State v. D. Schowengerdt

                                                                                                01/16/2018


                                          DA 15-0677
                                                                                            Case Number: DA 15-0677

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           

STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

DENNIS LEO SCHOWENGERDT,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Third Judicial District,
                        In and For the County of Powell, Cause No. DC 12-55
                        Honorable Ray Dayton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Appellant Defender, Koan Mercer, Assistant Appellant
                        Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                        Attorney General, Helena, Montana

                        Lewis K. Smith, Powell County Attorney, Deer Lodge, Montana



                                                    Submitted on Briefs: September 6, 2017

                                                               Decided: January 16, 2018


Filed:

                        __________________________________________
                                          Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1     This Court heard an initial appeal by Dennis Schowengerdt (“Schowengerdt”), after

which we remanded to the Third Judicial District Court, Powell County, to further inquire

into whether Schowengerdt’s complaints regarding appointed counsel were seemingly

substantial and necessitated a hearing to determine the validity of Schowengerdt’s

allegations and the need for substitution of counsel. The District Court conducted a hearing

per our instructions and again denied Schowengerdt’s request for substitution of counsel.

Schowengerdt appeals this Order.

¶2     We address the following issues:

       Issue One: Whether the District Court erred in ruling that Schowengerdt was not
       entitled to substitution of counsel.

       Issue Two: Whether Schowengerdt was denied effective assistance of counsel.

¶3     We affirm.

                  PROCEDURAL AND FACTUAL BACKGROUND

¶4     The initial facts of the case are undisputed: On December 8, 2012, Schowengerdt

killed his wife, Tina Schowengerdt, by repeatedly stabbing her in their home near Deer

Lodge. The following morning, Schowengerdt drove to the police station in Deer Lodge

and, in a recorded statement, told officers that last night he, “killed that son of a bitch [he]

was living with. So arrest me, lock me up, I’m guilty, I killed her.” On January 2, 2013,

Steven Scott (“Scott”) of the Office of the State Public Defender (OPD) was assigned as

counsel for Schowengerdt. Scott commenced representation and filed several pleadings on

behalf of his client.


                                               2
¶5     On January 17, 2013, Scott filed a Notice that Schowengerdt might assert a defense

of justifiable use of force. On April 2, 2013, immediately prior to a hearing on his motion

to change venue, Schowengerdt decided to plead guilty to deliberate homicide.

Schowengerdt signed an Acknowledgment of Waiver of Rights by Plea of Guilty and

admitted that he “knowingly stabbed Tina Schowengerdt with a knife causing her death . . .

[on] 12/08/12.” The District Court proceeded through a detailed colloquy, during which

Schowengerdt indicated that his plea was knowing and voluntary, that he was satisfied with

Scott’s services, and that he felt he could not “handle” a trial. The District Court accepted

the guilty plea.

¶6     On June 12, 2013, Schowengerdt sent a letter to the District Court requesting new

counsel. In the letter, he wrote: “I am Requesting a Withdraw [sic] as My Attorney at this

time Mr Steve Scott; I AM Requesting For proper Reputation [sic] in My case.” Two days

later, Scott filed a motion to withdraw Schowengerdt’s guilty plea, explaining in the

supporting brief: “Mr. Schowengerdt . . . stated he wants to withdraw his plea of guilty

and proceed onto trial in this case. Mr. Schowengerdt indicated he made a mistake when

he entered into the plea and now wishes to withdraw his plea and proceed to trial.” Scott

added that he felt it was his “duty as a licensed attorney in Montana to point out to the

Court there is not any case law in Montana to support Mr. Schowengerdt’s position as to

the withdraw[al] of plea.” After reviewing Schowengerdt’s letter, the District Court

ordered Scott to submit a memorandum explaining his position regarding continued

representation of Schowengerdt. Scott responded, stating that he had “no problem with




                                             3
continuing to represent [Schowengerdt],” and that he did not feel there had been a

breakdown of the attorney-client relationship.

¶7     On July 2, 2013, the District Court held a hearing to address Schowengerdt’s letter

requesting a change in representation.      As Schowengerdt was about to explain his

dissatisfaction with his assigned counsel, the District Court interrupted him and

Schowengerdt was not provided the chance to speak to the issue. Instead, the District Court

directed Schowengerdt to follow the OPD’s process for obtaining substitute counsel.

¶8     On August 27, 2013, the District Court held a hearing on Schowengerdt’s Motion

to Withdraw Guilty Plea, at which the District Court inquired whether the representation

issue had been resolved. Scott explained that OPD denied Schowengerdt’s request for new

counsel and that Schowengerdt had not appealed the decision pursuant to OPD’s

administrative policies. The District Court deemed the representation matter resolved and

moved on to Schowengerdt’s Motion to Withdraw Guilty Plea.

¶9     Regarding the Motion to Withdraw Guilty Plea, Scott reiterated what he had

previously submitted to the District Court, stating: “[Schowengerdt] did not have a basis

to give me as to why he felt his plea should be withdrawn . . . .” The District Court invited

Schowengerdt to speak, and Schowengerdt stated that he felt unprepared to address his

withdrawal of plea but stated, “I don’t think I’m guilty. . . . I know what the outcome was,

but I think I was fighting for my life.” The District Court then denied the Motion to

Withdraw Guilty Plea and concluded that Schowengerdt had not “in any way asserted his

plea of guilty was involuntary and there is no basis in the record to conclude [his] guilty




                                             4
plea was involuntary.” The District Court denied Schowengerdt’s motion to withdraw his

guilty plea and sentenced him to life in the Montana State Prison.

¶10    Schowengerdt appealed, arguing that Scott failed to provide effective assistance of

counsel and that the District Court failed to adequately inquire into Schowengerdt’s

complaints of ineffective assistance. We agreed that the District Court failed to adequately

inquire into Schowengerdt’s complaints regarding his counsel which necessitated a remand

for further proceedings on this issue. State v. Schowengerdt, 

, 

, 

. We held:

       Upon remand, the District Court must adequately inquire into
       Schowengerdt’s complaints about his assigned counsel to determine whether
       his complaints are seemingly substantial and necessitate a hearing to
       determine the validity of Schowengerdt’s allegations and the need for
       substitution of counsel. If the court determines that new counsel is
       warranted, then, in accordance with the relief sought by Schowengerdt, he
       will have “the opportunity to present his motion to withdraw his guilty plea
       to the district court” with new counsel. We express no opinion on the merits
       of Schowengerdt’s motion to withdraw his guilty plea. If, on the other hand,
       the court determines that Schowengerdt has not presented seemingly
       substantial complaints about his counsel, or is otherwise not entitled to new
       counsel, then the judgment and sentence are affirmed, subject to
       Schowengerdt’s right to appeal the District Court’s determinations made on
       remand, and his preserved issue concerning ineffective assistance of counsel.

Schowengerdt, ¶ 24.

¶11    On August 7, 2015, the District Court held a proceeding to inquire into

Schowengerdt’s complaints about Scott’s representation to determine whether the

complaints were seemingly substantial such that they warranted a hearing. The District

Court appointed new counsel to Schowengerdt for this proceeding and heard from both

Schowengerdt and Scott. Schowengerdt described in detail his dissatisfaction with Scott’s



                                             5
representation. Schowengerdt perceived a lack of loyalty by Scott towards Schowengerdt

as his client; Schowengerdt expressed concerns that Scott had not investigated the case

properly; and Schowengerdt voiced frustration stemming from a lack of comprehension of

the proceedings and the scope of Scott’s representation. After hearing from Schowengerdt,

the District Court found his complaints to be “substantial,” such that they merited further

explanation and consideration.

¶12    Next, Schowengerdt’s new counsel succinctly summarized his client’s complaints

to the District Court: (1) Schowengerdt had trouble dealing with what had happened—he

wanted, but was not able, to speak with a doctor or counselor; (2) Schowengerdt did not

have a meaningful attorney-client relationship—Schowengerdt felt that Scott was working

against him and not giving him the time and attention he needed to understand and be

prepared for the proceedings; (3) Schowengerdt asked Scott to do things he did not do—

Scott did not investigate or follow up on certain suggestions such as looking into the

victim’s phone and laptop records or medication she might have been taking; and (4)

Schowengerdt did not understand all the proceedings—alleging a lack of communication

and comprehension due to Scott’s shortcomings and Schowengerdt’s hearing impairment.

¶13    The District Court then provided Scott with an opportunity to respond to

Schowengerdt’s allegations. Scott, referencing his contemporaneous notes throughout the

proceeding, responded that he felt he could successfully communicate with Schowengerdt

throughout the representation. Scott vehemently denied any knowledge of, contact with, or

collaboration with Schowengerdt’s daughter or other community members, and Scott

explained each of his choices to not pursue certain avenues or strategies that Schowengerdt


                                            6
had suggested. Scott also described how he followed up with most of Schowengerdt’s

suggestions and requests but found certain investigations unproductive or irrelevant in light

of the evidence and prior proceedings.

¶14     At the conclusion of this proceeding, the District Court asked all parties whether

they were satisfied with the proceeding. Nobody voiced an objection. On September 15,

2015, the District Court issued an order again denying Schowengerdt’s request for

substitution of counsel. Schowengerdt appeals this Order.

                              STANDARDS OF REVIEW

¶15     We review a district court’s consideration of a request for substitution of counsel

for abuse of discretion. State v. Long, 

, 

 (1983); see

also State v. Aguado, 

, 

, 

; State v. Dethman, 

, 

, 

. This Court considers whether the district court

acted arbitrarily without employment of conscientious judgment or exceeded “the bounds

of reason resulting in substantial injustice.” State v. Brasda, 

, 

, 

 (citing State v. Richardson, 

, 

, 

).

¶16     We review for abuse of discretion both procedures employed by a district court

during the initial inquiry into defendant’s complaints, see City of Billings v. Smith, 

, 135–36, 

, 1059–60 (1997); Dethman, ¶¶ 12–14, and a district

court’s analysis of whether a defendant’s claims are seemingly substantial, necessitating a

further hearing, see State v. Holm, 

, 

, 

(citing State v. Gallagher (Gallagher I), 

, 

, 

).


                                             7
We review a district court’s factual findings made during a hearing for clear error. State v.

Gallagher (Gallagher II), 

, 

, 

 (citing M. R. Civ.

P. 52 (a)). Factual findings are clearly erroneous if they are not supported by “substantial

credible evidence.” Engel v. Gampp, 

, 

, 

.

¶17    Claims of ineffective assistance of counsel are mixed questions of law and fact that

we review de novo. Whitlow v. State, 

, 

, 

; see

also Longjaw v. State, 

, 

, 

 (reviewing a

conflict of interest issue relating to ineffective assistance of counsel de novo); State v.

Clary, 

, 

, 

.

                                      DISCUSSION

¶18    Issue One: Whether the District Court erred in ruling that Schowengerdt was not
       entitled to substitution of counsel.

¶19    When investigating a defendant’s request for new counsel, a district court must first

conduct an “adequate initial inquiry to determine whether the defendant’s claim is

seemingly substantial.” State v. Happel, 

, 

, 

 (internal citations omitted); see also State v. Weaver, 

, 

 (1996); City of Billings, 

, 

. A district court

conducts an adequate inquiry when it gathers information, see Gallagher I, ¶ 22, analyzes

the defendant’s factual complaints along with counsel’s specific responses, State v.

Cheetham, 

, 

, 

; Holm, ¶ 19, and “‘ma[kes] some

sort of critical analysis at the time the motion was filed,’” Happel, ¶ 14 (quoting State v.

Finley, 

, 

 (1996) (overruled in part on other



                                             8
grounds)). During this initial inquiry, the district court need only inquire as to whether a

defendant’s claim is seemingly substantial, not whether it is meritorious. Happel, ¶ 14

(citing State v. Gazda, 

, 

, 

). If a district court’s

inquiry reveals a seemingly substantial complaint, the court “must hold a hearing to address

the validity of the complaints, and appoint separate counsel to represent the defendant.”

Happel, ¶ 14 (citing Gallagher I, ¶ 15); Gazda, ¶ 32.

¶20    A district court’s failure to conduct even a perfunctory inquiry justifies remand for

further proceedings. City of Billings, 281 Mont. at 136–37, 932 P.2d at 1060–61 (holding

the district court’s inquiry was inadequate where the court refused to allow the defendant

to explain his complaints); see also Weaver, 

, 

.

¶21    In ruling on Schowengerdt’s first appeal, we held that the District Court failed to

conduct an adequate initial inquiry into Schowengerdt’s complaints. Accordingly, we

remanded with instructions to the District Court to “adequately inquire into

Schowengerdt’s complaints about his assigned counsel to determine whether his

complaints are seemingly substantial and necessitate a hearing to determine the validity of

Schowengerdt’s allegations and the need for substitution of counsel.” Schowengerdt, ¶ 24.

This is exactly what the District Court did.

¶22    On appeal, Schowengerdt contends that the District Court’s factual findings are

clearly erroneous because they are not supported by substantial evidence. Schowengerdt

bases this contention on the fact that, although the District Court heard from both

Schowengerdt and Scott and made extensive factual findings about Schowengerdt’s

complaints regarding Scott’s performance, “Schowengerdt and Scott never testified under


                                               9
oath, were never subject to cross-examination, and were never called to present evidence

on the complaints. Thus, the district court’s factual findings in the remand order are merely

factual allegations that are unsupported by substantial evidence.”

¶23    The District Court conducted an initial inquiry to determine whether

Schowengerdt’s complaints about his counsel were seemingly substantial and necessitated

a hearing on the merits.       Schowengerdt, represented by new counsel, presented his

complaints to the court, and his counsel succinctly restated the complaints. The District

Court determined that Schowengerdt’s complaints were “seemingly substantial” and

allowed Scott to respond to each of Schowengerdt’s specific complaints. After hearing

from everybody, the District Court asked Schowengerdt whether he was satisfied with the

proceedings and Schowengerdt, through counsel, affirmed that he was satisfied.

Schowengerdt’s new counsel clarified that Schowengerdt’s factual complaints and Scott’s

specific responses must be analyzed in the context of the original motion for substitution

of counsel, see e.g., Cheetham, ¶ 20; Holm, ¶ 19, and the District Court confirmed it would

abide by this analysis, see Finley, 

, 

. There were no further

interjections or objections.

¶24    Except in limited circumstances, a defendant’s failure to raise an issue before the

district court constitutes a waiver that bars the defendant from raising the issue on appeal

and prevents us from reviewing the issue on appeal. State v. Kotwicki, 

, 

, 

 (citing § 46-20-104, MCA); see also State v. Ashby, 

, 

, 

 (explicitly refusing to review an unchallenged

condition in light of a defendant’s failure to object in district court). However, this Court


                                             10
may discretionarily review claimed errors that implicate a defendant’s constitutional rights

or where failing to review the claimed error may result in a “manifest miscarriage of justice,

may leave unsettled the question of the fundamental fairness of the . . . proceedings, or may

compromise the integrity of the judicial process.” State v. Baker, 

, 

, 

 (quoting Finley, 

, 

).

¶25    The principle of effective representation by counsel and the process to inquire as to

whether a defendant is receiving effective representation is a fundamental constitutional

right. See Happel, ¶ 14; see also State v. Meredith, 

, 

, 

. However, Schowengerdt fails to show that any fundamental unfairness resulted

from the process to which he now objects, or that manifest injustice would result if we

affirmed the District Court. See Baker, ¶ 12. Schowengerdt does not take issue with the

substance of the District Court’s findings; he objects to the manner in which the findings

were made. But Schowengerdt was aware in advance of the proceeding and what it would

entail, and he was provided with another attorney, Smith, to help him prepare and guide

him through the process. The record also reflects that the parties discussed in chambers

the structure of the proceeding prior to going on the record.

¶26    Schowengerdt now argues that he and Scott should have been put under oath and

subject to cross-examination. However, Schowengerdt never objected to the procedure the

District Court followed in determining the validity of his allegations.          During the

proceeding, the District Court invited both parties to state their complaints, to respond, and

to raise objections. The District Court asked multiple times whether either party had

anything to add and whether both parties were satisfied with the process. Schowengerdt’s


                                             11
failure to challenge the proceeding before the District Court constitutes a waiver that bars

the defendant from raising the issue on appeal and prevents us from reviewing the issue on

appeal. See Kotwicki, ¶ 22. Although it may have been preferable that, once the District

Court determined Schowengerdt’s complaints were seemingly substantial, Schowengerdt

and Scott were placed under oath in the subsequent hearing to determine the validity of

Schowengerdt’s allegations, we will not put a district court in error for conducting a hearing

in a manner to which the defendant acquiesced and raised no objection.

¶27    The District Court followed our instructions on remand. The District Court did not

err in ruling that Schowengerdt was not entitled to substitution of counsel.

¶28    Issue Two: Whether Schowengerdt was denied effective assistance of counsel.

¶29    The Sixth Amendment to the United States Constitution and Article II, Section 24

of the Montana Constitution guarantee criminal defendants the right to effective assistance

of counsel. U.S. Const. amend VI; Mont. Const. art. II, § 24; Gideon v. Wainwright, 

, 339–45, 

, 802–06 (1963); Meredith, ¶ 50; Dethman, ¶ 15.

¶30    A criminal defendant may only raise record-based ineffective assistance of counsel

claims on a direct appeal. State v. Earl, 

, 

, 

.

A record-based claim is a claim in which counsel’s course of action—or failure to act—is

fully explained by the record. State v. White, 

, 

, 

; Cheetham, ¶ 14. Here, the District Court’s hearing on remand—in which it heard

all of Schowengerdt’s complaints and Scott’s responses to those complaints—sufficiently

developed the record such that Schowengerdt’s ineffective assistance of counsel claim is

properly before us on appeal. See Cheetham, ¶ 14; White, ¶ 20.


                                             12
¶31    To prevail on an ineffective assistance of counsel claim, a defendant must show,

first, that counsel’s performance was deficient—making errors so serious that counsel was

not functioning as “counsel” guaranteed by the Sixth Amendment—and, second, that the

deficient performance prejudiced the defendant, in other words, that the errors “were so

serious as to deprive the defendant of a fair trial . . . .” Whitlow, ¶ 10 (quoting Strickland

v. Washington, 

, 

 (1984)). When scrutinizing

whether counsel was deficient, a court should not analyze the conduct with hindsight;

instead, a court should presume that counsel’s conduct falls within a range of acceptable

professional assistance, and a defendant must overcome that presumption. Whitlow,

¶¶ 15—16.     Further, decisions concerning tactics and strategy based on reasonable

professional judgment and thorough investigation should be left to counsel’s discretion.

See Whitlow, ¶¶ 18–19 (citing Strickland, 

, 690–91, 104 S. Ct. at 2065–66).

¶32    In United States v. Cronic, the United States Supreme Court recognized three

limited circumstances where prejudice may be presumed: (1) a complete denial of counsel;

(2) if counsel fails entirely to “subject the prosecution’s case to meaningful adversarial

testing”; and (3) where counsel is called upon to provide assistance under circumstances

where competent counsel most likely could not. 

, 659–62, 

,

2047–48 (1984); see also Bell v. Cone, 

, 696–97, 

, 1850–51

(2002) (overruled on other grounds).

¶33    In State v. Jones, this Court adopted the Ninth Circuit’s reasoning in Frazer v.

United States, 

 (9th Cir. 1994), and reiterated the narrow

circumstances where a presumption of prejudice is warranted. 

, 134–35,


                                             13


, 567–68 (1996). A presumption of prejudice is warranted when counsel

totally abandons the duties of loyalty and confidentially to a client by putting counsel’s

personal interest ahead of the client and forsakes the adversarial role on behalf of the client,

thus essentially joining the prosecution’s efforts, or “by an actual conflict of interest.”

Jones, 278 Mont. at 133–35, 923 P.2d at 567–68 (citing Frazer, 

);

Strickland, 

, 

. An actual conflict exists where a defense

attorney “is required to make a choice advancing another client’s interests to the detriment

of his client’s interest.” State v. Deschon, 

, 

, 

;

see also Finley, 

, 915 P.2d at 219–20 (holding that a defendant is entitled

to a presumption of prejudice where defendant can show that “counsel actively represented

conflicting interests, and . . . that an actual conflict of interests adversely affected counsel’s

performance”); State v. St. Dennis, 

, 

, 

;

Thurston v. State, 

, 

, 

; State v. Christenson,

, 

 (1991).

¶34    Counsel’s duty of loyalty and confidentiality is balanced with counsel’s role as an

officer of the court and is therefore limited by the duty to comply with law and the rules of

professional conduct. See Nix v. Whiteside, 

, 

, 994–95

(1986). This obligation is embodied, in part, in the Montana Rules of Professional

Conduct, which require the duty of candor to the tribunal: “A lawyer shall not bring or

defend a proceeding, or assert or controvert an issue therein: (1) without having first

determined through diligent investigation that there is a bona fide basis in law for the

position to be advocated.” M. R. Pro. Cond. 3.1(a). Counsel’s duty of confidentiality


                                               14
extends to a client’s guilty plea but does not require counsel to “assist the client in

presenting false evidence.” Jones, 

, 

 (citing Whiteside,

, 

 (analyzed in the context of counsel’s attempts

to prevent a client’s perjury).

¶35    In Jones, we held that counsel violated his duty of confidentiality, and totally

abandoned the “duties of loyalties and confidentiality” to his client such that a presumption

of prejudice was warranted, when counsel attempted to withdraw in advance of trial after

a disagreement with his client, who was committed to going to trial instead of taking a

guilty plea. Jones, 

, 133–34, 923 at 562, 567–68. Before the court,

defense counsel openly disagreed with and undermined his client’s choice to proceed to

trial, calling it “repugnant.” Jones, 

, 131–32, 

, 566–68.

Further, counsel revealed confidential client information, representing to the court that,

“my client has admitted to me, essentially, that he did it,” and deemed the case “open and

shut,” essentially joining the State’s efforts to convict the defendant. Jones, 

, 131–33, 

, 566–68 (internal citations omitted).

¶36    We also held that counsel breached the duty of loyalty and abandoned his client

when a district court, following defendant’s allegations, allowed defense counsel to take

the stand and “rebut” the defendant’s allegations at a post-trial hearing considering a

defendant’s complaints of ineffective assistance of counsel. Finley, 

, 

. We reasoned that the defendant was “without counsel at this point in the

proceedings because his own attorney testified against him.” Finley, 

,

.


                                             15
¶37    We first analyze whether Schowengerdt is entitled to a presumption of prejudice.

Schowengerdt argues that he is entitled to a p resumption of prejudice because Scott

violated the duty of loyalty and confidentiality by (1) effectively abandoning Schowengerdt

during a critical stage of the proceedings when Scott filed the Motion to Withdraw the

Guilty Plea and, during the hearing that followed, argued that there was no law to support

the plea withdrawal, and (2) by creating a conflict of interest in continuing representation

and disclosing confidential communication. We disagree.

¶38    First, in advance of writing the Motion to Withdraw Guilty Plea, Scott met with

Schowengerdt and discussed strategy and risks on several occasions.            Scott made

arrangements to improve and ensure communication with his client, and he followed

Schowengerdt’s instructions and proposed course of action; however, he reserved tactical

details to himself. See Whitlow, ¶¶ 18–19.

¶39    Schowengerdt attempts to analogize his situation to the criminal defendant in

Finley. However, the present case is distinguishable in several ways. First, during the

process leading up to filing the Motion to Withdraw Guilty Plea, Schowengerdt and Scott

worked together and proceeded with a defense in accordance with Schowengerdt’s wishes.

Second, Scott did not, as Schowengerdt states, “argue[] against the motion in the

supporting brief” such that Schowengerdt was basically without counsel during the

proceeding. Scott did not take the stand and rebut Schowengerdt’s claims or testify against

him. Instead, Scott stated “all I have is that Mr. Schowengerdt has asked me to file the

motion to withdraw his guilty plea.” Following a somewhat impromptu voluntary guilty

plea by Schowengerdt, Scott was left with little to rely upon when he, at the behest of his


                                             16
client, moved to withdraw the plea. Scott presented the court with the only arguments

available to him.

¶40    Also, unlike the counsel in Jones, Scott never expressed any belief or speculation

regarding Schowengerdt’s innocence or guilt, either in his Motion to Withdraw Guilty Plea

or at the hearing. See Jones, 278 Mont. at 131–32, 

. Scott also did not

openly denigrate Schowengerdt’s choice to attempt a plea withdrawal. See Jones, 

, 131–32, 

, 566–68. Scott merely provided the District Court

with the required showing of good cause rationale and balanced his duty as an advocate

and officer of the court. See e.g., M. R. Pro. Cond. 3.1(a); § 46-16-105(2), MCA; see also

State v. Schoonover, 

, ¶¶ 10–11, 

, 

 (considering the

following factors when examining whether to grant or deny a defendant’s motion to

withdraw a guilty plea: (1) adequacy of court’s interrogation at the time of the plea; (2)

promptness with which a defendant attempts to withdraw the plea; and (3) if the plea was

part of a bargain or given in exchange for dismissal of other charges).

¶41    While Schowengerdt alleges that leading up to the change of plea, he was not

prepared to plead guilty and alleges Scott and his investigator recommended that

Schowengerdt “hurry up” and sign “this piece of paper,” Scott disputes this version of

events. Scott alleges it was Schowengerdt who told him, “let’s just plead.” Further,

Schowengerdt alleges that he did not understand the hearing procedures, laboring for two

years under the misapprehension that he had been to trial, not that he had entered a guilty

plea with the court. This, despite the fact that Schowengerdt twice stated that he did not




                                            17
want to go to trial because he could not “handle it,” and was therefore pleading guilty. We

conclude that Scott did not abandon Schowengerdt at a critical stage in the proceedings.

¶42    Scott also did not create a conflict of interest or reveal any confidential client

communications, aside from the purported rationale for the motion to withdraw the guilty

plea as is required by law. See Jones, 278 Mont. at 131–32, 

; see

§ 46-16-105(2), MCA. In his Motion to Withdraw Schowengerdt’s Guilty Plea, Scott

stated it was his “duty as a licensed attorney in Montana to point out the Court there is not

any case law in Montana to support Mr. Schowengerdt’s position as to the withdraw[al] of

plea.” See M. R. Pro. Cond. 3.3. While the lack of case law in support of Schowengerdt’s

motion was probably evident from the contents of the motion and likely obviated the need

for such a representation, the representation did not create a conflict of interest or otherwise

violate Scott’s duty of loyalty to his client.

¶43    During the hearing to determine the Motion to Withdraw Guilty Plea, when invited

by the District Court to speak, Schowengerdt added no substantive justification for his plea

withdrawal. Schowengerdt described that he felt unprepared to address his withdrawal of

plea but stated, “I don’t think I’m guilty. . . . I know what the outcome was, but I think I

was fighting for my life.” The District Court denied the Motion to Withdraw the Guilty

Plea, concluding that Schowengerdt had not “in any way asserted his plea of guilty was

involuntary and there is no basis in the record to conclude [his] guilty plea was

involuntary.”

¶44    Schowengerdt also argues that his ineffective assistance claim based on

involuntariness created a conflict of interest for Scott when he filed and defended the


                                                 18
Motion to Withdraw Schowengerdt’s Guilty Plea. Following this logic, the narrow

exception carved out for assuming prejudice would swallow the rule. Schowengerdt would

have this Court afford a presumption of prejudice in any case where a complaint was raised

against an attorney and that attorney continued to represent the criminal defendant. While

it is true that ineffective assistance can render a plea involuntary and provide good cause

for plea withdrawal, see State v. Henderson, 

, ¶¶ 7–8, 17, 

, 

; State v. Lawrence, 

, ¶¶ 12–16, 

, 

, we

agree with the District Court’s determination that Schowengerdt’s plea was voluntarily and

intelligently made.

¶45    Nothing in the record shows that Scott placed his own interests, or those of the State,

before Schowengerdt’s when he attempted to withdraw Schowengerdt’s plea. Neither does

the record indicate that Scott chose an avenue advancing or protecting himself over

Schowengerdt’s interests, nor that such imagined choice worked to Schowengerdt’s

detriment. See Christenson, 

, 

. Though perhaps poorly

expressed, when Scott told the District Court that he thought Schowengerdt suffered from

“buyer’s remorse,” Scott did not have any personal interest or stake in the outcome of the

case, and he continued to represent Schowengerdt to the best of his abilities.               See

Christenson, 

, 

.

¶46    Scott did not violate his duty of loyalty and did not have an actual conflict of interest.

See Christenson, 

, 

. Schowengerdt failed to show a

conflict of interest or abandonment such that a presumption of prejudice is warranted.

Nothing in the record shows that Schowengerdt is entitled to a presumption of prejudice;


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and because a defendant must prove both prejudice and that counsel’s performance was

deficient, see Christenson, 

, 

, the District Court did not

err in denying Schowengerdt’s motion for substitution of counsel.

¶47    Finally, a lack of communication between appointed counsel and a defendant is not,

on its own, a basis for reversal on grounds of ineffective assistance. State v. Long, 

, 

 (1983). The district court should appoint new counsel

if the defendant can show with material facts that there is a total lack of communication.

State v. Zackuse, 

, 385–86, 

 (1991); State v. Martz, 

, 139–40, 

 (1988); see Gallagher I, ¶¶ 23–26 (remanding for a

determination of whether a defendant was entitled to new counsel after he communicated

to the court that his relationship with appointed counsel deteriorated into a total lack of

communication and that he and counsel were at an “impasse with respect to the proper

course of action in his case”). However, bare allegations are insufficient. Zackuse, 250

Mont. at 385–86, 

.

¶48    Here, the record does not a show a total breakdown in communication. See Long,

206 Mont. at 44–46, 669 P.2d at 1071–72.          The record, on remand, does show a

disagreement between Schowengerdt and Scott regarding investigation tactics and the

merits of certain strategies, but the record also shows that Scott attempted to accommodate

Schowengerdt’s requests and continued to advise Schowengerdt. Further, unlike the client

and counsel in Gallagher I, Schowengerdt wanted to plead guilty and Scott enabled this

decision following lengthy discussions with his client. See Gallagher I, ¶ 23. Scott entered

the guilty plea at Schowengerdt’s request and attempted to withdraw it at Schowengerdt’s


                                            20
behest. While Schowengerdt points to specific points of potential disagreement between

Scott and himself, see Gallagher I, ¶¶ 23–24, the record shows an ongoing relationship

between counsel and client.

¶49    Schowengerdt was not denied effective assistance of counsel. The District Court

did not err when it inquired into the complaints of ineffective assistance of counsel and

explicitly concluded Schowengerdt was effectively represented and denied his request for

substitution of counsel.

                                    CONCLUSION

¶50    As directed, the District Court inquired into Schowengerdt’s complaints about

assigned counsel to determine whether the complaints were seemingly substantial and

warranted a hearing. The District Court conducted a hearing at which it heard from both

Schowengerdt and Scott, and made extensive findings based on that hearing. Although

Schowengerdt complains now about the manner in which the District Court conducted the

hearing, he made no objection at the time, nor does he take issue with the substance of the

District Court’s findings. Schowengerdt was not denied effective assistance of counsel,

and the District Court’s Order denying his request for new counsel is affirmed.


                                                 /S/ JAMES JEREMIAH SHEA


We Concur:


/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR



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