author: JUSTICE LEAPHART

text:
    IN RE THE PETITION OF KRISTOFER HANS
    No. 93-176.
    Submitted on Motion October 17, 1997.
    Decided January 15, 1998.
    1998 MT 7.
    55 St.Rep. 21.
    958 P.2d 1175.
    288 Mont. 168.

      For Appellant: William Hooks, Appellate Defender, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Patricia Jordan, Assistant Attorney General, Helena; Thomas P. Meissner, Fergus County Attorney, Lewistown.
   JUSTICE LEAPHART

delivered the Opinion and Order of the Court.

¶1 The State of Montana moves this Court to dismiss Petitioner Kristofer Hans’ (Hans’) second amended petition for post-conviction relief or, in the alternative, to strike claims. Hans has filed a brief in opposition to the motion and a cross-motion to strike certain material from the State’s brief.

Factual and Procedural Background

¶2 On May 10, 1988, Hans pled guilty to charges of deliberate homicide, attempted deliberate homicide, and two counts of aggravated assault. On June 3,1988, Hans was sentenced to the Montana Department of Institutions for two concurrent 100-year terms plus 3 years for the use of a weapon and two 10-year terms plus 2 for the use of a weapon, to be served concurrently. Hans’ counsel, Bradley Parrish, filed a notice of appeal with this Court, which was subsequently withdrawn. As a result, no direct appeal was taken. On April 12, 1993, Hans filed herein a pro se petition for post-conviction relief. This Court appointed the appellate public defender to represent Hans. Hans’ counsel filed an amended petition for post-conviction relief on his behalf, which raised the following claims:

¶3 1. Hans’ guilty pleas were not voluntarily, knowingly, or intelligently entered.

¶4 2. Parrish rendered ineffective assistance of counsel by:

a) failing to investigate and prepare for trial; b) failing to adequately discuss the case with Hans; c) failing to adequately inform Hans of the elements of the crimes charged and consequences of his guilty pleas; d) failing to object when mental health evaluations were provided to the court and prosecution; e) failing to inform Hans of his rights or to protect his rights regarding those procedures; f) failing to object when Hans was asked to testify under oath about the attorney/client relationship; and g) failing to protect Hans’ right to appeal.

¶5 3. The court erred in not appointing a psychiatrist to assist in Hans’ defense.

¶6 4. The court erred in ordering the mental health experts to report to the court and to both counsel.

¶7 5. The mental health experts’ failure to advise Hans of his right to counsel and fifth amendment privilege violated those rights.

¶8 On August 25,1994, this Court entered its order denying claims three and four, remanding to the District Court for an evidentiary hearing on the ineffective assistance of counsel claims, and reserving ruling on the remaining issues. On November 30, 1994, the District Court held an evidentiary hearing and entered its findings on November 21, 1996. The District Court found that Parrish had not been ineffective, except in failing to preserve Hans’ right to appeal.

¶9 On July 2, 1997, this Court entered its opinion and order denying Hans relief on the remaining claims. Hans v. State (1997), 283 Mont. 379, 942 P.2d 674 (hereinafter Hans I). We agreed with the District Court’s finding that Parrish rendered ineffective assistance by abandoning Hans’ appeal. We held that “all claims foreclosed from appeal because of counsel’s abandonment on appeal may be raised in a post-conviction petition” and allowed Hans to further amend his petition to address these issues. Hans I, 942 P.2d. at 693.

¶10 On September 25, 1997, Hans filed his second amended petition for post-conviction relief, which raises eleven issues related to sentencing. The State filed a motion to dismiss Hans’ petition or, in the alternative, to strike claims. The State contends that in Hans I, this Court limited the issues that could be raised in Hans’ second amended petition to claims that Hans had adequately raised in the first petition, but had declined to fully address based upon a perceived procedural bar. The State argues that Hans’ second amended petition raises many issues that were not preserved for appeal in the District Court, have been waived by Hans’ failure to raise them in his first amended petition, or have already been decided by this Court in earlier proceedings. In response, Hans argues that this Court intended to create a new remedy for his counsel’s failure to perfect his right to appeal that replaced the out-of-time appeal to which he was entitled. Thus, Hans argues that he is allowed to raise all issues otherwise appealable in the first instance and all sentencing issues normally raised in a petition for post-conviction relief.

¶11 Hans has also filed a cross-motion to strike pages one through three of the State’s reply memorandum in support of its motion to dismiss or strike. Hans claims that the State’s memorandum suggests that he engaged in abuse of process in filing his second amended petition for post-conviction relief. Hans argues that abuse of process is a civil tort that has no application in these proceedings and that the State has no legal basis for arguing that Hans deliberately withheld the claims brought in the second petition.

Discussion

I.

¶12 In our recent opinion and order we allowed Hans “to further amend his petition for the sole purpose of fully addressing the sentencing issues.” Hans I, 942 P.2d at 693. Based on this language, the parties disagree as to which claims are properly before this Court in what has been labeled a second amended petition for post-conviction relief. Thus, we first clarify the scope of the remedy that we intended to provide to Hans and to other defendants who are prejudiced by their counsel’s failure to perfect a direct appeal.

¶13 In Hans I, we stated:

Hans has brought to this Court’s attention the dilemma posed by Finney and Tecca. Although Finney appears to provide a remedy for abandonment on appeal by way of post-conviction relief, Tecca limits post-conviction claims to those that could not have been raised on appeal. Hans argues that the constraints of Tecca foreclose his ability to raise the appealable issues arising out of sentencing in this post-conviction proceeding. That is, since they could have been raised on appeal, they cannot be raised in a post-conviction proceeding. For this reason, Hans claims that an out-of-time appeal is the appropriate remedy.

Hans I, 942 P.2d at 693. In his first amended petition, Hans raised the issue of counsel’s ineffectiveness in abandoning his appeal. He argued that, to put him in the position he would have been in but for his counsel’s abandonment, this Court should follow federal and other state courts in adopting an out-of-time appeal as the appropriate remedy. See Dickerson v. Vaughn (3rd Cir. 1996), 90 F.3d 87; Broeckel v. State (Alaska App. 1995), 900 P.2d 1205.

¶14 Under § 46-21-101, MCA, a person “who has no adequate remedy of appeal and who claims that a sentence was imposed in violation of the constitution or laws of this state or the constitution of the United States” may petition for post-conviction relief. In asking this Court for an out-of-time appeal, Hans was presuming that he had an adequate remedy of appeal and that if he was granted an out-of-time appeal, it would then be followed by a subsequent post-conviction petition in which he could challenge the validity of his sentence.

¶15 However, this Court rejected the out-of-time appeal followed by a subsequent petition for post-conviction relief procedure and held: “To resolve the confusion created by the anomalous results in Finney and Tecca, we now hold that all claims foreclosed from appeal because of counsel’s abandonment on appeal may be raised in a post-conviction petition.” Hans I, 942 P.2d at 693. The State argues that by this language, we expressly limited Hans’ second amended petition to appealable issues. However, in his brief in support of the second amended petition Hans stated that “[t]he consequence of this [Court’s] resolution is to require petitioner to combine the issues that previously may have been appropriate for direct appeal, with those that are more appropriately characterized as post conviction issues. That is, Mr. Hans may not present merely direct appeal-type issues in this petition. The prior practice [sic] first pursuing an appeal, even an out-of-time appeal, and then pursuing post conviction relief seems to have been rejected.”

¶16 Indeed, this Court intended to reject the procedure that Hans urged us to employ. However, contrary to the State’s assertion, in rejecting this procedure and allowing Hans to raise appealable issues in a second amended petition for post-conviction relief, we did not intend to limit Hans to only those claims that could have been raised on direct appeal. Rather, we only intended to simplify what we believe to be a needlessly cumbersome and time-consuming procedure. Had we allowed Hans an out-of-time appeal, the result would have been a three-step procedure: (1) an initial petition for post-conviction relief raising, inter alia, counsel’s abandonment of the appeal; (2) an out-of-time appeal to remedy the abandonment; and (3) a subsequent petition for post-conviction relief addressing the validity of the sentence under § 46-21-101, MCA. In Hans I, we simply combined the second and third steps.

¶17 Hans argues that he should be allowed to raise all issues related to sentencing, those that normally would have been brought in a direct appeal and those more appropriately raised in post-conviction proceedings. However, Hans has already filed, and this Court has already decided, one petition for post-conviction relief. Accordingly, we cannot allow Hans to raise all claims without regard to whether they have already been decided. As the State notes, this Court did not by its opinion declare open season and waive all other procedural bars. Therefore, we hold that in this second amended petition for post-conviction relief, Hans may raise two types of issues: (1) those issues that could have been raised in a direct appeal but for counsel’s abandonment of his appeal; and (2) those issues properly raised in a petition for post-conviction relief under § 46-21-101, MCA, that have not already been raised.

¶18 In a direct appeal, the defendant is limited to those issues that were properly preserved in the district court, § 46-20-104(2), MCA, and to allegations that the sentence is illegal or exceeds statutory mandates. State v. Lenihan (1979), 184 Mont. 338, 602 P.2d 997. In a petition for post-conviction relief under § 46-21-101(1), MCA:

A person adjudged guilty of an offense in a court of record who has no adequate remedy of appeal and who claims that a sentence was imposed in violation of the constitution or the laws of this state or the constitution of the United States, ... or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack upon any ground of alleged error available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy may petition the court that imposed the sentence to vacate, set aside, or correct the sentence or revocation order.

Hans is likewise limited in the issues he may raise.

¶ 19 To clarify the new procedure set forth by this Court in Hans I, in the future, a defendant whose counsel has abandoned his or her appeal should raise, in one petition for post-conviction relief, the claim that counsel was ineffective in abandoning the appeal, all claims that could have been raised on direct appeal, and all claims that would normally be appropriate in a petition for post-conviction relief, including challenges to the validity of the sentence under § 46-21-101, MCA, and other ineffective assistance claims.

¶20 Having clarified our opinion in Hans I, we proceed to apply this holding to the claims raised in Hans’ second amended petition for post-conviction relief.

II.

¶21 Hans raises the following claims:

¶22 1. The District Court:

a) made erroneous findings of fact at sentencing regarding Hans’ prospects for rehabilitation; Hans’ age as the only mitigating factor; whether Hans suffered from a mental disease or defect; Hans’ ability to appreciate the criminality of his conduct and conform his conduct to the requirements of the law; and Hans’ relatively high IQ supporting the sentence; and
b) erred as a matter of law in equating the mental state elements of “purpose” or “knowledge” with the requirements of § 46-14-311, MCA.

¶23 2. The District Court violated applicable law and statutes by failing to make findings regarding whether Hans suffered from a mental disease or defect, which resulted in the imposition of a cruel and unusual punishment.

¶24 3. The sentence imposed, and the statutes on which it was based, failed to account or provide for the prospect of rehabilitation and thus violated Hans’ rights under the Eighth Amendment and Article II, §§ 15, 22, and 28 of the Montana Constitution.

¶25 4. The sentence imposed, and the statutes upon which it was based, violated Hans’ due process rights by impermissibly shifting the burden of proving mental disease or defect to him.

¶26 5. Alternatively, the sentence was based on a mutual mistake or misunderstanding regarding the manner in which Hans’ custody determination would be made.

¶27 6. The District Court failed to properly designate Hans a dangerous offender or to fully and appropriately explain the reason for this designation.

¶28 7. Hans’ counsel was ineffective by:

a) investigating, preparing, and proceeding according to an incorrect theory of the manner of Hans’ custody determination;
b) failing to object to testimony of Dr. Van Hansel based on an interview and mental exam given during the sentencing phase;
c) eliciting testimony adverse to the defense’s position;
d) failing to object when the District Court relied on communications of people who were not witnesses at the hearing;
e) failing to advise Hans that the court could use and consider the Montana State Hospital (MSH) evaluation at sentencing; and
f) failing to object when the court considered prior incidents involving Hans in which the sentencing judge was a victim.

¶29 8. Each of counsel’s acts prejudiced Hans.

¶30 9. Hans was denied his right to due process when he was denied a defense mental health expert at sentencing; the sentencing judge discussed the case with people not called as witnesses; the judge relied on Hans’ prior acts of misconduct in which the judge was a victim; the State’s mental health expert conducted a mental evaluation of Hans prior to testifying at the sentencing; and Hans was not advised that the mental health evaluation could be used at sentencing.

¶31 10. Hans was prejudiced by each of the deprivations of due process alleged in claim 9.

¶32 11. Hans was denied his Sixth and Fourteenth Amendment rights to counsel when the State’s mental health expert evaluated Hans and testified based on the evaluation without notice and in violation of Hans’ fundamental rights.

A. Challenges to the Validity of Hans’ Sentence

¶33 In claims 1, 5, and 6, Hans alleges that the District Court made erroneous findings of fact and incorrectly applied the law in sentencing him. Claims 2, 3, 4, 9, 10, and 11 allege that the District Court violated, or that the sentence itself violates, the U.S. Constitution or Montana constitution and statutes. As stated in Part I, in a direct appeal, the defendant is limited to those issues that were properly preserved in the district court, § 46-20-104, MCA, and to allegations that the sentence is illegal or exceeds statutory mandates. Lenihan, 602 P.2d at 1000. Upon reviewing the record, we determine that claims 1, 2, 3, 4, 5, 6, 9, 10, and 11 were not properly preserved for appeal below and do not challenge the legality of the sentence. Thus, they could not have been raised in a direct appeal or an out-of-time appeal.

¶34 This Court addressed a defendant’s failure to properly preserve sentencing issues for appeal in State v. Nelson (1995), 274 Mont. 11, 906 P.2d 663. In Nelson, the defendant pled guilty to felony assault and appealed his sentence of imprisonment, arguing that the district court failed to properly consider alternatives to incarceration as required by §§ 45-5-201 and -202, MCA, in sentencing nonviolent offenders. Nelson, 906 P.2d at 664, 666. Nelson had not objected below nor had he requested that the court reconsider the matter after it pronounced sentence. Nelson, 906 P.2d at 667. This Court held that because Nelson failed to alert the District Court to its alleged failure to consider alternatives to imprisonment, he was barred by § 46-20-104, MCA, from raising the issue on appeal. Nelson, 906 P.2d at 667.

¶35 In this case, Hans claims that the District Court made erroneous findings and conclusions and that it violated applicable statutes and the Montana and U.S. constitutions at sentencing. However, Hans did not object on these bases at sentencing nor did he file a motion for reconsideration or to amend findings in the District Court. Thus, these issues were not properly preserved for appeal.

¶36 Further, though Hans claims that he was sentenced in violation of the laws of Montana, the sentence itself is not outside the statutory parameters and, thus, not illegal. We have held that “an appellate court may review any sentence imposed in a criminal case, if it is alleged that such sentence is illegal or exceeds statutory mandates, even if no objection is made at the time of sentencing.” Nelson, 906 P.2d at 667 (citing Lenihan, 602 P.2d at 1000). This Court’s review is limited to questions of legality, and a sentence is not illegal when it is within the parameters provided by statute. State v. Gunderson (1997), 282 Mont. 183, 936 P.2d 804; see also State v. Goulet (1996), 277 Mont. 308, 921 P.2d 1245; Nelson, 906 P.2d at 667.

¶37 For example, in Nelson, we discussed whether the court’s failure to consider alternatives to incarceration, as it was required to do by statute, thereby rendered the sentence illegal. Nelson, 906 P.2d at 668. We held that while the court had an affirmative duty to consider certain matter at sentencing, the failure to abide by the statutory requirements, in the absence of an objection, does not render the sentence illegal. Nelson, 906 P.2d at 668.

¶38 Likewise, in this case, the sentence imposed did not exceed the statutory maximum for the crime. Hans pled guilty to one count of deliberate homicide, for which he was sentenced to a term of 100 years plus 3 for the use of a dangerous weapon; one count of attempted deliberate homicide, for which he was sentenced to 100 years plus 3 for the use of a dangerous weapon, concurrent; and two counts of aggravated assault, for which he was sentenced to two terms of 10 years plus 2 for the use of a dangerous weapon, concurrent to the sentence on Count I. Each of these sentences was within the statutory mandates. See § 45-5-102(2), MCA (1985) (providing that the offense of deliberate homicide or attempted deliberate homicide shall be punishable by death, life imprisonment, or imprisonment in the state prison for a term of not less than 10 years or more than 100 years); § 45-5-202(3), MCA (1985) (providing that the offense of aggravated assault shall be punishable by imprisonment of a term of not less than 2 years or more than 20 years). Therefore, Hans’ sentence is not illegal.

¶39 Though these issues were not properly preserved and would be barred on appeal, we determine that they are properly brought under the post-conviction relief statute. As stated in part I, under § 46-21-101, MCA, Hans may challenge his sentence on the grounds that it “was imposed in violation of the constitution or the laws of this state or the constitution of the United States... or is otherwise subj ect to collateral attack upon any ground of alleged error available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy. ...’’Thus, the challenges brought under claims 1,2, 3, 4, 5, 6, 9,10, and 11 may be raised in this second amended petition for post-conviction relief.

B. Ineffective Assistance of Counsel

¶40 In claims 7 and 8, Hans claims that his counsel was ineffective in representing him at sentencing and that he was therefore prejudiced. Hans raised issues of ineffective assistance of counsel in his first amended petition for post-conviction relief, including the claim that counsel was ineffective in abandoning the appeal. Therefore, in addition to discussing whether the ineffective assistance claims raised here would have been appropriate in a direct appeal or more appropriately raised in a petition for post-conviction relief, we must also determine whether they have already been decided.

¶41 This Court has held that when ineffective assistance of counsel claims can be decided upon the record, such claims are appropriate for consideration on direct appeal. In re Petition of Evans (1991), 250 Mont. 172, 819 P.2d 156. But, when ineffective assistance of counsel claims require consideration of factual matters outside the record, the claims are inappropriate in the context of a direct appeal. Petition of Evans, 819 P.2d at 157.

¶42 In claims 7(b), (c), (d), and (f), Hans alleges that his trial counsel was ineffective by failing to object to errors or by eliciting damaging testimony at sentencing. Because all of these claims can be decided on the basis of the record, we determine that they could have been raised in a direct appeal. Thus, they are appropriately raised in this petition.

¶43 Conversely, to consider claims 7(a) and (e), this Court must look outside the record. Accordingly, these claims are of the type usually raised in a petition for post-conviction relief. Petition of Evans, 819 P.2d at 157. Under § 46-21-101, MCA, the petitioner may claim, in a petition for post-conviction relief, that his or her sentence is “subject to collateral attack upon any ground of alleged error available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy.” Therefore, the allegations of ineffective assistance contained in claims 7(a) and (e) are generally appropriate in a petition for post-conviction relief.

¶44 However, as stated above, the unique procedural posture of this case requires further scrutiny to ensure that this Court does not consider again claims of ineffective assistance brought and decided in Hans I. In claim 7(e), Hans alleges that his counsel was ineffective in failing to advise him that the court could use and consider the MSH evaluation at sentencing. We determine that Hans raised a substantially similar claim in his first amended petition for post-conviction relief and, thus, that he is barred from raising the issue here.

¶45 In his first amended petition for post-conviction relief, Hans argued that his counsel was ineffective in failing to advise him of his constitutional right to remain silent during the mental health evaluation at MSH and that the mental health evaluation could be used against him in future proceedings. Hans I, 942 P.2d at 688. This Court agreed that informing a client of the consequences of a mental health evaluation, including how that information can be used, is part of an attorney’s general duty to keep the client informed regardless of whether the defense requested the evaluation. Hans I, 942 P.2d at 688. We held that Hans’ counsel’s failure to inform him of the consequences of his participation in the mental health evaluation was deficient, but that this deficiency did not meet the second prong of the Strickland test. Hans I, 942 P.2d at 689-90.

¶46 The allegation made in claim 7(e) — that Hans was prejudiced by his counsel’s ineffective failure to advise him that the MSH evaluation could be considered at sentencing — was decided in Hans I when we held that his counsel’s failure to inform Hans of the possible uses for the evaluation was ineffective but did not satisfy the Strickland test. Thus, we hold that Hans is barred from raising this claim again, and we order it stricken from his second amended petition for post-conviction relief.

III.

¶47 Hans has also filed a cross-motion to strike or to disregard allegations of abuse of process in the State’s reply memorandum. To the extent the State’s brief suggests abuse of process, this Court will disregard these allegations.

IV.

¶48 Based on the foregoing, it is ORDERED that the State’s motion to dismiss is DENIED.

¶49 It is ORDERED that the State’s motion to strike claim 7(e) is GRANTED. It is further ORDERED that the State’s motion to strike the remaining claims is DENIED.

¶50 It is ORDERED that Hans’ motion to strike is DENIED.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, REGNIER, GRAY, HUNT and TRIEWEILER concur.


source: Caselaw Access Project

author: JUSTICE REGNIER

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ARVIN PETER GALLAGHER, Defendant and Appellant.
    No. 96-378.
    Submitted on Briefs February 12, 1998.
    Decided March 31, 1998.
    1998 MT 70.
    55 St.Rep. 284.
    955 P.2d 1371.
    288 Mont. 180.

      For Appellant: William F. Hooks, Appellate Defender Office, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General; Helena; Brant Light, Cascade County Attorney; Julie Macek and Kirsten LaCroix, Deputy County Attorneys; Great Falls.
   JUSTICE REGNIER

delivered the opinion of the Court.

¶ 1 Arvin Peter Gallagher appeals from the judgment and sentence entered on his conviction for felony assault by the Eighth Judicial District Court, Cascade County. We reverse and remand.

¶2 The sole dispositive issue on appeal is whether the District Court denied Gallagher his right to effective assistance of counsel by denying certain pretrial requests for appointment of substitute counsel.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 By way of an information filed October 14, 1993, the State charged Gallagher with one count of felony assault, in violation of § 45-5-202(2)(c), MCA. Gallagher appeared at his October 28, 1993, arraignment with court-appointed counsel, Susan Weber, and entered a plea of not guilty to the charge of felony assault. The District Court originally set trial for February 1, 1994, but continued that date at Gallagher’s request. On January 14,1994, Gallagher waived his right to a speedy trial.

¶4 On June 28, 1994, Weber filed a motion for substitution of counsel due to the fact that she was resigning as Public Defender and would be replaced by Lawrence LaFountain. The District Court granted Weber’s motion the following day, and ordered that LaFountain be substituted as counsel for Gallagher.

¶5 On September 7, 1994, LaFountain filed a motion to continue the trial date due to a scheduling conflict. The court granted LaFountain’s motion, resetting the trial for October 31,1994. On the date set for trial, however, LaFountain authored a motion indicating that Gallagher had signed and filed a written plea agreement, and asking that the court schedule a change of plea hearing. Although the court granted LaFountain’s motion and scheduled a change of plea hearing for January 26, 1995, that hearing was never held.

¶6 On August 2,1995, the State filed a motion asking that the court schedule a second change of plea hearing. The court granted the State’s motion, and scheduled another change of plea hearing for September 5,1995. The court held the September 5,1995, hearing as scheduled, but Gallagher indicated he had decided not to plead guilty and accordingly did not enter a change of plea. Instead, LaFountain put Gallagher on the witness stand and questioned him about his dissatisfaction with LaFountain’s performance as defense counsel. Gallagher indicated to the court that he wished to have another attorney appointed to represent him.

¶7 LaFountain continued as counsel of record, appearing on Gallagher’s behalf at a September 20, 1995, omnibus hearing during which the court established a January 22,1996, trial date. On January 8, 1996, however, LaFountain filed a motion to continue the trial date yet again, and to withdraw as Gallagher’s attorney. In a January 12, 1996, order, the District Court denied LaFountain’s motion for a continuance, and denied his motion to withdraw as counsel of record, subject to reconsideration at the pretrial conference.

¶8 In accordance with the District Court’s order, Gallagher’s trial began on January 22, 1996. On January 23, 1996, the jury returned its verdict, finding Gallagher guilty of felony assault. The court sentenced Gallagher to the Department of Corrections for a term of five years, all suspended. The court ordered that Gallagher be placed under the House Arrest Program through the Pre-release Center for the full period of his sentence, and ordered that he be subject to a number of additional conditions. The court entered its written Judgment of Conviction and Sentencing Order on April 1, 1996.

¶9 On May 31, 1996, LaFountain filed a notice of appeal on Gallagher’s behalf. Gallagher did not file an appellate brief and, accordingly, we issued an order dated September 18, 1996, instructing Gallagher to demonstrate good cause for failure to prosecute his appeal. LaFountain responded to this Court’s order on October 7, 1996, indicating he, unlike his client, felt the record contained no appealable issues. LaFountain additionally asked that we remand the case to the District Court to develop a record regarding Gallagher’s complaints about his legal counsel. We denied LaFountain’s request for remand, and ordered that he file either a motion to withdraw or an initial appellate brief. LaFountain subsequently filed a motion to withdraw as appellate defense counsel, along with a supporting Anders brief in which he again asked that this Court remand the case to District Court for a hearing on effectiveness of counsel. On March 20, 1997, we issued an order granting LaFountain’s motion to withdraw, and concluded the case contained “appeal-able issues which may include the effectiveness of assistance of counsel.” On March 25,1997, the District Court appointed the Appellate Defender to represent Gallagher’s interests on appeal.

STANDARD OF REVIEW

¶10 We have repeatedly recognized that it is within the sound discretion of the district court to rule on requests for the appointment of new counsel. City of Billings v. Smith (1997), 281 Mont. 133, 136, 932 P.2d 1058, 1060; State v. Craig (1995), 274 Mont. 140, 149, 906 P.2d 683, 688, cert. denied (1996), 517 U.S. 1195, 116 S. Ct. 1689, 134 L. Ed. 2d 790; State v. Morrison (1993), 257 Mont. 282, 284, 848 P.2d 514, 516. Thus, absent an abuse of discretion, we will not overturn such a decision by the district court. City of Billings, 281 Mont. at 136, 932 P.2d at 1061; Craig, 274 Mont. at 149, 906 P.2d at 688; Morrison, 257 Mont. at 284, 848 P.2d at 516.

DISCUSSION

¶11 Did the District Court deny Gallagher his right to effective assistance of counsel by denying certain pretrial requests for appointment of substitute counsel?

¶ 12 On appeal, Gallagher argues the District Court erred in failing to conduct an adequate inquiry into his complaints about his attorney, LaFountain, and thereby denied him his constitutionally protected right to the effective assistance of counsel. More specifically, Gallagher argues the court erred because it did not adequately address his complaints, which included allegations that he and LaFountain had a severe personality conflict and were unable to communicate productively because LaFountain advocated that Gallagher plead guilty, while Gallagher persisted on going to trial.

¶13 In response, the State argues the District Court conducted an adequate inquiry into Gallagher’s complaints, and that it thus did not abuse its discretion in denying LaFountain’s January 8,1996, motion to withdraw as counsel of record. The State points to the September 5, 1995, hearing during which LaFountain questioned Gallagher regarding his complaints about counsel, and argues the court made an adequate inquiry into Gallagher’s concerns at that time and correctly decided that Gallagher had no substantial complaints.

¶14 We have recognized that even an indigent criminal defendant, like Gallagher, has a fundamental right, guaranteed by the Sixth Amendment to the United States Constitution and Article 11, Section 24, of the Montana Constitution, to the effective assistance of counsel. See, e.g., City of Billings, 281 Mont. at 136, 932 P.2d at 1060. In the event that a criminal defendant presents a “seemingly substantial complaint” regarding the effectiveness of counsel, the court should conduct a hearing to address the merits of the defendant’s claims and the request for substitution of counsel. City of Billings, 281 Mont. at 136, 932 P.2d at 1060. This Court has held that “the threshold issue in determining whether a ‘substantial complaint’ exists is ‘not whether counsel was ineffective, but whether the District Court erred in failing to make an adequate inquiry into [a defendant’s] claim of ineffective assistance of counsel.’ ” City of Billings, 281 Mont. at 136, 932 P.2d at 1060 (quoting State v. Weaver (1996), 276 Mont. 505, 511, 917 P.2d 437, 441).

¶15 In other words, when first presented with allegations of ineffective assistance of counsel, the district court must make an adequate initial inquiry into the nature of those complaints and determine if they are seemingly substantial. We have recognized that such an initial inquiry may be adequate where the court “considered the defendant’s factual complaints together with counsel’s specific explanations addressing the complaints.” City of Billings, 281 Mont. at 136-37, 932 P.2d at 1060 (citing State v. Craig (1995), 274 Mont. 140, 906 P.2d 683; State v. Morrison (1993), 257 Mont. 282, 848 P.2d 514). Conversely, we have found a district court’s inquiry to be inadequate where it failed to make “even a cursory inquiry” into the defendant’s complaints. State v. Weaver (1996), 276 Mont. 505, 511-12, 917 P.2d 437, 441; see also City of Billings, 281 Mont. at 139-40, 932 P.2d at 1062-63 (holding inquiry inadequate where court refused to let the defendant explain his complaints and made no inquiry into the allegations). Only if the court concludes the defendant has presented seemingly substantial complaints about adequate counsel must it then hold a hearing to address the validity of those complaints. City of Billings, 281 Mont. at 141, 932 P.2d at 1063. If the court instead concludes, after an adequate initial inquiry, that the defendant has failed to present seemingly substantial complaints, it need not conduct a hearing on the merits. City of Billings, 281 Mont. at 141, 932 P.2d at 1063.

¶ 16 Thus, in the present case, we must first determine whether the District Court made an adequate initial inquiry into Gallagher’s complaints about his counsel, such that it could accurately determine whether those complaints were seemingly substantial. The record indicates that Gallagher’s complaints regarding his legal counsel first came to the court’s attention during a September 5,1995, hearing. In response to a motion by the State, the court scheduled a change of plea hearing for September 5,1995. Sometime prior to the scheduled hearing, however, Gallagher changed his mind and decided not to change his plea. Although Gallagher had decided not to enter a change of plea, LaFountain took the opportunity afforded by the hearing to present Gallagher’s request that he be appointed another attorney. LaFountain called Gallagher as a witness, and began the following line of questions regarding Gallagher’s complaints:

Q [LaFountain]: And we’ve certainly had our differences between that time and now; is that correct?
A [Gallagher]: Yes. At the beginning when we first met we had our differences.
Q: Okay. But you would like to have a different attorney; is that correct?
A: Yes, I would.
Q: Could you tell the Court the reasons why?
A: I feel like that you haven’t done an adequate job towards me on stating more or less that I was guilty .from the beginning of when I first met you. I’m trying to sit there and explain myself to you and we both got into a little argument, and I feel that you haven’t been — more or less you’re my public defender and you more or less told me I’m guilty of a crime that I feel I’m not guilty of.
Q: Have I expressed to you throughout that there’s a strong chance that you will be convicted?
A: That’s it. You know, there’s a strong chance that I will not be convicted. We’re supposed to work together on this. And I feel that we haven’t been able to work together on this in some different point of views. I asked you before if I can get another — at the beginning when I do remember I asked you before when we first met if I can get another public defender and you stated no, I can’t. Which is untrue, you know. I have seen many people in the judicial system that have got different public defenders.

¶17 LaFountain then explained to the court that what his client “wishes is to receive the appointment of another public defender” and indicated that Gallagher felt he had a “severe personality conflict” with LaFountain. The court then asked LaFountain whether another attorney in his office could handle the case, and LaFountain responded that “Scott Albers could be reassigned to the case.”

¶18 Then, by way of resolution, the court explained to Gallagher that:

[N]ormally there is no requirement that people like the public defender they’re working with. What is the requirement is that they do an adequate job of representing them, and that they present whatever witnesses are going to be presented. It’s my understanding that Mr. LaFountain is willing to do that, to take this matter to trial and to present a defense, but he’s also willing to see whether Mr. Albers, who is another attorney in their office, would be willing to take this defense given your differences with him. I will grant your motion if Mr. Albers is willing to do that.

¶19 Gallagher indicated to the court that he would try to hire his own lawyer, stating that he already knew Scott Albers from a prior confrontation. In light of his client’s apparent objection to being represented by Albers, the chief public defender, LaFountain told the court he did not know what to do. In response, the court suggested that Gallagher go meet with Albers, and expressed its intent to “set a trial date that will not be continued.”

¶20 Some four months later, on January 8, 1996, LaFountain filed a motion to withdraw as counsel of record on the stated grounds that:

The Defendant has refused to stay in contact with counsel, has requested new counsel on previous occasions, and wishes to present a time-consuming defense. ... Counsel also requests to be allowed to withdraw because the client refuses to cooperate with counsel and will probably file for ineffective assistance of counsel if counsel does not present the Defendant’s requested defense.

¶21 On January 12, 1996, the court issued an order denying LaFountain’s motion to withdraw, subject to reconsideration at the pretrial conference. The court recollected that Gallagher had requested new counsel at the September 5, 1995, hearing, and ultimately ordered that “[i]f [Gallagher] has obtained other counsel, he may proceed with other counsel. If he wishes to proceed and represent himself, he may do so and current counsel will be appointed as stand-by counsel.”

¶22 Consistent with our established analysis, we must initially determine whether the record indicates the District Court made an adequate initial inquiry into Gallagher’s complaints about his counsel. Originally scheduled as a change of plea hearing, the September 5,1995, hearing was instead used by LaFountain for the sole purpose of discussing Gallagher’s request that the court appoint him a new attorney. The court permitted LaFountain to question Gallagher regarding his complaints, listened to Gallagher’s answers and complaints, and actively sought to resolve the matter. See, e.g., City of Billings, 281 Mont. at 139-40, 932 P.2d at 1062-63 (holding inquiry inadequate where court refused to let the defendant explain his complaints and made no inquiry into the allegations). The court made more than a cursory inquiry into Gallagher’s complaints, asking LaFountain whether another public defender from his office could undertake Gallagher’s representation, and suggesting that Gallagher meet with Scott Albers, another public defender. See, e.g., Weaver, 276 Mont. at 511-12; 917 P.2d at 441 (holding initial inquiry inadequate where record was “devoid of any indication that the court made even a cursory inquiry into [the defendant’s] complaints about his counsel’s representation”). The record thus suggests that, following the September 5, 1995, hearing, the District Court had enough information before it from which it could have accurately determined whether or not Gallagher’s complaints were of a seemingly substantial nature. Thus, despite Gallagher’s arguments to the contrary, we conclude the District Court made an adequate initial inquiry into the nature of Gallagher’s complaints at the September 5, 1995, hearing. Having conducted the inquiry, however, the District Court apparently concluded that Gallagher’s complaints were not of such a substantial nature as to warrant a hearing.

¶23 We must next review the District Court’s decision that Gallagher’s complaints were not of a seemingly substantial nature and whether the District Court consequently erred in failing to hold a subsequent hearing to address the validity of those complaints. Gallagher argues that he did indeed raise seemingly substantial complaints about his counsel at the September 5,1995, hearing. For example, on appeal, Gallagher asserts he demonstrated to the court that his relationship with his attorney had deteriorated due to a “total lack of communication.” During the course of the hearing, Gallagher explained that he and his attorney had reached an impasse with respect to the proper course of action in his case. Gallagher indicated he felt his attorney had more or less told Mm he was guilty of a crime he felt he was not gmlty of, and told the court he believed he and his attorney had been unable to “work together” on Ms defense. Furthermore, LaFountain explained to the court that Gallagher felt he had a “severe personality conflict” with LaFountain.

¶24 We have recogmzed that the District Court should appoint new counsel if it “determines that the defendant and his counsel have a conflict so great that it results in a total lack of communication.” State v. Zackuse (1991), 250 Mont. 385, 385-86, 833 P.2d 142, 142. The defendant bears the burden of coming “forward with material facts establishing total lack of communication ... and bare unsupported allegations are insufficient to justify appointment of new counsel.” Zackuse, 250 Mont. at 385-86, 833 P.2d at 142. Moreover, “[i]f the defendant does not meet his burden, then he has the choice of continuing with his present counsel or having counsel dismissed and proceeding pro se.” Zackuse, 250 Mont. at 386, 833 P.2d at 142.

¶25 In the present case, Gallagher told the District Court of the ongoing and severe conflict between himself and his attorney, thereby suggesting that they suffered from a total lack of communication. On the basis of the record before us, we conclude that the District erred in determining that Gallagher’s complaints were not of a seemingly substantial nature. As we recognized in Zackuse, Gallagher bore the burden of presenting material facts to establish the total lack of communication suggested by his testimony at the September 5,1995, hearing. Because the court wrongfully determined that Gallagher’s complaints were not of a seemingly substantial nature, however, it failed to hold a subsequent hearing to inquire into the validity of Gallagher’s complaints. Without a hearing, Gallagher never had the opportunity to come forward and demonstrate the total lack of communication he alleged and whether he was entitled to new counsel.

¶26 We hold that, although the court conducted an adequate initial inquiry into Gallagher’s complaints, it erred in effectively concluding that his complaints were not seemingly substantial enough to warrant further examination. We thus conclude the court erred in failing to hold a second hearing to address the validity of Gallagher’s claims. It is therefore necessary to remand this case to the District Court for a hearing to determine the validity of Gallagher’s complaints. If the court ultimately finds that Gallagher was denied effective assistance of counsel, the judgments and sentences against him are vacated, including the imposition of any fines and costs, and a new trial is ordered. See City of Billings, 281 Mont. at 141, 932 P.2d at 1063. If, on the other hand, the court determines that Gallagher was not denied effective assistance of counsel, then the judgment and conviction are affirmed, subject to Gallagher’s right to appeal the District Court’s determinations on remand. See City of Billings, 281 Mont. at 141, 932 P.2d at 1063.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, NELSON and HUNT concur.


author: JUSTICE HUNT

text:
    STEVE QUIGLEY and JULIE QUIGLEY, Plaintiffs, Respondents, and Cross-Appellants, v. JOHN ACKER and ELIZABETH ACKER, Defendants, Appellants, and Cross-Respondents.
    No. 97-408.
    Submitted on Briefs November 20, 1997.
    Decided April 2, 1998.
    1998 MT 72.
    55 St.Rep. 295.
    955 P.2d 1377.
    288 Mont. 190.

      For Appellant: Karl Knuchel, Livingston.
    For Respondent: Tom W. Stonecipher, Harris, Tarlow & Stonecipher, Bozeman.
   JUSTICE HUNT

delivered the Opinion of the Court.

¶1 Steve and Julie Quigley (the Quigleys) contracted with John and Elizabeth Acker (the Ackers) for the purchase of land owned by the Ackers. The Quigleys defaulted on their payment obligation, and were unable to pay the accelerated balance of the purchase price on time. The Ackers then sought to terminate the contract and impose a forfeiture. The Quigleys brought this action to obtain a declaration that the Ackers’ notices of default and termination were defective; to obtain relief from forfeiture; and to obtain attorney fees and costs of suit. The Sixth Judicial District Court, Park County, entered judgment in favor of the Quigleys on the issues of defective notices and relief from forfeiture, but held that each party was responsible for their own attorney fees and costs. From that judgment, the Ackers appeal on the issues of defective notice and relief from forfeiture, and the Quigleys cross-appeal on the issue of attorney fees and costs. We affirm in part and reverse in part.

¶2 We address the following issues on appeal:

¶3 1. Did the District Court err in finding and concluding that the Ackers’ Default and Termination Notices were defective?

¶4 2. Did the District Court err in concluding that the Quigleys were entitled to relief from forfeiture under § 28-1-104, MCA?

¶5 3. Did the District Court err in ordering the parties to pay their own attorney fees and costs?

¶6 4. Are the Quigleys entitled to attorney fees and costs on appeal?

BACKGROUND

¶7 This action involves the interpretation and resolution of a contract for sale of land described as Section 19, Township 4 North, Range 10 East, M.P.M., Park County, Montana (Section 19). The original parties to this contract were the Ackers as sellers and Robert and Jeannette Baldwin (the Baldwins) as buyers. On August 15, 1988, the Ackers agreed to sell to the Baldwins Section 19 and Section 29 of Township 4 North, Range 10 East for $450,000. Between 1988 and 1991, the Baldwins’ right to purchase Section 19 was assigned to several different successors.

¶8 On November 15, 1991, the Quigleys agreed to buy Section 19, and an additional 640 acres different from that of Section 29, from Gary and Audrey Swenson (the Swensons) and Wilderness Images Ltd. Profit Sharing Plan (Wilderness Images). The Quigleys agreed to pay $706,932.07 for the two tracts of land and assume the obligations of buyer under the original Acker/Baldwin contract for Section 19. At the time of Quigleys’ purchase, the principal balance remaining on the Acker/Baldwin contract was $131,432.07 with an interest rate of 9%. Starting in November 1991, pursuant to the terms of the contract, the Quigleys made payments of $2185.22 on the fifteenth of each month to the parties’ escrow agent, Citizens Bank and Trust of Big Timber, Montana. Also, pursuant to the terms of the contract, the Quigleys paid the real property taxes assessed on the property.

¶9 In 1994, the Quigleys decided to sell their California construction company and use the proceeds to prepay the balance due under the contract with the Swensons and Wilderness Images. The Swensons and Wilderness Images agreed to the prepayment, but only to the extent of principal excluding the balance owed on the Acker/Baldwin contract. The Acker/Baldwin contract provided that prepayment could be made only upon written consent of the Ackers. The Quigleys requested the Ackers’ consent to prepay, but the Ackers refused for tax reasons.

¶10 The Quigleys continued to meet their obligations under the contract to the Ackers until August 1996 when they missed a payment. At the time of default, the Quigleys had paid $657,204.07 of the $706,932.07 principal due under their contract with the Swensons and Wilderness Images. The difference of $49,728 reflected the balance of the principal owing on the Acker/Baldwin contract. The Quigleys had also spent more than $20,000 in labor, improvements, and maintenance of the house and shop building located on Section 19.

¶11 Several adverse events contributed to the Quigleys’ default. First, after sale of the California construction company, the Quigleys were unable to collect the estimated $200,000 in accounts receivable. This was due in part to clients unwilling or unable to pay their bills, and to inexperienced administrative personnel attempting to wind up the affairs of the company. Second, in October 1993, the Quigleys started a new construction company in Wilsall, Montana. The Montana company experienced unanticipated problems with cash flow, and again the Quigleys had trouble collecting amounts owed them by their customers. One customer owed the Quigleys more than $50,000. Third, on September 9, 1996, a judgment in the amount of $125,000 was filed against the Quigleys and their California construction company as the result of a lawsuit filed by the carpenters’ union. Lastly, In October 1996, the Internal Revenue Service filed a tax lien in the amount of $126,230 against the Quigleys. The tax lien involved a dispute over business related deductions taken by the Quigleys on earlier tax returns with the advice of their accountant.

¶12 On September 17,1996, the Quigleys made their August 1996 payment to the escrow agent. On September 21, 1996, the Quigleys received a Notice of Default for Contract for Deed (Default Notice), but the Quigleys’ check did not accompany the Default Notice. Upon the direction of the Ackers, the escrow agent held the check. The Default Notice informed the Quigleys that they had defaulted on their August and September payments, and that to cure the default, the Quigleys were to pay $4370.44 of the principal, $782.18 in unpaid taxes, $100.00 in attorney fees, and interest and penalties, within thirty days. However, the Default Notice failed to specify the amount of interest and penalties due and the place where payment was to be made as required by the Acker/Baldwin contract. The Default Notice stated that if the default was not cured within thirty days, the contract for deed would be terminated and forfeiture would be imposed.

¶13 For the same reasons stated above, the Quigleys were unable to cure the default on time. On November 2, 1996, the Quigleys received a Notice of Termination of Contract for Deed (Termination Notice). The Termination Notice informed the Quigleys that no payments had been received by the escrow agent, and that the Ackers had elected to accelerate the entire balance due on the contract plus 9% interest per annum computed from July 25, 1996. The Termination Notice stated that to prevent termination of the contract and forfeiture, the Quigleys must pay the accelerated principal balance of $49,728.00, $782.18 in unpaid taxes, $200.00 in attorney fees, and interest and penalties, within thirty days. Again, the Termination Notice failed to specify the amount of interest and penalties due and the place where payment was to be made. Also, the Acker/Baldwin contract provided a sixty-day period in which a buyer could pay the accelerated balance and prevent termination of the contract. Realizing the error of the notice period, the Ackers sent the Quigleys an amended Termination Notice on November 12, 1996, allowing sixty days, until January 11, 1997, to pay the required sums and prevent termination and forfeiture. This amended Termination Notice was not signed by or on behalf of the Ackers. Meanwhile, on November 6, 1996, the Ackers had returned the Quigleys’ check to them.

¶14 The Quigleys attempted to obtain sufficient funds to pay the amounts demanded by the Ackers but were unsuccessful. The Quigleys inquired about the possibility of a loan from both a California bank and a Montana bank but the banks told the Quigleys they would not qualify. The Quigleys’request to receive advance payments from the buyer of their California construction business was also unsuccessful. The Quigleys then attempted to sell Section 19 to an adjacent landowner, Sherry Nicholas. On December 13, 1996, Ms. Nicholas signed a nonbinding preliminary agreement to buy Section 19 for $930,000. However, the Quigleys did not expect to close this sale before the January 11, 1997 termination deadline. On January 9,1997, the Quigleys approached the Ackers and offered to pay more money in exchange for an extension of time in which to complete the sale of Section 19 to Ms. Nicholas, and pay the Ackers the amounts due under the Acker/Baldwin contract. Mr. Acker responded that he would talk to Ms. Acker and would have an answer to the Quigleys by the next morning. Mr. Acker never responded to the Quigleys’ request.

¶15 On January 14, 1997, the Ackers terminated the Acker/Baldwin contract and directed the escrow agent to release a reconveyance deed to Section 19. That same day, the Ackers took title to Section 19 and attempted to cause the forfeiture of all of the Quigleys’ rights under the Acker/Baldwin contract.

¶16 On February 4, 1997, the Quigleys attempted to resolve the matter by sending a letter and a cashier’s check for $54,263.11 to the Ackers. The letter stated that the check was being tendered pursuant to § 28-1-104, MCA, Montana’s anti-forfeiture statute, and that the Quigleys’ failure to make the August and September payments on time did not result from any grossly negligent, willful, or fraudulent breach of duty. The letter further indicated that the amount tendered represented the $49,728.00 accelerated balance due on the Acker/Baldwin contract; $2,378.44 in interest calculated at 9% from July 25, 1996 to February 4, 1997; $1946.67 in unpaid taxes; and $200.00 in attorney fees. The Ackers held the check until February 27, 1997, when it was returned to the Quigleys.

¶17 The Quigleys filed a complaint in District Court seeking relief from the Ackers’ attempt to terminate the Acker/Baldwin contract and impose a forfeiture. The Quigleys argued that first, the Ackers failed to follow the default and termination procedures provided in the contract, and second, the Quigleys were entitled to relief from forfeiture pursuant to § 28-1-104, MCA. A bench trial was held on April 25, 1997. On May 28, 1997, the District Court entered its Findings of Fact, Conclusions of Law, and Order in favor of the Quigleys. The District Court made the following findings of fact:

10. From November 1991 to August 1996, the Quigleys paid a total of $657,204.07 of the principal balance of $706,932.07 originally due under the contract for deed with the Swensons. During this period, the Quigleys paid the Ackers $82,204.07 of principal [$131,432.07] due pursuant to the Acker/Baldwin contract, plus 9% interest.... [T]he Quigleys spent over $20,000 in labor, improvements, and maintenance of the house and shop building located on Section 19.
11. In 1994, the Quigleys attempted to pre-pay the balance due under the contract The Ackers did not agree to the pre-payment because of tax considerations.
21. The Quigleys’ failure to pay the sums due was not the result of gross, negligent, willful or fraudulent breach of duty. The Quigleys suffered a series of financial set-backs beyond their control. These included a judgment filed in favor of a carpenter’s union for over $125,000 and an IRS tax lien filed in the amount of $126,230. The latter involved a dispute over deductions taken with the advice of the Quigleys’ accountant. These two liens made it very difficult to obtain a loan from a financial institution to pay the default.
22. Further, the Quigleys left a lucrative construction business in California and started one in Montana in 1993 called Quigley Construction. The Montana business has been slow to grow and has experienced severe cash flow problems. However, had some of the business’ customers paid their bills, the Quigleys would have been in a position to make the required payments under the contract.
23. Beginning in the fall of 1996, the Quigleys attempted to sell Section 19 in order to raise money sufficient to pay the Ackers the amounts demanded in the Termination Notice .... The sale could not be completed because of disputes in the language of the contract, but the selling price for the property was set at $930,000.
25. The application of a forfeiture of the Acker/Quigley [Acker/Baldwin] contract would result in a windfall to the Ackers, for they have received, and would keep, over $300,000 in principal payments (plus interest) while retaining Section 19. The Quigleys would have paid the Ackers over $82,000, plus interest, and would receive nothing. The Ackers lose nothing by accepting the money due under the contract, but would receive a windfall if the forfeiture were allowed to stand. Application of a forfeiture in these circumstances would be harsh and inequitable.

On the basis of these findings, the District Court made the following conclusions of law:

4. The Quigleys were unable to make payments due on the Acker/Baldwin contract ... due to temporary cash flow shortages resulting from legitimate and unexpected business problems. In the face of these shortages, the Quigleys acted reasonably to raise money to pay off the contract and also attempted to sell Section 19. These efforts were reasonable under the circumstances, and the Quigleys have established that they are equitably entitled to the relief they seek because their failure to pay amounts demanded by the Ackers was not the result of a grossly negligent, willful, or fraudulent breach of duty.
5. The Quigleys are entitled pursuant to Section 28-1-104, MCA, to relief from the forfeiture of their rights under the Acker/Baldwin contract upon their re-tender to the Ackers of the $54,253.11 tendered to them earlier.

The District Court also ordered that the parties bear their own attorney fees and costs. On June 19, 1997, the Ackers filed a notice of appeal on the issues of defective notices and relief from forfeiture, and on June 24, 1997, the Quigleys filed a cross-appeal on the issue of attorney fees and costs.

STANDARD OF REVIEW

¶18 Regarding the standard of review for the first and third issues, this Court will not overturn a district court’s findings of fact unless those findings are clearly erroneous. Rule 52, M.R.Civ.P.; Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the trial court misapprehended the effect of the evidence, or if this Court is left with a definite and firm conviction that the district court made a mistake. Daines, 888 P.2d at 906. In determining whether a finding of fact is clearly erroneous, “due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Rule 52(a), M.R.Civ.P. We review a district court’s conclusions of law to determine whether the court’s interpretation of law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

¶19 The second issue concerning relief from forfeiture is equitable in nature and, therefore, requires a more deferential standard of review. In equity cases, we apply the standard of review set forth in § 3-2-204(5), MCA. Glacier Park Co. v. Mountain, Inc. (1997), [285 Mont. 420], 949 P.2d 229, 233. Under § 3-2-204(5), MCA, we have a duty to determine all of the issues of the case and to do complete justice. Glacier Park, [285 Mont. 420], 949 P.2d at 233 (citations omitted).

DISCUSSION

Issue 1

¶20 Did the District Court err in finding and concluding that the Ackers’ Default and Termination Notices were defective?

¶21 The Acker/Baldwin contract provides the following with regard to default and termination procedures:

In case of the failure of the purchasers to make any payments of principal or interest, ... the sellers at their election may declare this contract in default by sending written notice to the purchasers and the escrow agent, setting forth the amount due upon the contract, time and place where payment can be made, and any breach or breaches. Should such default remain uncured for more than thirty (30) days after written notice to purchasers, the sellers may at their option, by an additional written notice to purchasers and escrow agent, accelerate the entire outstanding balance, together with accrued interest immediately due and payable, and upon nonpayment after sixty (60) days, sellers may terminate and forfeit this agreement without further notice. (Emphasis supplied.)

The Ackers argue that their Default and Termination Notices complied with the above provisions in that they “clearly set forth the amount owed and how to cure the defaults.” We disagree.

¶22 The Ackers’ Default and Termination Notices did not comply with the procedures outlined in the above provision. We have held:

[T]here must be strict pursuance of the course prescribed by the contract in foreclosing the vendee’s rights thereunder, particularly when it involves a forfeiture of the payments made by the vendee, including a reasonably correct statement in the notice of the amount due and required to be paid to avoid forfeiture.

Shuey v. Hamilton (1963), 142 Mont. 83, 91, 381 P.2d 482, 486 (citing Rader v. Taylor (1958), 134 Mont. 419, 427, 333 P.2d 480, 486). The Ackers’ Default and Termination Notices failed to specify two key items required by the terms of the Acker/Baldwin contract: the amount of interest and penalties due on the contract, and the place where payment was to be made. Additionally, the amended Termination Notice was not signed by or on behalf of the Ackers. By not including these missing items in their Default and Termination Notices, the Ackers did not strictly pursue the course and procedures for default and termination prescribed by the Acker/Baldwin contract.

¶23 In addition to being facially defective, the notices were defective because they were based on an erroneous assessment that the Quigleys were in default at the time the Default and Termination Notices were sent. Section 30-3-310, MCA codifies Section 3-310 of the Uniform Commercial Code (U.C.C.) and provides:

Effect of instrument on obligation for which taken. (1) Unless otherwise agreed, if a certified check, cashier’s check, or teller’s check is taken for an obligation, the obligation is discharged to the same extent discharge would result if an amount of money equal to the amount of the instrument were taken in payment of the obligation. Discharge of the obligation does not affect any liability that the obligor may have as an indorser of the instrument.
(2) Unless otherwise agreed and except as provided in subsection (1), if a note or an uncertified check is taken for an obligation, the obligation is suspended to the same extent the obligation would be discharged if an amount of money equal to the amount of the instrument were taken.
(3) In the case of an uncertified check, suspension of the obligation continues until dishonor of the note or until it is paid or certified. Payment or certification of the check results in discharge of the obligation to the extent of the amount of the check.

¶24 Although the courts of Montana have not had occasion to interpret § 30-3-310, MCA, other jurisdictions have interpreted the identical Section 3-310, U.C.C., and have applied it to facts similar to those in the instant case. In Grumet v. Bristol (N.H. 1984), 484 A.2d 1099, a buyer of real estate gave the seller a mortgage to secure a note for a portion of the purchase price. The note provided that the buyer was to make monthly payments on the fifteenth of each month, and that a default for a period of one month would entitle the seller to accelerate the entire balance of the note. The buyer did not make his December 1982 payment on time. On January 13, 1983, the buyer sent the seller a postdated check for the previous month’s payment. The seller received the check and held it for one week. On January 20, 1983, the seller deposited the check. However, on the same day, the seller sent the buyer a notice of mortgagee’s foreclosure sale and informed the buyer that the entire balance of the note had been called due. The buyer then petitioned for an injunction against foreclosure.

¶25 Upon these facts, the New Hampshire Supreme Court applied Section 3-310, U.C.C. (then Section 3-802, U.C.C., now repealed) and granted the injunction against foreclosure. The court held:

The retention of the check ... was a taking for an underlying obligation within the meaning of the statute .... Consequently, by January 20, the underlying obligation to pay the December installment had been suspended, pending presentment of the check. Since the obligation was suspended, there was, by definition, no default on the obligation during the period of suspension. In the absence of default, the defendant [seller] had no right to make a further demand and to elect to accelerate. In summary, the defendant [seller] purported to act on the basis of a default during the very time that his right to claim the default was suspended. As a matter of law, therefore, his purported election to accelerate had no legal effect.

Grumet, 484 A.2d at 1101 (citations omitted).

¶26 We find Grumet persuasive in resolving the instant case. The following facts are undisputed: (1) prior to September 17, 1996, the Quigleys were in default on the Acker/Baldwin contract; (2) on September 17,1996, the Quigleys tendered a personal, uncertified check for the previous month’s payment to the escrow agent; (3) the escrow agent received the check; (4) the Ackers instructed the escrow agent to hold the check; (5) on September 21, 1996, the Quigleys received a Default Notice; (6) the Quigleys did not cure the default; (7) on November 2, 1996, the Quigleys received a Termination Notice informing them that the entire balance on the Acker/Baldwin contract had been accelerated; and (8) on November 6, 1996, the Ackers returned the Quigleys’ personal check to them.

¶27 Like the court in Grumet, we determine that the Ackers’ retention of the Quigleys’ personal, uncertified check was a taking for an underlying obligation and suspended that obligation. Section 30-3-310(2), MCA. This suspension lasted until November 6, 1996, when the Ackers dishonored the Quigleys’ check and returned it to them. Section 30-3-310(3), MCA. Because the obligation was suspended, there was, by definition, no default on the obligation during the period of suspension. Consequently, the Ackers’ Default and Termination Notices were based on an erroneous assessment of default and had no legal effect.

¶28 We hold that the District Court’s finding that the Ackers’ Default and Termination Notices were defective was supported by substantial evidence and, therefore, was not clearly erroneous. Further, we hold that the District Court’s conclusion that the Ackers’ Default and Termination Notices were defective was a correct interpretation of the law.

Issue 2

¶29 Did the District Court err in concluding that the Quigleys were entitled to relief from forfeiture under § 28-1-104, MCA?

¶30 The Ackers next argue that the District Court should have denied the Quigleys relief from forfeiture. The Ackers rely on Aveco Properties, Inc. v. Nicholson (1987), 229 Mont. 417, 421-22, 747 P.2d 1358, 1360-61, and cases cited therein, for the assertion that contracts for deed are distinct from trust indentures and mortgages in that contracts for deed do not allow redemptive rights for a party in default. The Ackers contend that in relieving the Quigleys from forfeiture, the District Court rewrote the Acker/Baldwin contract by inserting redemptive rights. The Ackers argue that the District Court erred in looking beyond the four corners of the Acker/Baldwin contract and creating a remedy for the Quigleys that was never contemplated by the parties.

¶31 The Ackers’ reliance on Aveco is misplaced. This Court has long recognized that equity abhors forfeitures. Yellowstone Co. v. Wight (1943), 115 Mont. 411, 418, 145 P.2d 516, 518. Montana’s anti-forfeiture statute, § 28-1-104, MCA, reflects this policy and authorizes a district court to relieve a party from forfeiture “in any case where he sets forth facts which appeal to the conscience of a court of equity.” Parrott v. Heller (1976), 171 Mont. 212, 214, 557 P.2d 819, 820 (citations omitted). Specifically, § 28-1-104, MCA, provides:

Relief from forfeiture. Whenever by the terms of an obligation a party thereto incurs a forfeiture or a loss in the nature of a forfeiture by reason of his failure to comply with its provisions, he may be relieved therefrom upon making full compensation to the other party, except in case of a grossly negligent, wilful, or fraudulent breach of duty.

In interpreting § 28-1-104, MCA, we have stated:

[Section 28-1-104, MCA] was enacted for the benefit of obligors whose failure to punctually perform would result in loss to them in the matters in respect to which they have contracted. ... The intention of the law under this statute is that a forfeiture should not be needlessly enforced.

Yellowstone Co., 115 Mont. at 417-18, 145 P.2d at 518.

¶32 Thus, although Aveco correctly states the law regarding interpretation of contractual obligations, it is not controlling in this case because § 28-1-104, MCA, clearly authorizes a court to relieve a party from forfeiture when the interests of fairness and equity so require. Simply put, “even though the parties agreed that forfeiture would result from [Quigleys’] default, this Court may, under appropriate circumstances, still grant equitable relief.” Glacier Park, 285 Mont. at _, 949 P.2d at 233.

¶33 The Ackers argue that even if this Court determines, as we have, that § 28-1-104, MCA, is applicable, the District Court still erred in granting the Quigleys relief from forfeiture because the Quigleys did not meet all the requirements of § 28-1-104, MCA. A party qualifies for relief from forfeiture under § 28-1-104, MCA, if he has tendered full compensation for his obligation; his default under the contract was not the result of a grossly negligent, willful, or fraudulent breach of duty; and he asserts facts which appeal to the conscience of the court of equity. Glacier Park, 285 Mont. at _, 949 P.2d at 234.

¶34 It is undisputed that the Quigleys tendered full compensation for their obligation. The letter that accompanied the Quigleys’ $54,253.11 cashier’s check stated that the amount of the check represented the $49,728.00 accelerated balance due on the Acker/Baldwin contract; $2,378.44 in interest calculated at 9% from July 25, 1996 to February 4, 1997; $1946.67 in unpaid taxes with interest and penalties calculated to February 4,1997; and $200.00 in attorney fees. The only questions at issue then are whether the Quigleys’ default was due to a grossly negligent, willful, or fraudulent breach of duty, and whether the facts and circumstances of this case warrant equitable relief from forfeiture.

¶35 The Ackers contend that the Quigleys’ default was due to a grossly negligent, willful, or fraudulent breach of duty, and that the facts and circumstances of this case do not warrant relief from forfeiture. The Ackers cite Kovacich v. Metals Bank & Trust Co. (1961), 139 Mont. 449, 451-52, 365 P.2d 639, 640, for the rule that a mere inability to pay is not sufficient to appeal to the conscience of a court of equity and relieve a party from forfeiture. In Kovacich, we held that buyers of a mobile home who had defaulted on the sales contract, and who were unable to make further payments due to an employment strike, were not entitled to relief from forfeiture. Kovacich, 139 Mont. at 451-52, 365 P.2d at 640-41. The Ackers argue that Kovacich directly applies to the instant case, and that the Quigleys’ inability to make the August 1996 payment on time is insufficient to invoke equitable relief from forfeiture.

¶36 We reject the Ackers’ argument because Kovacich is distinguishable from the instant case. The instant case is not a case of “mere” inability to pay. The Quigleys took affirmative steps to cure their default and eventually tendered full compensation for their obligation. The Quigleys tried to collect accounts receivable from their California construction business, they applied for loans, and they attempted to sell Section 19 to Sherry Nicholas. Within six months, the Quigleys tendered full compensation to the Ackers. In contrast, the Kovaciches took no affirmative steps to cure their default and failed to tender full compensation to the sellers.

¶37 This Court considers several factors in determining whether a party’s default was the result of a grossly negligent, willful, or fraudulent breach of duty. These factors include: (1) whether the party experienced financial setbacks beyond his control; (2) whether the party made good faith efforts to raise money to pay the accelerated balance; and (3) whether the party tendered full compensation of the accelerated balance within a reasonable time. Parrott, 171 Mont. at 215, 557 P.2d at 820-21. See also Yellowstone Co., 115 Mont. at 416-17, 145 P.2d at 517-18; Sharp v. Holthusen (1980), 189 Mont. 469, 473-75, 616 P.2d 374, 377-78. In Parrott, we granted equitable relief from forfeiture to buyers in default on a real estate contract based on the following considerations: (1) the buyers suffered a financial set back due to crop failure and an inability to collect from their debtors; (2) the buyers attempted to secure a loan but were unsuccessful due to a judgment lien that had been filed against their property; (3) the buyers secured employment outside of their farming operation to help make the accelerated payment; and (4) the buyers made the accelerated payment within nine months of their default. Parrott, 171 Mont. at 215, 557 P.2d at 820-21.

¶38 Another important factor in our determination is whether the party made significant improvements and paid a significant amount of the principal before default such that a forfeiture would result in the seller’s unjust enrichment. Roberts v. Morin (1982), 198 Mont. 233, 241, 645 P.2d 423, 428. In Roberts, we noted that if forfeiture were imposed, the seller would receive the property, not at its 1974 value of $9,500, but at its greatly increased 1982 value of $23,000. The seller would also receive the benefit of improvements valued at $4981. This factor, coupled with other factors mitigating against forfeiture, led us to conclude that the buyer was entitled to relief from forfeiture. Roberts, 198 Mont. at 241, 645 P.2d at 428. See also Sharp, 189 Mont. at 473-75, 616 P.2d at 377-78; Blakely v. Kelstrup (1994), 267 Mont. 274, 278, 883 P.2d 814, 817.

¶39 In the instant case, it is evident from the District Court’s Findings of Fact and Conclusions of Law that the court considered these factors in granting relief from forfeiture to the Quigleys. The court found that the Quigleys suffered a financial setback due to circumstances beyond their control, that the Quigleys made good faith efforts to raise money to pay the accelerated balance, that the Quigleys tendered full compensation of the accelerated balance within a reasonable time, and that a forfeiture would result in unjust enrichment, or a “windfall,” to the Ackers. The Ackers have not submitted, nor have we found, any facts in the record at variance with the court’s findings. The Ackers only dispute the court’s discretionary finding that forfeiture of the Acker/Baldwin contract would be inequitable because it allows the Ackers a windfall. The Ackers counter that it is just as inequitable to grant the Quigleys relief from forfeiture because it allows them a windfall. However, the Ackers have provided no facts, analysis, or case law in support of their position. The record clearly shows that upon forfeiture, the Ackers would keep more than $300,000 in principal payments plus interest, would have the Quigleys’ $20,000 in improvements, and would retain Section 19 valued at nearly double the amount of the Ackers original sale price. We determine that sufficient evidence exists in the record to support the District Court’s finding that a forfeiture of the Acker/Baldwin contract would result in unjust enrichment to the Ackers.

¶40 The facts of this case warrant application of § 28-1-104, MCA. Therefore, we hold that the District Court did not err in granting the Quigleys relief from forfeiture.

Issue 3

¶41 Did the District Court err in ordering the parties to pay their own attorney fees and costs?

¶42 In their cross-appeal, the Quigleys claim the District Court erred in not awarding them attorney fees and costs. Section 25-10-301, MCA, provides:

Determining compensation of attorneys. The measure and mode of compensation of attorneys and counselors at law is left to agreement, express or implied, of the parties .... But parties to actions or proceedings are entitled to costs and disbursements as provided by law.

¶43 With respect to attorney fees, the Quigleys and Ackers expressly agreed in paragraph XVII of the Acker/Baldwin contract that “[i]f litigation occurs concerning the rights of any party in this agreement, the successful party shall recover reasonable attorney fees ....” Section 28-3-401, MCA, provides that if the language of a written agreement is clear and does not involve an absurdity, the language governs the interpretation of the agreement. Also, we have held that where the language of a contract is clear and unambiguous, it is the trial court’s duty to enforce the contract as written. Wortman v. Griff (1982), 200 Mont. 528, 536, 651 P.2d 998, 1002. The language of paragraph XVII of the Acker/Baldwin contract is clear and unambiguous, and does not involve an absurdity. Therefore, it was error for the District Court not to have enforced the provision as written and awarded attorney fees to the Quigleys.

¶44 With respect to court costs, Section 25-10-101(5), MCA, provides that costs are allowed as a matter of course to a successful plaintiff in an action involving “the title or possession or right of possession of real estate ....” The Quigleys have met the requirements of this statute. This case clearly involves title or possession of real estate, and the Quigleys received judgment in their favor. Upon these facts, the District Court erred in not awarding the Quigleys their costs of suit.

¶45 We therefore reverse and remand for determination of attorney fees and costs incurred, and for further proceedings consistent with this opinion.

Issue 4

¶46 Are the Quigleys entitled to attorney fees and costs on appeal?

¶47 The Quigleys request that they be awarded attorney fees and costs on appeal. Costs on appeal in civil actions are automatically awarded to the prevailing party under Rule 33, M.R.App.P. Additionally, we previously have held that where an award of attorney fees is based on a contract, the prevailing party is also entitled to an award of reasonable attorney fees incurred on appeal. Smith v. Johnson (1990), 245 Mont. 137, 145, 798 P.2d 106, 111 (citing Lauderdale v. Grauman (1986), 223 Mont. 357, 359, 725 P.2d 1199, 1200). Because the Quigleys are the prevailing party on appeal, we hold that they are entitled to reasonable attorney fees and costs incurred in this appeal.

¶48 We affirm in part, reverse in part, and remand to the District Court for determination and award of the Quigleys’ attorney fees and costs, both below and on appeal.

JUSTICES GRAY, NELSON, REGNIER and TRIEWEILER concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JEFFREY DEAN WINTERROWD, Defendant and Appellant.
    No. 97-025.
    Submitted on Briefs March 12, 1998.
    Decided April 7, 1998.
    1998 MT 74.
    55 St.Rep. 307.
    957 P.2d 522.
    288 Mont. 208.

      For Appellant: William Hooks, Appellate Defender, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General, Helena; Brant Light, Cascade County Attorney, Great Falls.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶ 1 Appellant Jeffrey Dean Winterrowd (Winterrowd) appeals from the order of the Montana Eighth Judicial District Court, Cascade County, requiring him to pay the costs of jury selection and prosecution and the order nunc pro tunc sentencing him to six months imprisonment for his misdemeanor theft conviction. We reverse and vacate the orders of the District Court.

Appellant raises the following issues:

¶2 1. Did the District Court err in ordering Winterrowd to pay the costs of jury selection and prosecution?

¶3 2. Did the District Court err in sentencing Winterrowd on a misdemeanor theft conviction by an order nunc pro tunc?

Factual and Procedural Background

¶4 In February 1995, Winterrowd was charged by information with felony burglary and misdemeanor theft. After determining that Winterrowd was indigent, the District Court appointed counsel from the public defender’s office to represent him. In August 1995, the public defender moved to withdraw, stating that he had been informed that Winterrowd had received a $10,000 settlement from the Social Security Administration and was no longer indigent. Winterrowd’s counsel stated that the public defender’s office would not reassign counsel. No hearing was held, and the District Court granted the motion.

¶5 The District Court continued the trial from December 13, 1995 to February 28, 1996 to give Winterrowd the opportunity to retain counsel. On February 20, 1996, Winterrowd asked the court to continue the trial because he had not been able to retain counsel. He stated that he had not yet received his Social Security settlement but expected to receive it on or about March 11. The State opposed this motion, arguing that Winterrowd had not demonstrated due diligence and that his claim that he would receive the settlement on March 11 was unsupported by documentation.

¶6 The District Court never ruled on Winterrowd’s motion. At the start of trial on February 28, Winterrowd again moved the District Court to continue, and the court denied the motion. The trial proceeded through voir dire, but, following a break, the court granted Winterrowd’s motion to continue and excused the jurors. The District Court ordered Winterrowd to pay the costs incurred in summoning jurors and in prosecuting him.

¶7 Winterrowd obtained counsel, who filed a notice of appearance on March 12 and moved the court to reconsider its order requiring Winterrowd to pay costs. The court denied the motion, and the case proceeded to trial on August 27,1996. Ajury found Winterrowd guilty of burglary and theft. The District Court sentenced Winterrowd to ten years in the Montana State Prison on the felony burglary conviction. The court did not sentence him on the misdemeanor theft conviction.

¶8 On October 17, 1996, Winterrowd filed a pro se notice of appeal with this Court. On December 30, 1996, the District Court issued an order nunc pro tunc, noting that it had failed to impose sentence on the misdemeanor theft conviction and sentencing Winterrowd to six months, suspended, to be served concurrently with the sentence for burglary. Winterrowd, now represented by an appellate public defender, appeals from the orders of the District Court.

Discussion

¶9 1. Did the District Court err in ordering Winterrowd to pay the costs of jury selection and prosecution?

¶10 We review a district court’s discretionary rulings in criminal cases for abuse of discretion. State v. Sullivan (1994), 266 Mont. 313, 880 P.2d 829. The State and Winterrowd agree that the District Court abused its discretion by ordering Winterrowd to pay the costs of jury selection and prosecution. We also agree.

¶11 The District Court granted the public defender’s motion to withdraw based on an unsupported claim that Winterrowd had received a settlement from the Social Security Administration and refused Winterrowd’s request for a continuance. Winterrowd informed the court that he was unable to retain new counsel until he received his settlement on March IT and, in fact, did retain counsel on March 12. The District Court continued the February 28 trial only after requiring Winterrowd to proceed pro se through voir dire and then assessed to him the costs of jury selection and prosecution. We hold that the District Court erred in ordering Winterrowd to pay costs, and we vacate the court’s order.

¶12 2. Did the District Court err in sentencing Winterrowd on a misdemeanor theft conviction by an order nunc pro tunc?

¶13 In this case, the District Court failed to sentence Winterrowd on his misdemeanor theft conviction, in either open court or the written judgment. Four months later, the District Court issued an order nunc pro tunc sentencing Winterrowd to six months imprisonment, the maximum sentence for misdemeanor theft, to run concurrently with his sentence on the burglary conviction.

¶ 14 It is within a district court’s power to enter an order nunc pro tunc modifying or amending a judgment to remedy certain types of clerical errors. State ex rel. Kruletz v. District Court (1940), 110 Mont. 36, 98 P.2d 883. However, the purpose of such an order is to make the record reflect what was actually decided. Dahlman v. District Court (1985), 215 Mont. 470, 698 P.2d 423. Therefore, the error “must be apparent on the face of the record to insure that the correction does not in effect set aside a judgment actually rendered nor change what was originally intended.” State v. Owens (1988), 230 Mont. 135, 138, 748 P.2d 473, 474 (citing Kruletz, 98 P.2d at 885).

¶15 The State contends that it was clear from the proceedings that the District Court intended to sentence Winterrowd to six months on the theft conviction, analogizing this case to Owens, 748 P.2d at 473. In Owens, the sentencing court failed to designate the defendant as a dangerous offender in the written sentencing order, but made a specific finding on the record in open court that the defendant was a dangerous offender. Owens, 748 P.2d at 474-75. Subsequently, in what was deemed a nunc pro tunc order by this Court, the court amended the sentence to include this designation. Owens, 748 P.2d at 474. We held that “[i]t is clear from this Court’s review of the record that the District Court intended to designate the defendant as dangerous” and upheld the district court’s order. Owens, 748 P.2d at 475.

¶16 By contrast, in this case, not only was the sentence on the theft conviction omitted from the written sentencing order, but neither the District Court nor the parties ever discussed it at the sentencing hearing. The State contends that Winterrowd should have known the maximum term to which he could be sentenced and that “it is customary for the sentencing court to impose a six-month concurrent sentence on a misdemeanor offense whenever a prison term is imposed on a felony.” The State argues that, therefore, “it should be no surprise” to Winterrowd that the District Court sentenced him to six months. Contrary to the State’s assertion, there is nothing in the record that suggests what sentence the court intended to impose, and we shudder at the suggestion that a criminal defendant should expect a maximum sentence as “customary.”

¶17 We hold that it was an abuse of discretion for the District Court to attempt to correct, by nunc pro tunc order, its failure to sentence Winterrowd on the misdemeanor theft conviction.

¶18 Therefore, we reverse and vacate the court’s December 30, 1996 order and sentence.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, REGNIER and TRIEWEILER concur.


author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BENJAMIN JOSEPH GRIFFING, Defendant and Appellant.
    No. 97-114.
    Submitted on Briefs December 18, 1997.
    Decided April 7, 1998.
    1998 MT 75.
    55 St.Rep. 309.
    955 P.2d 1388.
    288 Mont. 213.
    For Appellant: Bruce L. Hussey, Attorney at Law, Missoula.

      For Respondent: Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General, Helena; Robert L. Deschamps, III, Missoula County Attorney, Missoula.
   JUSTICE GRAY

delivered the Opinion of the Court.

¶1 Benjamin Joseph Griffing (Griffing) appeals from the judgment entered by the Fourth Judicial District Court, Missoula County, on a jury verdict convicting him of negligent homicide and, specifically, from the District Court’s denial of his motion to suppress evidence obtained during the investigation of a one-vehicle traffic accident. We affirm.

¶2 The sole issue on appeal is whether the District Court erred in denying Griffing’s mid-trial motion to suppress.

BACKGROUND

¶3 At 2:50 a.m. on March 30, 1996, Deputy Sheriff Howard Reed (Deputy Reed) received a call that an accident had occurred on Highway 12 near Lolo, Montana. Griffing’s truck had left the highway, broken two fenceposts and landed upside down. One of the fenceposts pierced the windshield, passed through the steering wheel, and struck the passenger, Gordon Wylie (Wylie). Deputy Reed found Griffing at the scene of the accident. Griffing told Deputy Reed that he was afraid he had killed his best friend and, indeed, Wylie was dead by the time Deputy Reed arrived.

¶4 Highway Patrol Officer Iva May Johnston (Officer Johnston) arrived at the scene about an hour after Deputy Reed. She talked with Griffing briefly and asked him to sit in the front seat of her vehicle while she observed the accident scene. She returned to her vehicle several times and, noting the smell of alcohol, asked Griffing if he had been drinking. Griffing responded that he had been drinking and, upon request, described how the accident occurred. Officer Johnston inquired how much Griffing had to drink and whether he would take a breathalyzer test. Griffing consented to the test and Officer Johnston drove Griffing to the Missoula City Police Department (the Department) for the test. Griffing was not under arrest at the time and Officer Johnston did not ask him any additional questions until they reached the Department.

¶5 At the Department, Officer Johnston informed Griffing that she was turning on the videotape and read the implied consent form to him. Griffing signed the implied consent form and verbally agreed to take a breathalyzer test. Another officer administered the test and, upon receiving the results, Griffing requested a blood alcohol test. Officer Johnston then read Griffing the Miranda warnings and began asking Griffing questions and administering the field sobriety tests. When Officer Johnston later offered to drive Griffing to the hospital for the blood alcohol test he had requested, Griffing chose not to have the test performed.

¶6 The State of Montana (State) charged Griffing by information with one count of negligent homicide as a result of Wylie’s death in the accident. Prior to trial, Griffing moved to suppress the results of the breathalyzer test on the basis that his consent to the test had been coerced. The District Court denied the motion. During trial, Griffing orally moved to exclude and suppress all evidence obtained after he was asked to sit in Officer Johnston’s vehicle, on the basis that it violated his Fourth Amendment rights, and for a mistrial. The District Court denied Griffing’s motions, the trial continued and the jury found Griffing guilty of negligent homicide. The District Court entered its judgment and sentence and Griffing appeals from the denial of his mid-trial motion to suppress.

STANDARD OF REVIEW

¶7 We review a district court’s denial of a motion to suppress to determine whether the “findings of fact are clearly erroneous, and whether those findings were correctly applied as a matter of law.” State v. Greywater (1997), 282 Mont. 28, 36, 939 P.2d 975, 980 (citation omitted). The district court’s determination that a motion to suppress is untimely is a conclusion of law. See Greywater, 939 P.2d at 980. We review a district court’s conclusions of law to determine whether they are correct. Greywater, 939 P.2d at 980 (citation omitted).

DISCUSSION

¶8 Did the District Court err in denying Griffing’s mid-trial motion to suppress?

¶9 Griffing’s motion to suppress all of the evidence was premised on his contentions that he was subjected to a custodial interrogation by Officer Johnston prior to being advised of his Miranda rights and that all subsequent evidence was fruit of the poisonous tree. The State argued that the motion was untimely and, in any event, not well taken as a matter of law. The District Court accepted the State’s arguments — apparently including the timeliness argument — and, in addition, observed that some of the reasons in its earlier order denying Griffing’s motion to suppress applied and that it was unaware of any authority requiring officers to give Miranda warnings during the investigation of a traffic accident. Griffing contends that the District Court erred. He does not address the timeliness of his motion to suppress, however, and we conclude that his motion was untimely and, therefore, waived.

¶10 Section 46-13-101(1), MCA, generally requires that “any defense, objection, or request that is capable of determination without trial of the general issue must be raised at or before the omnibus hearing unless otherwise provided by Title 46.” Motions to suppress expressly are among those pretrial matters which must be raised at or before the omnibus hearing. Section 46-13-110(3)(i), MCA; Greywater, 939 P.2d at 980. A party’s failure to raise matters which are capable of determination without trial and required to be raised at or before the omnibus hearing constitutes a waiver. Section 46-13-101(2), MCA.

¶11 Moreover, we consistently have affirmed a district court’s denial of an untimely motion to suppress under both current and predecessor statutes setting time requirements for such motions. See, e.g., Greywater, 939 P.2d at 980; State v. Hart (1982), 200 Mont. 185, 191, 650 P.2d 768, 772; State v. Briner (1977), 173 Mont. 185, 190, 567 P.2d 35, 38. Indeed, we recently held in Greywater that the defendant’s motion, filed five days prior to trial, was untimely and upheld the district court’s refusal to consider the motion. Greywater, 939 P.2d at 980.

¶12 Here, the omnibus hearing memorandum was filed June 4, 1996. It specifically indicated that Griffing would file motions to suppress his confession or admissions and physical evidence pursuant to §§ 46-13-301 and 46-13-302, MCA, respectively, by July 1,1996. He filed only the motion to suppress the breathalyzer test result, discussed above, on the basis that his consent to the test was coerced. He did not move to suppress his statements to Officer Johnston and all evidence obtained thereafter. That motion was made during the course of trial. As a result, it was untimely and, pursuant to § 46-13-101(2), MCA, waived. We hold, therefore, that the District Court did not err in denying Griffing’s mid-trial motion to suppress.

¶13 Affirmed.

JUSTICES TRIEWEILER, HUNT, NELSON and LEAPHART concur.