Daniels v. State , 2014 MT 92N ( 2014 )

April 2 2014
DA 13-0304
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 92N
LARRY B. DANIELS,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Twenty-Second Judicial District,
In and For the County of Carbon, Cause No. DV 13-13
Honorable Blair Jones, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Larry B. Daniels, self-represented; Deer Lodge, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant
Attorney General; Helena, Montana
Daniel M. Guzynski, Assistant Attorney General, Special Deputy County
Attorney for Carbon County; Helena, Montana
Alex Nixon, Carbon County Attorney; Red Lodge, Montana
Submitted on Briefs: March 12, 2014
Decided: April 2, 2014
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), 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 In January 2010 a jury in Carbon County, Montana, convicted Larry Daniels of
deliberate homicide in the shooting death of his adult son. Daniels appealed the conviction
to this Court. He contended on appeal that the District Court erred in its rulings on the
admissibility of proposed character evidence regarding the victim, and in refusing Daniels’
offered instructions regarding the justifiable use of force in defense of an occupied structure.
This Court considered these arguments in detail, determined that the District Court
committed no error, and affirmed the conviction. State v. Daniels, 2011 MT 278, 362 Mont.
426, 265 P.3d 623.
¶3 In early 2012, shortly after this Court’s decision on direct appeal, Daniels filed a
petition for postconviction relief. On March 4, 2013, the District Court entered its “Order
Denying Petition for Postconviction Relief.” The District Court determined that Daniels was
not entitled to relief, dismissed the petition without requiring a response from the State, and
declined to appoint counsel. Daniels appeals.
¶4 Daniels’ petition raises essentially the same contentions he raised on direct appeal, but
posits them in the context of alleged ineffective assistance of counsel. Daniels contends that
his trial counsel was ineffective for failing to explain to him the significance of the
foundation evidence required to introduce evidence of the victim’s prior violent tendencies.
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Daniels contends that if he had testified differently the evidence of the victim’s prior acts of
violence would have been admitted. A claim of ineffective assistance can prevail only if the
petitioner shows that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. Rukes v State, 2013 MT 56, ¶ 9, 369 Mont. 215, 297 P.3d 1195.
¶5 At trial the District Court considered the parties’ positions on evidence of the victim’s
past. The District Court made it clear that Daniels could introduce evidence of past violence
by the victim as long as there was evidence that Daniels knew about the violence and was
motivated by that knowledge to act as he did. Daniels, ¶¶ 17-22. This is consistent with
Montana law. State v. Montgomery, 2005 MT 120, ¶ 20, 327 Mont. 138, 112 P.3d 1014.
Daniels testified, however, that his motivation on the night of the shooting was the
confrontation he just had with his son minutes before the event.
¶6 The District Court considered these contentions on postconviction relief. The District
Court noted Daniels’ trial testimony and determined that Daniels’ argument was essentially a
complaint that he had not been given the opportunity to manipulate his testimony about his
motivation on the night of the shooting. The District Court determined that Daniels chose to
testify as he did at trial and that he did not provide any evidence or argument that he could
have honestly testified that the victim’s past acts were a motivating force when he shot his
son. The District Court concluded that Daniels had not overcome the strong presumption
that trial counsel’s conduct fell within the wide range of reasonable professional assistance.
Whitlow v. State, 2008 MT 140, ¶ 15, 343 Mont. 90, 183 P.3d 861. The District Court
determined that Daniels had failed to show that his attorney was ineffective for failing to
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provide him with the opportunity to alter his testimony to allow the admission of the
evidence of past violence.
¶7 The District Court determined that Daniels’ remaining claims were or could
reasonably have been raised on direct appeal. Claims that were or could have been raised on
direct appeal are barred and may not be raised in a petition for postconviction relief.
Section 46-21-105(2), MCA; Rukes, ¶ 11.
¶8 Finally, the District Court determined that Daniels was not entitled to appointment of
counsel, citing Office of Public Defender v. District Court, 2011 MT 97, ¶ 9, 360 Mont. 284,
255 P.3d 107. The District Court correctly determined that appointment of counsel under
§ 46-21-201, MCA, was not warranted because the petition for postconviction relief
demonstrated that Daniels was not entitled to relief.
¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
Internal Operating Rules, which provides for memorandum opinions. The issues in this case
are legal and are controlled by settled Montana law which the District Court correctly
applied.
¶10 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JIM RICE
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
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