Rukes v. State

March 5 2013
DA 12-0176
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 56JACK N. RUKES,
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 11-1401
Honorable Robert L. Deschamps, III, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jack N. Rukes, self-represented, Shelby, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General; Micheal S. Wellenstein,
Assistant Attorney General; Helena, Montana
Fred Van Valkenburg, Missoula County Attorney, Missoula, Montana
Submitted on Briefs: January 31, 2013
Decided: March 5, 2013
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Jack Rukes appeals the Fourth Judicial District Court’s order dismissing his
Petition for Post-Conviction Relief. The dispositive issue on appeal is whether the
District Court erred in dismissing the petition. We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 On May 27, 2009, Rukes was arrested and taken to the Missoula County Detention
Center based on alleged criminal conduct including the assault of his wife. At the
detention center, Officer Stacy Lear did not record her interview with Rukes, but instead
took notes which she later converted into a written report to be used in evidence. Rukes
filed a motion to suppress his statements from evidence because the interview violated
newly-enacted legislation requiring that custodial interrogations be recorded. Sections
46-4-406 through -411, MCA (effective October 1, 2009). On September 24, 2009, the
District Court denied his motion to suppress because the statutes were not yet in effect.
¶3 The District Court set a jury trial for January 6, 2010. Rukes originally retained
private counsel, Kathleen Foley and William Boggs, who withdrew from representation
shortly before the trial date due to Rukes’s inability to fulfill fee obligations and because
they fundamentally disagreed with Rukes about whether he should proceed to trial. Upon
their withdrawal, the District Court appointed Christopher Daly to represent Rukes and
Rukes chose to continue the trial in order to provide his new attorney with adequate
preparation time. Daly represented Rukes in his March 10, 2010, jury trial. During the
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trial, a courtroom officer reportedly sat close enough to Rukes that a juror asked the
bailiff who the man was, and the bailiff indicated that he was “Mr. Rukes’s guard.”
¶4 On March 11, 2010, the jury found Rukes guilty of felony Aggravated Assault and
misdemeanor Unlawful Restraint. On June 1, 2010, the District Court sentenced Rukes
to twenty years in Montana State Prison with ten years suspended on the felony offense
and six months in jail on the misdemeanor offense, to be served concurrently. The
District Court ordered a mental evaluation of Rukes and that he have no contact with his
wife and children.
¶5 On January 19, 2011, Rukes’s appellate counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396 (1967) and § 46-8-132(2), MCA, discussing
nine arguable appeal issues: (1) the court erred in denying Rukes’s motion to suppress;
(2) the court erred in granting Foley’s and Boggs’s motion to withdraw; (3) the court
abused its discretion in refusing to exclude a witness from the courtroom; (4) the court
failed to fully and fairly instruct the jury; (5) Rukes was denied due process as a result of
the bailiff’s misconduct; (6) Rukes was denied a speedy trial; (7) the court abused its
discretion in ordering a mental examination of Rukes; (8) the court violated Rukes’s Fifth
Amendment rights by relying on the mental evaluations in sentencing; and (9) Rukes
received ineffective assistance of trial counsel. Rukes’s appellate counsel could not
identify any meritorious issues and requested permission to withdraw from
representation.
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¶6 On March 8, 2011, this Court entered an order noting that Rukes had failed to file
a response to his attorney’s Anders brief and granting appellate counsel’s motion to
withdraw. We dismissed Rukes’s appeal, concluding that “an appeal in this case would
be wholly frivolous.” Rukes thereafter filed a response and we granted his motion
requesting consideration of the late response. On March 29, 2011, after consideration of
Rukes’s response, we upheld our previous order dismissing his appeal and permitting his
counsel’s withdrawal.
¶7 Proceeding pro se, Rukes then filed in the District Court a Petition for
Post-Conviction Relief, raising twelve issues. The court noted in its February 8, 2012
order that “virtually all of the Petitioner’s claims are nothing more than his personal
argument and speculation” and that most of Rukes’s arguments had been addressed on
direct appeal. The District Court nonetheless discussed the merits of Rukes’s claims. In
addressing Rukes’s claims of ineffective assistance of counsel, the court ordered Foley
and Boggs to respond by affidavit to Rukes’s allegation that they had failed to provide
him with a copy of a proposed plea agreement, failed to explain the plea agreement and
failed to explain consequences of proceeding to trial. The court ordered Daly to respond
by affidavit to Rukes’s claim that he failed to move for a new trial after the bailiff
allegedly committed misconduct. Having reviewed the attorneys’ affidavits, the court
determined that Rukes’s petition did not demonstrate “any kind of error, cumulative or
otherwise,” and dismissed the petition. Rukes appealed pro se to this Court.
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STANDARD OF REVIEW
¶8 We review the district court’s denial of a petition for postconviction relief to
determine whether its findings of fact are clearly erroneous and whether its legal
conclusions are correct. Miller v. State, 2012 MT 131, ¶ 9, 365 Mont. 264, 280 P.3d 272.
Grounds for relief “that were or could reasonably have been raised on direct appeal may
not be raised, considered or decided in a proceeding” for postconviction relief. Section
46-21-105(2), MCA.
¶9 Ineffective assistance of counsel claims present mixed questions of law and fact
that we review de novo. Miller, ¶ 9. To prevail on such a claim, the petitioner must
demonstrate that “counsel’s performance was deficient” and that “the deficient
performance prejudiced the defense.” Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont.
90, 183 P.3d 861 (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). We
apply the same standard when reviewing claims of ineffective assistance of appellate
counsel. Rogers v. State, 2011 MT 105, ¶ 37, 360 Mont. 334, 253, P.3d 889.
DISCUSSION
¶10 Rukes argues that the District Court erred in dismissing his Petition for
Post-Conviction Relief on the following grounds: (1) the District Court erred in denying
his motion to suppress his statements from evidence; (2) Rukes was denied a speedy trial;
(3) Daly provided ineffective assistance of counsel; (4) Foley and Boggs provided
ineffective assistance of counsel; (5) the court erred in granting Foley’s and Boggs’s
motion to withdraw; and (6) counsels’ cumulative errors warrant reversal.
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¶11 We agree with the State that, with the exception of several of Rukes’s ineffective
assistance of counsel claims, most of Rukes’s claims are barred from appellate review
under § 46-21-105(2), MCA, because they were or could have been raised on direct
appeal.
¶12 1. Denial of Rukes’s motion to suppress.
¶13 Rukes argues that the District Court erred in denying his motion to suppress the
statements he made during his May 2009 interview because the interview was not
recorded, in violation of §§ 46-4-406 through -411, MCA. He also argues that the court
should have compelled Officer Lear to produce her original handwritten notes. Rukes’s
appellate counsel raised these issues in her Anders brief and, after independent
examination of the record and consideration of Rukes’s arguments, we agreed that they
were without merit. As noted, the statutes require recordation of custodial interrogations,
but became effective in October 2009, several months after Rukes’s interview. We will
not consider the issue again in reviewing the District Court’s denial of Rukes’s Petition
for Post-Conviction Relief. Section 46-21-105(2), MCA.
¶14 2. Whether Rukes was denied a speedy trial.
¶15 Similarly, we will not consider Rukes’s argument that he was denied the right to a
speedy trial. Appellate counsel raised that question in her Anders brief and suggested it
was frivolous, based in part on the following exchange during pre-trial proceedings:
THE DEFENDANT: Your Honor, I feel it’s more important to have good
representation than to have a speedy trial. I feel that — I don’t care if it’s
two or three months down the road, whatever it takes to prepare. . . .
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THE COURT: You’ve said enough. If you are willing right now, with
your eyes wide open and understand what’s going on, that you have a right
to a speedy trial but you’re willing to waive it because of circumstances in
this case —
THE DEFENDANT: Yeah.
¶16 On direct appeal, we reviewed the record and agreed with appellate counsel that
the issue lacked merit; we decline to reconsider it. Section 46-21-105(2), MCA.
¶17 3. Ineffective assistance of trial counsel.
¶18 Rukes alleges that Daly provided ineffective assistance of counsel because he
improperly portrayed Rukes during his opening statement as “a drunken wife abuser,”
failed to move for a new trial based on the bailiff’s misconduct, failed to counsel Rukes
regarding his right against self-incrimination, failed to object during sentencing to
court-ordered mental evaluations, and failed to object to an improper condition of
Rukes’s sentence—namely, a condition prohibiting Rukes from contacting his two
daughters who were not involved in the incident that gave rise to Rukes’s convictions.
¶19 The District Court rejected the claim that Rukes’s attorney made a prejudicial
comment during opening statement. Rukes failed to point out a specific comment and,
searching the record, the court concluded that the alleged statement was “a figment of the
Petitioner’s imagina[tion].” The court also recognized that an improper opening
statement “would be record-based and should have been raised on direct appeal[.]” We
agree. See State v. Howard, 2011 MT 246, ¶ 21, 362 Mont. 196, 265 P.3d 606 (“When
claims of ineffective assistance are capable of resolution by examining the record alone,
they are appropriate for consideration on direct appeal.”). Furthermore, the trial
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transcript indicates only that Daly stated Rukes “had been drinking.” Rukes has not
explained how this statement prejudiced the outcome of his trial or rendered Daly’s
performance “deficient.” Whitlow, ¶ 10. His contention that appellate counsel provided
ineffective assistance of counsel based on her failure to raise this issue lacks merit for the
same reasons. Heddings v. State, 2011 MT 228, ¶ 33, 362 Mont. 90, 265 P.3d 600(counsel is not ineffective for failing to “make motions or objections which, under the
circumstances, would have been frivolous”).
¶20 We turn to Rukes’s claim that Daly was ineffective for failing to file a motion for
a new trial following the bailiff’s alleged misconduct. Appellate counsel suggested in her
Anders brief that the bailiff’s communication with the jurors did not constitute reversible
error because Rukes could not demonstrate prejudicial consequences. State v. Baugh,
174 Mont. 456, 465, 571 P.2d 779, 784 (1977). We agreed that the record did not
demonstrate any prejudice resulting from the bailiff’s misconduct. As a consequence,
Daly’s failure to move for a new trial on that basis also is without merit. See Porter v.
State, 2002 MT 319, ¶ 32, 313 Mont. 149, 60 P.3d 951 (defendant failed to “establish any
prejudice as a result of the momentary observation of him in handcuffs by prospective
jurors” and thus counsel’s failure to move for a mistrial was not deficient).
¶21 Each of Rukes’s other arguments regarding Daly’s alleged ineffectiveness was
discussed in appellate counsel’s Anders brief and considered by this Court in dismissing
his direct appeal. Appellate counsel noted that, to prevail on his ineffective assistance of
counsel claims, a defendant generally must demonstrate that the reasons for counsel’s
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actions appear in the record, or that there is no plausible justification for counsel’s
actions. State v. Kougl, 2004 MT 243, ¶¶ 14, 21, 323 Mont. 6, 97 P.3d 1095. Since the
record in this case did not reflect counsel’s reasons for failing to object to the involuntary
mental evaluations or the sentencing condition, appellate counsel suggested that the
ineffective assistance claims were unsubstantiated. We agreed. In this postconviction
proceeding, Rukes offers nothing to substantiate his allegations that Daly’s performance
was deficient or that, absent such deficiency, the result of the proceeding would have
been different. See Ellenburg v. Chase, 2004 MT 66, ¶ 16, 320 Mont. 315, 87 P.3d 473(“[A] petition for postconviction relief must be based on more than mere conclusory
allegations.”). He has not met his burden of showing reversible error by the District
Court in denying his petition.
¶22 4. Ineffective assistance of counsel during pre-trial proceedings.
¶23 Rukes argues that Foley and Boggs provided ineffective assistance due to their
failure to pursue a speedy trial, failure to provide Rukes with a copy of the State’s
proposed plea agreement, and failure to advise him of the consequences of rejecting the
plea agreement. As noted, we addressed the speedy trial issue on direct appeal. In ruling
on Rukes’s petition for postconviction relief, the District Court determined that
“Petitioner’s own actions belie the viability of this claim which clearly cannot be
sustained as a matter of fact.” The court dismissed the claim for failure to state a claim
for relief under § 46-21-201(1)(a), MCA.
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¶24 The court pointed out that on April 11, 2010, Rukes wrote a letter to the court,
indicating that he refused the plea bargain due to his distrust of the prosecutor. The letter
stated:
[I] was offered a plea bargain of 5 or 10 years suspended by Suzy Boylan.
It was enticing but I took information acquired from other attorneys;
informing me of Suzy’s “demon pursuits linked to careerism who is acting
like the zelots [sic].” One attorney went so far as to say “Suzy is so
unreasonable that she needs mental intervention.” I was also informed that
any judge in Missoula is more reasonable than her.
¶25 Foley and Boggs stated in their affidavit that even when Rukes’s bill was in
arrears and their motion to withdraw was pending, they worked for free on “both trial
preparation and negotiations to settle the case on terms favorable to Rukes.” They stated
that they “spent hours discussing the pros and cons of going to trial with Rukes, and
advised him in no uncertain terms (although he did not want to hear it) that he would very
likely end up in prison for a significant period if he went to trial.” Foley and Boggs attest
that they went through significant effort to secure a plea offer that “would have saved
Rukes had he not reneged on it.” They stated that upon receiving the plea agreement
from the prosecutor on December 28, 2009, they “brought the Agreement to Rukes to
sign. Instead he asked to keep it overnight, so we left it with him.” Rukes initially had
indicated to Foley and Boggs that he would accept the plea agreement, but changed his
mind. Attached as an exhibit to Foley’s and Boggs’s affidavit was an email from Foley
to prosecutor Boylan stating as follows:
I brought the Plea Agreement that Jack had accepted out to review with him
yesterday and spent a couple hours in discussion and answering all his
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questions. He wanted to keep it over night. When I went back this
morning to see him and retrieve the documents, he had changed his mind.
¶26 The affidavit and supporting documents provide further support for the District
Court’s conclusion that Rukes’s ineffective assistance of counsel claim was without
merit. Rukes had the burden of establishing his claim through material facts; his
unsupported allegations do not suffice to demonstrate that Foley and Boggs failed to
provide him with a copy of the plea agreement or to advise him of the consequences of
proceeding to trial. Ellenburg, ¶ 16. The District Court did not err in dismissing the
claim.
¶27 5. Withdrawal of Foley and Boggs from representation.
¶28 We addressed on direct appeal Rukes’s contention that the District Court erred in
granting Foley’s and Boggs’s motion to withdraw from representation. Foley and Boggs
moved to withdraw due to Rukes’s inability to pay his fee obligations and because a
fundamental disagreement between counsel and Rukes arose from his refusal to accept
the plea agreement. The District Court considered their motion during its December 29,
2009, hearing. His appellate counsel could find no authority to support a conclusion that
the District Court abused its discretion in granting the motion to withdraw, unless
counsels’ withdrawal violated Rukes’s speedy trial right. We already have addressed that
question in ¶¶ 14-16, above.
¶29 6. Whether counsels’ cumulative errors warrant reversal.
¶30 The doctrine of cumulative error “is appropriate to reverse a defendant’s
conviction only where a number of errors, taken together, prejudiced the defendant’s
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right to a fair trial.” Howard, ¶ 40 (quoting State v. Ferguson, 2005 MT 343, ¶ 126, 330
Mont. 103, 126 P.3d 463) (internal quotation marks omitted). We have considered all of
the arguments Rukes has made on appeal. For the reasons already discussed, we agree
with the District Court that Rukes has not met his burden of establishing that any error of
his pre-trial and trial counsel prejudiced his right to a fair trial.
¶31 We affirm the District Court’s dismissal of Rukes’s Petition for Post-Conviction
Relief.
/S/ BETH BAKER
We concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ LAURIE McKINNON
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