IN THE SUPREME COURT
STATE OF MONTANA
CAUSE NO. 01-312
STATE OF MONTANA,Plaintiff And
Respondent,
VS.
LARRY ADAMS, Defendant and
Appellant.
On appeal from the District Court of the Twenty-First Judicial
District of the State of Montana, In and for the County of
Ravalli.
BRIEF OF APPELLANT
APPEARANCES:
LARRYADAMS
700 Conley Lake Rd.
Deer Lodge, MT 59722
MIKE MCGRATH
Attorney General
2 1 5 North Sanders
Helena, MT 59620
PRO SE
GEORGE H. CORN
Ravalli County Attorney
205 Bedford Street
Courthouse Box 5008
Hamilton, MT 59840
Defendant/Appellant
Attorneys for the
Plaintiff/Respondent.
IN THE SUPREME COURT
STATE OF MONTANA
CAUSE NO. 01-312
STATE OF MONTANA,Plaintiff And
Respondent,
VS.
LARRY ADAMS, Defendant and
Appellant.
On appeal from the District Court of the Twenty-First Judicial
District of the State of Montana, In and for the County of
Ravalli.
BRIEF OF APPELLANT
APPEARANCES:
LARRYADAMS
700 Conley Lake Rd.
Deer Lodge, MT 59722
MIKE MCGRATH
Attorney General
2 1 5 North Sanders
Helena, MT 59620
PRO SE
GEORGE H. CORN
Ravalli County Attorney
205 Bedford Street
Courthouse Box 5008
Hamilton, MT 59840
Defendant/Appellant
Attorneys for the
Plaintiff/Respondent.
TABLE OF CONTENTS
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..ii, iii
ISSUES FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .l
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STANDARD OFREVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
SUMMARY OFARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
ADAMS WAS NOT PROCEDURALLY
BARRED FROM FILING A PETITION FOR
POSTCONVICTION RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
ADAMS WAS DENlED EFFECTIVE ASSISTANCE
OF COUNSEL WHEN HIS FIRST COUNSEL FAILED
TO FILE A MOTION TO DISMISS FOR LACK OF A
SPEEDY TRIAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ADAMS WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL WHEN THE AGGRAVATED ASSAULT
INSTRUCTION WAS OFFERED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
ADAMS TEN (10) YEAR SENTENCE
ENHANCEMENI FOR
USE OF DEADLY WEAPON IS UNCONSTITUTIONAL . . . . . . . . . .16
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ADDENDUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . .
.22
AppENDEX................................................23
i
TABLE OF AUTHORITIES
CASES
Kills On Top v. State
2000 MT 370, ¶14,57St Rep
1444,1446 . . . . . . . . . . . . . . . . . . . . 3
Hans v. State,
283 Mont. 379, 408,
942P.2d674(1997) . . . . . . . . . . . . . . . . . . . . 4
City of Billings v. Bruce,
290 Mont. 148,744
P.2d877(1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Aprendi v. New Jersey,
120 S.Ct. 2348 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Kills On Top v. State,
273 Mont.32, 61,901
P.2d1368(1995) . . . . . . . . . . . . . . . . . . . . . . . 8
Strickland v. Washington,
466 U. S. 668(1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1
Hagen v. State, 1999,
MT 8,
¶lO, 293 Mont. 60, 973 P.2d 233 (1998) . . . . . . . . 1 1
State v.
1999,
MT 102, ‘$18, 294 Mont. 296, 980
P.2d 1058 (1999)l 1
786P.2d1182(1990) . . . . . . . . . . . . . . . 1 1
v. Green,
527 U. S. 263. 291, 296(1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2
Teague v. Lane,
489, U. S. 288, 300-01 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
18
i
STATUTES
$46-8-103(l), MCA
...........................................................
4
$45-5-202(2)(b), MCA
(1997).........................................
7
$46-21-105(2), MCA
.........................................................
8
$46-8-103(l), MCA
...........................................................
9
546~S-103(2), MCA
.........................................................
10
$45-5-202, MCA
(1997)
.................................................l4
§45-2.lOl(65) MCA
.......................................................
.l4
545-5-202(2)(d) MCA
(1997)
.l5
$46-18-221, MCA
.....................................................16,
. . .
111
ISSUES FOR REVIEW
The defendant and appellant, Larry Adams, is appealing to
this Court from the opinion and order of the district court dated
January 3, 2001, wherein the district court denied Adams
petition for postconviction relief. The issue on appeal is whether
the district court erred in denying that petition for
postconviction relief.
STATEMENT OF CASE
Adams was charged by information, in the fall of 199 8,
with attempted deliberate assault, a felony; criminal possession
of dangerous drugs, a felony; carrying a concealed weapon, a
misdemeanor, obscuring the identity of a machine, a
misdemeanor; and, criminal possession of drug paraphernalia, a
misdemeanor. Adams was arrested for these offenses shortly
after they occurred and, they allegedly occurred on September
14, 1998 (Affidavit in Support of Motion for Postconviction
Relief, Paragraph 3). Adams was initially appointed Donald
Spadone, as his court appointed counsel and, in the spring, when
Adams had yet to go to trial on these charges, Adams asked his
counsel to file a motion to dismiss for lack of a speedy trial but
Mr.
Spadone refused to do so. (Affidavit in Support of Petition for
Postconviction Relief, Paragraphs 4 and 5). In the fall of 1 9 9 9
new public defenders were hired in Ravalli County and Mark
McClaverty was appointed to represent Adams (Affidavit in
Support of Petition for Postconviction Relief, paragraph 8).
Adams went to trial on these charges then before a jury.
At trial, Adams’ counsel offered a lesser included j ury
instruction to the offense of attempted deliberate homicide of
aggravated assault, a felony. (Affidavit in Support of Petition for
Postconviction Relief, paragraph 10). On December 1, 1999, the
jury convicted Adams of aggravated assault, criminal possession
of dangerous drugs, carrying a concealed weapon, and criminal
possession of drug paraphernalia (Opinion and Order, page 2).
Adams did not appeal these convictions to the Montana
Supreme Court. (Opinion and Order, page 2). However, Adams
requested that Mr. McClaverty appeal his conviction to the
Montana Supreme Court and his counsel failed to do so.
Thereafter, without notice to Adams, Mr. McClaverty obtained
an order from the district court allowing him to withdraw as
counsel for affiant. (Affidavit in Support of Petition for
Postconviction Relief, paragraph 11).
On or about October 16, 2000, Adams filed a petition for
postconviction relief arguing that he had been provided
ineffective assistance of counsel. This petition was supported
2
with an affidavit and memorandum. The court ordered the state
to respond to this petition and a response was filed on or about
October 27, 2000. The district court on or about January 3,
2001, issued it’s opinion and order denying this petition for
postconviction relief. This appeal then followed.
STANDARD OF REVIEW
This court, in reviewing the denial of a petition for
postconviction relief, reviews the findings of fact by the district
court to determine if they are clearly erroneous and the district
court’s conclusions of law are reviewed to see if they are clearly
correct. Kills On Top v. State, 2000 MT. 370,
‘I[ 14, 57 St. Rep.
1444, 1446.
SUMMARY OF ARGUMENT
The first issue raised by Adams in his petition for
postconviction relief was that he was provided ineffective
assistance of counsel when his court appointed counsel did not
appeal his conviction and sentence to this court. The district
court found that Adams failed to file an appeal and he offered no
reasons to the court for his failure to do so. The court’s factual
finding was clearly erroneous. Adams affidavit, paragraph 1 1
and 12 thereof, clearly show that affiant requested his court
appointed counsel appeal his conviction and it was his court
3
appointed counsel that failed to do so and then withdrew as his
counsel, This Court has said that a defendant is denied effective
counsel when his counsel fails to pursue a first appeal and this
court has said that a defendant has the right to be represented
by counsel on that first appeal. Hans v. State, 283 Mont. 3 79,
408, 942 P. 2d 674 (1997). Additionally,
546-8-103(l) MCA,
makes it clear that assigned counsel’s assignment is effective
until final judgment, including any proceedings upon direct
appeal to the Montana Supreme Court, unless relieved by order
from the court which assigned counsel or has jurisdiction over
the case.
While counsel here was relieved of his duty, this
occurred without the knowledge of Adams and Adams had
specifically requested his counsel to file appeal. There is no thing
in the record contradicting Adams affidavit to that effect.
Accordingly, the district court was in error in concluding that
postconviction relief because Adams was provided ineffective
assistance of counsel when his counsel did not appeal after being
asked and failed to do so.
The district court also found that, while Adams claims he
received ineffective assistance of counsel, he failed to cite any
proof of “facts” that would justify the relief requested. (Opinion
and order, page 5). The evidence in the record does not support
this finding. First, Adams affidavit makes it clear that he did
request his court appointed counsel to file an appeal. (Affidavit
in Support of Petition for Postconviction Relief, paragraph 12).
Contrary to the district court, this is a “fact” . Second, Adams
presented “facts” that he had asked his first appointed counsel
to file a motion to dismiss for lack of a speedy trial and that he
had been held, in jail, without a trial for more than 275 days.
(Affidavit in Support of Petition for Postconviction Relief,
paragraphs 5 and 6). The district court says that Adams fails to
address whether any merit existed for the filing of such a
motion and whether the outcome would have been different if
such a motion had been filed. ( Opinion and order, page 5). This
finding by the district court is not supported by the record
because as Adams noted in his affidavit and in his
memorandum, under City of Billings v. Bruce, 290 Mont. 148,
744 P 2d 877
(1998), Adams had been in jail long enough,
under Bruce, that it would constitute presumed prejudice from
not having a speedy trial. Adams Memorandum page 3 thereof,
also notes that by raising this issue, the same would not have
been waived which it was when it was not made. The district
court also says that while Adams claims his trial counsel was
5
ineffective in seeking the lesser including offense instruction of
aggravated assault, it was warranted by the facts of the case and
Adams fails to bear his burden of proving by the preponderance
of the evidence on the outcome of his proceeding would have
been different had such a lesser including offense instruction
not been given. (Opinion and order, page 5). Again, this finding
is not supported by the record because, as noted in Adams
affidavit and memorandum, the state failed to establish
seriously bodily injury which is required to sustain the
conviction of aggravated assault. As noted in his memorandum,
if his trial counsel had appealed to this Court, this Court could
have overturned that conviction on the basis that it is not
supported by sufficient evidence, as to seriously bodily injury.
Also, it is possible the jury would of simply acquitted him of
attempted deliberate homicide and not convicted him of a lesser
offense if the lesser offense instruction had not been given. The
district court found, though, that defendant fails to acknowledge
that he was charged with attempted deliberate homicide for
pointing a loaded gun at his girl friend’s chest, pulling the
trigger, and failing to shoot her only because the gun failed to
fire. (Opinion and order pages 5 and 6). Such activity, however,
would not constitute aggravated assault but rather felony
assault under 545-5-202(2)(b) MCA, (1997). Aggravated
assault simply does not fit. The district court also says that
Adams beat her severely. The evidence does not support this
statement by the district court because the evidence, at trial,
was that the victim had scratches on her face and had to have
stitches in her ear, with the injury being disputed as to who
caused it. It was the district court who said Adams caused
broken ribs to the victim but no testimony was presented to
support that conclusion and broken ribs do not constitute as a matter of law. The district court’s
findings that counsel was not ineffective for giving the lesser
included offense instruction of aggravated assault is clearly
erroneous.
The district court then concludes as a matter of law, that
there was no unconstitutionality in the imposition of an
enhanced ten (10) year sentence to Adams for use of a weapon.
(Opinion and order page 6). The District Court, however, failed
to address
545-5-202(2)(b) MCA, (1997). Aggravated
assault simply does not fit. The district court also says that
Adams beat her severely. The evidence does not support this
statement by the district court because the evidence, at trial,
element that is not submitted to a jury for its decision and for
proof beyond a reasonable doubt. Apprendi should be applied
retrospectively and the district court was in error in not
addressing the Apprendi issue.
The denial of Adams petition for postconviction relief
should be reversed.
ARGUMENT
ADAMS WAS NOT PROCEDURALLY BARRED FROM FILING A
PETITION FOR POSTCONVICTION RELIEF
The district court concluded that Adams was procedurally
barred by
§46-21-105(2)MCA, from making a claim for
postconviction relief because he failed to appeal from his
conviction to the court. (Opinion and order page 3). The district
court, cited Kills on Top vs. State, 273 Mont. 32, 61, 901
P.2d(1995),where this Court held that a court could not
review issues in postconviction which could have been raised on
direct appeal. While the court correctly set out the law, the
court did not address the allegation made in Adams affidavit
which were un-refuted by the State, that Adams had requested
his court appointed counsel, Mark
McClaverty to appeal his
conviction to the Montana Supreme Court and he failed to do so
(Affidavit in support of postconviction relief, paragraph 11).
Thereafter, McClaverty obtained an order from the court
allowing him to withdraw as counsel for affiant. (Affidavit in
support of postconviction relief paragraph 11). In it’s opinion
and order the court did not address Hans v. State, supra, which
Adams had cited to the court with regard to his having been
denied effective assistance of counsel when no appeal was
pursued.
In Hans, this Court specifically said a defendant is denied
effective assistance of counsel when his counsel fails to pursue a
first appeal and this Court said that a defendant has the right to
be represented by counsel on that first appeal. Contrary to the
district court’s conclusion, Adams did not have to represent
himself to do an appeal. He had requested that his state
appointed counsel do that appeal. As his court appointed
counsel, Mr. McClaverty was required, by law, to pursue such an
appeal.
$46&103(l), MCA, provides as follows:
“When counsel has been assigned, the assignment
is effective until final judgment, including any
proceeding upon direct appeal to the Montana
supreme court, unless relieved by order of the
court that assigned counsel or has jurisdiction
over the case.”
9
This statute goes on to provide that, if counsel feels if any
case on appeal is frivolous, counsel must inform the court of that
fact and request permission to withdraw, but that request must
be accompanied by a memorandum referring to anything in the
record that
mi.ght support the appeal. Here, Mr. McClaverty
failed to comply with §46-8-103(2), MCA. Since Adams is not
an attorney (he is only able to pursue this appeal now through
assistance of the contract attorney for the prison), it should not
have been found that he was procedurally barred from raising
anything in postconviction when his court appointed counsel did
not comply with the statutory provisions, on such assignments,
and this Court has held, in
mi.ght support the appeal. Here, Mr.
Adams, in his petition for postconviction relief, argued that
he was provided ineffective assistance of counsel when his first
court appointed counsel failed to move to dismiss for lack of a
speedy trial after Adams had been in jail for over 275 days. The
District Court found that Adams failed to cite any proof of “facts”
that would justify the relief he requested because he failed to
address whether any merit existed for filing a motion to dismiss
for lack of a speedy trial. In this finding, the district court totally
ignored this court’s decision in City of Billings
(1998), is applied to decide whether a
defendant has been denied effective assistance of counsel.
Hagen
¶lO, 293 Mont. 60, 973
P.2d 233 (1999);
State v.
1999 MT 102, ¶18, 294 Mont. 296, 980
P.2d
1058 (1999). Under Strickland, a defendant first bears the
burden of showing that counsel’s performance fell below an
objective standard of reasonableness. Strickland v. Washington,
supra at 688; State v. Coates, 241 Mont. 331, 337, 786
P.2d
1182 (1990). Second, the defendant has the burden of showing,
there was a reasonable probability, but for counsel’s
11
unprofessional errors, the results of the proceeding would have
been different. Strickland, supra at 694. This prejudice element
requires, not a showing of reasonable possibility, but rather
proof of reasonable probability of a different result.
Strickler v.
Green, 527 U.S. 263, 291, 296 (1999). With regard to filing a
motion to dismiss for lack of a speedy trial, Adams could and did
establish that counsel’s performance fell below an objective
standard of reasonableness and there is a reasonable probability
of a different result in light of this Court’s decision in City of
Billings v. Bruce, supra.
In Bruce, this Court set a standard for motions to dismiss
for lack of a speedy trial to be governed. It was said therein that,
when more than 275 days had past, prejudice is to be presumed
with regard to a motion to dismiss for lack of a speedy trial.
Competent counsel, after a number of days which would create a
presumption of prejudice, which was the case here, in light of
Bruce, would have and should have filed a motion to dismiss for
lack of a speedy trial. With such a motion having been filed the
trial court would then have to determine the number of days
each side was responsible for under the test enunciated in
Bruce. While the district court could have determined there
was more time attributable to Adams and not the State and
could have determined that Adams had not been prejudiced,
the failure to raise the issue before the trial court meant the
same was waived and could not then be pursued thereafter.
Thus, not only did Adams establish that his counsel performance
fell below an
o’bjective standard of reasonableness, when he did
not file a motion to dismiss, he set out proof of a reasonable
probability of a. different result, when after the trial court had
denied the motion to dismiss, the same could have been pursued
on an appeal.
ADAMS WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
THE AGGRAVATED ASSAULT INSTRUCTION WAS OFFERED
The district court also found that Adams failed to carry his
burden of proving by a preponderance of evidence that the
outcome of his trial would have been different had his counsel
not offered the lesser included offense instruction of aggravated
assault. (Opinions and order, page 5 and 6). The district court
was in error in so concluding.
With regard to Adams claim that Mr.
McClaverty did not
effectively represent him, by the giving of this lesser included
offense instruction, Strickland, Hagen, Coates, and
Strickler also
apply.
13
For aggravated assault to be applicable, a person has to
purposely or knowingly cause serious bodily injury to another.
$45-5-202, MCA (1997). Under §45-2-101(65), MCA, “serious
bodily injury”, is bodily injury that creates a substantial risk of
death; causes serious permanent disfigurement or protracted
loss or impairment of the function or process of any bodily
member or organ or, at the time of injury, can reasonably be
expected to result in serious permanent disfigurement o r
protracted loss or impairment of the function or process of any Based on the facts in Adams trial,
seriously bodily injury was not proven and was not applicable.
The evidence at trial was that the victim had scratches on
her face and had to have a stitch on her ear. The injury to her
ear was disputed as to who caused it. (Affidavit in support of
petition for postconviction relief, paragraph 10). When Adams
was sentenced the sentencing court said that he had caused
broken ribs to the victim but even if such testimony was
presented at trial, broken ribs do not constitute serious bodily
injury. Nor was there any medical testimony to the effect that
the victim’s physical injuries were such that she could have
died; caused serious permanent disfigurement; or, at the time of
injury, could reasonably be expected to result in serious
permanent disfigurement.Competent counsel would of
recognized that giving of a lesser included offense instruction of
aggravated assault was not appropriate when the facts did not
support the same.
Adams was also prejudiced by the giving of this instruction
because the jury convicted him of the same. The district court,
however, found that Adams was failing to acknowledge he was
charged with attempted deliberate homicide for pointing a
loaded gun at his girl friend’s chest, pulling the trigger, and
failing to shoot her only because the gun failed to fire. (Opinions
and order, pages 5 and 6). Even these facts do not constitute
seriously bodily injury but rather felony assault under
5 45 - 5 -
202(2)(d), MCA (1997), for purposely or knowingly causing
reasonable apprehension of seriously bodily injury in another
by use of a weapon. The district court then opines that Adams
“subsequently beat her severely, for which the jury then
convicted him of aggravated assault” (Opinions and order, pages
5 and 6). The problem with the district court’s findings is that
the evidence does not support a finding that he “beat her
severely” when the only injuries she received was scratches to
her face and an injury to her ear. Even the broken ribs, if true,
which the court cited at sentencing, do not constitute serious
bodily injury. Based on the facts set out by the court, in
denying the petition for postconviction relief, it is clear that
Adams was prejudiced by giving of the lesser included offense
instruction because it allowed the jury to convict him of
something even if it did not constitute attempted deliberate
homicide.
If the lesser included offense instruction had not been
given, Adams could of been acquitted of attempted deliberate
homicide or, if a lesser included offense instruction of felony
assault had been given, he could of been convicted of that and
facing a much less maximum sentence of only ten (10) years
rather than 20. This Court should reverse the district court’s
findings that Adams was provided effective assistance of counsel
because those findings are not supported by the record and
Adams has shown that he was not given effective assistance.
ADAMS TEN (IO) YEAR SENTENCE ENHANCEMENT FOR USE OF
DEADLY WEAPON IS
UNCONSTlTUTIONAL.
The district court, in sentencing Adams, enhanced his
sentence by ten (10) years pursuant to $46-18-221, MCA,
which provides that when a person has been found guilty of
any offense during which they display, brandish, or otherwise
use a firearm, their term of imprisonment may not be extended
more than ten (10) years. In sentencing, the district court did
exactly that by imposing a ten (10) year consecutive sentence
for use of a weapon to a 20 year sentence of aggravated assault.
In seeking postconviction relief, Adams argued that his sentence
was unconstitutional under Apprendi v. New Jersey, supra. The
district court rejected Adams argument finding that the
enhancement was constitutional but the district court did not
address Adams’ Apprendi argument at all. (Opinion and order,
page 6). Under Apprendi, Adams ten (10) years enhancement
for use of a weapon is unconstitutional. In Apprendi, the United
States Supreme Court held that it is a violation of the
Fourteenth Amendment and the Sixth Amendment of the
United States Constitution for a sentencing court to enhance a
sentence beyond the statutory maximum for the offense of
conviction on the basis of an element that is not submitted to a
jury
for decision $46-18-221,
MCA. In Montana, this
enhancement only occurs when the weapon is not an element of
the offense. Use of a weapon is not an element of aggravated
assault.
While Apprendi was decided some 7 months after Adams
was sentenced, Apprendi does not say that it is only to be
applied prospectively. With regard to retroactive applications of
decisions of the United States Supreme Court, such as cases on
collateral review like this, the United States Supreme Court has
enunciated some rules for the same in Teague
v. Lane, 489, U.S.
288, 300-01 (1989). Under Teague, the case must set a new
rule not dictated by precedent when the defendant’s conviction
became final. Apprendi was not dictated by precedent when
Adams conviction became final. The second requirement is that
a new rule should be applied retroactively if it requires
observance of those procedures that are implicit in the concept
of ordered liberty. Teague, supra at 310-11. Apprendi requires
observance of procedures that are implicit in the concept of
ordered liberty. These are the due process requirements of the
Fourteenth Amendment and the Sixth Amendment right to
counsel, which are both basic constitutional rights. Accordingly,
Apprendi must be applied to Adams case and the weapon
enhancement must be set aside as the use of a weapon was not
presented to the jury for determination, with proof beyond a
reasonable doubt.
This Court should reverse the district court’s
determination that the weapon enhancement was constitutional
because, under Apprendi, it was not.
CONCLUSION
This Court must and should find that Adams is not
procedurally barred from raising the issues he raised in his
petition for postconviction relief. No direct appeal was pursued
because Adams trial counsel failed to do so and thereby denying
Adams to his right to counsel and his right to counsel in his first
appeal. Hans v. State, supra. This Court should also find that he
was denied effective assistance of counsel when his first court
appointed counsel did not file a motion to dismiss for lack of a
/U CL/-T
7a/” day of
,200l.
Larry Adams
19
ADDENDUM
Subsequent to this brief being
typed by
the
undersigned’s office, pursuant to his contract to give legal
advice and assistance to prison inmates, the undersigned
became aware of this Court’s decision in State
v. Rogers, 2 00 1
MT 165 (decided August 21, 2001). This decision,
‘j’s 2 4
through 27, is applicable here. This Court should reverse the
district court, on the procedural bar issue, and hold that
Adams, under Rogers, that counsel’s failure to appeal violated
his constitutional right to counsel. Accordingly, the district
court should be directed to set aside Adams conviction and set
a new trial, due to his right to counsel being violated.
DATED this
y&4
day of) 2001.
CANNON & SHEEHY
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served upon
the person named below by forwarding them a true and correct
copy of said document:
MU.S. Mail[
IFederal Express [
]Hand-delivery
[ IFa
Mike
McGrath
Attorney General
215 N. Sanders
Helena, MT 59620
George Corn
County Attorney
205 Bedford St.
#5014
Hamilton, Montana 59840-2853
DATED this
q’day of ,
21
CERTIFICATE OF COMPLIANCE
Pursuant to the Montana Supreme Court Rule 27, M.R. App. P., I
certify that the Brief of Appellant is proportionately spaced, has
a typeface of 14 points or more and contains no more than 4,183
words.
DATED
this& day of September, 2001.
22
HON. JEFFREY H. LANGTON
District Judge
Twenty-first Judicial District
Ravalli County Courthouse
205 Bedford Street
Hamilton, MT 59840
Telephone: (406)
375-6241
Fax:
(4OG) 375-6382
MONTANA TWENTY-FIRST JUDICIAL DISTRICT COURT, RAVALLI COUNTY
STATE OF MONTANA,
Plaintiff,
-VS-
LARRY DEWAYNE ADAMS,
)
Cause No. DC-98-144
,’
OPINION & ORDER
;
)
;
1
This matter comes before the Court upon Defendant Larry Dewayne Adams’ (“Adams”)
Petition for Post Conviction Relief, filed with the Court on Octobe
l&2000. Plaintiff State of
Montana (‘State”) filed its Response to Adams Petition on October
27,200O. After review of
the file and the briefs, the Court issues its Opinion & Order.
FACTUALBACKGROUND
Defendant Adams was charged by information with attempted deliberate homicide, a
felony; criminal possession of dangerous drugs, a felony; switch blade knives, a misdemeanor;
obscuring the identity of a machine, a misdemeanor; and criminal possession of drug
OPlNlON & OKLXR
paraphernalia, a misdemeanor. Adams was convicted by a jury on December 1, 1999 of
aggravated assault, criminal possession of dangerous drugs, switch blade knives, and criminal
possession of drug paraphernalia.
lG,
2000, Adams tiled a Petition for Post Conviction Relief on the following grounds: (1) Adams
received ineffective assistance of counsel because his first court-appointed counsel failed to file a
motion to dismiss for lack of a speedy trial; (2) Adams received ineffective assistance of counsel
because subsequent court-appointed counsel failed to file an appeal based on the State’s failure to
lo-year enhancement to Adams’ sentence for use of a dangerous weapon is
unconstitutional.
The State contends that Adams’ petition for post conviction relief should be denied
because Adams is
procedurally barred from making this claim by virtue of his failure to tile a
direct appeal.
Further, the State contends that Adams’ ineffective assistance of
counsel claims
are without merit.
OPINION
The Court has jurisdiction in this matter pursuant to Mont. Code Ann.
5s
4G-21-101 et
seq. Montana statutory law provides for the challenge of the validity of a sentence for a person
adjudged guilty of an offense in a court of record who has no adequate remedv of
apneaI.
(Emphasis added.) Mont. Code Ann. $ 46-21-101.
OPINION &
OKDEII
Adams has a single remedy for review in his criminal case, and that is by appeal to the
Montana Supreme Court as provided in Mont. Code Ann.
5 4G-20-101 and Rule 5(b) of the
Montana Rules of Appellate Procedure. “In criminal cases an appeal from a judgment entered
pursuant to
$46-18-116, Mont. Code Ann. must be taken within 60 days after entry ofjudgment
appealed from.”
Mont.R.App.P. Rule 5(b). Statutory law further provides:
When a petitioner has been afforded the opportunity for a direct appeal of the petitioner’s
conviction, grounds for relief that were or could reasonably have been raised on direct
appeal may not be raised, considered, or decided in a proceeding brought under this
chapter.
Mont. Code Ann.
§
46-21-105(2).
The Montana Supreme Court stated in KiIfs ON Top v. State, “In accord with the plain
language of
9 46-21-105(2), MCA,
ive hold that claims which could reasonably have been raised
on appeal are procedurally barred from consideration in postconviction proceedings . . . . ” Kills
011 Top v. Sfrrfe, 273 Mont. 32,
Gl, 901 P.2d 1368, 1387 (1995). With this holding, the Montana
Supreme Court specifically overruled
Stale v. Hemlrick.~ to the extent that it stood for the
proposition that the court could review issues iu postconviction
proceedings which could have
been raised on direct appeal. Id at 60-61, 901 P.2d at 1386-7. The tout gave as its rationale for
consistent application of the statutory bar as set forth in Mont. Code Ann. 5
“prevent[ion of] abuse of postconviction relief by criminal defendants who would substitute
those proceedings for direct appeal” and the “preservtation
the integrity of the trial and direct
appeal.” Irl. at 60, 901 P.2d at 1386.
OPINION &ORDER
Adams failed to file an appeal to the Montana Supreme Court within the specified 60-day
period, and furthemlore,
deemed to be
timely absent a direct appeal, his claim must have merit to be granted. Adams cites three
grounds on which he bases his petition for relief. The first two are claims of ineffective
assistance of counsel because his first court-appointed counsel failed to tile a motion to dismiss
for lack of a speedy trial; and his subsequent court-appointed counsel failed to tile an appeal
based on the State’s failure to establish serious bodily injury to sustain a conviction of
I/I re Jofres,
176 Mont.
412,415,578 P.2d 1150, 1152 (1978). As Adams states in his n~cn~orandun~ in
support of his petition, the Montana Supreme Court utilizes the
Strickhd standard set out by the
United States Supreme Court when reviewing claims of ineffective assistance of counsel in
petitions for post-conviction relief. Bone v. Bare, 284 Mont. 293, 304, 944 P.2d 734, 740
(1997). The
Stricklud standard requires the following elements for detemrination of ineffective
assistance of counsel:
counsel must have failed to act within the range of competence
demanded of attorneys in criminal cases, and (2) counsel’s conduct must have so undermined the
proper functioning of the adversarial process that the result produced was not just. Stricklmrl v.
466 U.S. 66S, 669 (1984).
OPINION & ORDER
“The proper standard for judging attorney performance is that of reasonably effective
assistance, considering ali the circumstances.” Sfricklmd v. PVmhinglon, 4GG U.S.
GG8, 669. A
strong presumption exists that counsel’s conduct falls within the wide range of reasonably
effective assistance.
Bnbbit v. C&lc~.on, 151 F.3d 1170, 1173 (9th Cir. 1998).
“[Jludicial
scrutiny of counsel’s perfomlance must be highly deferential.” Id. “[TJhe relevant inquiry under
S~ricklmd is not what defense counsel could
ineffective assistance of counsel, but he fails to cite any proof
of the “facts” that would justify the reliefhe requests. While he claims that his counsel’s failure
to tile a motion to dismiss for lack of a speedy trial, based on the
City of Billings
v. Brrrce
standard set out by the Montana Supreme Court, constituted ineffective assistance of counsel,
Adams fails to address whether any merit existed for the filing of such a motion and whether the
outcome of his
would have been different had such motion been tiled. City of
Uilhgs v. Bntce, 1998 MT 186, 290 Mont. 145, 744 P.2d 577. While he claims that his
counsel’s seeking of
the lesser included offense instruction of aggravated assault, of which he
was ultimately convicted, was unwarranted by the facts of the case, he fails to bear his burden of
proving by a preponderance of the evidence that the outcome of his proceeding would have been
different had such lesser included offense instruction not
been given.
Adams fails to acknowledge the fact that he was charged with attempted deliberate
homicide for pointing a
loaded gun at his girlfriend’s chest, pulling the trigger, and failing to
shoot her only because, by a quirk of fate, the gun failed to fire. In spite of his intent to kill her,
and his continuation to affirm that he would kill her while he subsequently beat her severely, for
OPINION
SL ORDER5
which the jury found sufticient evidence to find that Adams caused her serious bodily injury, he
was convicted of the lesser offense of aggravated assault. It appears that his counsel served him
well by requesting the lesser included offense instruction, rather than providing him ineffective
assistance.
Regarding Adams’ final claim that the lo-year enhancement to his sentence for use of a
dangerous weapon is unconstitutional, the Montana Supreme Court has held that the weapon
9 4G-18-221 is constitutional on its face. State v.
GtriNur~rne, 1999 MT
29,li 10,293 Mont. 224,1[ 10, 975 P.2d 312 11 10. In Sfafe
v. &rlo, a
case with similar facts, the Montana Supreme Court affirmed the imposition of an enhanced
sentence pursuant to
5 46-18-221, on the basis that the offense of aggravated assault does not
require the use of a weapon as an element of the offense, and therefore the enhanced sentence is
not a violation of constitutional protection as an additional punishment for use of a weapon.
State v. Clrarlo, 2000 MT 192, _ Mont. _,
P.3d 1201. On the contrary, an imposition of
an enhanced sentence for felony assault has been held to be a double
punishment, and thus a
violation of constitutional protection, by virtue of the requirement of use of a weapon as an
element of the offense, as well as a requirement for imposition of the enhanced sentence.
Guilkuume, 11 16. The Court finds no unconstitutionality in the imposition of Adams’ enhanced
sentence.
The Court concludes that Adams is barred by Mont. Code Ann. § 46-21-lOS(2) from
making his claim for post conviction relief. Even if Adams were not
statulorily barred from
making his claim, the Court concludes that Adams has failed to sustain his burden of proving by
a preponderance of the evidence the facts that would justify him the relief he requests.
OPINION
ORDER
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Adams’ Petition
for Post Conviction Relief is hereby
DATED thisof January, 2001.
cc:
Larry Adams A0 # 45730
Montana State Prison
700 Conley Lake Road
Deer Lodge, MT 53722
counsel of record
Department of Corrections
O,‘INION &OUDER