State v. Cheetham, 2016 MT 151 (June 16, 2014) (Baker, J.; McKinnon, J., concurring) (5-0, aff’d)
Issue: (1) Whether the district court abused its discretion by failing to conduct an adequate inquiry into Cheetham’s request for substitute counsel; and (2) whether Cheetham was denied effective assistance of counsel.
Short Answer: (1) No, and (2) the record is insufficient to make this determination on direct appeal, and is better suited for a postconviction proceeding.
Facts: In January 2014, Cheetham was charged with sexual intercourse without consent, sexual assault, and sexual abuse of children, all of which were alleged to have occurred in 2004 when Cheetham and the victim, NS, were living with the victim’s grandmother. At the time of the offenses, Cheetham was 32 and NS was 5.
At trial, NS testified that Cheetham had touched her inappropriately on her chest and vagina in 2004, that he forced her to watch pornographic movies depicting children having sexual intercourse, and that he forced intercourse with her on one occasion.
NS has two forensic interviews, one in 2006 and one in 2013, and was also interviewed in early 2014 by a detective, and again before trial by an investigator working for the defense. On cross-exam, Cheetham’s counsel questioned NS about inconsistencies in the four interviews. She explained that she remembered more as time progressed. Her therapist also testified, and said she often sees delayed disclosures from sexual abuse victims. The defense called an expert forensic psychologist who testified that he thought NS should not have forgotten “core details” of what occurred. Other witnesses testified about what NS had told them, and about NS’s nightmares, school troubles, depression, suicidal behavior, and inpatient treatment at Shodair.
The jury found Cheetham guilty on all three counts. Before sentencing, his attorney moved to dismiss for negligent destruction of evidence, arguing the state failed to preserve an exculpatory medical report of a forensic medical exam done in 2006. The attorney stated that he attempted to obtain the report from the county attorney but was told it could not be obtained from Child Protective Services. Cheetham’s counsel concluded the report must have been negligently destroyed. The state argued that it tried to obtain but never possessed the 2006 report, and that in any event, it was not exculpatory because it did not negate the possibility of penetration injury.
Defense counsel subpoenaed the physician who prepared the report and obtained a copy; before the court ruled on the motion, counsel withdrew his motion to dismiss.
Procedural Posture & Holding: On the date of the sentencing hearing, the district court received a letter from Cheetham alleging several instances of ineffective assistance of counsel related to the 2006 medical report. Based on his counsel’s withdrawal of the motion to dismiss, Cheetham requested that his counsel be dismissed and replaced. After questioning Cheetham, his counsel, and the state’s counsel, the court declined to addressed Cheetham’s allegations and determined there was no total breakdown of communication between Cheetham and his counsel that would require a continuance. The court then sentenced Cheetham to Montana State Prison for 100 years for each count, with 50 years suspended for each count, to run consecutively. Cheetham appeals, and the Supreme Court affirms.
Reasoning: (1) For the court to replace a defense attorney, the defendant bears the burden of presenting material facts that establish a complete collapse of the attorney-client relationship, a total lack of communication, or ineffective assistance of counsel. At the hearing herein, Cheetham agreed that he and his counsel could communicate civilly but maintained that they disagreed upon the proper course of action regarding the medical report. The Court holds the district court conducted an adequate inquiry into Cheetham’s complaints. It determined there was no total breakdown of communication, and further found no serious questions presented as to whether defense counsel provided effective assistance of counsel. The district court was therefore not required to hold a separate hearing to consider the merits of Cheetham’s claims.
(2) A party may raise only record-based ineffective assistance claims on direct appeal. Here, the record does not fully disclose why defense counsel failed to investigate or introduce the medical report at trial. Because the record is largely silent, this issue cannot be resolved on direct appeal, and is better suited for a postconviction proceeding.
Justice McKinnon’s Concurrence: Justice McKinnon believes that the precedent informing a trial judge of what standard to employ when presented with a motion for substitution of counsel during trial is confusing, if not impossible to follow. The Court compounds that problem by blending an ineffectiveness claim with a substitution claim. In some cases the Court has said the standard is “total lack of communication” whereas in others it says “total lack of communication or ineffective assistance,” and in still others, ineffective assistance alone has sufficed. “[A] judge should not be required to conduct a collateral proceeding during the pendency of a trial, which is more appropriately handled through a postconviction proceeding.” ¶ 39. Justice McKinnon advises the court to turn to federal case law for guidance.