Potter v. State , 2011 MT 206N ( 2011 )

August 23 2011
DA 11-0012
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 206N
ALLEN POTTER,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV 09-1426
Honorable John W. Larson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Allen J. Potter (self-represented litigant), Shelby, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Jonathan M. Krauss,
Assistant Attorney General, Helena, Montana
Fred R. Van Valkenburg, Missoula County Attorney; Kirsten Pabst
LaCroix, Deputy County Attorney, Missoula, Montana
Submitted on Briefs: August 3, 2011
Decided: August 23, 2011
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), 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 Allen Potter filed a petition for postconviction relief and the District Court ordered
a response from the State, which moved to dismiss. After Potter responded to the State’s
motion, the District Court dismissed Potter’s petition without hearing. Potter appeals
from the District Court’s Opinion and Order, filed December 21, 2010, dismissing his
petition for postconviction relief. We affirm.
¶3 This Court reviews a petition for postconviction relief to determine whether the
district court’s findings of fact are clearly erroneous and whether its conclusions of law
are correct. State v. Hanson, 1999 MT 226, ¶ 9, 296 Mont. 82, 988 P.2d 299. The
petitioner has the burden to show by a preponderance of the evidence that the facts justify
relief. State v. Godfrey, 2009 MT 60, ¶ 13, 349 Mont. 335, 203 P.3d 834. Claims of
ineffective assistance of counsel must be grounded upon facts and not merely conclusory
allegations. State v. Finley, 2002 MT 288, ¶ 9, 312 Mont. 493, 59 P.3d 1132. A district
court may dismiss a petition for postconviction relief as a matter of law for failure to state
a claim, § 46-21-201(1)(a), MCA, and this Court reviews the decision to dismiss without
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a hearing for abuse of discretion. Herman v. State, 2006 MT 7, ¶ 13, 330 Mont. 267, 127
P.3d 422.
¶4 We have reviewed Potter’s contentions that his trial attorney provided ineffective
assistance of counsel and concur with the District Court’s conclusion that Potter failed to
demonstrate that his attorney’s performance was deficient, or that his attorney’s
performance prejudiced the defense. Potter contends that his attorney failed to pursue
evidence which would have caused the jury to determine that his victim did not suffer
serious bodily injury sufficient to support a conviction for aggravated assault. See §§ 45-
5-202 and 45-2-101(66), MCA. Potter’s victim was subjected to a vicious and prolonged
beating that left her hospitalized with multiple injuries. State v. Potter, 2008 MT 381, ¶¶
8-9, 31-34, 347 Mont. 38, 197 P.3d 471.
¶5 The District Court considered each of Potter’s allegations that he was entitled to
postconviction relief because his counsel was ineffective. The District Court “determined
that all of [Potter’s] claims fail to state a claim for relief, and should be dismissed
because they are either speculative, not founded in fact, or not supported by the record
before the Court.”
¶6 We agree with the District Court that Potter failed to meet his burden to
demonstrate by a preponderance of the evidence that his attorney was ineffective, or that
any of the attorney’s acts or omissions would have resulted in a different outcome. The
issues are clearly controlled by settled Montana law, and the District Court’s decision to
dismiss the petition was not clearly erroneous and was not an abuse of discretion.
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¶7 Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
/S/ JAMES C. NELSON
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