City of Missoula v. Leuchtman

12/05/2017
DA 17-0155
Case Number: DA 17-0155
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 303N
CITY OF MISSOULA,
Plaintiff and Appellee,
v.
STEPHEN LEUCHTMAN,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-16-512
Honorable Robert L. Deschamps, III, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Stephen Leuchtman, Self-Represented, Hamilton, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
Attorney General, Helena, Montana
Jim Nugent, Missoula City Attorney, Carrie Garber, Senior Deputy City
Attorney, Missoula, Montana
Submitted on Briefs: November 1, 2017
Decided: December 5, 2017
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), 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 Stephen Leuchtman (Leuchtman) appeals from a Fourth Judicial District Court’s
order upholding a jury verdict that found Leuchtman guilty of Violation of an Order of
Protection. We affirm.
¶3 In 2015, Angela Miller (Miller) obtained an Order of Protection against
Leuchtman. The order directed Leuchtman to stay 1,500 feet away from Miller’s “place
of employment located at 350 Ryman Street, Missoula, Montana.” On January 27, 2016,
Miller reported that Leuchtman was in violation of the order. From her vehicle, Miller
saw and photographed Leuchtman after he drove past the entrance to 350 Ryman.
Leuchtman had been visiting his attorney’s office nearby and later testified that he drove
past Miller’s place of employment to avoid driving behind Miller who was leaving work
for the day.
¶4 On February 10, 2016, Leuchtman pled not guilty to the offense of Violation of an
Order of Protection. Trial was ultimately set for September 8, 2016, with a final pretrial
hearing set on August 30, 2016. Leuchtman was released on conditions prohibiting him
from being “within 1,500 feet of or hav[ing] any contact including contact in person, by
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phone, by internet, by card or letter or messages sent through a third person with Angela
Miller.” After several violations of the Internet condition of his release and subsequent
court modifications, the Municipal Court prohibited Leuchtman from possessing a phone
with a data plan or from possessing any device that had access to the Internet.
¶5 On August 25, 2016, Leuchtman filed a motion to dismiss for lack of speedy trial.
On September 7, 2016, Leuchtman raised a defense which he described as “the choice of
two evils” defense and proposed a jury instruction. The Missoula Municipal Court
denied the motion and declined to use the instruction. The jury determined he was guilty
of Violation of an Order of Protection. Leuchtman appealed to the Fourth Judicial
District Court, alleging the Municipal Court erred in denying his motion to dismiss for
lack of speedy trial and for refusing his proposed jury instruction regarding “the choice of
evils defense.”1 The District Court rejected both arguments and affirmed Leuchtman’s
conviction. Leuchtman has not appealed the rulings on these issues.
¶6 Leuchtman appeals to this Court, arguing that (1) the Municipal Court’s bond
revocation imposed unreasonable conditions that prejudiced his ability to assist in his
own defense; (2) the conditions of Leuchtman’s release violated his right to access the
courts; (3) Leuchtman’s counsel was ineffective for failing to move to dismiss his charge
on the ground that it was unconstitutional because he had a right to access his attorneys
and the courts; and (4) Leuchtman’s counsel was ineffective for failing to preserve a
choice of two evils defense and obtain a jury instruction on that defense.
1
The District Court ruled that the rejected instruction was statutorily addressed by the
compulsion defense in § 45-2-212, MCA, and the facts of this case do not support a compulsion
defense.
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¶7 We generally do not address issues raised for the first time on appeal. State v.
Longfellow, 2008 MT 343, ¶ 19, 346 Mont. 286, 194 P.3d 694. Leuchtman raises two
issues for the first time on appeal before this Court. We will not consider Leuchtman’s
claims regarding bond revocation and conditions of release because they were not raised
in the District Court. However, we will consider Leuchtman’s ineffective assistance of
counsel claim.
¶8 Ineffective assistance of counsel claims are mixed questions of law and fact,
which we review de novo. State v. Lucero, 2004 MT 248, ¶ 12, 323 Mont. 42, 97 P.3d
1106. This Court has adopted a two-part test for ineffective assistance of counsel claims,
which was established by the United States Supreme Court in Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052 (1984). Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont.
90, 183 P.3d 861. A defendant bears the burden to “prove (1) that counsel’s performance
was deficient, and (2) that counsel’s deficient performance prejudiced the defense.”
Whitlow, ¶ 10. Both prongs of this test must be satisfied. Whitlow, ¶ 11.
¶9 Leuchtman raises an ineffective assistance of counsel claim, alleging his counsel
was ineffective for failing to move to dismiss his charge on the ground that it was
unconstitutional because he had a right to access his attorneys and the courts. Leuchtman
also alleges his counsel was ineffective for failing to preserve a choice of two evils
defense and obtain a jury instruction on that defense. However, Leuchtman has not
demonstrated that his defense was prejudiced. The record reflects that Leuchtman
continued to access his attorney and the courts throughout his case. The choice of two
evils defense was inapplicable because compulsion was not supported by the facts of this
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case. The District Court did not err when it rejected the jury instruction because the
proposed instruction was not supported by valid legal argument. State v. Arlington, 265
Mont. 127, 139, 875 P.2d 307, 314 (1994). Leuchtman cannot establish that he was
prejudiced by his counsel’s representation.
¶10 Therefore, Leuchtman’s claims regarding bond revocation and conditions of relief
are procedurally barred as they are raised for the first time on appeal to this Court. We
also hold that Leuchtman has failed to establish that his counsel was ineffective.
¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review.
¶12 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR
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