Wombolt v. State , 2015 MT 175N ( 2015 )

June 23 2015
DA 14-0705
Case Number: DA 14-0705
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 175N
SCOTT WOMBOLT,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Second Judicial District,
In and For the County of Butte-Silver Bow, Cause No. DV-13-364
Honorable Brad Newman, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Scott Wombolt (Self-Represented), Deer Lodge, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
Assistant Attorney General, Helena, Montana
Eileen Joyce, Butte-Silver Bow County Attorney, Michael Clague, Deputy
County Attorney, Butte, Montana
Submitted on Briefs: May 19, 2015
Decided: June 23, 2015
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Scott Wombolt appeals from the District Court’s order of April 29, 2014, denying
his petition for postconviction relief. We affirm.
¶3 In September 2011 Wombolt pled no contest to three felony charges of criminal
distribution of dangerous drugs to minors in violation of § 45-9-101, MCA. The District
Court obtained a presentence investigation report and held a sentencing hearing on
December 1, 2011. The District Court entered a judgment and order that same day
sentencing Wombolt to consecutive terms of fifteen years in prison on each of the counts,
but suspending execution of the term on the third count.
¶4 Since sentencing, Wombolt, by his own description, has filed “divers documents
challenging conviction and sentence” which “have availed naught.” In November 2013
Wombolt filed the present petition for postconviction relief, claiming ineffective
assistance of counsel; the existence of new evidence; and “post-traumatic stress discord
& psychological pressure.”
¶5 This Court evaluates claims of ineffective assistance of counsel under the test
established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Whitlow
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v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861. First the defendant must show
that his attorney’s performance was deficient by demonstrating that it fell below an
objective standard of reasonableness. Whitlow, ¶ 14. There is a strong presumption that
the attorney’s performance fell within the wide range of reasonable professional
assistance, Whitlow, ¶ 15, because there are “countless ways to provide reasonable
assistance in any given case.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Second,
the defendant must show that his attorney’s deficient performance prejudiced the defense.
Whitlow, ¶ 10. This requires a showing of a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
¶6 We agree with the District Court’s conclusion that Wombolt failed to present any
evidence that his attorney’s performance fell below an objective standard of
reasonableness, and that Wombolt’s personal conclusions, speculation and conjecture
were insufficient to support a claim of ineffective assistance of counsel.
¶7 We also agree with the District Court’s determination that Wombolt’s assertion of
“new evidence” was only supported by his own conclusory statements: “New evidence.
New witnesses coming forward. Witnesses withdrawled (sic) his statement.” Such
vague statements are insufficient to merit relief. Even if we consider Wombolt’s
subsequent affidavits, they fail to present any material facts warranting relief.
¶8 Last, we agree with the District Court’s determination that Wombolt is not entitled
to any relief based upon his contention that he suffers from “post traumatic stress discord
and psychological pressure.” If this is related to an attack upon his guilty plea, Wombolt
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has not presented any material evidence or any cogent argument that he was not
competent to enter the pleas to the three felonies in 2011. A petition for postconviction
relief must be based on more than defendant’s own conclusory statements. Kelly v. State,
2013 MT 21, ¶ 9, 368 Mont. 309, 300 P.3d 120.
¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, this case presents a question controlled by settled law or by the clear
application of applicable standards of review. The District Court’s interpretation and
application of the law were correct.
¶10 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
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