State v. Briscoe
282 P.3d 657
Mont.2012Background
- Briscoe stabbed Trachy on June 28, 2010 after being denied a shower and clothes at the Poverello Center; Briscoe, age 72, was expelled earlier for violating the shelter's no-alcohol policy.
- Police encountered Briscoe shortly after the stabbing; Briscoe admitted throwing a knife and identified bushes where it landed.
- At the police station, Briscoe was questioned after a breath test showing BAC .166 and a Miranda waiver was obtained; Briscoe made several incriminating statements.
- Briscoe was charged with attempted deliberate homicide and, at trial, convicted of the lesser included offense of assault with a weapon.
- The district court sentenced Briscoe to 20 years in prison with no restriction on parole; the court’s reasoning referenced past history and lack of remorse without tying to record evidence.
- Briscoe appeals claiming ineffective assistance of counsel for not moving to suppress statements and challenging the legality of a sentence tied to purported lack of remorse with no record support.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance for failing to suppress statements | Briscoe asserts no plausible justification for counsel’s failure. | State argues the claim is not suitable for direct appeal and there was no prejudice. | Briscoe failed to show a reasonable probability of different outcome; no reversal. |
| Sentence legality tied to lack of remorse | State acknowledges lack of remose finding but argues record evidence supports it. | District court did not point to affirmative record evidence of lack of remorse. | Sentence illegal as lack of remorse was not affirmatively tied to record evidence; remand to correct. |
Key Cases Cited
- State v. Duncan, 343 Mont. 220 (Mont. 2008) (must tie lack of remorse to actions or statements in sentencing)
- State v. Morris, 358 Mont. 307 (Mont. 2010) (affirmative evidence of lack of remorse allowed in sentencing)
- State v. Rennaker, 335 Mont. 274 (Mont. 2007) (affirmative evidence required; cannot infer from silence)
- State v. Olivares-Coster, 361 Mont. 380 (Mont. 2011) (remand when sentence contains illegal provision)
- State v. Kougl, 97 P.3d 1095 (Mont. 2004) (record-based review; some claims require direct appeal vs. postconviction)
- State v. Gunderson, 357 Mont. 142 (Mont. 2010) (two-part Strickland standard for ineffective assistance)