Shreves v. State ( 2007 )

DA 06-0122
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 170N
RICHARD EDWARD SHREVES,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. ADV 2005-311
Honorable Dorothy McCarter, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Richard Shreves, Pro Se; Deer Lodge, Montana
For Respondent:
The Honorable Mike McGrath, Attorney General; Tammy K. Plubell,
Assistant Attorney General, Helena, Montana
Leo Gallagher, Lewis and Clark County Attorney; Lisa Leckie,
Deputy County Attorney, Helena, Montana
Submitted on Briefs: April 18, 2007
Decided: July 17, 2007
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Pursuant to Section 1, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court 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 Richard Edward Shreves appeals from the order entered by the First Judicial
District Court, Lewis and Clark County, denying his petition for postconviction relief.
The District Court reasoned that Shreves’ ineffective assistance of counsel claims were
without merit, his other claims were not appropriately raised in postconviction
proceedings because they could have been raised on direct appeal and, in any event, the
latter claims were without merit.
¶3 On appeal, Shreves argues his counsel was ineffective in failing to assert a defense
of mental disease or defect or negotiate a plea bargain, despite his assertion of innocence
and his instruction to take the case to trial. In this respect, Shreves contends counsel
should have realized his mental state at the time was such that he would distrust and fear
her as an authority figure, second-guess her motives, and demonstrate evasiveness with
respect to matters that might incriminate himself. In addition, Shreves asserts counsel
was ineffective because she inadequately communicated with him regarding his request
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for a change of venue on resentencing and other issues; failed to investigate matters
involving his mental state; used profanity with him; and responded to Shreves’ expressed
concern that some issues would be procedurally barred in postconviction proceedings by
misleading him into believing she would raise certain issues on direct appeal and by
stating some issues were “dead” or more appropriately raised in postconviction
proceedings than on direct appeal. Regarding his claims concerning prosecutorial
misconduct, his mental state during preliminary proceedings and trial, and juror bias or
misconduct, Shreves relies on Hans v. State, 283 Mont. 379, 410, 942 P.2d 674, 693
(1997), for the proposition that counsel’s “abandonment” of him—which Shreves asserts
has resulted from counsel’s failure to raise the issues on direct appeal after sentencing or
resentencing—entitles him to raise the issues in postconviction proceedings even though
they were not raised on direct appeal.
¶4 Shreves also posits that, at a hearing regarding his representation before his
resentencing, the resentencing judge demonstrated bias regarding counsel’s abilities, did
not allow Shreves to fully present his complaints regarding counsel’s representation, and
rejected his request for a change of venue for resentencing. In addition, Shreves contends
the resentencing judge was generally biased against him because that judge had presided
over his initial District Court appearance, when he was exhibiting symptoms of mental
illness.
¶5 We have determined to decide this case pursuant to Section I, Paragraph 3(d), of
our 1996 Internal Operating Rules, as amended in 2003, which provides for
memorandum opinions. It is manifest on the face of the briefs and the record that this
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appeal is without merit because the issues are clearly controlled by settled Montana law
that the District Court correctly interpreted.
¶6 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ JOHN WARNER
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM RICE
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