State v. Smith

1

2024 MT 72N

STATE OF MONTANA, Plaintiff and Appellee, v. SABRINA MARIE SMITH, Defendant and Appellant.

No. DA 22-0434

Supreme Court of Montana

April 2, 2024

Submitted on Briefs: January 24, 2024

Appeal from: District Court of the Second Judicial District, In and For the County of Butte-Silver Bow, Cause No. DC-17-1 Honorable Kurt Krueger, Presiding Judge

For Appellant: James M. Siegman, Attorney at Law, Jackson Mississippi

For Appellee: Austin Knudsen, Montana Attorney General, Katie F Schulz, Assistant Attorney General, Helena, Montana

Eileen Joyce, Butte-Silver Bow County Attorney, Butte, Montana

OPINION

INGRID GUSTAFSON, JUSTICE

¶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 Defendant and Appellant Sabrina Marie Smith (Smith) appeals from the June 14, 2022 Judgment issued by the Second Judicial District Court, Butte-Silver Bow County. We affirm the District Court's order of revocation and imposition of sentence and remand with instructions for the court to issue an amended dispositional order granting Smith credit for 574 days of elapsed time in addition to the 73 days Smith spent incarcerated.

¶3 In January 2017, Smith was charged with felony criminal possession of dangerous drugs (CPDD) and misdemeanor criminal possession of drug paraphernalia (CPDP), stemming from a November 2016 probation and parole search of her residence. During that search, officers found both methamphetamine and methamphetamine pipes. On June 29, 2017, pursuant to a plea agreement, Smith pled guilty to the felony CPDD charge. The District Court held a sentencing hearing on October 19, 2017 and sentenced Smith to a five-year commitment to the Montana Department of Corrections (DOC), with all but 32 days suspended, and gave Smith credit for 32 days served. Smith's sentence was ordered to run concurrently with Smith's sentence in DC-11-58. The court, consistent with the plea agreement, also dismissed the misdemeanor CPDP charge. The District Court's written Judgment followed on February 12, 2018.

¶4 On September 5, 2019, Probation and Parole Officer Jaci Hanley (PO Hanley) filed a Report of Violation (ROV), alleging Smith committed four compliance violations: (1) failing to report an address to her PO; (2) repeatedly testing positive for methamphetamine, amphetamine, and/or EtG (alcohol); (3) failing the Enhanced Supervision Program (ESP) after missing "all of her scheduled meetings"; and (4) failing to pay fines and fees. PO Hanley's ROV noted she arrested Smith on August 29, 2019, after Smith refused placement for treatment, and characterized Smith's adjustment to supervision as "deplorable." PO Hanley told Smith she was "unsupervisable" at that time. Based on PO Hanley's ROV, the State filed a Petition to Revoke Suspended Sentence on September 9, 2019. Smith was arrested and then released on her own recognizance on September 18, 2019.

¶5 PO Hanley filed another ROV on October 6, 2020, adding two more compliance violations: (1) failing to report an actual or applicable address and (2) failing to report to her PO as directed. The State filed another Petition to Revoke on October 8, 2020. The District Court issued a Bench Warrant on October 14, 2020. Smith was arrested on the warrant on May 13, 2021, and released on her own recognizance on June 3, 2021. The District Court set an evidentiary hearing on the State's Petition to Revoke for October 26, 2021, which was continued multiple times. On February 10, 2022, Probation and Parole Officer Cacie Cain (PO Cain) filed another ROV. PO Cain's ROV reported that Smith committed several more compliance violations, including repeatedly failing to report her address; failing to report to her PO; testing positive for amphetamine, opiates, MDMA, and methamphetamine, as well as refusing to provide a sample; being terminated from ESP two more times, one of which involved missing "11 out of 11" UA tests, and refusing to obtain updated chemical dependency and mental health evaluations; and continuing to fail to pay fines and fees. The State filed an Amended Petition to Revoke Suspended Sentence on February 16, 2022.

¶6 The District Court held an evidentiary hearing on March 24, 2022. At that hearing, Smith admitted to testing positive for MDMA and methamphetamine and admitted to failing to comply with ESP. The court set a dispositional hearing, which was ultimately continued and held on May 26, 2022. Also on May 26, 2022, PO Cain filed an updated recommendation recommending Smith's sentence be revoked and Smith committed to a five-year suspended DOC sentence. PO Cain noted her recommendation was made "due to [Smith's] poor history on community supervision, but also the tremendous effort she has made to abide by the rules of community supervision in the last couple of months." At the beginning of the dispositional hearing, Smith's attorney, Walter M. Hennessey, asked to "be relieved as counsel" because he thought there was a breakdown in communication and Smith wanted to withdraw her earlier admissions. The District Court asked Smith whether she was unable to work with Hennessey or was unhappy with his services, to which Smith replied that she was "confused" and "thinking otherwise on Montana State law." The court noted Hennessey had 40 years of experience, to which Smith interjected that 15 years of that had been with her as he had been representing her since she was young, and that Hennessey was a very experienced and competent lawyer whose job was to explain his interpretation of the law even when a client disagrees with him. The District Court further explained that disagreeing with or disliking Hennessey's explanation was not a basis for withdrawal. Smith informed the court that she believed DOC and probation did not follow protocol or the Montana Incentives and Interventions Grid (MIIG) properly. After Smith noted she "love[d]" Hennessey, but was "confused on what's in black and white and then what [Hennessey is] telling" her, the District Court told Smith it was the court which gets to interpret the law and that the "grid isn't a mandatory thing. I'm not really a big fan of the grid. I don't particularly care what the grid says and I don't find it is an accurate reflection of a situation so I do not give the grid a lot of consideration." The District Court then took a break to allow Smith and Hennessey to discuss their issues. Upon returning from the break, Hennessey informed the court that Smith was prepared to go to sentencing. The court asked Smith if she had reviewed the matter with Hennessey and would like to have Hennessey continue to represent her. Smith responded that she did and the dispositional hearing proceeded. Both parties requested suspended DOC sentences- Smith arguing for a three-year commitment while the State sought a five-year commitment. The State noted it was not asking for Smith to be given credit for street time, but noted Smith had collectively served 73 days in jail. The District Court sentenced Smith to a five-year DOC commitment, with all five years suspended, and gave Smith credit for 73 days of time served. The District Court's written Judgment followed on June 14, 2022. The court did not address elapsed time in either its oral sentence or its written judgment.

¶7 Smith appeals. We consider the following restated issues on appeal: (1) whether the District Court abused its discretion by denying Smith's request for substitute counsel, (2) whether the District Court erred by revoking Smith's suspended sentence, and (3) whether Smith is entitled to elapsed time credit.

¶8 A request to substitute counsel is within the sound discretion of the district court and we review its decision for an abuse of discretion. State v. Khongwiset, 2020 MT 215, ¶ 23, 401 Mont. 142, 471 P.3d 51 (citing State v. Aguado, 2017 MT 54, ¶ 8, 387 Mont. 1, 390 P.3d 628). "In determining whether a district court abused its discretion, we consider both the procedures employed by the trial court during the initial inquiry into defendant's complaints, and the court's analysis of whether a defendant's claims are seemingly substantial, necessitating a further hearing." Khongwiset, ¶ 23 (citing State v. Schowengerdt, 2018 MT 7, ¶ 16, 390 Mont. 123, 409 P.3d 38).

¶9 We first address whether the District Court abused its discretion by not granting Smith's request to substitute Hennessey as counsel. Smith asserts the District Court should have conducted a hearing into her complaints before proceeding with the dispositional hearing. The State asserts the court conducted an adequate initial inquiry into Smith's concerns and no further hearing was required because her complaints were not seemingly substantial. We agree with the State.

¶10 A defendant is not entitled to counsel of his or her choice or to a meaningful relationship with counsel but is entitled to counsel that may mount an adequate defense; therefore, a defendant's right to substitute counsel arises only when a breakdown of the attorney-client relationship becomes of such a nature that the principal purpose of the appointment-to provide effective assistance-is frustrated. Khongwiset, ¶ 26 (citing State v Johnson, 2019 MT 34, ¶¶ 17-18, 394 Mont. 245, 435 P.3d 64). A defendant "is entitled to substitute counsel if he or she presents material facts showing good cause for the substitution, demonstrating either (1) an actual conflict of interest; (2) an irreconcilable conflict between counsel and the defendant; or (3) a...