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Date: 01-19-2018

Case Style:

STATE OF MONTANA v. DENNIS LEO SCHOWENGERDT

Deer Lodge man gets life for wife's murder

Case Number: 2018 MT

Judge: James Jeremiah Shea

Court: SUPREME COURT, STATE OF WYOMING

Plaintiff's Attorney: Timothy C. Fox
Montana Attorney General

Mardell Ployhar
Assistant Attorney General

Lewis K. Smith
Powell County Attorney

Defendant's Attorney: Chad Wright
Appellant Defender

Koan Mercer
Assistant Appellant Defenderr

Description: 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.
3
¶5 On January 17, 2013, Scott filed a Notice that Schowengerdt might assert a defense
of justifiable use offorce. 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] asMy 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
4
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
Schowengerdtwas not provided the chance to speak to the issue. Instead, the District Court
directedSchowengerdt 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
5
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, 2015 MT 133, ¶ 21, 379 Mont.
182, 348 P.3d 664. 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 ofSchowengerdt’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
6
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
7
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, 206 Mont. 40, 45, 669 P.2d 1068, 1071 (1983); see
alsoState v. Aguado, 2017 MT 54, ¶ 8, 387 Mont. 1, 390 P.3d 628; State v. Dethman, 2010
MT 268, ¶ 11, 358 Mont. 384, 245 P.3d 30. 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, 2003 MT 374,¶ 14, 319 Mont.
146, 82 P.3d 922 (citing State v. Richardson, 2000 MT 72,¶ 24, 299 Mont. 102, 997 P.2d
786).
¶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, 281
Mont. 133, 135–36, 932 P.2d 1058, 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, 2013 MT 58, ¶¶ 16, 23, 369 Mont. 227, 304 P.3d 365
(citing State v. Gallagher (Gallagher I), 1998 MT 70, ¶ 23, 288 Mont. 180, 955 P.2d 1371).
8
We review a district court’s factual findings made during a hearing for clear error. Statev.
Gallagher (Gallagher II), 2001 MT 39, ¶ 5, 304 Mont. 215, 19 P.3d 817 (citing M. R. Civ.
P. 52 (a)). Factual findings are clearly erroneous if they are not supported by “substantial
credible evidence.” Engel v. Gampp, 2000 MT 17, ¶ 31, 298 Mont. 116, 993 P.2d 701.
¶17 Claims of ineffective assistance of counsel are mixed questionsof law and fact that
we review de novo. Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d 861;see
also Longjaw v. State, 2012 MT 243, ¶ 11, 366 Mont. 472, 288 P.3d 210 (reviewing a
conflict of interest issue relating to ineffective assistance of counsel de novo); State v.
Clary, 2012 MT 26, ¶ 12, 364 Mont. 53, 270 P.3d 88. 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, 2010 MT 200, ¶ 14, 357 Mont. 390, 240 P.3d
1016 (internal citations omitted); see also State v. Weaver, 276 Mont. 505, 511, 917 P.2d
437, 441 (1996); City of Billings, 281 Mont. at 136, 932 P.2d at 1060. 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, 2016 MT 151, ¶ 20, 384 Mont. 1, 373 P.3d 45; Holm, ¶ 19, and “‘ma[kes] some
sort of critical analysis at the time the motion was filed,’” Happel, ¶ 14 (quoting State v.
Finley, 276 Mont. 126, 143, 915 P.2d 208, 219 (1996) (overruled in part on other
9
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, 2003 MT 350, ¶ 32, 318 Mont. 516, 82 P.3d 20). 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, 276 Mont. at 511, 917 P.2d at 44.
¶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
10
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, 276 Mont. at 143, 915 P.2d at 219. 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, 2007 MT 17, ¶¶ 8,
22, 335 Mont. 344, 151 P.3d 892 (citing § 46-20-104, MCA); see also State v. Ashby, 2008
MT 83, ¶ 22, 342 Mont. 187, 179 P.3d 1164 (explicitly refusing to review an unchallenged
condition in light of a defendant’s failure to object in district court). However, this Court
11
may discretionarily review claimed errors thatimplicate 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, 2000 MT 307, ¶ 12,302
Mont. 408, 15 P.3d 379 (quoting Finley, 276 Mont. at 137, 915 P.2d at 215).
¶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, 2010 MT 27, ¶ 50, 355 Mont. 148, 226
P.3d 571. 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
12
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, 372
U.S. 335, 339–45, 83 S.Ct. 792, 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, 2003 MT 158, ¶ 39, 316 Mont. 263, 71 P.3d1201.
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, 2001 MT 149, ¶¶ 20, 23, 306 Mont. 58, 30
P.3d 340; 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.
13
¶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, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (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.
SeeWhitlow,¶¶ 18–19 (citing Strickland, 466 U.S. at 689, 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. 466 U.S. 648, 659–62, 104 S. Ct. 2039,
2047–48 (1984); see also Bell v. Cone, 535 U.S. 685, 696–97, 122 S. Ct. 1843, 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, 18 F.3d 778, 782, 784 (9th Cir. 1994), and reiterated the narrow
circumstances where a presumption of prejudice is warranted. 278 Mont. 121, 134–35,
14
923 P.2d 560, 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, 18 F.3d at 782, 784);
Strickland, 466 U.S. at 692, 104 S. Ct. at 2068. An actual conflict exists where a defense
attorney “is required to make a choice advancing another client’s intereststo the detriment
of his client’s interest.” State v.Deschon, 2002 MT 16, ¶ 18, 308 Mont. 175, 40 P.3d 391;
see also Finley, 276 Mont. at 144, 915 P.2d at 219–20 (holding that a defendant is entitled
to a presumption of prejudice where defendant can showthat “counsel actively represented
conflicting interests, and . . . that an actual conflict of interests adversely affected counsel’s
performance”); State v. St. Dennis, 2010 MT 229, ¶¶ 29, 32, 358 Mont. 88, 244 P.3d 292;
Thurston v. State, 2004 MT 142, ¶17, 321 Mont. 411, 91 P.3d 1259; Statev. Christenson,
250 Mont. 351, 355, 820 P.2d 1303, 1306 (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 complywith law and the rules of
professional conduct. See Nix v. Whiteside, 475 U.S. 157, 168, 106 S. Ct. 988, 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
15
extends to a client’s guilty plea but does not require counsel to “assist the client in
presenting false evidence.” Jones, 278 Mont. at 128, 923 P.2d at 564 (citing Whiteside,
475 U.S. at 166, 174, 106 S. Ct. at 994, 998 (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, 278 Mont. at 124, 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, 278 Mont. at 124, 131–32, 923 P.2d at 562, 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, 278 Mont. at
124, 131–33, 923 P.2d at 561, 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, 276 Mont. at 145, 915
P.2d at 220. We reasoned that the defendant was “without counsel at this point in the
proceedings because his own attorney testified against him.” Finley, 276 Mont. at 145,
915 P.2d at 220.
16
¶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. SeeWhitlow, ¶¶ 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
17
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, 923 P.2d at 566-67. Scott also did not
openly denigrate Schowengerdt’s choice to attempt a plea withdrawal. See Jones, 278
Mont. at 124, 131–32, 923 P.2d at 562, 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, 1999 MT 7, ¶¶ 10–11, 293 Mont. 54, 973 P.2d 230 (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
18
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, 923 P.2d at 566; see
§ 46-16-105(2), MCA. In his Motion to Withdraw Schowengerdt’s Guilty Plea, Scott
stated it was his “dutyas 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.” SeeM. 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
19
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, 2004 MT 173, ¶¶ 7–8, 17, 322 Mont. 69, 96
P.3d 1231; State v. Lawrence, 2001 MT 299, ¶¶ 12–16, 307 Mont. 487, 38 P.3d 809, 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 placedhis 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. SeeChristenson, 250 Mont. at 355, 820 P.2d at 1306. 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, 250 Mont. at 355, 820 P.2d at 1306.
¶46 Scott did not violate his duty of loyalty and did not have an actual conflict of interest.
See Christenson, 250 Mont. at 355, 820 P.2d at 1306. 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;
20
and because a defendant must prove both prejudice and that counsel’s performance was
deficient, see Christenson, 250 Mont. at 355, 820 P.2d at 1306, 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, 206
Mont. 40, 46, 669 P.2d 1068, 1072 (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, 250 Mont. 385, 385–86, 833 P.2d 142, 142 (1991); State v. Martz, 233
Mont. 136, 139–40, 760 P.2d 65, 67 (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, 833 P.2d at 142.
¶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. SeeGallagher I, ¶ 23. Scott entered
the guilty plea at Schowengerdt’s request and attempted to withdraw it at Schowengerdt’s
21
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.

Outcome: 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 odge. 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. ¶5 On January 17, 2013, Scott filed a Notice that Schowengerdt might assert a defense of justifiable use offorce. 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] asMy 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
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 Schowengerdtwas not provided the chance to speak to the issue. Instead, the District Court
directedSchowengerdt 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
5
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, 2015 MT 133, ¶ 21, 379 Mont.
182, 348 P.3d 664. 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 ofSchowengerdt’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
6
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
7
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, 206 Mont. 40, 45, 669 P.2d 1068, 1071 (1983); see
alsoState v. Aguado, 2017 MT 54, ¶ 8, 387 Mont. 1, 390 P.3d 628; State v. Dethman, 2010
MT 268, ¶ 11, 358 Mont. 384, 245 P.3d 30. 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, 2003 MT 374,¶ 14, 319 Mont.
146, 82 P.3d 922 (citing State v. Richardson, 2000 MT 72,¶ 24, 299 Mont. 102, 997 P.2d
786).
¶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, 281
Mont. 133, 135–36, 932 P.2d 1058, 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, 2013 MT 58, ¶¶ 16, 23, 369 Mont. 227, 304 P.3d 365
(citing State v. Gallagher (Gallagher I), 1998 MT 70, ¶ 23, 288 Mont. 180, 955 P.2d 1371).
8
We review a district court’s factual findings made during a hearing for clear error. Statev.
Gallagher (Gallagher II), 2001 MT 39, ¶ 5, 304 Mont. 215, 19 P.3d 817 (citing M. R. Civ.
P. 52 (a)). Factual findings are clearly erroneous if they are not supported by “substantial
credible evidence.” Engel v. Gampp, 2000 MT 17, ¶ 31, 298 Mont. 116, 993 P.2d 701.
¶17 Claims of ineffective assistance of counsel are mixed questionsof law and fact that
we review de novo. Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d 861;see
also Longjaw v. State, 2012 MT 243, ¶ 11, 366 Mont. 472, 288 P.3d 210 (reviewing a
conflict of interest issue relating to ineffective assistance of counsel de novo); State v.
Clary, 2012 MT 26, ¶ 12, 364 Mont. 53, 270 P.3d 88. 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, 2010 MT 200, ¶ 14, 357 Mont. 390, 240 P.3d
1016 (internal citations omitted); see also State v. Weaver, 276 Mont. 505, 511, 917 P.2d
437, 441 (1996); City of Billings, 281 Mont. at 136, 932 P.2d at 1060. 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, 2016 MT 151, ¶ 20, 384 Mont. 1, 373 P.3d 45; Holm, ¶ 19, and “‘ma[kes] some
sort of critical analysis at the time the motion was filed,’” Happel, ¶ 14 (quoting State v.
Finley, 276 Mont. 126, 143, 915 P.2d 208, 219 (1996) (overruled in part on other
9
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, 2003 MT 350, ¶ 32, 318 Mont. 516, 82 P.3d 20). 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, 276 Mont. at 511, 917 P.2d at 44.
¶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
10
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, 276 Mont. at 143, 915 P.2d at 219. 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, 2007 MT 17, ¶¶ 8,
22, 335 Mont. 344, 151 P.3d 892 (citing § 46-20-104, MCA); see also State v. Ashby, 2008
MT 83, ¶ 22, 342 Mont. 187, 179 P.3d 1164 (explicitly refusing to review an unchallenged
condition in light of a defendant’s failure to object in district court). However, this Court
11
may discretionarily review claimed errors thatimplicate 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, 2000 MT 307, ¶ 12,302
Mont. 408, 15 P.3d 379 (quoting Finley, 276 Mont. at 137, 915 P.2d at 215).
¶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, 2010 MT 27, ¶ 50, 355 Mont. 148, 226
P.3d 571. 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
12
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, 372
U.S. 335, 339–45, 83 S.Ct. 792, 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, 2003 MT 158, ¶ 39, 316 Mont. 263, 71 P.3d1201.
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, 2001 MT 149, ¶¶ 20, 23, 306 Mont. 58, 30
P.3d 340; 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.
13
¶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, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (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.
SeeWhitlow,¶¶ 18–19 (citing Strickland, 466 U.S. at 689, 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. 466 U.S. 648, 659–62, 104 S. Ct. 2039,
2047–48 (1984); see also Bell v. Cone, 535 U.S. 685, 696–97, 122 S. Ct. 1843, 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, 18 F.3d 778, 782, 784 (9th Cir. 1994), and reiterated the narrow
circumstances where a presumption of prejudice is warranted. 278 Mont. 121, 134–35,
14
923 P.2d 560, 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, 18 F.3d at 782, 784);
Strickland, 466 U.S. at 692, 104 S. Ct. at 2068. An actual conflict exists where a defense
attorney “is required to make a choice advancing another client’s intereststo the detriment
of his client’s interest.” State v.Deschon, 2002 MT 16, ¶ 18, 308 Mont. 175, 40 P.3d 391;
see also Finley, 276 Mont. at 144, 915 P.2d at 219–20 (holding that a defendant is entitled
to a presumption of prejudice where defendant can showthat “counsel actively represented
conflicting interests, and . . . that an actual conflict of interests adversely affected counsel’s
performance”); State v. St. Dennis, 2010 MT 229, ¶¶ 29, 32, 358 Mont. 88, 244 P.3d 292;
Thurston v. State, 2004 MT 142, ¶17, 321 Mont. 411, 91 P.3d 1259; Statev. Christenson,
250 Mont. 351, 355, 820 P.2d 1303, 1306 (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 complywith law and the rules of
professional conduct. See Nix v. Whiteside, 475 U.S. 157, 168, 106 S. Ct. 988, 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
15
extends to a client’s guilty plea but does not require counsel to “assist the client in
presenting false evidence.” Jones, 278 Mont. at 128, 923 P.2d at 564 (citing Whiteside,
475 U.S. at 166, 174, 106 S. Ct. at 994, 998 (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, 278 Mont. at 124, 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, 278 Mont. at 124, 131–32, 923 P.2d at 562, 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, 278 Mont. at
124, 131–33, 923 P.2d at 561, 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, 276 Mont. at 145, 915
P.2d at 220. We reasoned that the defendant was “without counsel at this point in the
proceedings because his own attorney testified against him.” Finley, 276 Mont. at 145,
915 P.2d at 220.
16
¶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. SeeWhitlow, ¶¶ 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
17
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, 923 P.2d at 566-67. Scott also did not
openly denigrate Schowengerdt’s choice to attempt a plea withdrawal. See Jones, 278
Mont. at 124, 131–32, 923 P.2d at 562, 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, 1999 MT 7, ¶¶ 10–11, 293 Mont. 54, 973 P.2d 230 (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
18
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, 923 P.2d at 566; see
§ 46-16-105(2), MCA. In his Motion to Withdraw Schowengerdt’s Guilty Plea, Scott
stated it was his “dutyas 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.” SeeM. 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
19
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, 2004 MT 173, ¶¶ 7–8, 17, 322 Mont. 69, 96
P.3d 1231; State v. Lawrence, 2001 MT 299, ¶¶ 12–16, 307 Mont. 487, 38 P.3d 809, 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 placedhis 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. SeeChristenson, 250 Mont. at 355, 820 P.2d at 1306. 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, 250 Mont. at 355, 820 P.2d at 1306.
¶46 Scott did not violate his duty of loyalty and did not have an actual conflict of interest.
See Christenson, 250 Mont. at 355, 820 P.2d at 1306. 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;
20
and because a defendant must prove both prejudice and that counsel’s performance was
deficient, see Christenson, 250 Mont. at 355, 820 P.2d at 1306, 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, 206
Mont. 40, 46, 669 P.2d 1068, 1072 (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, 250 Mont. 385, 385–86, 833 P.2d 142, 142 (1991); State v. Martz, 233
Mont. 136, 139–40, 760 P.2d 65, 67 (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, 833 P.2d at 142.
¶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. SeeGallagher I, ¶ 23. Scott entered
the guilty plea at Schowengerdt’s request and attempted to withdraw it at Schowengerdt’s
21
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.

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