DaSilva v. State ( 2013 )

DA 12-0413 February 5 2013
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 28N
ROBERT AYRES DaSILVA, JR.,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. DV 11-949
Honorable Dirk M. Sandefur, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Robert Ayres DaSilva, Jr., self-represented, Deer Lodge, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General; Pamela P. Collins,
Assistant Attorney General, Helena, Montana
John Parker, Cascade County Attorney, Great Falls, Montana
Submitted on Briefs: January 9, 2013
Decided: February 5, 2013
Filed:
__________________________________________
Clerk
Justice Jim Rice 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 Robert Ayres DaSilva, Jr. appeals the order entered by the Eighth Judicial District
Court, Cascade County, dismissing his petition for postconviction relief.
¶3 On October 22, 2009, DaSilva was found guilty after trial by jury of Failure of Sex
Offender to Provide Notice of Address Change, a felony, in violation of §§ 46-23-505,
46-23-504(5), 46-23-507, and 46-23-502(9), MCA, and Resisting Arrest, a misdemeanor,
in violation of § 45-7-301, MCA. DaSilva appealed his conviction, asserting that his due
process rights were violated by the District Court’s instruction to the jury that his prior
Washington conviction was a “sexual offense” as a matter of law, and that the District
Court had erred by granting a continuance to the State for purposes of amending the
information. We affirmed. State v. DaSilva, 2011 MT 183, 361 Mont. 288, 258 P.3d
419.
¶4 On November 9, 2011, DaSilva filed a petition for postconviction relief asserting
11 claims, and asserted two additional claims by way of a later pleading. DaSilva’s
claims alleged, in sum, that he was deprived of his right to counsel, that his counsel was
ineffective, and that the elements of the crime of failing to provide an address change
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were not proven. The District Court restated DaSilva’s contentions as seven claims,
denying them on the ground that they were “record-based contentions that Petitioner
either did raise or could have raised on direct appeal.” The District Court further
concluded that “to the extent that these contentions can arguably be properly construed as
not record-based,” they were either defeated on their merits by a review of the record or
by DaSilva’s failure “to make a particularized legal and factual showing that counsel’s
performance was not objectively reasonable and that a substantial likelihood exists that
his trial would have resulted in a different outcome if counsel had performed as Petitioner
alleges he should have.”
¶5 On appeal, DaSilva states two issues: (1) his trial counsel rendered ineffective
assistance by failing to provide the proper jury instruction for the change of address
charge as it was amended and, alternatively, that he was entitled to an evidentiary hearing
on this claim; 1 and (2) the State committed prosecutorial misconduct by failing to
disclose every element of the amended change of address charge to the jury, thus failing
to prove each element of that offense. The State responds by arguing that the
prosecutorial misconduct claim was correctly denied by the District Court as procedurally
barred because the claim could reasonably have been raised on direct appeal from
DaSilva’s conviction, and that the ineffective assistance of counsel claim was
1
The District Court dismissed the petition without a hearing, reasoning that evidentiary hearings
in postconviction proceedings are “discretionary, required only in ‘unique circumstances,’”
citing Heath v. State, 2009 MT 7, ¶¶ 21-24, 348 Mont. 361, 202 P.3d 118.
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insufficiently supported, but, in any event, DaSilva’s claim that a different jury
instruction was necessary in order to properly instruct the jury about the change of
address charge is legally incorrect.
¶6 “We review a district court’s denial of a petition for postconviction relief to
determine whether the court’s findings of fact are clearly erroneous and whether its
conclusions of law are correct.” Sanchez v. State, 2012 MT 191, ¶ 12, 366 Mont. 132,
285 P.3d 540 (citations omitted). Ineffective assistance of counsel claims are mixed
questions of law and fact, which are reviewed de novo. Sanchez, ¶ 12 (citation omitted).
¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for noncitable memorandum opinions. The
issues in this case are legal and are controlled by settled Montana law, which the District
Court correctly interpreted, or are issues of judicial discretion and there clearly was not
an abuse of discretion.
¶8 Affirmed.
/S/ Jim Rice
We concur:
/S/ Mike McGrath
/S/ Brian Morris
/S/ Michael E Wheat
/S/ Laurie McKinnon
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