March 16 2010
DA 09-0166
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 51
FRANK LEROY ROBINSON
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DV-08-451
Honorable Jeffrey H. Langton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
William F. Hooks; Hooks & Wright, P.C., Helena, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; John Paulson,
Assistant Attorney General, Helena, Montana
George H. Corn, Ravalli County Attorney; T. Geoffrey Mahar,
Deputy County Attorney, Hamilton, Montana
Submitted on Briefs: January 13, 2010
Decided: March 16, 2010
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Frank Robinson (Robinson) appeals from an opinion and order of the Twenty-First
Judicial District Court, Ravalli County, denying postconviction relief without a hearing.
We affirm.
¶2 We restate the issues on appeal as follows:
¶3 Whether the District Court properly denied, without an evidentiary hearing,
Robinson’s postconviction claim that his trial counsel’s failure to request a jury poll
about a newspaper article constituted ineffective assistance of counsel.
¶4 Whether the District Court properly denied Robinson’s postconviction claim that
he was denied the effective assistance of counsel due to a breakdown in the attorney-
client relationship.
BACKGROUND
¶5 Robinson was convicted by a jury of two counts of felony assault on a peace
officer, failure to register as a sexual offender, and resisting arrest, on July 21, 2005.
Robinson was sentenced as a persistent felony offender to 30 years at the Montana State
Prison on September 21, 2005. This Court affirmed the convictions and sentence on
direct appeal on February 5, 2008. State v. Robinson, 2008 MT 34,
341 Mont. 300,
177
P.3d 488.
¶6 Robinson was represented at trial and on appeal by attorney Matthew M.
Stevenson (Stevenson). On June 28, 2005, three weeks before trial, Stevenson filed a
motion to continue the trial, on the grounds that Robinson wanted to hire a private
2
attorney who would need more than three weeks to prepare for trial. However, Robinson
never retained private counsel. Judge James A. Haynes denied the motion after
discussing the matter with counsel at a hearing on July 1, 2005. Judge Haynes received a
letter from Robinson on July 6, 2005, explaining that he was unsatisfied with Stevenson’s
work and was formally firing him due to ineffective assistance, and requesting a
continuance to have adequate time to retain new counsel. Judge Haynes held a hearing
the next day and Robinson requested to represent himself.
¶7 After the hearing, Stevenson filed a motion for an order permitting Robinson to
substitute counsel. Stevenson indicated that when he visited Robinson at the jail,
Robinson told him to never come back. Stevenson asserted that his attempts at
communicating with Robinson had fallen on deaf ears, and that his communications had
been misunderstood or construed as lies. Stevenson stated that “[d]efense counsel has no
vested interest in this case, other than doing his job (which he feels he has done and
continues to do).” Although he believed that any other attorney would have similar
problems communicating with Robinson, Stevenson agreed with Robinson’s assertion
that communications between them had been irretrievably broken. Stevenson therefore
reluctantly joined in Robinson’s request for substitution of counsel. At a hearing on July
14, Judge Haynes advised the parties that Robinson’s request to proceed pro se would be
addressed by Judge Langton on the morning of the first day of trial.
¶8 Before the jury was called on July 18, 2005, the question of Robinson’s
representation was discussed at length in chambers. Robinson claimed that he could not
trust Stevenson after Stevenson said he had objected to the State raising the existence of
3
parole conditions when he did not. Stevenson explained that Robinson wanted him to
make an invalid objection, but that he had objected to a warrantless search. Stevenson
indicated that Robinson did not understand his explanation and decided that Stevenson
was lying. Additionally, when Robinson wanted to hire private counsel, Stevenson’s
motion to continue was not supported by an affidavit. Stevenson said there were no
grounds for a continuance because new counsel was not hired yet. The court found that
there were no grounds to support a claim of ineffective assistance and Robinson could
either continue with Stevenson or represent himself. Robinson renewed his request for a
continuance so his family could retain new counsel. Judge Langton denied the request
and Stevenson remained as counsel during the trial.
¶9 On August 14, 2008, Robinson filed a pro se petition for postconviction relief,
alleging various claims of ineffective assistance of counsel against Stevenson. The
District Court denied relief and dismissed the petition without a hearing on February 26,
2009. Robinson now appeals from the denial of postconviction relief.
STANDARD OF REVIEW
¶10 This Court reviews a district court’s denial of a petition for postconviction relief to
determine whether the district court’s findings of fact are clearly erroneous and its
conclusions of law are correct. Hirt v. State, 2009 MT 116, ¶ 24,
350 Mont. 162,
206
P.3d 908. Ineffective assistance of counsel claims present mixed questions of fact and
law that this Court reviews de novo. Hirt, ¶ 24.
¶11 A request for substitution of appointed counsel is within the sound discretion of
the district court, and this Court will not overrule such a ruling absent an abuse of
4
discretion. State v. Hendershot, 2007 MT 49, ¶ 19,
336 Mont. 164,
153 P.3d 619. A
district court abuses its discretion if it “acted arbitrarily without employment of
conscientious judgment or exceeded the bounds of reason resulting in substantial
injustice.” Hendershot, ¶ 19.
DISCUSSION
¶12 The Sixth Amendment to the United States Constitution, as incorporated through
the Fourteenth Amendment, and Article II, Section 24, of the Montana Constitution
guarantee a criminal defendant the right to effective assistance of counsel. To evaluate
claims of ineffective assistance of counsel, this Court has adopted the two-prong test
from Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 1064 (1984). State v.
Crosley,
2009 MT 126, ¶ 54,
350 Mont. 223,
206 P.3d 932. Under the Strickland test, the
defendant must establish that 1) counsel’s performance fell below an objective standard
of reasonableness, and 2) a reasonable probability exists that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Crosley,
¶ 54. This test can be summarized as requiring a showing of deficiency and prejudice to
prove ineffective assistance of counsel. Strickland,
466 U.S. at 687,
104 S. Ct. at 1064.
¶13 There is a strong presumption under the Strickland deficiency prong that trial
counsel’s performance was based on sound trial strategy and falls within the broad range
of reasonable professional conduct. Crosley, ¶ 55. Regarding the Strickland prejudice
prong, “[a] reasonable probability is a probability sufficient to undermine confidence in
the outcome. When a defendant challenges a conviction, the defendant must show the
5
fact finder’s reasonable doubt respecting guilt could have been routed by the
unprofessional errors of counsel.” Crosley, ¶ 55.
¶14 Whether the District Court properly denied, without an evidentiary hearing,
Robinson’s postconviction claim that his trial counsel’s failure to request a jury poll
about a newspaper article constituted ineffective assistance of counsel.
¶15 Robinson alleges that Stevenson’s failure to poll the jury regarding whether any
jurors had read a local newspaper account of the trial constitutes ineffective assistance of
counsel. The District Court summarily rejected Robinson’s contention, concluding that it
failed to satisfy the procedural threshold for postconviction relief. Section 46-21-
104(1)(c), MCA, requires a petition for postconviction relief to “identify all facts
supporting the grounds for relief set forth in the petition and have attached affidavits,
records, or other evidence establishing the existence of those facts.” The District Court
noted in its order that at the close of each day of the trial, the court admonished the jury
to avoid any press coverage of the trial, and specifically to avoid looking at newspapers
unless someone else excised any stories about the trial. The court concluded that
Robinson merely speculated that jurors disregarded these admonishments and failed to
identify a single fact to support this speculation.
¶16 Robinson discusses at length the utility of jury polling to determine if jurors were
exposed to and influenced by prejudicial news coverage. Robinson’s argument presents a
chicken and egg conundrum: since his lawyer refused to poll the jury, Robinson claims
he could not determine whether jurors read the newspaper account, yet this lack of
information undermined his petition for postconviction relief, since he could not meet the
6
procedural threshold of identifying facts to support relief. Robinson overstates his case.
The question presented here is not whether jury polling is generally valuable, but whether
Robinson’s lawyer was ineffective for not polling the jury regarding whether they read a
newspaper article. Simply because it may be possible to poll a jury in a particular
situation does not mean that a failure to poll the jury constitutes ineffective assistance of
counsel.
¶17 Focusing our analysis on the question of ineffective assistance of counsel,
Robinson fails to establish any prejudice resulting from his counsel’s failure to request
jury polling. Specifically, Robinson’s petition fails to show how polling the jury would
have changed the results of the proceedings. In State v. Kirkland, this Court noted that
the defendant had not submitted any facts indicating that any juror had been exposed to
the news accounts of the trial, and the Court found no abuse of discretion in the district
court’s denial of the defendant’s request to poll the jury. 184 Mont. 229, 242-43,
602
P.2d 586, 594 (1979). If a court did not abuse its discretion by denying a request for a
jury poll in the absence of evidence that some member of the jury was exposed to
potentially prejudicial newspaper accounts, counsel cannot be ineffective for declining to
request jury polling without evidence that a juror may have been exposed to a newspaper
article.
¶18 Furthermore, the newspaper article in question is a factual, non-editorialized
account of the first day of trial. Although the article references Robinson’s history of
escape and assault, the court permitted the prosecutor to refer generally to this history in
order to explain the precautions taken by the officers in serving the arrest warrant on
7
Robinson. Thus, we are unconvinced that any prejudice would occur had a juror not
followed the court’s admonishments to avoid the news reports during trial. We cannot
assume, in the absence of any evidence to the contrary, that jurors in fact read this
particular newspaper article or were prejudiced by it.
¶19 Finally, this Court has observed that postconviction proceedings are not a fishing
expedition or discovery device in which a petitioner, through broad allegations in a
verified petition, may establish the right to an evidentiary hearing. Smith v. State, 2000
MT 327, ¶ 28,
303 Mont. 47,
15 P.3d 395. Robinson has failed to demonstrate that his
counsel was ineffective by not polling the jury regarding their exposure to a newspaper
account of his trial or that the District Court erred by failing to hold a hearing on the
request.
¶20 Whether the District Court properly denied Robinson’s postconviction claim that
he was denied the effective assistance of counsel due to a breakdown in the attorney-
client relationship.
¶21 Robinson claims there was a clear irremediable breakdown in the attorney-client
relationship, confirmed by Stevenson’s agreement that all communications had broken
down. Robinson supports his claim by citing this Court: “[i]f the relationship between
lawyer and client completely collapses, the refusal to substitute new counsel violates the
defendant’s right to effective assistance of counsel.” Hendershot, ¶ 24. Robinson
attempts to illustrate the breakdown in communications by citing some of Stevenson’s
comments to the court at the July 18 hearing on his motion to permit substitution of
8
counsel: Robinson’s actions were a ploy to delay trial; Robinson was making a “personal
attack” that was unfair and misguided; and Stevenson was “fed up” with Robinson.
¶22 The District Court concluded that Stevenson’s statements were insufficient to
warrant substitution of counsel in the absence of any complaints of substance. The court
examined how the misunderstanding about a potential objection initiated the
disagreement between attorney and client. Despite Stevenson’s efforts to explain the
legal basis for one objection and lack of validity for another, Robinson concluded that
Stevenson lied to him and sought to fire him and retain private counsel. At that point
communications between attorney and client broke down. The District Court reiterated
the “strong presumption that counsel’s defense strategies and trial tactics fall within a
wide range of reasonable and sound professional decisions” and then reasoned:
While unfortunate that Robinson misunderstood the rationale behind Mr.
Stevenson’s trial tactics and professional decisions and, as a result,
attempted to fire him and ceased communications with him, that alone is
insufficient to warrant a change in court-appointed counsel. Otherwise, a
defendant could claim “irretrievable breakdown in communication” with
every court-appointed attorney, ad infinitum. A defendant must, at the
least, present “seemingly substantial complaints” about court-appointed
counsel. Robinson failed to do so.
¶23 We agree. This Court has clarified that a defendant has a right to meaningful
representation, but not a right to “a meaningful client-attorney relationship.” State v.
Gallagher, 2001 MT 39, ¶ 21,
304 Mont. 215,
19 P.3d 817. Bare unsupported allegations
are insufficient to establish the total lack of communication required to warrant
appointment of new counsel. Gallagher, ¶ 10. The record demonstrates that Stevenson
maintained communication with Robinson until just prior to trial when Robinson refused
9
to speak with him. Significantly, nothing in the record suggests that Stevenson’s actual
performance at trial was deficient. Stevenson filed four motions in limine regarding
evidence to be presented at trial, presented opening and closing arguments, cross-
examined the State’s witnesses, presented a witness to the arrest, and was well-prepared
despite not knowing whether he would actually try the case in the weeks immediately
preceding trial. The record supports finding that counsel’s performance was reasonable,
and certainly Robinson has presented nothing that overcomes the strong presumption that
trial counsel’s performance was based on sound trial strategy and falls within the broad
range of reasonable professional conduct. Crosley, ¶ 55.
¶24 Robinson himself appears to have initiated the breakdown in communication upon
which he now bases his ineffective assistance of counsel claim. This falls short of the
“complete collapse” of the relationship between attorney and client that this Court
discussed in Hendershot. In Hendershot, the attorney did not attend two substantive
procedural hearings, one on the adequacy of his representation; did not answer requests to
visit Hendershot or actually see him for months between incarceration and a hearing;
scheduled a change of plea hearing without discussing a change of plea with Hendershot;
declined to question the State’s witnesses; instructed Hendershot to remain silent; joined
the State’s recommendation for sentencing; and told the court that communications
between attorney and client had reached “an irreparable state” and actively joined in
Hendershot’s request to sever the attorney-client relationship. Hendershot, ¶¶ 25-26.
Additionally, the conflict between Hendershot and his attorney arose early in the
relationship and deteriorated for some time until it reached the “irreparable state”
10
described by both attorney and client. Hendershot, ¶ 30. Thus, the facts of Hendershot
that support an ineffective assistance of counsel claim based on a “complete collapse” in
the attorney-client relationship or “irreconcilable conflict” contrast starkly with the facts
here. Robinson presented his claim three weeks before trial, based his claim on a
disagreement about trial strategy, and initiated the breakdown in communications
himself. While Stevenson agreed with Robinson’s assertion that communications
between them had been irretrievably broken and reluctantly joined in Robinson’s request
for substitution of counsel, this was not akin to counsel affirmatively arguing against his
client as Robinson claims. Stevenson simply acknowledged that Robinson refused to
communicate with him, yet despite these difficulties, Stevenson continued to perform
reasonably.
¶25 The District Court adequately inquired into Robinson’s complaints at the July 18
hearing on substitution of counsel. After hearing from both Robinson and Stevenson, the
court found no grounds to support an ineffective assistance of counsel claim. The
District Court did not abuse its discretion in denying Robinson’s request to permit
substitution of counsel, nor was Robinson denied effective assistance of counsel due to a
breakdown in the attorney-client relationship.
¶26 Affirmed.
/S/ MIKE McGRATH
11
We concur:
/S/ MICHAEL E WHEAT
/S/ PATRICIA O. COTTER
/S/ JIM RICE
Justice James C. Nelson, specially concurring.
¶27 I concur in the Court’s decision, although I do so under a different rationale with
respect to Issue 1.
¶28 Initially, it should be noted that as to Robinson’s claim that defense counsel
rendered constitutionally deficient performance by not polling the jury about the
newspaper article, the District Court denied this claim not based on the merits, but
pursuant to § 46-21-104(1)(c), MCA, which states that a petition for postconviction relief
must “identify all facts supporting the grounds for relief set forth in the petition and have
attached affidavits, records, or other evidence establishing the existence of those facts.”
Robinson makes a plausible argument on appeal that a defendant whose counsel fails to
poll a jury about a news story is thereby severely handicapped in his ability to
demonstrate in the postconviction arena that he was prejudiced by counsel’s conduct,
particularly where (as here) the district court refuses to grant a postconviction evidentiary
12
hearing on the matter. I see no need to reach this issue, however, because in my view
Robinson’s claim fails for a more basic procedural reason.
¶29 As we do here, we applied the two-prong test of Strickland v. Washington, 466
U.S. 668,
104 S. Ct. 2052 (1984), in Whitlow v. State,
2008 MT 140,
343 Mont. 90,
183
P.3d 861. In Whitlow, we clarified the relevant inquiry under the test’s first prong (i.e.,
whether counsel’s performance was deficient) and overruled a number of cases that were
contrary to this inquiry. See Whitlow, ¶¶ 12-21. Specifically, we explained that “ ‘[t]he
proper measure of attorney performance remains simply reasonableness under prevailing
professional norms.’ ” Whitlow, ¶ 14 (quoting Strickland,
466 U.S. at 688,
104 S. Ct. at
2065). Thus, we further explained that in order to overcome the strong presumption that
counsel’s conduct fell within the wide range of reasonable professional assistance, the
convicted defendant making a claim of ineffective assistance must demonstrate that
“counsel’s conduct fell below an objective standard of reasonableness measured under
prevailing professional norms and in light of the surrounding circumstances. ” See
Whitlow, ¶¶ 20-21, 33, 39-40.
¶30 In the present case, Robinson’s petition for postconviction relief suffers from the
same inadequacies as Whitlow’s. See Whitlow, ¶ 38. I agree with the Court that simply
because a jury could be polled in a particular situation does not mean that counsel is per
se ineffective for failing to do so. Opinion, ¶ 16. Hence, it was incumbent on Robinson
to show that attorney Stevenson’s failure to poll the jury in this case fell below an
objective standard of reasonableness measured under prevailing professional norms and
in light of the surrounding circumstances. Whitlow, ¶ 20. Yet, like Whitlow, Robinson
13
did not offer any evidence of what prevailing professional norms applied to Stevenson’s
performance, much less attempt to demonstrate how Stevenson’s conduct fell below an
objective standard of reasonableness measured under those norms and in light of the
surrounding circumstances. Rather, like Whitlow, Robinson’s claim was based on bald
speculation, pure hindsight, and his personal belief that it was unreasonable for Stevenson
not to poll the jury. Cf. Whitlow, ¶¶ 36-38. This is plainly insufficient to support an
ineffective assistance of counsel claim in the District Court, and appellate counsel’s
contrary arguments do not cure the underlying procedural deficiencies in Robinson’s
petition, all of which brings me to a concluding observation.
¶31 Whitlow has been the law of this State for two years. Yet, in that time, I have seen
few petitions for postconviction relief actually supported with affidavits or other evidence
of prevailing professional norms plus an analysis of how trial counsel’s conduct fell
below an objective standard of reasonableness. Postconviction petitioners must
understand that they bear “a heavy burden” to overcome the strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance. See
Whitlow, ¶ 21. A postconviction petitioner’s burden of proof requires that his or her
petition for postconviction relief be supported with evidence; bald speculation, mere
assumptions, conclusory assertions, and 20-20 hindsight will not suffice. Here, the
District Court properly ruled that Robinson’s petition was procedurally deficient.1
1
As an aside, I am not sure what to make of the Court’s reasoning in ¶ 17. In that
paragraph’s last sentence (which seems to relate more to counsel’s performance than to
the issue of prejudice), the Court suggests that trial counsel who fails to obtain evidence
that a juror may have been exposed to a newspaper article cannot be ineffective for
14
¶32 Based on the foregoing rationale, I specially concur in our decision to affirm the
District Court’s dismissal of Robinson’s “jury polling” claim.
/S/ JAMES C. NELSON
declining to request jury polling. Yet, counsel might be ineffective for the very reason
that he did not monitor the news coverage and obtain the requisite evidence to support
such a request. And that, in my view, is where Robinson’s claim fails. Although he
contends that Stevenson’s failure to poll the jury constitutes constitutionally deficient
performance, he has not satisfied Whitlow’s requirement that such a claim be supported
by evidence of prevailing professional norms and an analysis of counsel’s conduct in
light of those norms and the surrounding circumstances.
15
