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City of Missoula v. Fogarty

Supreme Court of Montana

September 5, 2013

CITY OF MISSOULA, Plaintiff and Appellee,
v.
MICHELLE RENEE FOGARTY, Defendant and Appellant.

Submitted on Briefs: April 24, 2013

APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause Nos. DC 12-25, DC 12-26, DC 12-28, DC 12-29, Honorable Robert L. Deschamps, III, Presiding Judge COUNSEL OF RECORD:

For Appellant: Johnna K. Baffa, Van de Wetering Law Offices, P.C., Missoula, MT

For Appellee: Timothy C. Fox, Montana Attorney General; Pamela P. Collins, Assistant Attorney General, Helena, Montana

Jim Nugent, Missoula City Attorney; Tiffany Heaton, Deputy City Attorney, Missoula, Montana

MIKE McGRATH CHIEF JUSTICE

¶1 This appeal arises out of four misdemeanor criminal cases filed against Michelle Renee Fogarty in the Missoula Municipal Court. The cases were heard in bench trials, all held on the same day, at which Fogarty represented herself. Fogarty appealed her convictions to the Fourth Judicial District Court, Missoula County, on grounds that she had been denied her constitutional right to counsel. The District Court generally affirmed the convictions, and Fogarty now appeals to this Court. We affirm.

BACKGROUND

¶2 The first of the four cases here on appeal was an October 2010 charge of no proof of motor vehicle insurance. An attorney from the Missoula Office of Public Defender (OPD) was appointed to represent Fogarty. Although she was represented by counsel, Fogarty filed several rambling pro se documents in which she, among other things, complained that her counsel was "accusatory and bullying" and was not properly representing her. At a March 9, 2011, status hearing, Fogarty told the court she had defended herself before, in a proceeding in Minnesota, she had done a better job than the public defender, and she would be proceeding pro se. Following a dialogue about Fogarty's competence, Fogarty told the court she would not cooperate with a mental health evaluation to determine if she was competent to proceed to trial. "Being not trained as an attorney does not make you . . . have mental disease." The court appointed Robin Ammons as standby counsel to assist her, but Fogarty declared she would not be asking Ammons for any help. Later, another contract public defender (Sandefur) was appointed to represent Fogarty, but he subsequently withdrew on grounds of a breakdown in the attorney-client relationship, and yet another contract public defender took over. That attorney was allowed to withdraw upon his motion, filed at Fogarty's request.

¶3 In the meantime, in November of 2010, Fogarty was charged with resisting arrest and violating a privacy in communication statute by electronically using profane/obscene language with the purpose to harass. OPD filed a notice of appearance, followed by notice of appearance by conflict counsel contracting with OPD. Again, although Fogarty was represented by counsel, she filed voluminous rambling handwritten documents, including complaints that her counsel was threatening her, and a request to meet with the judge "regarding some appropriate legal representation."

¶4 Also in the meantime, Fogarty was charged with criminal contempt and disorderly conduct during a March 9, 2011, court appearance. A regional deputy public defender entered notices of appearances of two private attorneys, in succession, who contracted with OPD to represent Fogarty. T he first of those two contract attorneys advised the court he had concerns about Fogarty's ability to assist in her defense and was in the process of investigating this issue. He later was allowed to withdraw on grounds of a breakdown in the attorney-client relationship. The next contract attorney (Foley) moved to withdraw on grounds that Fogarty had created a conflict of interest by making allegations that Foley and her law firm had acted unethically. Attorney Birdsong entered an appearance but later moved to withdraw on grounds that Fogarty had told him she no longer wanted him to represent her.

¶5 The fourth group of charges involved in this appeal arose in August of 2011, when Fogarty was charged with disorderly conduct and resisting arrest in a Missoula restaurant. In that case, the court granted two attorneys' motions to be allowed to withdraw-the first, at Fogarty's request, and the second, due to conflicts of interest that arose after Fogarty made complaints about the attorney. At that point, the court ordered that any further filings should be sent to Fogarty personally.

¶6 On November 3, 2011, the Missoula regional OPD office filed notice that Lisa Kauffman, a contract attorney with OPD, would be appearing for Fogarty in the first three of the above four cases. Then, on November 7, 2011, Fogarty appeared in the Missoula Municipal Court for a preliminary hearing on all four cases, held before retired District Judge Harkin. Kauffman did not appear. T he court asked Fogarty if she had a new attorney, and Fogarty replied she felt she should represent herself at her trials, all four of which had been scheduled for December 22, 2011. At that point, the following exchange occurred:

Judge: You want to represent yourself?
Fogarty: Yeah.
Judge: Okay, that's fine. You have the right to do that and so all we need now is for you to sign this little form here. And this is the form that will tell you what day you should be getting your-
Fogarty: Here?
Judge: Yeah. Here's your copy.
Fogarty: Okay.
Judge: And that'll be-the day you should get your notice of the trial is December 16. Judge Harkin then went on to make sure Fogarty had information on all the evidence the State would be using against her. Two days later, Kauffman moved to withdraw in the three cases in which her appearances had been entered, on grounds that OPD had instructed her to do so and that she had received notice from the Clerk of the Municipal Court that Fogarty had indicated she wanted to proceed pro se.

¶7 On December 22, 2011, just before the first of the four bench trials began, the Municipal Court judge reviewed with Fogarty the possible penalties for the offenses charged. The court then asked Fogarty whether she had previous experience in trials. Fogarty responded at some length on that and several related subjects, including describing the Minnesota case in which she stated she had been forced to plead guilty. She also complained that her right to speedy trial has been violated in the matters pending before the Municipal Court. Fogarty stated, "I feel I should have an attorney that will effectively represent me, but that has not happened." The court responded:

[O]ne of the things is you can't keep firing your lawyers. That's the problem because that's pretty much a rejection of being represented by an attorney. . . . What I'm only inquiring about is I want to make sure that you're capable of representing yourself. You seem to be very capable of that. You know the penalties involved here. You've had experience with the legal system. You are an articulate, thinking person and I think you can represent yourself.

Fogarty then replied that she did not want to "go to jail for a year based on all these cops coming around the courtroom here and nobody else present. I'm a little concerned." The judge advised her that the officers in the courtroom were witnesses for the trials. After Fogarty responded with complaints about corruption of police officers, the court stated, "I determine that you are able to represent yourself today."[1]

¶8 Fogarty pled guilty to driving without insurance and the court fined her $250 on that charge. Following the bench trials, the court found Fogarty guilty on all of the remaining charges. It sentenced her to 10 days in jail for disorderly conduct; 180 days in jail, all suspended, for criminal contempt; 10 days in jail for disorderly conduct and 180 days in jail for resisting arrest, with 180 days suspended; 180 days in jail, suspended with conditions, for violation of privacy in communications; and 180 days in jail, suspended, for resisting arrest.

¶9 On appeal, the Fourth Judicial District Court stated "It is clear from the record that [Fogarty] is a disturbed person who has a great deal of difficulty dealing with other people." The court set forth the histories of the various cases before it on appeal. Relying on case law regarding defendants who had not unequivocally requested to proceed pro se or waived their right to counsel, but who were found to have effectively waived their right to counsel by their dilatory conduct hindering the efficient administration of justice, the court determined the Municipal Court had made the appropriate balancing decision between Fogarty's right to counsel and her "refus[al] to work with everyone appointed to represent [her]." The court generally affirmed the judgments entered in the Municipal Court. However, it set aside and dismissed Fogarty's conviction of disorderly conduct during her March 9, 2011, court appearance, on double jeopardy grounds.

STANDARDS OF REVIEW

¶10 Where there is a question of whether a defendant has waived her right to counsel, we will not disturb the district court's findings "as long as substantial credible evidence exists to support that decision." State v. Clary, 2012 MT 26, ¶ 12, 364 Mont. 53, 270 P.3d 88. We defer to a trial court's consideration of a request to appoint new counsel "and the court's determination will be ...


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