State v. Browning

2006 MT 190, 142 P.3d 757, 333 Mont. 132, 2006 Mont. LEXIS 383
CourtMontana Supreme Court
DecidedAugust 16, 2006
Docket05-433
StatusPublished
Cited by5 cases

This text of 2006 MT 190 (State v. Browning) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Browning, 2006 MT 190, 142 P.3d 757, 333 Mont. 132, 2006 Mont. LEXIS 383 (Mo. 2006).

Opinions

JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 On April 12, 2004, the State of Montana charged Robert Lee Browning with driving under the influence (felony) (DUI), obstructing a police officer (misdemeanor), driving while privilege to do so is suspended or revoked (misdemeanor), and failure to carry proof of insurance (misdemeanor). After Browning provided proof of insurance, the State dropped the last charge. A year and three attorneys later, Browning appeared pro se before the Twentieth Judicial District Court, Lake County, and pled guilty. Because the DUI was Browning’s sixth DUI offense and he had prior convictions for bail jumping, the court sentenced Browning as a persistent felony offender to twenty years, with the entire sentence suspended except for time served through completion of the WATCH program. Browning subsequently filed a motion to withdraw his guilty plea, contending that his plea was involuntary because he did not receive effective assistance of counsel.

¶2 The issue on appeal is whether the District Court denied Browning assistance of counsel and therefore erred when it denied Browning’s motion to withdraw his guilty plea?

¶3 We reverse.

BACKGROUND

¶4 The District Court assigned three attorneys to represent Browning during the year-plus that Browning’s case moved through [134]*134the lower court, none of whom ultimately represented Browning when he pled guilty. The first lawyer, Larry Nistler, withdrew from the case, citing deterioration of the attorney-client relationship to the point where new counsel would better serve Browning’s best interests. The second attorney, Sean Hinchey, was removed after Browning expressed distrust for him, specifically because Hinchey “tried to convince” Browning’s wife to talk Browning into accepting a plea agreement from the State. The court appointed a third lawyer, Lane Bennett, whom Browning dismissed minutes before a scheduled trial in anticipation of hiring private counsel.

¶5 Throughout proceedings, Browning repeatedly expressed dismay and frustration with his court-appointed attorneys for not obtaining certain discovery. On the day the District Court dismissed Bennett as counsel, Browning stated that while he believed Bennett was a “professional,” there were “certain things” in his case that he had requested and not received. The court told Browning that it believed the evidence Browning wanted did not exist and then explained in detail the consequences Browning faced in terminating his third court-appointed attorney. The court made clear that while Browning had every right to hire any attorney of his choosing, Bennett would be the last court-appointed defender on the case. Browning stated that he understood the potential ramifications of terminating Bennett, but that he nonetheless wanted to proceed without Bennett because he intended to hire a private attorney, Rebecca Dupuis, to represent him.

¶6 The following discussion, in pertinent part, transpired between the court and Browning on the day that Browning’s third attorney, Bennett, was terminated:

THE COURT: ... The Court is significantly concerned about you proceeding without representation. However, you certainly have the right to either represent yourself or to hire private counsel.
... [I]f Ms. Dupuis intends to represent you, that’s certainly your right. But she needs to be prepared to go to trial in 20 minutes. And I’m wondering, based on your request, where she is, if you intend to proceed with Ms. Dupuis. If not, then the Court would expect that you intend to represent yourself.
And before I’m going to remove Mr. Bennett off this case, I want to make very, very certain that you understand all of the dangers and disadvantages of representing yourself. Mr. Bennett has outlined some of those.
[135]*135So at this point is it your intention, then, to proceed with Ms. Dupuis, to represent yourself or to continue with Mr. Bennett as your attorney?
BROWNING: Well, I want Ms. Dupuis.
THE COURT: Well, she’s not here. And you have a trial in 15 minutes.
The only way I’m going to grant you a continuance to allow Ms. Dupuis to appear for you is if you waive speedy trial, sir. You have a trial date right now at nine o’clock, in 15 minutes, and I have 40 jurors sitting out there.
... Mr. Browning, you have two options, sir, at this point in time. The only way that you can proceed with Ms. Dupuis as your attorney is to waive your right to speedy trial, obtain a continuance and allow her to be present. The county attorney has just attempted again to call her. It’s now 12 minutes to nine o’clock, which is the time set for trial, and there’s no answer at her office.
BROWNING: I want the continuance.
THE COURT: You want the continuance.
BROWNING: Yes, Your Honor. I’m going to continue.
THE COURT: You want the continuance.
BROWNING: Yes.
THE COURT: And as I indicated, you want that continuance so that Ms. Dupuis can represent you.
BROWNING: Yes.
THE COURT: All right. Mr. Bennett, you are removed as the public defender in this case.
And you understand, [Mr. Browning], that I’m presuming that Ms. Dupuis is actually going to appear on your behalf at this point intime.
BROWNING: So am I. I’m presuming that she is also. We have the money coming to-
THE COURT: Because the other thing is, you have to understand that essentially what you are doing is you will be in a position where you will be representing yourself. And that means that all of the same rules in court apply to you just as they do the lawyers.
[136]*136BROWNING: Yeah.
THE COURT: You understand that if you make any mistakes, that I can’t give you any assistance and I won’t give you any special benefits or privileges.
BROWNING: I understand.
THE COURT: You understand that the government is represented by an attorney, someone who has spent a lot of time in handling criminal cases. And you understand that you will be up against determining all of the decisions that would have to be made in selection of a jury, in providing an opening statement, in what’s admissible evidence. You understand that?
BROWNING: I understand.
THE COURT: You understand that you would then have to conduct your own direct and your own cross-examination of witnesses.
BROWNING: I understand.
THE COURT: In addition... you understand that by removing Mr. Bennett, then the Court is removing the obligation to have a public defender involved in this case.
BROWNING: I understand.
THE COURT: All right. Then I have removed Mr. Bennett. You are now for the Court’s purposes representing yourself until and unless such time happens as Ms. Dupuis enters some appearance ....

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Cite This Page — Counsel Stack

Bluebook (online)
2006 MT 190, 142 P.3d 757, 333 Mont. 132, 2006 Mont. LEXIS 383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-browning-mont-2006.