State v. Hammer, 2013 MT 203 (July 23, 2013) (5-0) (Wheat, J.)
Issue: (1) Whether the district court sufficiently inquired into Hammer’s pretrial complaint about his counsel; (2) whether the district court erred in denying Hammer’s motion for a new trial; and (3) whether the district court erred in assessing fees, costs, and surcharges when those amounts were not orally pronounced.
Short Answer: (1) Yes; (2) no; and (3) yes.
Affirmed and remanded to conform written judgment to oral sentence
Facts: Floyd Hammer was charged with criminal possessions of dangerous drugs with intent to distribute in April 2011. The court appointed counsel. Two weeks before trial, Hammer sent a letter to the court stating he was unhappy that his counsel had not contacted a potential witness, Cheryl Combs, and asking the court to appoint new counsel. The court held a meeting in chambers the morning of trial to discuss Hammer’s concerns. Hammer told the judge he was satisfied with his attorney, and the attorney stated that Ms. Combs would not be called except as a surrebuttal witness.
At trial, Hammer’s counsel did not call any witnesses, choosing instead to attack the state’s case through cross-examination. The jury found Hammer guilty of criminal possession with intent to distribute.
The day after trial, Hammer sent the court another letter asking the court to appoint him a new attorney in a different matter. In the letter, Hammer stated that he believed if Cheryl Combs had been allowed to testify, he might have gotten a different outcome. The letter was filed in the other case.
Hammer was appointed new counsel in October 2011. His lawyer moved for a new trial in December 2011, claiming that the first lawyer’s failure to call Ms. Combs denied Hammer the opportunity to present “a major defense” because she would have testified that other people actually possessed the drugs. It also alleged that the failure to call Ms. Combs amounted to ineffective assistance of counsel.
Procedural Posture & Holding: The district court denied Hammer’s motion for a new trial because it was filed beyond the 30-day statutory limit. The court further found that Hammer acquiesced in his attorney’s trial strategy, and denied the motion on the grounds that Hammer’s first counsel was ineffective. The court sentenced Hammer orally to 20 years in prison, and did not impose fees and costs as recommended in the presentence report “unless the defendant can work given his age and the sentence of the Court.” The written judgment stated that all conditions recommended in the presentence report be imposed. Hammer appeals, and the Supreme Court affirms the judgment, but remands for the written judgment to be amended to conform to the oral sentence.
Reasoning: (1) The district court conducted an adequate inquiry into Hammer’s request for new counsel prior to trial. The court gave Hammer the opportunity to address the concerns he raised in his letter, and Hammer denied having concerns. It was not an abuse of discretion not to hold a hearing, or to deny Hammer’s request for new counsel.
(2) Hammer was convicted on Set. 27, 2011. Section 46-16-702 provides a 30-day limit on motions for new trial. Hammer contends his letter to the court on Sept. 28, 2011, should be construed as a motion for a new trial. However, the letter requested new counsel in a separate case. It was not error to decline to treat the letter as a motion for a new trial. Although courts have discretion to grant a new trial sua sponte is justice so requires, § 46-16-702(1), the Supreme Court adheres strictly to the 30-day deadline when defendants move for a new trial under § 46-16-702(2). The district court did not abuse its discretion in denying Hammer’s motion for a new trial.
(3) The district court suspended the assessment of fees as part of Hammer’s sentence based on his age (65), financial resources, and the 20-year sentence imposed. The oral pronouncement of a sentence controls when there is a conflict between the oral and written judgments. The district court has authority to impose conditions on a sentence, including fines and surcharges, when specifically authorized by statute. The Supreme Court remands for an amendment of the written judgment to restate the costs imposed, and suspend them pending Hammer’s future ability to obtain work, so as to conform to the oral judgment.