Thurston v. State , 321 Mont. 411 ( 2004 )

No. 02-283
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 142
DAVID THURSTON,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade, Cause No. BDC-92-262,
The Honorable Kenneth R. Neill, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Montana Appellate Defender, Helena, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Jennifer Anders,
Assistant Attorney General, Helena, Montana
Brant Light, Cascade County Attorney, Great Falls, Montana
Submitted on Briefs: August 28, 2003
Decided: June 7, 2004
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.
¶1 David Thurston (Thurston) was charged with two counts of sexual intercourse without
consent and one count of sexual assault. Thurston pleaded guilty to the two counts of sexual
intercourse without consent as part of a plea agreement. The District Court sentenced
Thurston to twenty years in prison for the first Count of sexual intercourse without consent,
and ten years suspended for the second count. Thurston later filed a Petition for
Postconviction Relief which the District Court denied. Thurston appeals from the District
Court’s Order. We affirm in part, reverse in part, and remand.
¶2 We address the following issues on appeal:
¶3 1. Did the District Court err when it refused to address Thurston’s postconviction
claim that the District Court was without authority to sentence him without considering the
statutory nonviolent offender criteria?
¶4 2. Did the District Court abuse its discretion when it denied four of Thurston’s claims
for postconviction relief?
¶5 3. Did the District Court abuse its discretion when it denied Thurston’s request to
amend his Petition for Postconviction Relief?
BACKGROUND
¶6 On September 4, 1992, David Thurston was charged with two counts of sexual
intercourse without consent and one count of sexual assault. Steven Hudspeth (Hudspeth)
represented Thurston before the District Court. As part of a plea agreement, Thurston
pleaded guilty to the first two counts. In exchange, the State dropped the sexual assault
charge and agreed to recommend up to a twenty-year prison sentence on Count I, and up to
2
a ten-year suspended sentence on Count II. The District Court sentenced Thurston in
accordance with the State’s recommendation. Thurston did not appeal his sentence.
¶7 On November 30, 1998, Thurston filed a pro se Petition for Postconviction relief.
Thurston was later appointed counsel to represent him in the postconviction proceedings.
The District Court denied Thurston’s Petition. Thurston appeals from the District Court’s
Order.
STANDARD OF REVIEW
¶8 We review a district court's denial of postconviction relief to determine whether the
court's findings of fact are clearly erroneous and whether its conclusions of law are correct.
Soriach v. State, 2002 MT 187, ¶ 13, 311 Mont. 90, ¶ 13, 53 P.3d 878, ¶ 13. Discretionary
rulings in postconviction relief proceedings, including rulings relating to whether to hold an
evidentiary hearing, are reviewed for an abuse of discretion. Soriach, ¶ 13. Moreover,
claims of ineffective assistance of counsel are mixed questions of law and fact; therefore, this
Court's review is de novo. Soriach, ¶ 13.
¶9 An order denying a motion to amend a postconviction petition is reviewed for an
abuse of discretion. Kills On Top v. State (1996), 279 Mont. 384, 390, 928 P.2d 182, 187.
DISCUSSION
ISSUE ONE
¶10 Did the District Court err when it refused to address Thurston’s postconviction claim
that the District Court was without authority to sentence him without considering the
statutory nonviolent offender criteria?
¶11 In Ground Eight of his Petition for Postconviction Relief, Thurston alleged the District
3
Court erred by imposing a prison sentence without considering the statutory nonviolent
offender criteria. Section 46-18-201(10), MCA (1991), the statute in effect at the time of
Thurston’s trial, provides that in sentencing a nonviolent felony offender, the sentencing
judge shall consider alternatives to imprisonment in a state prison, including placement in
a community corrections facility or program. The sentencing court apparently failed to do
so. The District Court denied Thurston’s postconviction claim regarding the nonviolent
offender criteria, concluding it should have been raised on direct appeal pursuant to § 46-21-
105(2), MCA. Section 46-21-105(2), MCA, provides that an issue which could have been
reasonably raised on direct appeal may not be raised in a petition for postconviction relief.
¶12 On appeal Thurston argues that the sentencing court’s failure to comply with § 46-18-
201(10), MCA (1991), is an issue of subject matter jurisdiction and can therefore be raised
at any stage of a judicial proceeding. He cites to State v. Moorman (1996), 279 Mont. 330,
928 P.2d 145, for the proposition that sentences imposed without statutory authority raise
claims of subject matter jurisdiction which are never procedurally barred. In Moorman, the
defendant claimed that the sentencing court lacked jurisdiction to continue his dangerous
offender designation upon revocation of a suspended sentence. We stated that “If the District
Court lacked the statutory authority to impose the dangerous offender designation on
Moorman, then Moorman’s sentence is void.” Moorman, 279 Mont. at 336, 928 P.2d at 149.
¶13 While Thurston is correct that issues involving subject matter jurisdiction may be
raised at any stage of a judicial proceeding, we disagree that subject matter jurisdiction is at
issue here. Moorman is not applicable in this case. In Moorman, the defendant challenged
4
the sentencing court’s jurisdiction to impose a sentence in the first place. Moorman, 279
Mont. at 336, 928 P.2d at 149. Here, Thurston is arguing the sentencing judge failed to
consider sentencing alternatives, not that it lacked jurisdiction to impose a sentence in the
first place. We conclude the District Court did not err when it refused to address Thurston’s
postconviction claim that the District Court was without authority to sentence him without
considering the statutory nonviolent offender criteria. Here, Thurston did not raise this
matter on direct appeal and pursuant to § 46-21-105(2), MCA, he may not do so in this
postconviction proceeding.
ISSUE TWO
¶14 Did the District Court abuse its discretion when it denied four of Thurston’s claims
for postconviction relief?
¶15 Thurston next argues that the District Court erred when it dismissed four other
postconviction claims because they were not raised on direct appeal and were therefore
barred by § 46-21-105(2). These claims include Ground Seven, alleging that Thurston’s
attorney, Hudspeth, had a conflict of interest; (2) Grounds Four and Six, alleging that
Hudspeth provided ineffective assistance at sentencing because he failed to present
arguments in mitigation of the sentence; and (3) Ground Thirteen, alleging that Hudspeth
provided ineffective assistance when he advised Thurston about the length of the sentence.
¶16 Thurston argues that Hudspeth had a conflict of interest while representing Thurston
because Hudspeth was a former Cascade County Deputy Attorney. Thurston states that
Hudspeth exchanged information about the investigation of Thurston’s case while he was a
deputy county attorney.
5
¶17 A defendant claiming ineffective assistance of counsel due to a conflict of interest
must show: (1) that counsel actively represented conflicting interests; and (2) that an actual
conflict of interest adversely affected counsel’s performance. State v. Deschon, 2002 MT
16, ¶ 18, 308 Mont. 175, ¶ 18, 40 P.3d 391, ¶ 18. The District Court denied Ground Seven
in Thurston’s Petition for Postconviction Relief stating, “First, this [the conflict of interest]
was admittedly disclosed to the Defendant who did not elect to ask for other counsel.
Second, there is no statement as to how this might have affected the performance of counsel
or how Defendant might have been prejudiced.”
¶18 Thurston cites us to Sanders v. Ratelle (9th Cir. 1994), 21 F.3d 1446. In Sanders, the
Ninth Circuit stated, “Once an actual conflict has been demonstrated, prejudice is presumed
since the harm may not consist solely of what counsel does, but of ‘what the advocate finds
himself compelled to refrain from doing, not only at trial but also’ during pretrial
proceedings and preparation.” Sanders, 21 F.3d at 1452, citing Holloway v. Arkansas
(1978), 435 U.S. 475, 490, 98 S. Ct. 1173, 1181, 55 L. Ed. 2d 426. The Ninth Circuit further
stated that, “The existence of an actual conflict cannot be governed solely by the perceptions
of the attorney; rather, the court itself must examine the record to discern whether the
attorney's behavior seems to have been influenced by the suggested conflict.” Sanders, 21
F.3d at 1452.
¶19 Thurston also cites to the American Bar Association’s Standards for Criminal Justice.
Standard 4-3.5 states:
(f) Defense counsel should not defend a criminal case in which counsel’s
partner or other professional associate is or has been the prosecutor in the
same case.
(g) Defense counsel should not represent a criminal defendant in a jurisdiction
6
in which he or she is also a prosecutor.
(h) Defense counsel who formerly participated personally and substantially in
the prosecution of a defendant should not thereafter represent any person in
the same or a substantially related matter. Defense counsel who was formerly
a prosecutor should not use confidential information about a person acquired
when defense counsel was a prosecutor in the representation of a client whose
interests are adverse to that person in a matter.
ABA Standards on Criminal Justice 4-3.5(f)-(h), 3d Ed. (1993). In addition, Thurston directs
us to § 37-61-413, MCA, which states:
Former public prosecutors not to defend. An attorney and counselor who
has brought, carried on, aided, advocated, or prosecuted or has been in anyway
connected with an action or special proceeding, civil or criminal, as attorney
general, county attorney, or other public prosecutor, must not, at any time
thereafter, directly or indirectly advise concerning, aid, or take any part in the
defense thereof; or take or receive either directly or indirectly, from a
defendant therein or other person a fee, gratuity, or reward for or upon any
cause, consideration, pretense, understanding or agreement, either express or
implied, having relation thereto or to the prosecution or defense thereof.
Section 37-61-413, MCA.
¶20 While Standard 4-3.5 and § 37-61-413, MCA, support an argument that Hudspeth
should not have represented Thurston in criminal proceedings after supposedly gaining
knowledge of his case through his employment as a Deputy Cascade County Attorney, it is
not a basis for reversal unless Thurston is able to establish an “actual conflict” existed. No
evidence exists that Hudspeth’s representation of Thurston was influenced by the suggested
conflict. Thus, we affirm the District Court’s ruling on Thurston’s conflict of interest claim.
¶21 In Ground Four Thurston alleged that his attorney failed to raise mitigating
information at his sentencing hearing. According to Thurston, he provided his attorney with
information needed to support at least seven of the criteria to support his designation as a
non-violent felony offender, but his attorney failed to raise the issue at sentencing. In
7
Ground Six Thurston alleged his attorney was unprepared for the sentencing hearing. He
allegedly did not discuss with Thurston how to refute testimony of the State’s witness until
Thurston and the attorney were walking to the sentencing hearing. Thurston would have
recommended calling certain witnesses to refute the State’s testimony, but by this time it was
too late to do so. The District Court denied these claims, concluding they “would have been
reflected in or apparent from the record of the sentencing hearing,” and therefore could have
been raised on direct appeal.
¶22 Finally, in Ground Thirteen, Thurston alleged that his attorney failed to provide him
with an accurate portrayal of the 20-year prison sentence contained in the plea agreement.
Apparently, Thurston’s attorney advised him that if designated as a non-dangerous offender,
a 20-year sentence meant parole eligibility after approximately two and one half years.
However, because Thurston required sex offender treatment before becoming eligible for
parole, he could not be parole eligible in less than five years.
¶23 Claims for ineffective assistance of counsel alleging facts beyond the record are not
appropriately raised on direct appeal. State v. Black (1990), 245 Mont. 39, 43, 798 P.2d 530,
533. When ineffective assistance of counsel claims require consideration of factual matters
outside the record, the claims are appropriately raised in a petition for postconviction relief.
State v. J.C., 2004 MT 75, ¶ 25, 320 Mont. 411, ¶ 25, 87 P.3d 501, ¶ 25. In Strickland v.
Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, the United States
Supreme Court set forth the standard used to determine whether a convicted defendant’s
claim that counsel’s assistance was so defective as to require reversal of a conviction:
First, the defendant must show that counsel's performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
8
functioning as the "counsel" guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is
reliable. Unless a defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the adversary
process that renders the result unreliable.
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L. Ed. 2d 674.
¶24 The District Court refused to address Grounds Four, Six and Thirteen on the basis that
they would have been reflected in or apparent from the record of the sentencing hearing. It
concluded that, “Therefore, they could have been raised on appeal and cannot be raised in
a petition for postconviction relief.”
¶25 We disagree with the District Court. The basis for these three grounds in Thurston’s
Petition for Postconviction Relief rests upon conversations Thurston had with his counsel
which would not be reflected in the record. What counsel told Thurston outside the
courtroom, the witnesses that counsel failed to call, and counsel’s explanation for failure to
fully present mitigating evidence, by their very nature, cannot be found in transcripts or the
record. We reverse and remand this issue to the District Court. The District Court is ordered
to consider Grounds Four, Six and Thirteen on their merits in accordance with Strickland.
ISSUE THREE
¶26 Did the District Court abuse its discretion when it denied Thurston’s request to amend
his Petition for Postconviction Relief?
¶27 Thurston argues the District Court abused its discretion when it denied his motion to
amend his Petition for Postconviction Relief to allege counsel was ineffective for failing to
perfect an appeal. Thurston cites Kills On Top, 279 Mont. at 391, 928 P.2d at 187, for the
9
proposition that an amendment should be allowed at any time, as long as the amendment
would not be “futile.”
¶28 The present case and Kills On Top are distinguishable. Here, Thurston did not file
his motion until several months after the District Court had already denied his Petition for
Postconviction Relief. In Kills On Top, the petitioner sought to amend his petition within
the deadline period set by the District Court, before a final judgment was issued. We affirm
the District Court’s refusal to allow Thurston to amend his Petition for Postconviction Relief
after the District Court had already denied his Petition.
¶29 Affirmed in part, reversed in part, and remanded.
/S/ JIM REGNIER
We Concur:
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ PATRICIA O. COTTER
/S/ JIM RICE
10