81-399
I N THE SUPREME COURT O THE STATE O M N A A F F OTN
STATE O MONTANA, F
P l a i n t i f f and Respondent,
VS.
STEVE ALLEN FRY,
D e f e n d a n t and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t , I n and f o r t h e County o f M i s s o u l a Honorable J a c k Green, J u d g e p r e s i d i n g .
Counsel o f Record:
For Appellant:
H i r s t , D o s t a l & Withrow, M i s s o u l a , Montana Lon Withrow a r g u e d , M i s s o u l a , Montana
F o r Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , Helena, Montana R o b e r t L. Deschamps, 111, County A t t o r n e y , M i s s o u l a , Montana E . McLean a r g u e d , Deputy County A t t o r n e y , M i s s o u l a , Montana
S u b m i t t e d : F e b r u a r y 22, 1982
~ e c i d e d :March 25, 1982
Filed: MAR 2 5 29bZ Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
The defendant appeals from an order of the Missoula County District Court revoking a ten year suspended sentence and ordering him to prison. At the hearing in which the ten year suspended sentence was imposed, the defendant neither had a lawyer nor waived his right to a lawyer. We therefore vacate the order imposing the ten year suspended sentence, and we order that the defendant be released from custody and from any restraints imposed as a result of his guilty plea and the subsequent judgment imposed on April 7, 1975. This situation arises after the defendant was first given a three year deferred sentence on April 7, 1975, for felony sale of marijuana and a concurrent one year deferred sentence for misdemeanor possession of marijuana. Defendant was again arrested on February 6, 1976, for possessing marijuana and was jailed for thirteen days in the Missoula County jail before he first appeared in court. The defendant alleges and the State does not deny that after his arrest, the arresting officers told him that "if he played his cards right and cooperated with the Region 1 Anti-Drug Team, he'd receive a lighter sentence." The defendant apparently agreed, and he was released on occasion during the next thirteen days apparently for the purpose of selling or buying drugs for the Anti-Drug Team. The record is silent on the extent of the defendant's cooperation during this thirteen day period, and we are unable to determine how often the defendant was released from jail, how closely he was supervised, and whether he had access to attorneys during this time. The only thing that is clear is that when h e o b l i q u e l y a d m i t t e d a p r o b a t i o n v i o l a t i o n on March 4 ,
1976, which r e s u l t e d i n a r e v o c a t i o n of t h e t h r e e y e a r
d e f e r r e d s e n t e n c e and t h e s u b s t i t u t i o n o f a t e n y e a r s u s p e n d e d
s e n t e n c e i n i t s s t e a d , h e n e i t h e r had a n a t t o r n e y n o r waived
h i s r i g h t t o an a t t o r n e y .
The f o l l o w i n g e v e n t s l e d t o t h e i m p o s i t i o n o f t h e t e n
y e a r suspended s e n t e n c e on March 4, 1976. On F e b r u a r y 1 9 ,
1976, t h e d e f e n d a n t a p p e a r e d b e f o r e J u d g e Green p u r s u a n t t o
t h e S t a t e ' s p e t i t i o n t o revoke h i s d e f e r r e d imposition of
sentence. H e i n f o r m e d Judge Green t h a t h e wished t o b e
r e p r e s e n t e d by c o u n s e l , b u t t h a t h e c o u l d n o t a f f o r d i t
b e c a u s e h e had l o s t h i s j o b w h i l e i n j a i l . Judge Green
allowed t h e defendant t i m e t o seek t h e a i d o f a p u b l i c
d e f e n d e r , b u t on F e b r u a r y 2 3 , 1976, t h e p u b l i c d e f e n d e r
informed J u d g e Green t h a t t h e d e f e n d a n t was i n e l i g i b l e f o r a
p u b l i c d e f e n d e r b e c a u s e h e made t o o much money. On March 4 ,
1976, t h e d e f e n d a n t a p p e a r e d b e f o r e J u d g e Brownlee w i t h o u t
t h e a s s i s t a n c e of counsel. J u d g e Brownlee i n q u i r e d w h e t h e r
t h e d e f e n d a n t w a s r e p r e s e n t e d by c o u n s e l , and upon f i n d i n g
o u t t h a t h e was n o t , made no f u r t h e r i n q u i r y . J u d g e Brownlee
t h e n n o t e d t h a t p l e a b a r g a i n i n g had o c c u r r e d , p l a c e d t h e
d e f e n d a n t o n p r o b a t i o n , and gave t h e d e f e n d a n t a t e n y e a r
suspended s e n t e n c e .
More t h a n f o u r y e a r s l a t e r , on May 4 , 1981, t h e d e f e n d a n t ,
r e p r e s e n t e d by r e t a i n e d c o u n s e l , a p p e a r e d b e f o r e J u d g e
Henson p u r s u a n t t o a p e t i t i o n by t h e S t a t e t o r e v o k e t h e
d e f e n d a n t ' s suspension of t h e t e n y e a r sentence because he
allegedly violated t h e conditions of h i s probation. On J u n e
1, 1981, t h e d e f e n d a n t moved Judge Green t o s t r i k e i t s p r i o r
r e v o c a t i o n of t h e d e f e r r e d i m p o s i t i o n o f s e n t e n c e b e c a u s e h e
h a d been w i t h o u t t h e a s s i s t a n c e o f c o u n s e l , b u t ~ u d g eGreen
d e n i e d t h i s motion on t h e b a s i s t h a t it a p p e a r e d t h e d e f e n d a n t had been advised of his right to counsel, designated him a nondangerous offender, and sentenced him to ten years in prison. The defendant asks this Court to vacate the sentence because he was denied his right to counsel at the hearing before Judge Brownlee on the petition to revoke his deferred imposition of sentence. He further asks that we dismiss the case because by the time the petition to revoke the suspended ten year sentence was filed (May 4, 1981) he had already successfully completed the three year probation imposed under the April 7, 1975 judgment. Because we agree with defendant that the March 4, 1976 judgment imposing the ten year suspended sentence is void, we further agree that the proper action is to order the defendant released from custody and to declare that he has successfully completed the three year probation which began on April 7, 1975. The defendant also presents other issues which we find no need to consider since our decision on the right to counsel is dispositive of this case. A defendant is entitled to assistance of counsel, either retained or appointed, at a hearing on revocation of probation and resentencing. Unless the record reflects a valid waiver of the right to counsel, a lawyer must be afforded at a sentencing hearing regardless of whether the hearing is labeled a revocation of probation or a deferred sentencing. Petition of Brittingham (1970), 155 Mont. 525, 473 P.2d 830; Petition of Kelly (1969), 153 Mont. 448, 456 P.2d 57. The State argues that the defendant cannot properly raise the claim that he was denied the right to counsel, because he admitted violating the terms of his probation. The S t a t e a r g u e s t h a t such an a d m i s s i o n h a s t h e s a m e e f f e c t
a s a g u i l t y p l e a which p r e c l u d e s t h e d e f e n d a n t from c l a i m i n g
a d e n i a l o f h i s c o n s t i t u t i o n a l r i g h t s b e f o r e e n t r y of h i s
admission. The S t a t e e r r o n e o u s l y c i t e s s e v e r a l c a s e s f o r
t h i s proposition: T o l l e t t v. Henderson ( 1 9 7 3 ) , 4 1 1 U.S.
258, 93 S.Ct. 1602, 36 L.Ed.2d 235; Brady v. United S t a t e s
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81-399
I N THE SUPREME COURT O THE STATE O M N A A F F OTN
STATE O MONTANA, F
P l a i n t i f f and Respondent,
VS.
STEVE ALLEN FRY,
D e f e n d a n t and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t , I n and f o r t h e County o f M i s s o u l a Honorable J a c k Green, J u d g e p r e s i d i n g .
Counsel o f Record:
For Appellant:
H i r s t , D o s t a l & Withrow, M i s s o u l a , Montana Lon Withrow a r g u e d , M i s s o u l a , Montana
F o r Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , Helena, Montana R o b e r t L. Deschamps, 111, County A t t o r n e y , M i s s o u l a , Montana E . McLean a r g u e d , Deputy County A t t o r n e y , M i s s o u l a , Montana
S u b m i t t e d : F e b r u a r y 22, 1982
~ e c i d e d :March 25, 1982
Filed: MAR 2 5 29bZ Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
The defendant appeals from an order of the Missoula County District Court revoking a ten year suspended sentence and ordering him to prison. At the hearing in which the ten year suspended sentence was imposed, the defendant neither had a lawyer nor waived his right to a lawyer. We therefore vacate the order imposing the ten year suspended sentence, and we order that the defendant be released from custody and from any restraints imposed as a result of his guilty plea and the subsequent judgment imposed on April 7, 1975. This situation arises after the defendant was first given a three year deferred sentence on April 7, 1975, for felony sale of marijuana and a concurrent one year deferred sentence for misdemeanor possession of marijuana. Defendant was again arrested on February 6, 1976, for possessing marijuana and was jailed for thirteen days in the Missoula County jail before he first appeared in court. The defendant alleges and the State does not deny that after his arrest, the arresting officers told him that "if he played his cards right and cooperated with the Region 1 Anti-Drug Team, he'd receive a lighter sentence." The defendant apparently agreed, and he was released on occasion during the next thirteen days apparently for the purpose of selling or buying drugs for the Anti-Drug Team. The record is silent on the extent of the defendant's cooperation during this thirteen day period, and we are unable to determine how often the defendant was released from jail, how closely he was supervised, and whether he had access to attorneys during this time. The only thing that is clear is that when h e o b l i q u e l y a d m i t t e d a p r o b a t i o n v i o l a t i o n on March 4 ,
1976, which r e s u l t e d i n a r e v o c a t i o n of t h e t h r e e y e a r
d e f e r r e d s e n t e n c e and t h e s u b s t i t u t i o n o f a t e n y e a r s u s p e n d e d
s e n t e n c e i n i t s s t e a d , h e n e i t h e r had a n a t t o r n e y n o r waived
h i s r i g h t t o an a t t o r n e y .
The f o l l o w i n g e v e n t s l e d t o t h e i m p o s i t i o n o f t h e t e n
y e a r suspended s e n t e n c e on March 4, 1976. On F e b r u a r y 1 9 ,
1976, t h e d e f e n d a n t a p p e a r e d b e f o r e J u d g e Green p u r s u a n t t o
t h e S t a t e ' s p e t i t i o n t o revoke h i s d e f e r r e d imposition of
sentence. H e i n f o r m e d Judge Green t h a t h e wished t o b e
r e p r e s e n t e d by c o u n s e l , b u t t h a t h e c o u l d n o t a f f o r d i t
b e c a u s e h e had l o s t h i s j o b w h i l e i n j a i l . Judge Green
allowed t h e defendant t i m e t o seek t h e a i d o f a p u b l i c
d e f e n d e r , b u t on F e b r u a r y 2 3 , 1976, t h e p u b l i c d e f e n d e r
informed J u d g e Green t h a t t h e d e f e n d a n t was i n e l i g i b l e f o r a
p u b l i c d e f e n d e r b e c a u s e h e made t o o much money. On March 4 ,
1976, t h e d e f e n d a n t a p p e a r e d b e f o r e J u d g e Brownlee w i t h o u t
t h e a s s i s t a n c e of counsel. J u d g e Brownlee i n q u i r e d w h e t h e r
t h e d e f e n d a n t w a s r e p r e s e n t e d by c o u n s e l , and upon f i n d i n g
o u t t h a t h e was n o t , made no f u r t h e r i n q u i r y . J u d g e Brownlee
t h e n n o t e d t h a t p l e a b a r g a i n i n g had o c c u r r e d , p l a c e d t h e
d e f e n d a n t o n p r o b a t i o n , and gave t h e d e f e n d a n t a t e n y e a r
suspended s e n t e n c e .
More t h a n f o u r y e a r s l a t e r , on May 4 , 1981, t h e d e f e n d a n t ,
r e p r e s e n t e d by r e t a i n e d c o u n s e l , a p p e a r e d b e f o r e J u d g e
Henson p u r s u a n t t o a p e t i t i o n by t h e S t a t e t o r e v o k e t h e
d e f e n d a n t ' s suspension of t h e t e n y e a r sentence because he
allegedly violated t h e conditions of h i s probation. On J u n e
1, 1981, t h e d e f e n d a n t moved Judge Green t o s t r i k e i t s p r i o r
r e v o c a t i o n of t h e d e f e r r e d i m p o s i t i o n o f s e n t e n c e b e c a u s e h e
h a d been w i t h o u t t h e a s s i s t a n c e o f c o u n s e l , b u t ~ u d g eGreen
d e n i e d t h i s motion on t h e b a s i s t h a t it a p p e a r e d t h e d e f e n d a n t had been advised of his right to counsel, designated him a nondangerous offender, and sentenced him to ten years in prison. The defendant asks this Court to vacate the sentence because he was denied his right to counsel at the hearing before Judge Brownlee on the petition to revoke his deferred imposition of sentence. He further asks that we dismiss the case because by the time the petition to revoke the suspended ten year sentence was filed (May 4, 1981) he had already successfully completed the three year probation imposed under the April 7, 1975 judgment. Because we agree with defendant that the March 4, 1976 judgment imposing the ten year suspended sentence is void, we further agree that the proper action is to order the defendant released from custody and to declare that he has successfully completed the three year probation which began on April 7, 1975. The defendant also presents other issues which we find no need to consider since our decision on the right to counsel is dispositive of this case. A defendant is entitled to assistance of counsel, either retained or appointed, at a hearing on revocation of probation and resentencing. Unless the record reflects a valid waiver of the right to counsel, a lawyer must be afforded at a sentencing hearing regardless of whether the hearing is labeled a revocation of probation or a deferred sentencing. Petition of Brittingham (1970), 155 Mont. 525, 473 P.2d 830; Petition of Kelly (1969), 153 Mont. 448, 456 P.2d 57. The State argues that the defendant cannot properly raise the claim that he was denied the right to counsel, because he admitted violating the terms of his probation. The S t a t e a r g u e s t h a t such an a d m i s s i o n h a s t h e s a m e e f f e c t
a s a g u i l t y p l e a which p r e c l u d e s t h e d e f e n d a n t from c l a i m i n g
a d e n i a l o f h i s c o n s t i t u t i o n a l r i g h t s b e f o r e e n t r y of h i s
admission. The S t a t e e r r o n e o u s l y c i t e s s e v e r a l c a s e s f o r
t h i s proposition: T o l l e t t v. Henderson ( 1 9 7 3 ) , 4 1 1 U.S.
258, 93 S.Ct. 1602, 36 L.Ed.2d 235; Brady v. United S t a t e s
( 1 9 7 0 ) , 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; McMann
v. Richardson ( 1 9 7 0 ) , 397 U.S. 759, 90 S.Ct. 1 4 4 1 , 25 L.Ed.2d
763; P a r k e r v. North C a r o l i n a ( 1 9 7 0 ) , 397 U.S. 790, 90
S.Ct. 1458, 25 L.Ed.2d 785; S t a t e v. ~ i l t o n(19791, -
Mont . -, 597 P.2d 1171, 36 St.Rep. 1314; S t a t e v. T u r c o t t e ( 1 9 7 4 ) , 164 Mont. 426, 524 P.2d 787. These c a s e s a r e n o t
c o n t r o l l i n g p r e c e d e n t , however, b e c a u s e t h e y i n v o l v e d s i t u a t i o n s
i n which t h e d e f e n d a n t s p l e d g u i l t y - - a d v i c e - c o u n s e l on t h e of
and w e r e t h e r e f o r e p r e c l u d e d from a s s e r t i n g t h a t t h e i r
c o n s t i t u t i o n a l r i g h t s had been v i o l a t e d b e f o r e t h e y had
entered t h e i r guilty pleas. I n T o l l e t t v. Henderson, s u p r a ,
4 1 1 U.S. a t 267, t h e C o u r t s t a t e d :
"We t h u s r e a f f i r m t h e p r i n c i p l e r e c o g n i z e d i n t h e Brady t r i l o g y : a guilty plea represents a b r e a k i n t h e c h a i n o f e v e n t s which h a s preceded i t i n t h e c r i m i n a l p r o c e s s . When a c r i m i n a l d e f e n d a n t h a s solemnly a d m i t t e d i n open c o u r t t h a t he i s i n f a c t g u i l t y o f t h e o f f e n s e w i t h which he i s c h a r g e d , h e may n o t t h e r e a f t e r r a i s e i n d e p e n d e n t c l a i m s r e l a t i n g t o t h e deprivation of c o n s t i t u t i o n a l r i q h t s t h a t occurred p r i o r t o t h e e n t r y o f t h e g u i l t y p l e a . -- - - n l y ~ may o e a t t-a c k t h e v o l u n t a r * - i n t e l l i a e n t c h a r a c t e r - -e - - v and of t h g u i l t y plea by showing - t h e a d v i c e h e r e c e i v e d that - -- from c o u n s e l w a s n o t w i t h i n t h e s t a n d a r d s set f o r t h i n McMann." - (Emphasis added.)
Here, t h e d e f e n d a n t a t t a c k s t h e v o l u n t a r y and i n t e l l i g e n t
c h a r a c t e r of h i s admission t o t h e a l l e g e d probation v i o l a t i o n s
by a showing t h a t h e was f o r c e d t o a c t w i t h o u t t h e a d v i c e o f
counsel. This i s s u e i s properly r a i s e d .
The r e c o r d r e f l e c t s t h a t on F e b r u a r y 1 9 , 1976, t h e
d e f e n d a n t was t o r e c e i v e t h e a s s i s t a n c e of a p u b l i c d e f e n d e r , b u t on F e b r u a r y 2 3 , 1976, t h e d e f e n d a n t r e a p p e a r e d i n J u d g e
Green's c o u r t only t o l e a r n t h a t t h e p u b l i c defender d i d not
c o n s i d e r him e l i g i b l e f o r c o u r t - a p p o i n t e d a s s i s t a n c e . The
t r i a l c o u r t made no i n d e p e n d e n t d e t e r m i n a t i o n of t h e d e f e n d a n t ' s
e l i g i b i l i t y , and t h e c a s e w a s c o n t i n u e d f o r a week s o t h a t
t h e defendant could o b t a i n an attorney. When t h e d e f e n d a n t
r e t u r n e d t o J u d g e B r o w n l e e ' s c o u r t on March 4 , 1976, w i t h o u t
a n a t t o r n e y , t h e f o l l o w i n g exchange t o o k p l a c e between t h e
c o u r t , t h e p r o s e c u t o r , and t h e d e f e n d a n t :
"THE COURT: Cause 4501; S t e v e A l l e n F r y .
"MR. McLEAN: Your Honor, i f it p l e a s e t h e C o u r t , Mr. Fry i s p r e s e n t i n t h e courtroom here. I have been t a l k i n g w i t h N r . Anderson a b o u t t h i s c a s e , and w e would l i k e a n o p p o r t u n i t y t o d i s c u s s t h e m a t t e r w i t h you b e f o r e w e h e a r h i s m a t t e r , i f w e c o u l d have i t set f o r l a t e r t o d a y o r a t t h e end o f t h i s m o r n i n g ' s calendar.
"THE COURT: Is M r . F r y r e p r e s e n t e d by c o u n s e l ?
"MR. McLEAN: Not a t t h i s t i m e , Your Honor.
"THE COURT: J u s t be s e a t e d , then."
(45 minutes l a t e r . )
"THE COURT: Cause 4501; t h e Defendant i s S t e v e A l l e n Fry.
" F o r t h e r e c o r d , t h e C o u r t h a s had some p l e a - b a r g a i n i n g c o n s u l t a t i o n w i t h t h e Defendant, t h e County-Attorney, and t h e o f f i c e r from t h e Region I Anti-Drug Team, and it i s m u n d e r s t a n d i n g , M r . y F r y , t h a t you have a d m i t t e d t h e v i o l a t i o n s t h a t you have been a c c u s e d o f h e r e ; i s t h a t r i g h t ?
"DEFENDANT FRY: Yes, sir.
"MR. McLEAN: Excuse m e , Your Honor. For t h e r e c o r d , he h a s n o t admitted t o t h e v i o l a t i o n s a s of today.
"DEFENDANT FRY: I n e v e r a p p e a r e d b e f o r e you.
"THE COURT: I t h i n k I misstated myself. You have a d m i t t e d them and you are a d m i t t i n g them now.
"DEFENDANT FRY: Yes, sir, I guess. "THE COURT: And, by doing that, you recognize that then it becomes my duty to impose some sentence on you. "DEFENDANT FRY: Yes, sir.
This record provides no basis for concluding that the defendant waived his right to counsel. The State argues that the defendant, upon learning that he was ineligible for court-appointed assistance, refused to hire an attorney and chose to proceed pro- but the record is silent on this - se, issue. The defendant was not questioned in regard to his indigency, nor did the court receive any type of financial statement from him. Where a public defender refuses to represent a defendant, the District Court must inquire further. Sections 46-8-104, MCA (court may appoint counsel in any post-conviction proceeding), and 46-8-111, MCA (court shall receive a verified financial statement in order to determine indigency); Petition of Kelly, supra. We hold that the sentence imposed under these circum- stances is void because the defendant was deprived of counsel at a vital step in the criminal process, and that the defendant has successfully completed the probationary period that was imposed along with the deferred impositions of sentence. The judgment is vacated and the proceedings are ordered dismissed. W e Concur:
Chief J u s t i c e 1 7
U stices