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State v. Johnson

Supreme Court of Montana

February 12, 2019

STATE OF MONTANA, Plaintiff and Appellee,
TODD MICHAEL JOHNSON, Defendant and Appellant.

          Submitted on Briefs: November 28, 2018

          APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 14-0743 Honorable Gregory R. Todd, Presiding Judge

          For Appellant: Chad Wright, Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana

          Scott D. Twito, Yellowstone County Attorney, Brett Linneweber, Deputy County Attorney, Billings, Montana



         ¶1 Todd Michael Johnson (Johnson) appeals from a criminal conviction in the Thirteenth Judicial District Court, Yellowstone County, arguing the court abused its discretion by denying his request for substitution of counsel. We affirm and address the following issue on appeal:

         Did the District Court abuse its discretion by not substituting the defendant's counsel?


         ¶2 In September 2014, the State charged Johnson, an indigent defendant, with felony aggravated assault. The District Court initially appointed attorney Michael Usleber to represent Johnson, but appointed substitute counsel John Hud in April 2015. Johnson's felony aggravated assault charge was one of multiple pending criminal cases against him, and Hud represented Johnson in each. Johnson consistently indicated he would not waive his speedy trial rights and objected to continuance requests. The court held a trial in one of Johnson's cases in June 2015, at which Hud represented Johnson.

         ¶3 The court scheduled Johnson's felony aggravated assault trial for August 13, 2015. In July 2015, Hud suffered a serious leg injury that rendered him unavailable for Johnson's scheduled trial. The court continued the trial and, on August 14, 2015, held a status hearing to discuss Johnson's representation. David Duke, regional manager of the public defender's office, appeared on Johnson's behalf and reported that Hud was unavailable until October. Duke further explained that Hud told him "that Mr. Johnson has concerns and criticisms of [Hud] and his representation." Duke stated he would defer to the court regarding whether Johnson should receive new counsel.

         ¶4 The court asked for Johnson's input. Johnson stated he told both Usleber and Hud that he opposed postponing his trial dates. He further reported that he had been trying, unsuccessfully, to get ahold of Hud for the last two months, stating that Hud did not respond to Johnson's phone calls or letters. Johnson stated he did not know what was going on in any of his cases. Regarding Duke's comment that Johnson had concerns with Hud's representation, Johnson stated he had not expressed any concerns about Hud's representation and assumed Hud was "putting words in [his] mouth."

         ¶5 The court told Johnson that it did not want to interfere with his representation but had noticed certain body language between Hud and Johnson at Johnson's last trial. The court stated that, if Johnson continued with Hud as his attorney, nothing could happen until October. The court similarly noted that, if substitute counsel were appointed, it would likely take that person until October to catch up with the case. The court then looked at its schedule and discussed its upcoming trials. Johnson further explained his concerns to the court:

Your Honor, I don't . . . want to do anything that would cause me to inadvertently waive my right to a fast and speedy trial. . . . I've been trying to get my attorney to file for a motion to dismiss for lack of speedy trial and he['s] . . . refusing to do so. . . . [I]t's caused some great concern to me that . . . the last two attorneys I've had are refusing to file motions that I've asked them to file. And it seems like they're doing a pretty good job of prolonging my situation after I've asked them numerous times not to do so. At this point, I have no idea what to do. They don't listen to anything I'm saying. . . . I don't even know if it would help my situation to get new counsel . . . . I honestly don't know what to do.

         ¶6 After listening to Johnson's concerns, the court described its schedule to Johnson, explaining that criminal trials rotate on six-week cycles with each judge having two designated weeks. The court determined October 19th was the soonest it could realistically reset Johnson's trial. Johnson clarified which case would be going to trial and expressed frustration because, in the past, he did not know which case ...

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