01/23/2024
DA 21-0530 Case Number: DA 21-0530
IN THE SUPREME COURT OF THE STATE OF MONTANA 2024 MT 12N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DAVID ABRAHAM LORENZ,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventh Judicial District, In and For the County of Richland, Cause No. DC-03-12 Honorable Katherine M. Bidegaray, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Gregory Hood, Assistant Appellate Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Michael P. Dougherty, Assistant Attorney General, Helena, Montana
Charity McLarty, Richland County Attorney, Sidney, Montana
Submitted on Briefs: December 13, 2023
Decided: January 23, 2024
Filed:
Vir-6A.-if __________________________________________ Clerk Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 David Abraham Lorenz (Lorenz) appeals a September 3, 2021 Order from the
Seventh Judicial District Court, Richland County, revoking his suspended sentences for the
operation of an unlawful clandestine laboratory and criminal possession of precursors to
dangerous drugs. Lorenz contends the District Court did not make an adequate initial
inquiry into the nature of his purported complaint about counsel to determine if the
complaint was seemingly substantial. We affirm.
¶3 In 2003, Lorenz pled guilty to three criminal offenses in connection with operating
a drug lab and possessing illegal drugs. On one count, the District Court committed him
to the Montana Department of Corrections for ten years with five years suspended. For the
other two counts, the District Court deferred the imposition of sentence for three years. In
2005, Lorenz had both his suspended sentence and his deferred sentences revoked after
violating various sentence conditions, and he was resentenced. In 2014, the 2005 sentences
were revoked, and Lorenz received revised suspended sentences for all three counts. In
2 2020, in the current proceeding, the State again sought to revoke his suspended sentences
on two counts.1
¶4 Lorenz initially represented himself during this proceeding. However, he requested
appointment of counsel in July 2021, and Michael Haase of the Office of the Public
Defender filed a notice of appearance on behalf of Lorenz on July 23, 2021. On August 16,
2021, the District Court held an adjudicatory hearing, wherein Lorenz was represented by
Haase, and found by a preponderance of the evidence that Lorenz had violated the
conditions of his suspended sentences. After the hearing and prior to the dispositional
hearing set for August 30, 2021, Haase filed a motion to withdraw as Lorenz’s attorney.
Haase’s motion conveyed that Lorenz wanted to represent himself, explaining that Lorenz
“explicitly told attorney that he did not want attorney to represent him and that attorney
has failed to adequately represent him on the above-referenced matter up to this point.” It
further stated that “communication has broken down between attorney and Defendant
where it is impossible for either to work together to afford the Defendant proper
representation in this matter.”
¶5 Lorenz and Haase both appeared at the August 30, 2021 dispositional hearing. At
that hearing, the following discussion occurred:
The Court: In the meantime, Mr. Haase has filed a motion to withdraw. Mr. Lorenz, have you seen that?
Lorenz: Yes, ma’am.
The Court: Do you contest it or do you consent to it? 1 Lorenz’s suspended sentence on the third count had been successfully discharged.
3 Lorenz: I consent to it.
The Court: Okay. Mr. Haase, you’re free to go. Let’s proceed to dispositional hearing. Does the State have any witnesses?
Lorenz: If I proceed without a lawyer then I don’t consent to it.
The Court: Well, you don’t get to pick your lawyer is the thing. Do you have one hired?
Lorenz: No. We had a conflict.
The Court: Yeah, well, I don’t think that the State established. You have the right to proceed without a lawyer.
Lorenz: No, I want an attorney.
The Court: Okay. You don’t get to pick your attorney.
Lorenz: Okay. Well, I never fired him.
The Court: Okay. Mr. Haase are you prepared to proceed?
Haase: I can proceed, Your Honor, yes.
The Court: Okay. [Prosecutor], call your first witness.
¶6 The proceedings thereafter continued with Haase representing Lorenz. After Lorenz
testified and the State introduced its witness testimony, the District Court issued an Order
on September 3, 2021, revoking Lorenz’s revised suspended sentences from 2014. Lorenz
was resentenced and received five-year commitments to the Department of Corrections on
both the unlawful clandestine laboratory charge and the possession of precursors to
dangerous drugs charge, which were ordered to run consecutively. Lorenz appeals,
challenging the District Court’s inquiry regarding his counsel’s motion to withdraw.
4 ¶7 “Both the procedures used by the district court during the initial consideration of a
defendant’s complaints regarding counsel and the district court’s analysis of whether those
claims are seemingly substantial, necessitating further inquiry, are reviewed for abuse of
discretion.” State v. Dillingham, 2020 MT 310, ¶ 14, 402 Mont. 239, 477 P.3d 328 (citing
State v. Schowengerdt, 2018 MT 7, ¶ 16, 390 Mont. 123, 409 P.3d 38).
¶8 “Criminal defendants have a constitutionally guaranteed right to the effective
assistance of counsel.” Dillingham, ¶ 17. “When faced with a request to substitute counsel,
the district court must first perform an adequate initial inquiry to determine whether the
defendant’s complaints are seemingly substantial.” State v. Dewise, 2022 MT 145, ¶ 26,
409 Mont. 284, 513 P.3d 1249. “If the court finds ‘seemingly substantial’ concerns
regarding the effectiveness of counsel, the court must go on to hold a hearing on the matter
and determine whether substitute counsel is necessary.” Dillingham, ¶ 17 (citing State v.
Johnson, 2019 MT 34, ¶¶ 21-22, 394 Mont. 245, 435 P.3d 64). “The threshold question,
then, is whether [the defendant] put the District Court on notice that the effectiveness of
[the defendant’s] counsel was at issue.” Dillingham, ¶ 18.
¶9 Lorenz argues Haase’s motion to withdraw from the case effectively conveyed
Lorenz’s desire to substitute counsel, and that the District Court did not conduct an
adequate initial inquiry into whether his purported complaint about counsel was seemingly
substantial. He contends the District Court was put on notice when Haase’s motion
explained that communication between Haase and Lorenz had broken down. While
communication issues between Lorenz and Haase were referenced, Haase’s motion to
5 withdraw—with which Lorenz consented in response to a question by the District Court—
specifically stated that Lorenz wanted to proceed pro se, which Lorenz had likewise done
earlier in the proceeding. Moreover, when further questioned by the District Court, Lorenz
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01/23/2024
DA 21-0530 Case Number: DA 21-0530
IN THE SUPREME COURT OF THE STATE OF MONTANA 2024 MT 12N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DAVID ABRAHAM LORENZ,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventh Judicial District, In and For the County of Richland, Cause No. DC-03-12 Honorable Katherine M. Bidegaray, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Gregory Hood, Assistant Appellate Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Michael P. Dougherty, Assistant Attorney General, Helena, Montana
Charity McLarty, Richland County Attorney, Sidney, Montana
Submitted on Briefs: December 13, 2023
Decided: January 23, 2024
Filed:
Vir-6A.-if __________________________________________ Clerk Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 David Abraham Lorenz (Lorenz) appeals a September 3, 2021 Order from the
Seventh Judicial District Court, Richland County, revoking his suspended sentences for the
operation of an unlawful clandestine laboratory and criminal possession of precursors to
dangerous drugs. Lorenz contends the District Court did not make an adequate initial
inquiry into the nature of his purported complaint about counsel to determine if the
complaint was seemingly substantial. We affirm.
¶3 In 2003, Lorenz pled guilty to three criminal offenses in connection with operating
a drug lab and possessing illegal drugs. On one count, the District Court committed him
to the Montana Department of Corrections for ten years with five years suspended. For the
other two counts, the District Court deferred the imposition of sentence for three years. In
2005, Lorenz had both his suspended sentence and his deferred sentences revoked after
violating various sentence conditions, and he was resentenced. In 2014, the 2005 sentences
were revoked, and Lorenz received revised suspended sentences for all three counts. In
2 2020, in the current proceeding, the State again sought to revoke his suspended sentences
on two counts.1
¶4 Lorenz initially represented himself during this proceeding. However, he requested
appointment of counsel in July 2021, and Michael Haase of the Office of the Public
Defender filed a notice of appearance on behalf of Lorenz on July 23, 2021. On August 16,
2021, the District Court held an adjudicatory hearing, wherein Lorenz was represented by
Haase, and found by a preponderance of the evidence that Lorenz had violated the
conditions of his suspended sentences. After the hearing and prior to the dispositional
hearing set for August 30, 2021, Haase filed a motion to withdraw as Lorenz’s attorney.
Haase’s motion conveyed that Lorenz wanted to represent himself, explaining that Lorenz
“explicitly told attorney that he did not want attorney to represent him and that attorney
has failed to adequately represent him on the above-referenced matter up to this point.” It
further stated that “communication has broken down between attorney and Defendant
where it is impossible for either to work together to afford the Defendant proper
representation in this matter.”
¶5 Lorenz and Haase both appeared at the August 30, 2021 dispositional hearing. At
that hearing, the following discussion occurred:
The Court: In the meantime, Mr. Haase has filed a motion to withdraw. Mr. Lorenz, have you seen that?
Lorenz: Yes, ma’am.
The Court: Do you contest it or do you consent to it? 1 Lorenz’s suspended sentence on the third count had been successfully discharged.
3 Lorenz: I consent to it.
The Court: Okay. Mr. Haase, you’re free to go. Let’s proceed to dispositional hearing. Does the State have any witnesses?
Lorenz: If I proceed without a lawyer then I don’t consent to it.
The Court: Well, you don’t get to pick your lawyer is the thing. Do you have one hired?
Lorenz: No. We had a conflict.
The Court: Yeah, well, I don’t think that the State established. You have the right to proceed without a lawyer.
Lorenz: No, I want an attorney.
The Court: Okay. You don’t get to pick your attorney.
Lorenz: Okay. Well, I never fired him.
The Court: Okay. Mr. Haase are you prepared to proceed?
Haase: I can proceed, Your Honor, yes.
The Court: Okay. [Prosecutor], call your first witness.
¶6 The proceedings thereafter continued with Haase representing Lorenz. After Lorenz
testified and the State introduced its witness testimony, the District Court issued an Order
on September 3, 2021, revoking Lorenz’s revised suspended sentences from 2014. Lorenz
was resentenced and received five-year commitments to the Department of Corrections on
both the unlawful clandestine laboratory charge and the possession of precursors to
dangerous drugs charge, which were ordered to run consecutively. Lorenz appeals,
challenging the District Court’s inquiry regarding his counsel’s motion to withdraw.
4 ¶7 “Both the procedures used by the district court during the initial consideration of a
defendant’s complaints regarding counsel and the district court’s analysis of whether those
claims are seemingly substantial, necessitating further inquiry, are reviewed for abuse of
discretion.” State v. Dillingham, 2020 MT 310, ¶ 14, 402 Mont. 239, 477 P.3d 328 (citing
State v. Schowengerdt, 2018 MT 7, ¶ 16, 390 Mont. 123, 409 P.3d 38).
¶8 “Criminal defendants have a constitutionally guaranteed right to the effective
assistance of counsel.” Dillingham, ¶ 17. “When faced with a request to substitute counsel,
the district court must first perform an adequate initial inquiry to determine whether the
defendant’s complaints are seemingly substantial.” State v. Dewise, 2022 MT 145, ¶ 26,
409 Mont. 284, 513 P.3d 1249. “If the court finds ‘seemingly substantial’ concerns
regarding the effectiveness of counsel, the court must go on to hold a hearing on the matter
and determine whether substitute counsel is necessary.” Dillingham, ¶ 17 (citing State v.
Johnson, 2019 MT 34, ¶¶ 21-22, 394 Mont. 245, 435 P.3d 64). “The threshold question,
then, is whether [the defendant] put the District Court on notice that the effectiveness of
[the defendant’s] counsel was at issue.” Dillingham, ¶ 18.
¶9 Lorenz argues Haase’s motion to withdraw from the case effectively conveyed
Lorenz’s desire to substitute counsel, and that the District Court did not conduct an
adequate initial inquiry into whether his purported complaint about counsel was seemingly
substantial. He contends the District Court was put on notice when Haase’s motion
explained that communication between Haase and Lorenz had broken down. While
communication issues between Lorenz and Haase were referenced, Haase’s motion to
5 withdraw—with which Lorenz consented in response to a question by the District Court—
specifically stated that Lorenz wanted to proceed pro se, which Lorenz had likewise done
earlier in the proceeding. Moreover, when further questioned by the District Court, Lorenz
did not express that he wanted counsel substituted, but rather that his current position was
that he did not want to proceed without counsel (“If I proceed without a lawyer then I don’t
consent to [the motion to withdraw].”). Lorenz did not directly raise or convey any
complaints about Haase to the District Court. When the District Court explained that
Lorenz did not get to choose what counsel would be appointed, Lorenz responded that he
“did not fire” Haase, and voluntarily proceeded with the hearing while represented by
Haase.
¶10 “[I]f a defendant does not request substitute counsel, the defendant fails to implicate
the seemingly substantial analysis and the need for a subsequent hearing on his complaints
about his lawyer.” State v. Clary, 2012 MT 26, ¶ 28, 364 Mont. 53, 270 P.3d 88 (internal
citation omitted). Thus, “[a]bsent a claim of ineffective assistance of counsel, coupled with
a request for another attorney, the district court [is] not required to conduct further inquiry
into the matter.” Clary, ¶ 28.
¶11 No governing principle suggests that a district court is obligated to treat an
attorney’s motion to withdraw as a defendant’s complaint about the attorney’s
effectiveness and a request to substitute counsel. See, e.g., State v. Frazier, 2001 MT 210,
¶ 31, 306 Mont. 358, 34 P.3d 96. In Frazier, the defendant told the district court in a
hearing that he had experienced difficulty communicating with his attorney and that he felt
6 pressured to represent himself pro se. Frazier, ¶¶ 26-27. However, the defendant never
“request[ed] a continuance at either the answer or disposition hearings to allow additional
time for consultation. Nor did he ask the court to appoint substitute counsel.” Frazier,
¶ 31. We thus held that the district court’s lack of initial inquiry was not in error because
there was “no instance in the record where Frazier directly alleged ineffective assistance
of counsel or expressed dissatisfaction with the attorney-client relationship . . . .” Frazier,
¶ 31 (emphasis added).
¶12 As in Frazier, Lorenz never directly complained to the District Court that Haase’s
services were deficient, nor requested substitution of counsel. Instead, the issue toggled
between Lorenz wanting to represent himself and wanting counsel to represent him.
Lorenz referenced “a conflict,” but did so in response to the District Court’s question about
his hiring of private counsel. Moments after that exchange, Lorenz re-affirmed his desire
to be represented by Haase, and proceeded with Haase for the remainder of the
dispositional hearing. An initial inquiry is not implicated “[i]f a defendant does not request
substitute counsel.” Clary, ¶ 28. We cannot conclude the District Court abused its
discretion in its response to a motion that indicated Lorenz wanted to represent himself
after Lorenz affirmed the motion in open court.
¶13 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the legal issues in this case are controlled by settled Montana law, which the District
Court correctly interpreted, and the District Court did not otherwise abuse its discretion.
7 ¶14 Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ INGRID GUSTAFSON