensic interview, and the Static tools. Dr. Johnson also diagnosed Cone with pedophilic disorder, but she included the additional diagnosis of antisocial personality disorder. Dr. Johnson said that Cone's antisocial personality disorder contributed to his likelihood to reoffend because a key feature of the disorder is a persistent disregard for the rights and welfare of others and persistent recurrent opposition to the law. Dr. Johnson testified that Cone's antisocial personality and pedophilic disorders were "a dangerous combination for somebody that struggles in the way Mr. Cone does." She discussed Cone's inability to control his behavior, pointing to Cone's description of sexual abuse against a four-year-old victim as beginning with Cone tickling the child and proceeding to abuse because he was unable to resist an urge.

Dr. Johnson was also concerned that Cone did not seem to have retained the information from the prison's sexual offender treatment program and she believes that Cone lacks the tools to cope with urges toward children. Further, his relapse prevention plan was not adequate because Cone did not understand what triggered his arousal and did not grasp the coping skills needed to deal with such arousal.

As stated above, both of the State's experts utilized the Static-99R and Static-2002R actuarial risk assessment tools in their evaluations. These tests are actuarial scores that rely on objectively scored risk factors, or historical data, that research has indicated can predict future behavior. Dr. Crane gave Cone a score of 6 (out of 10) on the Static-99R, while Dr. Johnson gave a score of 5. Those scores placed Cone's risk of reoffending in the range of 13.8 to 23 percent, which fall into the moderate and high risk categories. On the Static-2002R, both doctors arrived at a score of 8, with a 29 to 40 percent risk of being rearrested for a new sexual offense, placing Cone in the moderate-to-high risk category.

The defense countered with its own expert, Dr. Robert Barnett. In preparing his evaluation, Dr. Barnett reviewed records, conducted a forensic interview of Cone, and administered testing. Dr. Barnett disagreed with the pedophilic disorder and antisocial personalitydisorder diagnoses of the State's experts. He related that Cone had said that he was embarrassed and ashamed about his behavior and was committed to not repeating it. Dr. Barnett opined Cone had a relatively good ability to control his behavior.

Dr. Barnett testified that he does not use the Static assessments because the idea that you can accurately predict the percentage of probability that a person will reoffend is invalid. He characterized the tests as a misuse of statistics and probability because generalized group data cannot be applied meaningfully to an individual.

Nevertheless, Dr. Barnett testified that he had reviewed an unsigned Static-99R test in Cone's records that reflected a risk assessment score of 4. Dr. Barnett opined that based upon the information that Cone had lived with a female partner for more than two years, the score should have been 3. He then opined that his score of 3, Dr. Johnson's score of 5, and Dr. Crane's score of 6 were not unusual for this test because it is given by people who are not trained and not licensed to practice psychology.

Cone also testified on his own behalf. He described a chaotic childhood, which included multiple moves, family drug use, and foster care placement. Cone related that he had been molested by a preacher when he was six years old, although he never told anyone about it because the preacher had warned Cone that he would go to hell if he told.

When Cone was 15, he was adjudicated for two counts of endangering a child because he bribed his 6-year-old nephew with candy and molested him two to three times. When Cone was 21, he was convicted of aggravated indecent solicitation of a child less than 14 as a result of abusing his cousin's girlfriend's 4-year-old daughter. Cone testified that he was asleep and dreaming about his own sexual abuse as a child. When he awoke, the child was there and asked Cone to scratch her stomach. Cone went further and asked the child to pull her pants down so he could touch her.

The jury found that Cone was a sexually violent predator subject to involuntary commitment. Cone filed a motion for judgment notwithstanding the verdict arguing, inter alia , that the Static tests should not have been admitted and that the evidence was insufficient to support the jury verdict. The district court denied the motion.

Cone timely appealed to the Court of Appeals. The panel held that the district court did not abuse its discretion in admitting expert testimony regarding the Static-99R and Static-2002R actuarial risk assessment tools under the Daubert standard. In re Care & Treatment of Cone , No. 116801, 2017 WL 3668891, at *3-6 (Kan. App. 2017) (unpublished opinion). Further, the panel noted that this case did not present the overwhelming evidence often seen in sexually violent predator commitments, but that viewing the evidence in a light most favorable to the State, the panel found sufficient evidence to support the jury's verdict. 2017 WL 3668891, at *9. This court granted Cone's petition for review.

ADMISSIBILITY OF EXPERT TESTIMONY ON RISK ASSESSMENT TOOLS

With regard to expert testimony, the issue raised and argued by the parties throughout this case, which issue was the only one decided by the lower courts, is whether expert testimony on the results of the actuarial risk assessment tools-the Static-99R test and the Static-2002R test-is admissible under the Daubert standard, as adopted in this state by K.S.A. 2014 Supp. 60-456(b). That statutory provision is substantively identical to Federal Rule of Evidence 702, which was amended in 2000 to follow the holding in Daubert . Our statute now reads as follows:

"If scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has reliably applied the principles and methods to the facts of the case." K.S.A. 2017 Supp. 60-456(b).

Standard of review

A district court's admission of expert testimony is generally reviewed for an abuse of discretion. In re Care & Treatment of Girard , 296 Kan. 372, 376, 294 P.3d 236 (2013). To the extent interpretation of statutes is concerned, review is de novo. Neighbor v. Westar Energy, Inc. , 301 Kan. 916, 918, 349 P.3d 469 (2015). Analysis

Before analyzing the issue put before us by the parties and the lower courts, we pause to note that the parties do not argue Daubert is the incorrect standard to apply in a SVPA proceeding. The State's supplemental brief asserts that the issue of whether the Daubert standard applies in a SVPA proceeding is not before this court because the district court applied Daubert and the State did not cross-appeal this finding. We recognize that a provision in the SVPA states as follows:

"Notwithstanding K.S.A. 60-456 , and amendments thereto, at any proceeding conducted under K.S.A. 59-29a01 et seq., and amendments thereto, the parties shall be permitted to call expert witnesses. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If the facts or data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, such facts and data need not be admissible in evidence in order for the opinion or inference to be admitted." (Emphasis added.) K.S.A. 2014 Supp. 59-29a06(c).

See also L. 2011, ch. 92, § 3 (adding this section to the statute).

One might ruminate on the effect of the proviso-"[n]otwithstanding K.S.A. 60-456"-on the Legislature's subsequent adoption of the Daubert standard in K.S.A. 2014 Supp. 60-456(b). But at the time that provision became effective, Kansas courts were analyzing the admissibility of scientific testimony from expert witnesses under the standard announced in Frye v. United States , 293 F. 1013 (D.C. Cir. 1923). The Frye test required that, to be admissible, expert opinion testimony had to be generally accepted as reliable within the expert's particular field. In Girard , decided after the effective date of K.S.A. 2011 Supp. 59-29a06(c) and before the 2014 " Daubert amendment" to K.S.A. 60-456(b), this court declared that the admission of scientific evidence in a SVPA action had to pass the Frye test, 296 Kan. at 376, 294 P.3d 236 ; that the actuarial tests used to assess a sex offender's risk of reoffending were scientific evidence, 296 Kan. at 378, 294 P.3d 236 ; and that "the actuarial risk assessments pass Frye scrutiny." 296 Kan. at 379, 294 P.3d 236.

Pointedly, Girard did not mention the 2011 amendments to K.S.A. 59-29a06 or indicate that, going forward, there would be a statutory constraint on applying the general test for admitting scientific evidence from expert witnesses in a SVPA action. In changing the general test in this state from the Frye test to the Daubert test, the Legislature did not specify that it was inapplicable in a SVPA action. Moreover, given that the State did not cross-appeal the district court's determination that the Daubert test applied and that the parties do not provide any argument as to why this court should not follow Girard 's tack, we will proceed by presuming that the Daubert test applies to the admissibility of the challenged actuarial tests in this SVPA action.

In Daubert , the Supreme Court recognized that the Frye test had been superseded by the adoption of the Federal Rules of Evidence. 509 U.S. at 587, 113 S.Ct. 2786. However, the Court noted that this did not remove all qualifications for admissibility of scientific evidence; rather, the trial judge has a gatekeeping obligation to ensure that scientific evidence is relevant and scientifically reliable. 509 U.S. at 589, 113 S.Ct. 2786. To that end, Daubert provided a list of nonexclusive factors a trial judge could use to fulfill this gatekeeping requirement: whether the theory or technique can and has been tested; whether it has been subject to peer review; the rate of error; the existence and maintenance of standards; and whether the theory or technique has general acceptance among the relevant scientific community. 509 U.S. at 592-94, 113 S.Ct. 2786. Daubert emphasized that these factors were not exclusive and that the trial court's overarching inquiry should be the scientific validity, evidentiary relevance, and reliability of the evidence. 509 U.S. at 593-95, 113 S.Ct. 2786 ; see also Kumho Tire Co. v. Carmichael , 526 U.S. 137, 147, 149-50, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (trial judge's gatekeeping function applies to all expert testimony, not just scientific testimony, and a court may consider the Daubert factors when deciding admissibility).

Cone does not challenge the qualifications of the State's experts, and so our inquiry is focused entirely on a determination of reliability. Although the factors provided in Daubert are nonexclusive, Cone does not argue that any additional factors should be considered in weighing the admissibility of the actuarial tests, other than to point to the concerns expressed by the Court of Appeals, i.e., the differences in percentages generated by the two tests and the tests' failure to account for offender treatment. Primarily relying on the testimony of his expert, Cone challenges the panel's analysis of each of the Daubert factors. We will consider Cone's arguments on each factor, but ultimately we reach the same conclusion as the panel.

Whether the theory can be (and has been) tested

In Daubert , the Supreme Court stated the following with regard to this factor:

" 'Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.' Green[, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation, 86 Nw. U. L. Rev. 643,] 645 [1992]. See also C. Hempel, Philosophy of Natural Science 49 (1966) ('[T]he statements constituting a scientific explanation must be capable of empirical test'); K. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 37 (5th ed. 1989) ('[T]he criterion of the scientific status of a theory is its falsifiability, or refutability, or testability') (emphasis deleted)." 509 U.S. at 593, 113 S.Ct. 2786.

Cone argues that the reliability of Static-99R and Static-2002R cannot be tested because: (1) the experience of the person administering the test can impact the results; (2) the tests underestimate recidivism rates but do not quantify the percentage of underestimation; and (3) the developers of the Static instruments have not released the initial raw data used to develop those instruments. Those arguments are not persuasive.

The State presented evidence that the Static-99R has been subject to two categories of testing: how reliably people can score the test; and how reliably the test predicts future sexual offending. The State also presented evidence that the Static-2002R has been tested, as well as evidence that using the tests in tandem has been tested.

Cone's first point-that the experience of the person administering the test can affect the results-actually refutes his argument. The only reason researchers know this is because the Static instruments have, in fact, been tested.

Second, Cone asserts that the tests underestimate recidivism rates but cannot quantify by what percentage. In response to a question about the average rates of recidivism provided by the assessments, Dr. Grimmell said that average rates are the rates that someone will reoffend and be reconvicted. He explained that there are many reoffenses that are not detected, which has "been studied and we have estimates of how large that affect is." The State presented evidence of dozens of tests in which the Static instruments have been re-verified by tracking sex offenders over time to measure recidivism rates-one such study followed more than 7,000 sex offenders to determine the accuracy of both the Static-99R and Static-2002R tests. In short, Cone's argument is unavailing.

Similarly, Cone's argument regarding the lack of access to the raw data used to develop the Static tests fails in the light of the repeated re-verifications of the tests over the years. Dr. Grimmell testified that the raw data is not commonly used in this field, and that those numbers were not necessary to verify the accuracy and results of the Static tests. The Static instruments have been repeatedly tested, verified, and updated; the absence of the initial raw data did not impede the testing. In summary, the Static tests have been subject to testing and therefore satisfy this Daubert factor.

Whether the theory or technique has been subject to peer review and publication

The Daubert Court said that scrutiny by the scientific community is a pertinent component of good science because it increases the likelihood that flawed methodology will be detected. 509 U.S. at 593, 113 S.Ct. 2786. As noted, the Static-99R and Static-2002R have been subject to numerous reviews and tests. Dr. Grimmell testified that these instruments have been tested at least 42 times regarding how well they predict reoffending. As noted, another study followed over 7,000 offenders to determine whether the tests' predicted rates of reoffending were accurate. More than 100 articles have been published in peer review journals on the subject. This Daubert factor is satisfied.

Known or potential rate of error

Cone argues that the Static tests are unreliable because they have an unknown rate of error. Cone's expert, Dr. Barnett, challenged the tests on this basis.

But the district court found Dr. Grimmell's testimony on behalf of the State more persuasive. Dr. Grimmell said the Static-99R error rate was developed using something called the area under the curve (AUC) concept. The AUC concept means "in a field where you have less than total knowledge, how accurate are you, and since we're predicting the future, we will always have less knowledge in total." The Static-99R's AUC is .72. This means there is a 72% chance that a randomly selected recidivist will have a higher score on the instrument than a randomly selected nonrecidivist. The Static-2002R has a slight advantage over the Static-99R, with an AUC of .75.

The State also presented expert testimony regarding the intraclass coefficient, which measures how consistently the tests can be administered by an experienced examiner. The Static-99R's intraclass coefficient was .85 on a scale of 0 to 1, which is considered "bordering on excellent." The Static-2002R had a slightly better scoring prediction.

Cone is correct that Dr. Grimmell candidly admitted that the 72% statistic cannot be applied to a single case because in a single case, the prediction will either be right or wrong. But Cone overlooks other testimony from Dr. Grimmell explaining that the Static assessments are "not meant to be the be-all and end-all." Instead, the probability gives the assessor "a starting point risk range." The Static assessments are used in conjunction with individual evaluation including a clinical interview and the individual's historical data.

Cone's argument goes more to the credibility of the evidence than its admissibility. There is a quantifiable rate of error; it just is not measured in a manner that Cone might prefer. And just as the rate of error is but one factor in the overall analysis of the admissibility of the Static tests, the Static tests themselves are but one factor in the overall inquiry in the SVPA proceeding. This factor does not invalidate the tests.

Existence and maintenance of standards controlling the technique's operation

Dr. Grimmell testified that the standards for scoring the tests are set out in manuals with very detailed instruction on how to score the tests. Cone argues that the only manuals and standards available are those published on the internet by a group founded and directed by Karl Hanson, one of the creators of the Static assessment tools. But as the Court of Appeals stated, "[i]t makes sense that the persons who developed the test would also include instructions on the technique's operation." Cone , 2017 WL 3668891, at *5. On this factor, Cone's argument simply lacks merit.

General acceptance within the relevant scientific community

Under the Frye standard, general acceptance within the scientific community was the primary inquiry. Daubert did not remove the general acceptance inquiry, but rather demoted it to simply one factor to be considered in the overall analysis. Girard , 296 Kan. at 379, 294 P.3d 236. Indeed, in Girard we explicitly held that the predecessor to the Static-99R assessment tool satisfied the general acceptance inquiry. 296 Kan. at 377-79, 294 P.3d 236.

Cone concedes that the tests are widely accepted. All of the experts, including Cone's expert, testified to that effect. Granted, Dr. Barnett opined that the tests are controversial and warned that just because something is accepted does not mean it is valid. Nevertheless, given the testimony from all experts in this case regarding the tests' widespread acceptance, this factor is satisfied.

Additional factors/concerns

The Court of Appeals discussed "a couple concerning aspects about the tests." Cone , 2017 WL 3668891, at *6. First, the panel noted that the two tests generated different results for Cone's percentage risk of reoffending-one score on the Static-99R predicted an 18 to 23 percent risk of reoffending, while the Static-2002R resulted in a 29 to 40 percent risk. But the panel pointed out that, although the results may initially appear to be disparate, the scores fall within the same categories, i.e., moderate to high risk.

Next, the panel discussed the fact that the tests fail to account for offender treatment-meaning that offenders who successfully complete treatment will likely have the same score after treatment as they had before. Nevertheless, as Dr. Grimmell testified, the tests are but one tool used in the overall evaluation of an offender. Likewise, as the panel noted, Daubert contemplated that even admissible expert testimony could be subjected to " '[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.' " 2017 WL 3668891, at *6 (quoting Daubert , 509 U.S. at 596, 113 S.Ct. 2786 ).

Conclusion

The panel ultimately concluded "that the district court did not abuse its discretion in admitting the actuarial tests." 2017 WL 3668891, at *6. We agree. The district court considered conflicting expert testimony on the reliability of the Static tests and found that they were admissible. In performing its gatekeeping function, the district court did not abuse its discretion.

SUFFICIENCY OF THE EVIDENCE

In order to prove that a person is a sexually violent predator, the State must show:

"(1) the individual has been convicted of or charged with a sexually violent offense, (2) the individual suffers from a mental abnormality or personality disorder, (3) the individual is likely to commit repeat acts of sexual violence because of a mental abnormality or personality disorder, and (4) the individual has serious difficulty controlling his or her dangerous behavior." In re Care & Treatment of Williams , 292 Kan. 96, 106, 253 P.3d 327 (2011) (citing K.S.A. 2010 Supp. 59-29a02 [a]; Kansas v. Crane , 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 [2002] ; PIK Civ. 4th 130.20).

Cone concedes that he was convicted of a sexually violent offense but argues generally that the evidence was insufficient to establish the other elements. In his petition for review, Cone specifically "argues that the evidence was not sufficient to diagnose him as having Pedophilia, and thus commit him under the SVPA."

Standard of review

When reviewing the sufficiency of the evidence in a sexually violent predator determination proceeding, the court views the evidence in the light most favorable to the State, and must be convinced that a reasonable fact-finder could have found that the State met its burden to demonstrate beyond a reasonable doubt that the person is a sexually violent predator. Williams , 292 Kan. at 104, 253 P.3d 327.

Analysis

The SVPA defines "mental abnormality" as "a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others." K.S.A. 2017 Supp. 59-29a02(b). The SVPA does not define "personality disorder."

In that regard, both parties rely on the Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-5).

Dr. Crane and Dr. Johnson both testified that Cone met the diagnostic criteria for pedophilic disorder under the DSM-5. The DSM-5 provides the following diagnostic criteria for pedophilic disorder:

"A. Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children (generally age 13 years or younger).
"B. The individual has acted on these sexual urges, or the sexual urges or fantasies cause marked distress or interpersonal difficulty.
"C. The individual is at least age 16 years and at least 5 years older than the child or children in Criterion A." DSM-5, § 302.2, p. 697.

Cone does not contend that pedophilic disorder is insufficient to satisfy the mental abnormality or personality disorder element of a sexually violent predator. Rather, he argues that there is insufficient evidence to support the doctors' diagnoses of pedophilic disorder. For instance, he denies admitting to Dr. Crane that he had experienced the requisite fantasies, so he asserts that she was not permitted to infer from his behavior that he had such fantasies.

But the DSM-5 "Diagnostic Features" section on pedophilic disorder provides: "The diagnostic criteria for pedophilic disorder are intended to apply both to individuals who freely disclose this paraphilia and to individuals who deny any sexual attraction to prepubertal children ... despite substantial objective evidence to the contrary." DSM-5, § 302.2, p. 698. Therefore, Dr. Crane was not required to have a statement from Cone that he had sexual fantasies about prepubertal children in order to render her diagnosis.

Moreover, both of the State's experts, Dr. Crane and Dr. Johnson, evaluated Cone and opined that his statements denying that he no longer had fantasies about children were not credible. This was based not only on their observations of Cone but also their review of Cone's statements and behavior at the time of his 2012 arrest, and the statements and records about Cone's past behaviors.

Granted, Cone's expert, Dr. Barnett, countered that he had seen no evidence of Cone having the requisite fantasies and urges within the previous six months, which he opined was crucial. Dr. Barnett also noted other factors outside of the DSM-5 that contradicted a diagnosis of pedophilic disorder, such as Cone's lack of a compulsive interest in children, the fact that he had not actively sought work or recreational opportunities in places frequented by children, and the fact that he did not collect child pornography.

But it is not our function to assess the credibility of the experts' competing testimony when assessing the sufficiency of the evidence. Williams , 292 Kan. at 104, 253 P.3d 327. The jury, which has the responsibility to assess credibility and weigh competing evidence, heard the testimony of Doctors Crane, Johnson, and Barnett and made its decision. The evidence was sufficient for the jury to believe the diagnosis of pedophilic disorder.

Cone also challenges the sufficiency of the evidence to support Dr. Johnson's additional diagnosis of antisocial personality disorder. But then Cone argues that, if the pedophilia diagnosis is invalid, the antisocial personality disorder would not satisfy the mental abnormality or personality disorder element of a sexually violent predator. Perhaps, then, our finding that the pedophilic disorder diagnosis was supported by substantial competent evidence renders moot Cone's challenge to the antisocial personality disorder diagnosis. Nevertheless, without reweighing the evidence or reassessing witness credibility and viewing the evidence in the light most favorable to the State, we would hold that the evidence was sufficient for that diagnosis.

Cone makes a cursory argument on the sufficiency of the evidence to support the elements that he was likely to commit repeat acts of sexual violence and that he has serious difficulty controlling his dangerous behavior. Essentially, he recites the evidence he presented that was favorable to him, urging us to accept that evidence as refuting the expert testimony of Dr. Crane and Dr. Johnson. Again, the fact that Cone put on evidence to refute the State's evidence does not render the State's evidence insufficient. The State's evidence, if believed by the jury, was sufficient to support its verdict that Cone is a sexually violent predator under the SVPA.

CONCLUSION

In summary, we hold that on the record before us the district court did not err in admitting the results of the Static-99R test and Static-2002R test as meeting the reliability standard under Daubert , as codified in K.S.A. 2017 Supp. 60-456(b). Further, the State presented sufficient evidence to support the jury's verdict that Cone is a sexually violent predator under the SVPA.

Affirmed.


text:
    STATE of Kansas, Appellee, v. Andrew Martin WOODRING, Appellant.
    No. 117,347
    Supreme Court of Kansas.
    Opinion filed March 1, 2019.
    Kristen B. Patty, of Wichita, argued the cause and was on the brief for appellant.
    Ellen Hurst Mitchell, county attorney, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.
   The opinion of the court was delivered by Rosen, J.:

Andrew Woodring entered a plea of no contest to felony murder. He takes a direct appeal to this court from the order denying his motion to withdraw his plea.

Woodring was a participant in a vehicular shooting that resulted in the death of a young woman. The State charged him with one count of premeditated first-degree murder, or, in the alternative, felony murder; one count of attempted first-degree premeditated murder; one count of criminal discharge of a firearm at an occupied vehicle; one count of conspiracy to commit aggravated battery; and one count of interference with law enforcement.

Woodring, who was 17 years old at the time of the shooting, was charged as an adult. It was alleged he provided and drove the car used in the shooting and that he also contacted the shooter and suggested that he bring a gun with him on the drive. On April 18, 2016, he entered into an agreement to plead no contest to felony murder in exchange for the State's agreement to dismiss other charges.

On June 6, 2016, Woodring filed a pro se motion to withdraw his plea. The court gave his counsel leave to withdraw and appointed new counsel to represent him at a subsequent hearing on his motion to withdraw his plea. After hearing testimony from Woodring, the court denied his motion to withdraw and sentenced him to a term of life imprisonment with a minimum mandatory sentence of 25 years before he would be eligible for parole. Woodring took an appeal to this court under K.S.A. 2018 Supp. 22-3601(b)(3).

An appellate court reviews a district court's decision to deny a plea withdrawal motion and the underlying determination that the defendant has not met the burden to show good cause for abuse of discretion. State v. Reu-El , 306 Kan. 460, Syl. ¶ 1, 394 P.3d 884 (2017).

"Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based." State v. Ward , 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011).

The party seeking to withdraw the plea bears the burden of establishing the district court's abuse of discretion. See State v. DeAnda , 307 Kan. 500, 503, 411 P.3d 330 (2018). An appellate court does not reweigh evidence or assess witness credibility when applying the abuse of discretion standard. Reu-El , 306 Kan. 460, Syl. ¶ 1, 394 P.3d 884.

K.S.A. 2017 Supp. 22-3210(a) and (b) permit defendants to enter pleas of guilty or nolo contendere under certain conditions:

"(a) Before or during trial a plea of guilty or nolo contendere may be accepted when:
(1) The defendant or counsel for the defendant enters such plea in open court; and
(2) in felony cases the court has informed the defendant of the consequences of the plea, including the specific sentencing guidelines level of any crime committed on or after July 1, 1993, and of the maximum penalty provided by law which may be imposed upon acceptance of such plea; and
(3) in felony cases the court has addressed the defendant personally and determined that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea; and
(4) the court is satisfied that there is a factual basis for the plea.
"(b) In felony cases the defendant must appear and plead personally and a verbatim record of all proceedings at the plea and entry of judgment thereon shall be made."

K.S.A. 2017 Supp. 22-3210 also allows defendants to withdraw their pleas before sentence is pronounced if they show good cause:

"(d)(1) A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged."

This court has set out three factors that a district court should evaluate when determining whether a defendant has shown good cause: "whether '(1) the defendant was represented by competent counsel, (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and (3) the plea was fairly and understandingly made.' "

State v. Edgar , 281 Kan. 30, 36, 127 P.3d 986 (2006). Not all of the Edgar factors have to apply in a defendant's favor in every case, and the district court may duly consider other factors in its discretionary decision on the existence or nonexistence of good cause. State v. Aguilar , 290 Kan. 506, 513, 231 P.3d 563 (2010).

Prior to accepting his plea, the court asked Woodring a series of questions relating to the voluntariness of his plea. The court asked if he understood the tender, and Woodring said he did. The court asked whether he had sufficient time to speak with his attorney, and Woodring said he did. The court asked him whether he wanted additional time to discuss the case or the plea agreement, and Woodring said he did not. The court asked whether he was under the influence of any mind-altering chemicals or alcohol and whether there was anything diminishing his judgment, and Woodring said no. The court asked whether he had discussed with his attorney the nature of the State's evidence against him and what the State would have to prove to obtain a conviction, and Woodring said he had discussed those matters. The court asked whether his attorney had explained possible defenses, trial rights, the presumption of innocence, and the right to appeal, and Woodring said his attorney had explained those matters. The court asked in detail whether he understood various possible sentencing consequences, including mandatory life imprisonment, and Woodring said he did. The court asked whether he felt pressured or coerced into entering into the plea agreement, and Woodring said he did not. Finally, the court asked whether he was satisfied with the legal advice and assistance he received from his attorney, and Woodring said he was.

The court then stated on the record that Woodring's plea was made "freely and voluntarily, after a full and complete opportunity to consult with counsel, and not out of ignorance, fear, inadvertence, or coercion." The court further found that Woodring "expressed his understanding of the nature and the consequences of entering this plea and that he is competent to do so."

Within a couple of months, Woodring sought to withdraw his plea. The asserted justification for withdrawal was that he was innocent of the crime to which he had pleaded guilty. As he explained at the hearing on his motion, "I feel like I shouldn't get a life sentence because I wasn't the one that pulled the trigger that killed that girl." He also contended that he was pressured into accepting the plea agreement by the State's insistence on a deadline for making a decision: "I feel like I was pushed into it by the DA, because she gave me a deadline and kept saying I need to take it by then."

Woodring's understanding of the "pressure" from the State was that it gave him a deadline. "I felt like if I would have went to trial, I would have got found guilty of everything and got the most time they could have gave me." Woodring was concerned that the State would put on evidence that should not have been admissible in order to obtain a conviction, in particular, a body camera. "Well, they were going to play the body cam, and it got played at one of my codefendant's trial, and I feel like that made him get convicted."

It was Woodring's belief that the body cam should not have been admitted.

On cross-examination, Woodring stated that he had no complaints about the quality of legal assistance he received from his original counsel. He also stated that he received the benefit of a potentially lower sentence and the dismissal of other charges. Furthermore, he did not become aware of any new evidence or witnesses that would strengthen his case. He recalled informing the court that he didn't feel pressured into the agreement, but qualified his response: "I kind of felt pressured, but I really didn't think about it until after, because everything was just happening so quick." He acknowledged that he had 10 days during which he decided to accept the plea agreement and that the case was nearly two years old when he accepted the agreement.

The district court reviewed the Edgar factors and found none of them supported allowing Woodring to withdraw his plea. The court denied the motion, concluding that Woodring failed to show good cause to withdraw the plea.

Distilling Woodring's statements in support of withdrawal, he first contends he was innocent because he did not kill anyone and he should therefore receive a trial before being sentenced. The innocence claim indicates a lack of understanding of the theory of aiding and abetting. K.S.A. 2017 Supp. 21-5210 makes a person criminally responsible for a crime committed by another if the person intentionally aids the other in committing the criminal conduct. The statute does not establish two different crimes for committing a murder, one committed by firing a gun and the other by driving the getaway car; instead, the statute makes each individual who engages in a concerted action to carry out a crime equally culpable. State v. Betancourt , 299 Kan. 131, 139, 322 P.3d 353 (2014). Under the aiding and abetting theory, helping to organize the shooting and procuring and driving the car from which the fatal shots were fired suffices to support a determination of guilt.

His second basis asserting just cause to withdraw his plea was that he was pressured by the time deadlines to enter into the plea. The claim of pressure does not rise to the level of coercion necessary to warrant withdrawing a plea agreement. When a defendant explicitly states in court that entering a plea is a voluntary act that was not the subject of coercion, the presence of pressure exerted by attorneys does not inherently constitute undue coercion. See State v. Denmark-Wagner , 292 Kan. 870, 876-77, 258 P.3d 960 (2011). A mere "change of mind" does not justify disturbing a plea agreement without any "evidence his plea was made unwillingly or without an understanding of the consequences." Denmark-Wagner , 292 Kan. at 877, 258 P.3d 960 (citing and quoting State v. Bartlow , No. 96,933, 2008 WL 2051672, at *3 [unpublished opinion], rev. denied 286 Kan. 1180 [2008]).

At the plea hearing, Woodring gave every indication of making a willing and understanding acceptance of the plea. A 10-day deadline for accepting a plea, especially after the defendant has spent nearly two years in prison awaiting trial, is not unduly coercive. He received the benefit of the plea agreement in the form of a reduced sentence and the dismissal of other charges.

We find no abuse of discretion by the district court in denying Woodring's motion to withdraw his plea. The ruling of the district court is affirmed.


text:
    George SPRY, Appellant, v. Rex PRYOR, Warden, Appellee.
    No. 119,573
    Court of Appeals of Kansas.
    Opinion filed February 15, 2019.
    Affirmed.


text:
    Marquez RIDGE, Appellant, v. STATE of Kansas, Appellee.
    No. 118,744
    Court of Appeals of Kansas.
    Opinion filed February 15, 2019.
    Affirmed.


text:
    Daniel Allen BROWN, Appellant, v. STATE of Kansas, Appellee.
    No. 119,112
    Court of Appeals of Kansas.
    Opinion filed February 15, 2019.
    Affirmed.


text:
    Arthur L. GARN and Karen J. Garn, Plaintiffs/Appellees, v. Michael W. HIGGINS, Defendant/Appellant, and Trustees of Mission Creek Township of Wabaunsee County, Defendants/Appellees.
    No. 118,980
    Court of Appeals of Kansas.
    Opinion filed February 15, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Charles M. RODRIGUEZ Jr., Appellant.
    No. 118,861
    Court of Appeals of Kansas.
    Opinion filed February 15, 2019.
    Affirmed.


text:
    Anthony L. TAYLOR, Appellant, v. STATE of Kansas, Appellee.
    No. 118,540
    Court of Appeals of Kansas.
    Opinion filed February 15, 2019.
    Affirm.


text:
    STATE of Kansas, Appellee, v. Adam J. BIBLE, Appellant.
    119,905 119,906 119,907
    Court of Appeals of Kansas.
    Opinion filed February 22, 2019.
    Submitted by the parties for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Michael L. GASPER, Jr., Appellant.
    No. 118,535
    Court of Appeals of Kansas.
    Opinion filed February 22, 2019.
    Affirmed.


text:
    In the INTEREST OF Z.E., a Minor Child.
    No. 119,633
    Court of Appeals of Kansas.
    Opinion filed February 22, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Shauna S. RODGERS, Appellant.
    No. 118,447
    Court of Appeals of Kansas.
    Opinion filed February 22, 2019.
    Affirmed in part, sentence vacated in part. Remanded for resentencing.


text:
    STATE of Kansas, Appellee, v. Kerry D. JENKINS, Appellant.
    No. 119,750
    Court of Appeals of Kansas.
    Opinion filed February 15, 2019.
    Dismissed.


text:
    CITY OF HIAWATHA, Appellee, v. Thomas DOYLE, Appellant.
    No. 119,812
    Court of Appeals of Kansas.
    Opinion filed February 22, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Pablo E. MARTINEZ, Appellant.
    No. 119,737
    Court of Appeals of Kansas.
    Opinion filed February 22, 2019.
    Submitted by the parties for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Loren J. CLIFTON, Appellant.
    No. 119,557
    Court of Appeals of Kansas.
    Opinion filed February 22, 2019.
    Submitted for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Dismiss. Affirm.


text:
    Lila Elizabeth TIBBETTS, Appellee, v. Carlin Wayne BECKER, Appellant.
    No. 118,904
    Court of Appeals of Kansas.
    Opinion filed February 22, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Jason Dean ENDSLEY, Appellant.
    119,965 119,966 119,967 119,968
    Court of Appeals of Kansas.
    Opinion filed February 22, 2019.
    Submitted by the parties for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Brandie Marie BROWNLEE, Appellant.
    No. 119,532
    Court of Appeals of Kansas.
    Opinion filed February 22, 2019.
    Submitted for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    CITY OF WICHITA, Kansas, Appellee, v. Beauregard DANIEL, Appellant.
    Nos. 119 386 119,390
    Court of Appeals of Kansas.
    Opinion filed February 22, 2019.
    Submitted by the parties for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Denzel M. AGGISON, Appellant.
    No. 119,047
    Court of Appeals of Kansas.
    Opinion filed February 22, 2019.
    Affirmed.


text:
    Michael A. REED, Appellant, v. STATE of Kansas, Appellee.
    No. 118,954
    Court of Appeals of Kansas.
    Opinion filed February 22, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Jose Benjamin RAMIREZ, Appellant.
    No. 118,668
    Court of Appeals of Kansas.
    Opinion filed February 22, 2019.
    Submitted for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Schaan Michael DONALDSON, Appellant.
    No. 117,841
    Court of Appeals of Kansas.
    Opinion filed February 22, 2019.
    Affirm.


text:
    STATE of Montana, Plaintiff and Appellee, v. Todd Michael JOHNSON, Defendant and Appellant.
    DA 17-0195
    Supreme Court of Montana.
    Submitted on Briefs: November 28, 2018 Decided: February 12, 2019
    For Appellant: Chad Wright, Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Scott D. Twito, Yellowstone County Attorney, Brett Linneweber, Deputy County Attorney, Billings, Montana
   Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Todd Michael Johnson (Johnson) appeals from a criminal conviction in the Thirteenth Judicial District Court, Yellowstone County, arguing the court abused its discretion by denying his request for substitution of counsel. We affirm and address the following issue on appeal:

Did the District Court abuse its discretion by not substituting the defendant's counsel?

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In September 2014, the State charged Johnson, an indigent defendant, with felony aggravated assault. The District Court initially appointed attorney Michael Usleber to represent Johnson, but appointed substitute counsel John Hud in April 2015. Johnson's felony aggravated assault charge was one of multiple pending criminal cases against him, and Hud represented Johnson in each. Johnson consistently indicated he would not waive his speedy trial rights and objected to continuance requests. The court held a trial in one of Johnson's cases in June 2015, at which Hud represented Johnson.

¶3 The court scheduled Johnson's felony aggravated assault trial for August 13, 2015. In July 2015, Hud suffered a serious leg injury that rendered him unavailable for Johnson's scheduled trial. The court continued the trial and, on August 14, 2015, held a status hearing to discuss Johnson's representation. David Duke, regional manager of the public defender's office, appeared on Johnson's behalf and reported that Hud was unavailable until October. Duke further explained that Hud told him "that Mr. Johnson has concerns and criticisms of [Hud] and his representation." Duke stated he would defer to the court regarding whether Johnson should receive new counsel.

¶4 The court asked for Johnson's input. Johnson stated he told both Usleber and Hud that he opposed postponing his trial dates. He further reported that he had been trying, unsuccessfully, to get ahold of Hud for the last two months, stating that Hud did not respond to Johnson's phone calls or letters. Johnson stated he did not know what was going on in any of his cases. Regarding Duke's comment that Johnson had concerns with Hud's representation, Johnson stated he had not expressed any concerns about Hud's representation and assumed Hud was "putting words in [his] mouth."

¶5 The court told Johnson that it did not want to interfere with his representation but had noticed certain body language between Hud and Johnson at Johnson's last trial. The court stated that, if Johnson continued with Hud as his attorney, nothing could happen until October. The court similarly noted that, if substitute counsel were appointed, it would likely take that person until October to catch up with the case. The court then looked at its schedule and discussed its upcoming trials. Johnson further explained his concerns to the court:

Your Honor, I don't ... want to do anything that would cause me to inadvertently waive my right to a fast and speedy trial.... I've been trying to get my attorney to file for a motion to dismiss for lack of speedy trial and he['s] ... refusing to do so.... [I]t's caused some great concern to me that ... the last two attorneys I've had are refusing to file motions that I've asked them to file. And it seems like they're doing a pretty good job of prolonging my situation after I've asked them numerous times not to do so. At this point, I have no idea what to do. They don't listen to anything I'm saying.... I don't even know if it would help my situation to get new counsel.... I honestly don't know what to do.

¶6 After listening to Johnson's concerns, the court described its schedule to Johnson, explaining that criminal trials rotate on six-week cycles with each judge having two designated weeks. The court determined October 19th was the soonest it could realistically reset Johnson's trial. Johnson clarified which case would be going to trial and expressed frustration because, in the past, he did not know which case was going to trial. Johnson ultimately maintained Hud as counsel and the District Court reset trial for October 19th.

¶7 On October 19, 2015, Hud appeared with Johnson for the scheduled jury trial. During pretrial discussions, Johnson asked to address the court. Without the State present, Johnson expressed his dissatisfaction with Hud's representation and requested the court appoint substitute counsel:

Your Honor, at this time I think it would be unfair for me to proceed with this trial with Mr. Hud as my defense counsel as he has failed to perform his duties as an attorney. He hasn't filed any pretrial motions I've asked or conducted any interviews with witnesses in this matter. He has seen me less than two times ... with each visit lasting less than an hour, and he has even gone to the point of changing his number to avoid me.
I have with my supporting documents ... to support my claim that Mr. Hud has failed me as an effective defense attorney either due to incompetence or an unimaginable case load, which is neither my fault. I would ask at this time that these proceedings be postponed until a later date for good cause shown and during which time Mr. Hud is removed as my counsel of record and I be given a new attorney or given a second chair so that I may retain my Sixth Amendment right to effective assistance of counsel, Your Honor.

¶8 Following Johnson's complaints, the District Court asked Hud if he had any comments. Hud stated that some of what Johnson said was accurate while some was not, but that he was not certain to what extent he should respond. The court responded by reviewing Johnson's representation in the case. In April 2015, the court substituted Usleber, the attorney it initially appointed Johnson, with Hud. In August 2015, Johnson complained about Hud's representation but ultimately decided to proceed to trial with Hud as his counsel. The court pointed out the fact that the August conversation occurred months ago, but Johnson was renewing his complaints "minutes before we're going to start the trial."

¶9 The court then denied Johnson's request and told Johnson that he could either go to trial with Hud as his attorney or represent himself. The court also mentioned that it was not too late to discuss a plea agreement. Johnson responded that the only plea agreement Hud told him about was out-of-date. Hud then more specifically responded to Johnson's allegations. He stated that he had not changed his phone number and did not know why Johnson believed he had. He further stated that he had explained to Johnson that he has an obligation to not file frivolous motions. He explained that two Fridays ago he had a heated, almost two-hour long meeting with Johnson. He further explained that their last meeting was cut short when Johnson stormed out of the meeting, angry with Hud. Hud reported that Johnson provided him with the names of two witnesses, both of whom Hud spoke with.

¶10 The District Court reiterated its earlier ruling denying Johnson's request for substitute counsel: "Okay. Well, it's 9 o'clock, it's time for trial, so any motion regarding new counsel is denied. So let's go out there." Hud then asked Johnson if Johnson wanted to represent himself, and the court stated, "My impression from you was that you were not going to represent yourself; is that correct?" Johnson replied, "That's correct, Your Honor," and the case proceed to trial at which Hud represented Johnson. The jury found Johnson guilty of felony aggravated assault.

¶11 On February 29, 2016, the parties convened for sentencing, at which time Hud advised the court that Johnson had filed a formal complaint against him. Hud thought it was inappropriate for him to continue to represent Johnson but that the public defender's office was reluctant to assign new counsel so late in the case except for the purposes of filing an appeal. Hud stated that he tried to discuss Johnson's presentence investigation report with Johnson, but it "got to the point that our communication has totally broken down, and I don't think I should be representing him at this sentencing hearing." Hud continued, "I don't think I can elaborate any more on that, certainly not with prosecutors in the courtroom, but to say the least, things got very heated."

¶12 The court excused everyone except for Hud and Johnson and then asked Johnson to explain the situation to the court. After a dialogue between the District Court, Johnson, and Hud, the court decided to appoint Johnson a new attorney and continued the sentencing hearing. Johnson was later sentenced to twenty years' incarceration. He now appeals, arguing the District Court abused its discretion when it denied his October 19th request for substitute counsel.

STANDARD OF REVIEW

¶13 A request to substitute counsel is within the sound discretion of the district court, reviewed for an abuse of discretion. State v. Aguado , 2017 MT 54, ¶ 8, 387 Mont. 1, 390 P.3d 628 ; State v. Cheetham , 2016 MT 151, ¶ 13, 384 Mont. 1, 373 P.3d 45. A district court abuses its discretion if it acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. Cheetham , ¶ 13.

DISCUSSION

¶14 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. Const. art. II, § 24. The right to effective assistance of counsel does not, however, grant a defendant the right to counsel of his choice. State v. Dethman , 2010 MT 268, ¶ 15, 358 Mont. 384, 245 P.3d 30. A defendant may not demand substitute counsel simply because he lacks confidence in, or does not approve of, his counsel; he only has the right to substitute counsel in a few instances. Cheetham , ¶ 18 (citing Dethman , ¶ 15 ).

¶15 We have previously explained that, to obtain substitute counsel, the defendant must present material facts establishing either: (1) a complete collapse of the attorney-client relationship; (2) a total lack of communication between defendant and counsel; or (3) ineffective assistance of counsel. Aguado , ¶ 24 (citing Cheetham , ¶ 19 ; State v. Edwards , 2011 MT 210, ¶ 32, 361 Mont. 478, 260 P.3d 396 ; State v. Kaske , 2002 MT 106, ¶ 30, 309 Mont. 445, 47 P.3d 824 ). Our inclusion of ineffective assistance of counsel as a means by which a defendant may obtain substitute counsel has, however, led to confusing precedent and created a difficult standard for trial courts to follow. In prior cases, while repeatedly noting that most ineffective assistance of counsel claims are best suited for resolution on direct appeal or in postconviction proceedings, we continued to state that ineffective assistance of counsel is a legitimate basis upon which to grant a defendant's substitution request. Compare Aguado , ¶ 24 ("[T]o obtain substitution of counsel, the defendant bears the burden of proving ... ineffective assistance of counsel." (internal quotations and citations omitted)), with Aguado , ¶ 25 ("The appropriate time for an evaluation of the merits of an ineffectiveness claim is either on direct appeal ... or in a postconviction proceeding...."); compare Cheetham , ¶ 19 ("[T]o replace a defense attorney, the defendant bears the burden of presenting material facts that establish ... ineffective assistance of counsel."), with Cheetham , ¶ 29 ("A claim of ineffective assistance based on differences between the defendant and his counsel about trial strategy and production of evidence is available in, and better suited for, a postconviction proceeding....").

¶16 However, allowing a defendant to obtain substitute counsel based on a general ineffective assistance of counsel claim wrongly suggests that a district court may, mid-trial, question specific defense tactics and inquire into matters such as counsel's trial strategy. See Kaske , ¶ 33 (noting a defendant does not have a right to a particular defense and reiterating the "time-honored rule" that courts must give great deference to defense counsel's judgment); but see Cheetham , ¶ 29 ("A claim of ineffective assistance based on differences between the defendant and his counsel about trial strategy and production of evidence is available in, and better suited for, a postconviction proceeding...." (emphasis added)). It essentially requires a trial court to hold a collateral ineffective assistance of counsel proceeding during the pendency of a trial, injecting Strickland -like standards but also not requiring a full two-pronged inquiry. See, e.g. , Aguado , ¶ 25 (explaining that a district court's inquiry into a defendant's substitution request "should not become Strickland litigation"). It further produces confusion regarding when a court should issue a Gillham order. Aguado , ¶¶ 14, 25 (trial court issued a Gillham order permitting counsel to respond to the defendant's substitution request but, on appeal, this Court explained that, while the trial court must examine the sufficiency of the defendant's complaints, its inquiry should not necessitate the issuance of a Gillham order); Cheetham , ¶ 29 (stating that Gillham orders apply to petitions for postconviction relief). We take this opportunity to enunciate a clearer standard for substitution of counsel, one that will remove the existing confusion by properly differentiating between an ineffective assistance of counsel claim, most appropriately raised on direct appeal (if record based) or in a postconviction proceeding, and the appropriate circumstances in which to grant a defendant's substitution request, raised during the pendency of trial.

¶17 A defendant's right to substitute counsel is founded in the defendant's constitutional right to the effective assistance of counsel. U.S. Const. amend. VI ; Mont. Const. art. II, § 24 ; see United States v. Smith , 640 F.3d 580, 588 (4th Cir. 2011). While a defendant is not entitled to counsel of his choice or even to a meaningful relationship with counsel, he is constitutionally entitled to counsel with whom he may mount an adequate defense. United States v. Cronic , 466 U.S. 648, 656-57, 104 S. Ct. 2039, 2045-46, 80 L.Ed.2d 657 (1984) ; Morris v. Slappy , 461 U.S. 1, 14, 103 S. Ct. 1610, 1617, 75 L.Ed.2d 610 (1983) ; Smith , 640 F.3d at 588. "The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman ... requires the guiding hand of counsel at every step in the proceedings against him." Powell v. Alabama , 287 U.S. 45, 68-69, 53 S. Ct. 55, 64, 77 L.Ed. 158 (1932).

¶18 When communication between counsel and defendant becomes so compromised that mounting a defense is impossible, the defendant is neither being heard by counsel nor receiving effective assistance. Accordingly, the defendant's right to substitute counsel arises only when a breakdown of the attorney-client relationship becomes so great that the principal purpose of the appointment-to provide the defendant with the effective assistance of counsel-is frustrated. Smith , 640 F.3d at 588 ("[T]he defendant's Sixth Amendment right to successor appointed counsel arises because the initial appointment has ceased to constitute Sixth Amendment assistance of counsel."). In such instances, the defendant is constructively denied his constitutional right to effective assistance of counsel and the trial court must grant his request for substitute counsel. See Daniels v. Woodford , 428 F.3d 1181, 1196-98 (9th Cir. 2005) (explaining the constructive denial of counsel doctrine in the context of a defendant's request for substitute counsel).

¶19 Because the defendant's constitutional right to substitute counsel arises when his relationship with appointed counsel breaks down to the point where the appointment ceases to constitute the effective assistance of counsel, we must identify the circumstances in which the attorney-client relationship presumptively falls short of the one constitutionally required. See State v. Gallagher , 2001 MT 39, ¶ 9, 304 Mont. 215, 19 P.3d 817 ( Gallagher II ) (recognizing that when conflict between attorney and defendant becomes so great as to result in a total lack of communication, the court's refusal to substitute counsel violates the defendant's right to effective assistance of counsel). Based on the foregoing analysis, our prior case law focusing on the alleged conflict between counsel and defendant, and looking to other jurisdictions for guidance, we conclude a defendant is entitled to substitute counsel if he presents material facts showing good cause for the substitution as demonstrated by: (1) an actual conflict of interest; (2) an irreconcilable conflict between counsel and the defendant; or (3) a complete breakdown in communication between counsel and the defendant. See, e.g. , United States v. Jones , 795 F.3d 791, 796 (8th Cir. 2015) ; United States v. Sullivan , 431 F.3d 976, 979-80 (6th Cir. 2005) ; United States v. Swinney , 970 F.2d 494, 499 (8th Cir. 1992) ; McKee v. Harris , 649 F.2d 927, 931 (2d Cir. 1981). A defendant is not entitled to substitute counsel based on a general claim of ineffective assistance of counsel, and we overrule our prior case law only to the extent it states as much.

¶20 The trial court must focus its inquiry on the alleged conflict or breakdown and determine whether the defendant demonstrated good cause justifying substitute counsel. See, e.g. , Jones , 795 F.3d at 796-98 ; Smith , 640 F.3d at 589-91 ; United States v. Reyes-Bosque , 596 F.3d 1017, 1034 (9th Cir. 2010) ; Sullivan , 431 F.3d at 979-80 ;

United States v. Nguyen , 262 F.3d 998, 1003-04 (9th Cir. 2001) ; United States v. Moore , 159 F.3d 1154, 1158-60 (9th Cir. 1998). Disagreement between counsel and defendant over matters such as defense tactics and trial strategy-issues potentially relevant to an ineffective assistance of counsel claim-could certainly lead to an irreconcilable conflict or complete breakdown in communication, justifying substitute counsel. To avoid confusion, the trial court's inquiry into a defendant's substitution request should focus not on specific disagreements between counsel and defendant regarding trial strategy or on whether defense counsel's chosen techniques are effective, but instead should focus on whether the defendant presented material facts showing good cause for his substitution request as demonstrated by: (1) an actual conflict of interest; (2) an irreconcilable conflict between counsel and the defendant; or (3) a complete breakdown in communication between counsel and the defendant. The court's focus on the alleged conflict or breakdown between counsel and defendant permits the court to adequately inquire into the defendant's substitution request while only examining issues protected by the attorney-client privilege to the degree those issues resulted in an actual conflict, irreconcilable conflict, or complete breakdown in communication. See Cronic , 466 U.S. at 659-60, 104 S. Ct. at 2047 (commenting that, in some circumstances, "although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial " (emphasis added)).

¶21 While we set forth a new standard warranting substitute counsel, we retain our precedent requiring the trial court to perform an "adequate initial inquiry" to determine whether the defendant's complaints are "seemingly substantial" when considering a defendant's request for substitute counsel. See, e.g. , Cheetham , ¶ 20 ; State v. Gallagher , 1998 MT 70, ¶ 15, 288 Mont. 180, 955 P.2d 1371 ( Gallagher I ); see also Smith , 640 F.3d at 594 (explaining that "the judge has an obligation to inquire thoroughly into the factual basis of defendant's dissatisfaction" with counsel (internal quotations and citations omitted)). A district court's inquiry is inadequate if the court fails to conduct "even a cursory inquiry into the defendant's complaints," in which case we remand for further proceedings. Gallagher I , ¶ 15 (internal quotations omitted).

¶22 A district court's inquiry is adequate if it considers a defendant's factual complaints together with counsel's specific explanations addressing the complaints.

State v. Schowengerdt , 2015 MT 133, ¶ 17, 379 Mont. 182, 348 P.3d 664 ; Dethman , ¶ 16 ; Gallagher I , ¶ 15 ; City of Billings v. Smith , 281 Mont. 133, 136-37, 932 P.2d 1058, 1060 (1997). If the district court performs an adequate initial inquiry and determines the defendant's complaints are not seemingly substantial, the court does not need to conduct a hearing to address the complaint. Gallagher I , ¶ 15. However, if the district court determines the defendant's complaint is seemingly substantial, the court must conduct a hearing to address the complaint's validity. State v. Happel , 2010 MT 200, ¶ 14, 357 Mont. 390, 240 P.3d 1016. The trial court should subsequently grant the defendant's substitution motion if the defendant presents material facts showing good cause for his request as demonstrated by: (1) an actual conflict of interest; (2) an irreconcilable conflict between counsel and the defendant; or (3) a complete breakdown in communication between counsel and the defendant.

¶23 In making its decision, the court should consider the circumstances surrounding the defendant's substitution motion, including the timeliness of the motion and the degree to which the conflict prevented the mounting of an adequate defense. See, e.g. , Daniels , 428 F.3d at 1197-98 ; United States v. Whaley , 788 F.2d 581, 583 (9th Cir. 1986). As to timeliness, the court may consider "whether the conflict complained of is genuine or merely a transparent plot to bring about delay." Smith , 640 F.3d at 591 (internal quotations and citations omitted). If the defendant's substitution request is nothing more than a dilatory tactic, the trial court is well within its discretion to deny the request. In analyzing the degree to which the conflict between counsel and defendant prevented the mounting of an adequate defense, the defendant must demonstrate more than his feeling that his communication with counsel is unsatisfactory. See Sullivan , 431 F.3d at 981. Instead, the defendant must present material facts showing that the attorney-client relationship has deteriorated to the point where the irreconcilable conflict or breakdown in communication prevents the mounting of an adequate defense. See Sullivan , 431 F.3d at 981.

¶24 Having set forth a new standard to determine whether a defendant is entitled to substitute counsel, we turn to the facts of this case. The District Court listened to Johnson's complaints about Hud but did not conduct a hearing to assess the complaints' validity before denying Johnson's request for substitute counsel. Johnson raises alternative arguments on appeal. First, he contends the District Court abused its discretion by not conducting an adequate initial inquiry into Johnson's request for substitute counsel on the morning of trial. If this Court finds the District Court's initial inquiry adequate, Johnson alternatively argues the court abused its discretion by not finding Johnson's complaints seemingly substantial enough to justify a hearing. The State counters that the District Court conducted an adequate initial inquiry and did not abuse its discretion by determining that Johnson's complaints did not necessitate a hearing to address their validity. ¶25 We conclude the District Court performed an adequate initial inquiry. A court's initial inquiry is adequate when it critically analyzes the defendant's factual allegations together with counsel's specific explanations. Aguado , ¶ 23. On the morning of October 19, 2015, the court allowed Johnson to express his concerns with Hud's representation. Johnson complained that Hud did not file pretrial motions Johnson requested, did not conduct any interviews with witnesses, visited Johnson "less than two times," and changed his phone number to avoid Johnson. Hud later explained that he told Johnson that he could not file frivolous motions, spoke with the two witnesses Johnson had provided him, visited with Johnson for almost two hours on one occasion but Johnson cut their second meeting short, and had not changed his phone number and did not know why Johnson believed he had.

¶26 The District Court listened to Johnson's factual allegations, noted that it had already substituted Johnson's counsel once before, and reviewed the August conversation regarding Hud's representation of Johnson. Before denying Johnson's request, the court expressed frustration with the fact that the August conversation occurred months ago and that Johnson was renewing his complaints only minutes before trial. The record demonstrates that the court critically analyzed Johnson's factual allegations together with Hud's specific explanations. We accordingly hold that the District Court performed an adequate initial inquiry.

¶27 We further conclude the District Court did not abuse its discretion when it did not hold a hearing to address the validity of Johnson's complaints. The court must conduct a hearing to address the defendant's complaints if the complaints are seemingly substantial. Gallagher I , ¶ 15. The defendant must present a seemingly substantial complaint that his attorney has an actual conflict of interest, that he has an irreconcilable conflict with his attorney, or that his communication with his attorney has completely broken down. A defendant's complaints about his attorney's chosen trial strategy or specific defense tactics must be reserved for an ineffective assistance of counsel claim raised on direct appeal or in a postconviction proceeding.

¶28 In this case, Johnson's chief complaint was that Hud refused to file certain pretrial motions at Johnson's request. Hud responded to that complaint, generally stating that he had explained to Johnson that he could not file frivolous motions. However, Johnson's complaints regarding Hud's refusal to file certain pretrial motions are complaints about Hud's chosen trial strategy and defense tactics. Those complaints, therefore, must be reserved for an ineffective assistance of counsel claim raised on direct appeal or in a postconviction proceeding. Accordingly, Johnson's complaints regarding Hud's refusal to file pretrial motions did not support Johnson's request for substitute counsel.

¶29 Johnson also complained about his lack of communication with Hud. Specifically, Johnson alleged that Hud did not return Johnson's phone calls or letters and that Hud had visited him "less than two times" in preparation for trial. While there appears to have been some issue with the communication between Johnson and Hud, we cannot find, based on the record before us, that the District Court abused its discretion when it determined Johnson's complaints were not seemingly substantial enough to hold a hearing. The timing of Johnson's request is problematic-Johnson raised some concerns at the status hearing in August but did not renew his complaints until the morning of trial in October.

¶30 Further, Johnson's complaints do not suggest that the relationship between Johnson and Hud had deteriorated to the point where the conflict or breakdown in communication prevented the mounting of an adequate defense. There appears to have been a line of communication between the two-they met twice before trial, despite those meetings being heated. Later on at Johnson's sentencing hearing, Hud acknowledged that their communication had completely broken down since trial and the court provided Johnson with substitute counsel at that point. We conclude the District Court did not abuse its discretion when it found that Johnson's complaints were not seemingly substantial enough to justify a hearing on their validity.

CONCLUSION

¶31 An indigent defendant's right to substitute counsel is founded in the defendant's federal and state constitutional rights to effective assistance of counsel. When a defendant requests substitute counsel, the court must conduct an adequate initial inquiry to determine whether the defendant's complaints are seemingly substantial. If the defendant's complaints are seemingly substantial, the court must hold a hearing to assess the validity of the defendant's complaints. The defendant is entitled to substitute counsel if he presents material facts showing good cause for the substitution as demonstrated by an actual conflict of interest, an irreconcilable conflict between counsel and the defendant, or a complete breakdown in communication between counsel and the defendant. In this case, the District Court performed an adequate initial inquiry and did not abuse its discretion when it determined Johnson did not present a seemingly substantial complaint. We accordingly affirm Johnson's conviction.

We concur:

MIKE McGRATH, C.J.

DIRK M. SANDEFUR, J.

INGRID GUSTAFSON, J.

JAMES JEREMIAH SHEA, J.

      In assessing ineffective assistance of counsel claims, Montana courts apply the United States Supreme Court's two-prong test as articulated in Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). See, e.g. , State v. Colburn , 2018 MT 141, ¶ 21, 391 Mont. 499, 419 P.3d 1196 ; Whitlow v. State , 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861.

      See In re Gillham , 216 Mont. 279, 282, 704 P.2d 1019, 1020 (1985) (explaining that, to the extent counsel must reveal confidential client information in response to a defendant's ineffective assistance of counsel claim, counsel is not "subject to disciplinary proceedings before the Commission of Practice of the State Bar of Montana, nor subject to charges of malpractice").

      Except for listing ineffective assistance of counsel as a means by which a defendant may obtain substitute counsel, the legal analyses set forth in both Aguado and Cheetham are consistent with our new standard for substitute counsel. In both cases, we explained that a defendant is entitled to substitute counsel based on a claim of ineffective assistance of counsel only when there is a complete collapse in attorney-client communication or in the attorney-client relationship and emphasized that a defendant should reserve his complaints regarding matters such as trial strategy and production of evidence for an appeal or postconviction claim. Aguado , ¶ 25 ; Cheetham , ¶ 29. Our new substitution standard simply removes any remaining confusion by clarifying that every ineffective assistance of counsel claim does not warrant substitute counsel.