*1
MONTANA,
STATE OF
Rеspondent,
Plaintiff and
BECKER,
JUSTIN DALE
Appellant.
Defendant
No. 02-491.
January 27,
Submitted on Briefs
2004.
Decided March
2005.
For Kristina Appellant: Helena. McGrath, Attorney Honorable Mike Montana Respondent:
For General, General, Paulson, Helena; Brant Attorney John Assistant Attorney, Thompson, Parker Joel Light, County Cascade John Deputy County Attorneys, Great Falls. Opinion NELSON delivered the of the Court.
JUSTICE Court for appeals 1 Justin Dale Becker his conviction the District District, County, possession ofcriminal Eighth Judicial Cascade for the criminal dangerous drugs, accountability precursors dangerous drugs, possession and criminal manufacture part, part affirm in reverse and remand dangerous drugs. We Opinion. proceedings consistent with this further follows: appeal restate Becker’s issues on We possession convictions for criminal 1. Whether Becker’s dangerous dangerous drugs precursors and criminal drugs production or manufacture in addition to criminal *3 protections under drugs by accountability jeopardy violated his double 46-11-410, under § the United States and Montana Constitutions and MCA. dangerous of possession sentence for criminal 2. Whether Becker’s
¶4 drugs statutory maximum. is twice the production sentence criminal 3. Whether Becker’s ¶5 illegal. drugs by accountability is dangerous manufacture of Background Factual and Procedural 16,2001, to the home morning March Mike Smith went On the of wife, Mike Upon entering garage, the discovered estranged his Nora. of immediately lab which he methamphetamine was a suspected what he Thereafter, law Department. Police several to the Great Falls reported The garage. and up surveillance the homе enforcement officers set moving from the items Becker and Huston Curran officers observed trunk of a white loading items into the garage into the and then house Becker, car, loading After the owned Olson. by Ford Taurus Sharon officers away. The got the car and drove and Olson into Curran found to Becker was car distance from the house. stopped the a short pairs of athletic several pairs gloves, several of rubber carrying tube pipe smoking and a a rubber used gloves, glass with addition, methamphetamine. clothing Becker’s was wet and emitted physical of the who Becker had a chemical odor. One officers touched required undergo reaction and was decontamination. obtaining garage After home search warrant Smith’s and car, they found to be
Olson’s officers items believеd consistent with the production methamphetamine jar and a with at mason a solvent the top methamphetamine. findings, that contained Based on these charged State with production Becker criminal or manufacture of 45-2-302(3) by dangerous drugs accountability in violation §§ 45-9-110, (1999), criminal felony possession MCA (1999). drugs violation MCA The also charged State Smith, drug Olson and Curran with numerous offenses. 22, 2001, On June Becker filed a motion to all of suppress by grounds
evidence obtained the officers on the search application warrant did adequately reliability establish the credibility informant; search application legally warrant was information; invalid because it contained inaccurate and misleading application cause; the search warrant lacked probable the officers particulаrized car; suspicion stop lacked Olson’s and the statements by made Olson at time of the traffic were taken violation stop right her to remain silent. The District Court denied Becker’s motion suppress after conducting hearing on matters raised in the motion. The begin District Court had set Becker’s trial to November
2001, however, date, days prior six filed Amended adding Information charge criminal of precursors to (1999). 45-9-107(1)(n), dangerous drugs in violation of MCA Defense counsel subsequently charge filed a motion to dismiss this as a prohibition against jeopardy claiming violation double that the supporting charge charge course conduct and the of criminal dangerous drugs or manufacture of was the same. Defense relied Blockburger v. United States 284 U.S. However, argument. S.Ct. 76 L.Ed. for this defense counsel no argument specific madе regarding protections against double *4 46-11-410, jeopardy provided by or Montana Constitution MCA. § The District Court denied Becker’s motion proceeded case to The jury charges. trial. convicted Becker on all three sentencing hearing, Prior to his filed Sentencing ¶10 Becker a Memorandum in which he the maximum sentence argued he charge production could receive for the of or of criminal manufacture by accountability six months dangerous drugs was incarceration county jail. penalty Becker contended that there was no in statutes manufacturing methamphetamine. Thus, for a first-time offense of he 46-18-212, statute, MCA, sentencing argued applied. default objection seeking to sentence him as Becker also filed an to the felony persistent offender. sentencing, rejected sentencing At the District Court Becker’s 45-9-110(4), MCA, argument pursuant to it determined that did, could, years prison charge to in for the of sentence Becker ten drugs criminal of production dangerous by or manufacture to accountability. years prison The court also sentenced Becker ten years criminal charge possession dangerous drugs for the of and five of of of prison charge possession precursors for the criminal all dangerous drugs. The court ordered that sentences were consecutively. addition, declared to be a run court Becker offender, him such. persistent felony but chose not sentence his conviction and sentence. appeals Becker
Issue 1. dangerous possession Becker’s convictions criminal Whether dangerous drugs drugs possession precursors and criminal drugs dangerous by production addition to criminal manufacture of accountability jeopardy protections violated his double under and under § United States and Montana Constitutions MCA. been that he should have convicted argues appeal Becker or manufacture of charge production of criminal part of the by accountability charges the other two were
drugs because within manufacturing methamphetamine and were included process charge. He claims that his convictions manufacturing precursors possession methamphetamine manufacture to his conviction for addition methamphetamine his federal and state constitutional violated against jeopardy. double statutory protection and his protections state dismiss deny a motion to A cоurt’s decision to defendant’s district of law that this jeopardy presents question on the basis double court’s whether the district determine appeal reviews Beavers, 260, State v. of the law is correct. interpretation 371, Barker 21, (citing State v. 987 P.2d 296 Mont. Steer, 360, 362; Department Inc. v. (1993), 858 P.2d 260 Mont. 603). 470, 474-75, 803 P.2d Revenue
369 on appeal Becker concedes that his motion dismiss in exclusively rights District dealt with his federal constitutional jeopardy protections and that he did not address double provided by statutory against the Montana Montana’s protection Constitution or MCA, jeopardy double found at which provides: (1) Multiple charges. may When the same transaction offense, establish the commission of more than one a person may with charged prosecuted the conduct for each offense. (2) not, however, A be cоnvicted than more defendant one offense if:
(a) other; one is included offense (b) one only conspiracy offense of a or other consists form preparation other; to commit the
(c) inconsistent of fact findings required are establish offenses; commission of the
(d) the offenses differ in that one is prohibit defined to specific conduct; instance or
(e) the to prohibit offense defined a continuing course of conduct and the interrupted, defendant’s course of conduct was unless law that the provides specific periods of the conduct constitute separate [Emphasis added.] offenses. Additionally, Becker he object concedes that did not on double
jeopardy grounds in lower court that the of possession offense methamphetamine produсtion was included within the offense methamphetamine. Instead, manufacture of his double jeopardy argument was based the claim that of possession the offense precursors was included within the offense of manufacture of methamphetamine. argues The State that because Becker raised statute-based theory
double jeopardy for the appeal, first time on this Court should decline theory to address the new discretionary under Court’s power plain error review or through Becker’s claims of ineffective assistance of We with agree counsel. the State that plain error review however, is inappropriate in this we it conclude that appropriate to analyze this case under Becker’s ineffective assistance of counsel claim.
A¶18
criminal dеfendant
is denied effective assistance of counsel if
his counsel’s conduct
reasonably
falls short
range
demanded
light of the Sixth Amendment
to the United States Constitution and
Rose,
342,
12,
prejudicial.
counsel’s failure is
v.
State
1998 MT
292
¶
350,
12,
321,
(1997),
Mont.
12 (citing
¶
972 P.2d
State v.
¶
Chastain
58,
61,
57,
grounds by
63,
overruled on other
285 Mont.
947 P.2d
198,
738;
Herrman,
149,
Strickland v.
70 P.3d
674).
80 L.Ed.2d
Washington
466 U.S.
S.Ct.
questions
of counsel are mixed
Because claims ofineffective assistance
fact,
Turner,
uses dé novo review. State v.
law and
this Court
(citations omitted).
270, 47, 302
MT
of care
points
appeal,
Becker
out in his brief
the standard
¶19 As
reasonably
required
of trial counsel
evaluate
demanded
charged and advise Becker
under which his client was
statute
(5th
1984),
Kennedy Maggio
v
Cir.
725 F.2d
270-72.
accordingly.
“
teller, he
‘[Although
not be a fortune
must be
counsel need
*6
Though he
into the
reasonably competent legal historian.
need
see
”
research)
(or
future,
past.../
recall
at least
the
reasonably
he must
(5th
v. United States
Cir.
Kennedy,
(quoting
dismiss the Furthеr, drugs. trial counsel relied charge of Blockburger recognize protections test failed the the only upon particularly by by the Montana Constitution and provided to include all of the Hence, conclude that counsel’s failure MCA. we and, rely particular, charges in his motion to dismiss relevant dismissal, constitutes deficient grounds for proper statutory prong of Strickland. performance under first indeed that Becker was prong, second we conclude As to the defendant performance. A criminal deficient prejudiced by counsel’s that but for probability is a reasonable only that there must “establish proceeding would have the result of the errors unprofessional counsel’s 694, 104 S.Ct. 466 U.S. at Rose, (citingStrickland, different.” ¶ been 2068). term had Here, to a lesser would have been sentenced at Beckеr argument regarding made the lesser-included appropriate 46-11-410, MCA, Blockburger than offense under rather under test. Previously, considering whether an offense is included in when offense, Blockburger this Court turned test:
another that, applicable The rule is where the same act or transaction statutory provisions, constitutes a violation two distinct test applied only to be there are offenses or to determine whether two provision requires proof one is whether each of an additional fact which the other does not. However,
Blockburger, 304, at at 284 U.S. 52 S.Ct. this Court Beavers, 340, MT determined in State use Blockburger test analysis in an inappropriate included-offense because Montana has statutorily defined what constitutes an included offense and Blockburger may Montana, unnecessarily cоnfuse the an issue. “included offense” means an offense that:
(a) by proof is established of the same or than all less the facts required to charged; establish of the offense commission
(b) consists of attempt charged to commit offense or to commit an offense charged; otherwise included the offense
(c) charged differs respect from offense that a less injury person, serious or risk to property, public the same interest or a lesser kind of culpability suffices establish its commission. *7 46-1-202(9),
Section
MCA.
Because the production
dangerous
¶23
or manufacture of a
drug
created,
cannot be a
act in
drug
criminal
and of itself until the
is
the
State had to
prove
first
that Becker or one
his
of
codefendants
possessed methamphetamine
charge
order
convict Becker
of
or
producing
manufacturing that same methamphetamine. This
(1987),
Court considered a
similar situation
State v. Peterson
503, 741
Mont.
P.2d 392. In that
was
defendant
convicted of
possession
dangerous drugs
possession
of
of dangerous drugs with
(renumbered
Relying
intent
sell.
MCA
§
46-11-
MCA,
1991),
we held that a defendant
be
convicted of
Peterson,
both offenses if one offense is
within the
included
other.
at
explained
MCA, conviction for both criminal together, read bar Becker’s production dangerous drugs of and criminal or manufacture possession lesser- drugs by accountability since the former is a dangerous said, however, for of the latter. The same cannot included offense precursors dangerous drugs possession Becker’s conviction for by cutting or processes methamphetamine who because a defendant diluting ingredient some inert commits offense criminal it with necessarily dangerous drugs without production or manufacture of 45-9-107, MCA. precursors of the listed in possessing any chemical improperly is convicted of two When a criminal defendant transaction, remedy for arising offenses оut same for is to reverse the conviction ensuing jeopardy violation of double re-sentencing. for State v. offense remand lesser-included 512-13, 870-71 Peterson trial). for decision as to remand new (modifying earlier Peterson criminal affirm Becker’s convictions Accordingly, we accountability criminal dangerous drugs by manufacture Becker’s conviction and we reverse possession precursors, heretofore dangerous drugs. criminal The sentence possession of is and the District Court imposed by the Court is vacated District solely on the convictions here resentence the defendant ordered to resentencing. affirmed, hearing respect to the after notice and with 2. Issue possession dangerous criminal Whether Becker’s sentence statutory maximum. drugs twice charge of that the prеvious issue Because we determined drugs a lesser-included offense dangerous possession criminal drugs, dangerous manufacture of production or charge of criminal for criminal Becker’s conviction we reversed correctly Becker was of whether issue drugs. Consequently, charge is moot. sentenced for that
Issue *8 production criminal Becker’s sentence Whether manufacture for dangerous drugs by accountability illegal. of argues ten-year sentence for criminal production Becker that his 45-9-110, MCA, illegal of dangerous drugs or manufacture because § offense, governing punishment the statute does not set forth a for this of production first-time offense or manufacture statutory that methamphetamine. Becker therefore maintains no authority ten-year for existed sentence and the maximum sentence jail. county he could receive was six months incarceration in the This criminal for legality-i.e., Court reviews sentences determine parameters provided by whether sentence is within the 180, 15, 295 Montoya, statute. State v. punishment The for the production offense criminal or dangerous
manufacture of set drugs is forth in § MCA. (2) provides Subsection of that for punishment persons statute convicted producing manufacturing or certain drugs narcotic or (3) opiates. Subsection provides punishment statute for persons producing manufacturing convicted of or dangerous drugs 50-32-222, MCA, included in Schedule I of II Schedule of 50-32- § § 224, MCA, who have prior producing convictions or manufacturing Schedule I drugs. or Schedule II Methamphetamine is listed as a stimulant II in 50-32-224(3)(c), under Schedule present MCA. In the (2) (3) the parties agreed that neither subsection nor subsection (4) applied to Becker. The District Court determined that subsection applied instead. That provides pertinent part subsection as follows:
A person convicted of production criminal manufacture marijuana, tetrahydrocannabinol, dangerous drug or a not (2) (3) referred to subsections imprisoned shall be prison state for a term not years to exceed 10 be fined $50,000 not than person more A.... convicted under this prior who subsection has a conviction that has final become production criminal or manufacture a drug under imprisoned shall subsection in the state term prison for a twice exceed that authorized for a first offense under this $100,000. subsection and may be fined not more than 45-9-110(4), Section argues MCA. Becker since (which drugs II methamphetamine) included Schedule include are statute, plain language referred to in subsection under the (4) apply subsection cannot to him. Becker therefore maintains that since the penalty the offense of criminal or manufacture 45-9-110, MCA, methamphetamine specified is not 46-18-212, MCA, 46-18-212, MCA, Section
provisions apply. § an offender provides imposing upon that the court “in sentence is penalty provided of an offense for which no otherwise convicted is designated penalty if is a misdemeanor and no otherwise the offense may the offender to a term of no more than six provided,” sentence county jail. months in the Memorandum, Sentencing to the State response In its Becker’s
¶32 (2) (3)” argued phrase in and in § that the “not referred to subsections 45-9-110(4), MCA, “person” to the related back to the word and not to in “dangеrous drug.” person Since Becker was not a referred term (2) producing as not convicted of subsections inasmuch he was statute, prior under the any a and did not have convictions narcotic (4). be that in subsection penalty provided for his conviction would (4) a interpreted District subsection catch-all Similarly, the Court persons for those convicted under provision specifies penalty that (2) provided not otherwise in subsections penalty the statute whose is (3). 45-9-110, MCA, clarity, agree a we with While not model § ¶33 MCA, 45-9-110(4), applies the District the State that with § any interpretation other argues appeal, in case. As the State would be result because first-time offender would lead to absurd would jail six months in while a second-time offender subject to life subject twenty years less than nor more than be a term not imprisonment. Nevertheless, penalty if were correct that even Becker MCA, 45-9-110(4), is not in
producing methamphetamine specified § MCA, 46-18-213, 46-18- penalty statute would default MCA, 46-9-110, carries 212, MCA, A violation of § as Becker contends. therefore be year prison in and must excess of one penalties MCA, often provides for a term felony. Section considered felony as a designated to offenses years prison respect in the state with provided. penalty where no is otherwise did not err the District Court Accordingly, we hold Prison for his years to ten Montana State sentencing Becker accountability for criminal or manufacture conviction drugs. that deserve said, raised contentions the dissent has several That Opinion First, Majority’s the dissent faults response. appeal by way of Becker’s case on direct reviewing the merits of this through rather than of counsel claim ineffective assistance cases, that, in most the dissent agree relief. We with postconviction fully particular explain why when the does not counsel took a record action, postconviction relief course of the matter best-suited However, strategy it involve trial or a tactical decision. because strategy we conclude us on no trial appeal, case before can error tactical decision excuse an this fundamental. Jefferson, MT State v. plea charge attempted
defendant a not to the guilty entered arraignment. subsequently deliberate at Defendant homicide his agreement plead entered wherein he to one plea agreed guilty into a count of assault amеnd felony agreed and the the Information charge drop deliberate homicide. Defendant later attempted guilty plea felony charge proceeded withdrew his on the assault charge of attempted Jefferson, trial deliberate homicide. 10- ¶¶ However, trial, at defense counsel admitted in both his opening closing argument guilty statement and his that defendant was *10 felony Jefferson, 45-46. assault. ¶¶ We determined counsel’s remarks had the effect ¶38 Jefferson entering a for plea Jefferson, defendant without his consent. 50. ¶
Hence, we held that there plausible justification because was no circumstances, counsel’s conduct under the counsel’s admission could decision, not be strategy considered trial or tactical and the issue was appropriate appeal. Jefferson, for review on direct ¶ Similarly, the instant trial strategy there is no tactic or permit that would defense client charged counsel to allow his to be Furthermore, convicted of are proper. prosecutors more crimes than if charging in Montana are with production defendants both criminal or dangerous drugs possession manufacture of and criminal ofthose same then drugs, we need to that issue make sure address practice stopped. Second, points the dissent out that raise defense counsel did argument statute-based double jeopardy trial court when he (1996), 261, 463, cited to State Tadewaldt 277 v. Mont. 922 P.2d 337, 381, v. State Wells in his brief in support of motion to prohibition against his dismiss violation of the jeopardy. double The dissent then assumes that since defense counsel cases, cited to these stаtutory two counsel must have been aware of the govern provisions charging which of offenses and that because making 46-11-410, counsel’s for not an based argument upon reasons § MCA, spelled record, may are out in the matter not be appeal. reviewed on direct contrary, incorrectly On the counsel cited defense Tadewaldt of the jeopardy double clause proposition “[t]he What greater protection than U.S. constitution.” provides
Montana
46-11-504(1), MCA,
actually
said in Tadewaldt was that Ҥ
greater protection
jeopardy
defendants
from double
affords criminal
Mont,
268,
Tadewaldt,
at
Blockburger...”
provided
than is
under
fashion,
rely on
In a similar
defense counsel did not
[generally alleged faitee evidence, witness, object to testimony of a object to the record-based, been deemed misconduct at trial has prosecutorial appeal. for direct appropriate and therefore counsel failed White, Opinion, nоted in our defense 15. As we that the offense grounds in the lower court object jeopardy on double was included within offense possession methamphetamine Instead, methamphetamine. his double or manufacture of production claim that the offense argument was based on the jeopardy offense of included within the precursors was object failure on the methamphetamine. Counsel’s or manufacture of it is shown in his brief grounds is matter of record as proper of his motion to dismiss. support *11 Furthermore, intentionally allowed Becker whether
¶43 it, inadvertently allowed counsel’s charged with both offenses professional range clearly fell below the reasonable actions so justification for them and possible is no that there required conduct a actions nor in the record for counsel’s explanation neither an actiоns reasons for his hearing determine counsel’s postconviction 49-50. necessary. Jefferson, See ¶¶ for further part, and remanded part, reversed Affirmed in ¶44 Opinion. this consistent with proceedings WARNER, LEAPHART concur. COTTER JUSTICES
377 dissenting. JUSTICE RICE prejudice I dissent. I affirm the without to the would conviction right pursue postconviction regard relief to his
defendant’s claims, required the law. by correctly notes, theAs Court the defendant failed to raise his There,
appellate sought issue before the District he Court. dismissal completely charge. Although properly of a different the Court concludes that the exercise of error review it plain inappropriate, newly-raised by nonetheless undertakes way review of the issue I argument. defendant’s ineffective assistance of counsel respectfully submit it is inappropriate do so. The record regarding why is silent defense counsel raised the arguments
issues formulated the as he did in the District Court. test, Although he argued Blockburger the record reflects that he also made reference to the greater Montana Constitution’s double jeopardy protections (1996), and cited v. to State Tadewaldt 277 Mont. 261, 463, P.2d applied 922 double jeopardy which statute-based (1983), 337, 381, analysis, to State v. Wells 202 Mont. 658 P.2d Thus, which also charging referenced the statutes. the best assumption which can be made from silent record is that counsel was aware statutory provisions govern which charging offenses. However, the he did argument upon reason not make an based 46-11- MCA, 410, is not indicated the record and is therefore unknown1. “As we previous [sic], have stated on numerous occasion there is a strong presumption adequate counsel ‘rendered assistance and significant made all professional decisions in the exercise reasonable ” judgment.’ Notti, 146, 6, State v. 2003 MT ¶ 79 ¶ (citing 6 Strickland Washington ¶ v. 466 U.S. “ 674). Further, here, S.Ct. L.Ed.2d and determinative ‘a strong silent record cannot rebut presumption that counsel’s conduct falls range professional within wide of reasonable record, complete assistance. ...Absent this speculate Court will not ”Notti, Daniels, alleged counsel’s errors.’ (quoting ¶ added). 41) 247, 41, 331, 41, (emphasis 77 P.3d ¶ days prior The notes that State filed an Amended Information six trial, adding precursor charge. explanation, See 9. Without further may give impression statement the erroneous that defense counsel was rushed into making incomplete argument. contrary, requested To defense counsel charge continuance of the trial hе can new “so research the that has been added to the jeopardy entry, Amended Information if there is to see a double issue.” Minute 11/16/01. request granted purpose. Defense counsel’s was trial was for that continued
378 “complete
There is no record” here. explained this Court determine repeatedly have how will We is record-based: whether an issue formula,
Though easily into a the definitive distilled which actions are record distinguishes that and decides question words, non-record, In if counsel fails why? are is other and which evidence, or offer object opening fails to to admission took statement, fully explain why record does the not, If then the matter best-suited particular course of action? inquiry proceedings permit which a further post-conviction Only was ineffective. representation the particular into whether took, or failed to fully why counsel explain when the record will take, for the accused this Court providing action in a defense on appeal. review the matter direct 20, 149, 58, 340, 20, Mont. 30 P.3d White, ¶ MT 306 ¶ State v. 2001 ¶ 525, 21, Harris, 231, 21, 36 20; 2001 MT 306 Mont. ¶ ¶ see also State v. 32, Fields, 32, 300, 372, 84, 309 Mont. 21; ¶ 2002 MT ¶ P.3d State v. ¶ 90, 187, 22, 612, 32; State, MT 311 Mont. Soraich v. 2002 ¶ 46 P.3d ¶ 158, 41, Earl, 22, 878, 22; ¶ State v. 53 P.3d ¶ ¶ 159, 17, MT 263, 41, 1201, 41; Turnsplenty, ¶ ¶ P.3d ¶ 8; Kougl, 2004 17; Notti, State v. ¶ 316 Mont. ¶ ¶ Here, 6, 14, record 97 P.3d MT particular arguments he did counsel made the “why” not reflect does therefore, under our arguments, other and why he failed to make rule, appeal. matter not be reviewed clear should that it believes opinion of the Court’s implication The and therefore fully applicable law counsel was not aware defense However, held specifically we have formulating argument. his erred in which should be a non-record issue kind of omission is this proceedings: postconviction reserved representation, clearly non-record based areas As those adequately failure to counsel’s this Court has identified defense, or prepare investigate, or failure failure applicable with critical areas him herself familiarize law. added). precedent. our clear
White, We should follow (emphasis 18¶ I law. dissent. properly apply has failed The Court GRAY, dissenting. CHIEF JUSTICE claim at issue assistance way the ineffective one going After the Court’s other, dissent from respectfully I here, then the the thrust of Justice agree with Moreover, generally I while opinion. dissent, disagree precedent I that we have clear follow at Rice’s point in time. view, scattery somewhat my our has become jurisprudence oft-
occasionally critically important downright inconsistent ineffective of counsel realm. This creates a mine reviewed assistance *13 cases, as appeals all in of criminal as field for involved direct well relief, and the trial petitioners postconviction their counsel courts. I in “bright may altogether possible realize that a line” test not be view, however, important In it is that we my cases such these. possible maintaining remain as in the consistent as distinction between record-based claims ofineffective of assistance counsel-which can can appeal-and be raised via direct nonrecord-based claims which reason, only in I postconviction proceedings. be raised relief For that that, problems set below a in in in hopes forth few of the our case law again a subject future we will onсe revisit this attempt to global way. Doing more would be a to all so service involved in justice extent, administration criminal Montana. To some to by inconsistencies which I refer are illustrated this case Justice Thus, Rice’s response begin dissent the Court’s to dissent. I that at that point. The dissent urges the Court to its clear precedents, follow White,
including our 2001 probably decision dozens ¶ others, holding that question distinguishes definitive that and decides which non-record,
actions are record why?... Only and which are is when took, the record fully explain why take, will counsel or failed to in providing action a defense for the accused this Court review matter on appeal. direct White, 18,
The dissent then cites to proposition for the that have ¶ we identified counsel’s to be failure familiar with critical areas applicable law as a clearly representation. nonrecord-based area responds The Court by dissent’s reliance on White quoting general statement in 15 object thereof that failures to ¶ certain and, therefore, matters are deemed appropriate record-based for direct view, appeal. my In response the Court’s to the dissent in this regard presents far too reading narrow a of White. Indeed, question there can be no that a counsel’s failure to object matter,
ais record-based lack objection since fact of the is readily by White, discernable reviewing the record. 15. The See White immediately however, after proceeded point, that observe decisions as to the number timing objections lie within counsel’s discretion, thereby generally requiring
tactical nonrecord-based barring consequently the tactic and explaining information White, White, appeal. See 16. In question from review direct ¶¶ 19, we numerous other nonrecord matters through farther discussed why properly appeal, ending included in a direct at with the is or not record-based. In other distinction whether a matter is record-based, words, for a failure object but the reason failure Thus, object why is not. the usual distinction between record- view, In in its my arises. White-read nonrecord-based matters entirety-supports view that the issue before us the dissent’s and, therefore, postconviction in a nonrecord-based must be raised proceeding. relief dissent, response to the the Court also relies on State
Jefferson,
MT
69 P.3d
where
closing argument during his
opening
admitted in the
statement and
homiсide,
charge
deliberate
that the
attempted
client’s trial on
the effect
guilty
felony
defendant was
assault. We stated
a guilty plea
was to enter
without the defendant’s
counsel’s statements
consent,
could exist for such
decision.
plausible justification
and no
45-46,
Thus,
on direct
Jefferson,
we addressed the matter
¶¶
*14
appeal.
Audet,
decided State v.
Approximately
year
Jefferson,
a
after
we
There,
415,
2004 MT resisting felony assault to trial on misdemeanor arrest proceeded closing in charges. opening conceded police on officer Counsel contesting resisting arrest client was not statements that his Audet, assistance claim on addressing 5-6. In an ineffective charge. ¶¶ that, while the record appeal, on direct we determined that basis admissions, the did not set forth the reasоns record confirmed counsel’s Consequently, we were why chose that course conduct. counsel’s decision fell appeal on whether unable to determine direct Audet, conduct. See professional of reasonable parameters outside the indicating in See Audet was a cite 12. Our reference to Jefferson clearly actions fall below counsel’s “so generally that cases exist where required that neither range professional conduct reasonable hearing post-conviction in the record or explanation the action Audet, 14. not mention We did necessary explain reasons.” virtually identical result under opposite reached the that Jefferson from any analysis distinguishing set forth facts; nor did we Jefferson Audet. on our case law apparеnt kinds of inconsistencies These conceivably distinguishable are assistance of counsel
ineffective face of the tiny difference between the cases. On the some factual cases, however, reasonably reader ascertain intelligent no could type counsel’s admissions of the addressed in whether Jefferson may appeal record-based Audet not be raised on direct as a Indeed, in I can retrospect, ineffective assistance of counsel claim. no longer justification” justify joining plausible the Court’s “no decision Jefferson. Finally, regard, highlight opinion Kougl, in this I our in State v P.3d 1095. The Court not discuss does
Kougl, but that case further illustrates the miasma we have created jurisprudence our claims they ineffective assistance and whether There, appeal. ultimately can or cannot raised we be on direct reversed concluding the defendant’s conviction on direct after that appeal, relating ineffective assistance claim to request counsel’s failure jury instruction that accomplice testimony be viewed with distrust was us, properly before and that counsel could have had “no plausible explanation” failing 21, 22, request Kougl, instruction. See ¶¶ 27. We relied proposition first on White for the that counsel’s particular failure to offer a jury generally instruction not record- on, however, based. We went determine whether the reasons for defense counsel’s Kougl failure do so in were were not irrelevant,” record “is “there any legitimate because could Kougl, reason for what counsel did.” White, Kougl, and Audet illustrate mine field our Jefferson
jurisprudence referenced can appellate above. How counsel ever know stay whether this Court will with the record versus nonrecord distinction? The answer is that counsel cannot know. The result is that good appellate counsel, for ethical and to avoid reasons later claims of ineffective appellate counsel, assistance of always will raise claims of ineffective assistance of trial counsel on appeal. direct The result of step is that the Court will receive more and more such claims on and, appeal direct in every will to proceed be forced with an analysis of whether or not “general the matter is within the rule” or *15 whether some can reason be located to hold that trial counsel rendered deficient performance allowing ever without trial counsel opportunity line, heard. At case-by-case approach the bottom gaining will jurisprudence now steam our soon overwhelm the and, “general consequently, requirement rule” weaken the that an actually appellant must establish deficient to succeed on performance an ineffective claim. assistance where no ineffective stop will not there. cases But the mischief judges appeal, district court
assistance claim is raised direct struggle mightily to petitions postconviction relief will addressing reasonably “could have an ineffective assistance claim predict whether purposes determining whether the appeal” been raised on direct pursuant barred postconviction arena claim сan be raised trial court decisions appeals MCA. The number of from to § well, will increase as and this proceedings necessarily in such few, any, whether the claim was yardsticks considering if will have barred. procedurally Court, recognition joined that I respect to the and with full With away which moved us from at least workable many cases matters, I record-based and nonrecord-based
distinction between obligation provide path. We have an cannot continue down doing just bar. We are practicing to the bench and guidance trial subject. on this opposite jurisprudence in our assistance of counsel claim the I would hold that the ineffective basis, I dismiss that not record-based. On that would present case is postconviction relief being its in a without raised prejudice claim to do so. I from the Court’s failure proceeding. dissent