State v. Danny Sartain

July 31 2012
DA 11-0764
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 164DANNY SARTAIN,
Defendant and Appellant,
v.
STATE OF MONTANA,
Plaintiff and Appellee.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DC 11-362B
Honorable Mike Salvagni, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Danny Sartain, self-represented; Deer Lodge, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Micheal S. Wellenstein,
Assistant Attorney General; Helena, Montana
Marty Lambert, Gallatin County Attorney; Bozeman, Montana
Submitted on Briefs: May 23, 2012
Decided: July 31, 2012
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Danny Sartain (Sartain) appeals from an order of the Eighteenth Judicial District
Court, Gallatin County, denying his motion for postconviction relief. We affirm and
address the following issues:
¶2 1. Did the District Court err in dismissing Sartain’s ineffective assistance of
counsel claims against his trial counsel?
¶3 2. Did the District Court err in dismissing Sartain’s ineffective assistance of
counsel claims against his appellate counsel?
¶4 3. Did the District Court abuse its discretion by failing to hold an evidentiary
hearing on Sartain’s petition?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 On March 25, 2008, Sartain was arrested and charged with burglary after he was
found intruding in the house of Timothy Hop, of Bozeman. Hop grabbed a pistol, fired a
warning shot, chased Sartain out of his house, and called 911. Other area residents
observed Sartain cutting through yards, jumping a fence, and running down a street,
where police apprehended him. See State v. Sartain, 2010 MT 213, ¶ 4, 357 Mont. 483,
241 P.3d 1032.
¶6 In January of 2009, Sartain’s appointed counsel filed a motion to dismiss the
burglary charge for lack of a speedy trial. After a hearing, the District Court denied the
motion. Sartain was convicted of burglary following a two-day jury trial and sentenced
as a persistent felony offender to 40 years in prison.
2
¶7 Sartain was assigned new counsel and filed an appeal. He challenged the District
Court’s denial of his speedy trial motion and alleged ineffective assistance by his trial
counsel. This Court denied Sartain’s speedy trial claim on its merits and dismissed his
ineffective assistance claims “without prejudice to raising them in a post-conviction
proceeding” because the trial record was silent about why defense counsel had acted or
failed to act as claimed by Sartain. Sartain, ¶¶ 26, 31.
¶8 Sartain thereafter filed a petition for postconviction relief alleging that both his
trial and appellate counsel were ineffective. Without conducting a hearing, the District
Court issued an order dismissing Sartain’s petition. Sartain appeals.
STANDARD OF REVIEW
¶9 In postconviction relief proceedings, we review a district court’s findings of fact to
determine if they are clearly erroneous and its conclusions of law to determine if they are
correct. Rogers v. State, 2011 MT 105, ¶ 12, 360 Mont. 334, 253 P.3d 889. “Ineffective
assistance of counsel claims present mixed questions of law and fact that the Court
reviews de novo.” Rogers, ¶ 12. A petitioner seeking to reverse a district court order
denying postconviction relief based on ineffective assistance of counsel has a heavy
burden. State v. Morgan, 2003 MT 193, ¶ 9, 316 Mont. 509, 74 P.3d 1047.
DISCUSSION
¶10 Sartain alleges that both his trial counsel, Casey R. Moore (Moore), and appellate
counsel, Nancy G. Schwartz (Schwartz), provided ineffective assistance of counsel.
Sartain’s primary claims against Moore are that he failed to introduce letters and a motion
3
to dismiss penned by Sartain regarding speedy trial, failed to make an opening statement
at trial, failed to challenge a “show-up” identification, failed to challenge the warrantless
arrest, failed to move to suppress statements Sartain gave to police, failed to make certain
objections during trial, did not allow Sartain to testify, failed to raise a potential Brady
violation, and failed to challenge Sartain’s sentence as illegal. Sartain alleges Schwartz
was ineffective because she failed to raise the alleged Brady violation and the
admissibility of evidence regarding a shoe print, a pry bar, and K-9 tracking.
¶11 When evaluating a claim of ineffective assistance of trial counsel, we use the
two-part test enunciated 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. Under the
first prong of the Strickland test, “the defendant must show that counsel’s representation
fell below an objective standard of reasonableness.” Whitlow, ¶ 14 (quoting Strickland,
466 U.S. at 687-88, 104 S. Ct. at 2064). Under the second prong of Strickland, the
defendant must show that counsel’s performance prejudiced the defense. Whitlow, ¶ 10
(citing State v. Racz, 2007 MT 244, ¶ 22, 339 Mont. 218, 168 P.3d 685). “The defendant
must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
694, 104 S. Ct. at 2068. In short, the defendant must prove (1) that counsel’s
performance was deficient and (2) that counsel’s deficient performance prejudiced the
defense. Whitlow, ¶ 10 (citation omitted). Because a defendant must prove both prongs,
an insufficient showing under one prong eliminates the need to address the other.
4
Whitlow, ¶ 11 (citing Adams v. State, 2007 MT 35, ¶ 22, 336 Mont. 63, 153 P.3d 601). In
order to eliminate “the distorting effects of hindsight,” judicial scrutiny of counsel’s
performance is highly deferential. Whitlow, ¶ 15; Strickland, 466 U.S. at 689, 104 S. Ct.
at 2065. As the U.S. Supreme Court has noted, “[t]here are countless ways to provide
effective assistance in any given case. Even the best criminal defense attorneys would
not defend a particular client in the same way.” Strickland, 466 U.S. at 689, 104 S. Ct. at
2065.
¶12 1. Did the District Court err in dismissing Sartain’s ineffective assistance of
counsel claims against his trial counsel?
A. Speedy Trial
¶13 Following Sartain’s arrest and release on bond, he was taken into custody by a
parole officer and returned to Montana State Prison on a parole violation, delaying his
appearance in the District Court on these charges until July 7, 2008. Sartain, ¶ 6. During
the omnibus hearing in August 2008, defense counsel Moore asked for a three-day trial
setting. Moore was unavailable in September because of National Guard commitments,
and thus the next available three-day setting was in March 2009. Although the
prosecutor indicated a preference for an earlier date, she conceded to the later date in
light of the defense request for a three-day setting. Sartain, ¶ 7. Moore testified by
affidavit in the postconviction proceeding concerning his reasoning for the request:
I did not waive Defendant’s speedy trial rights . . . . [T]he case was
set for trial at the earliest possible time I felt was appropriate to be fully
prepared and ready to challenge the State.
5
I was still working with my investigator at the time of the omnibus
hearing. Not all interviews were completed at the time of the omnibus
hearing . . . . My investigator and I were still working on pinning down an
exact to the minute timeline. Additionally, I knew I would need some extra
time to meet with the Defendant given that he was located at the Montana
State Prison.
. . .
The victim in this case did not get interviewed until shortly before
trial because he would not cooperate with my investigator and we had to
work through the Victim Witness Advocates Office to get an interview. I
certainly would not feel comfortable taking a case to trial when we had not
been able to interview the victim. Finally, we had received some
information in September 2008 on an individual who had been arrested in
the same area as the Defendant. We were working on locating information
and a photograph of this individual, and investigating the facts of that
incident to see if we could use this as a Defense [sic] to the case. No other
attorney and investigator, with our workload and with our resources, could
have done anything better or faster than we did.
¶14 Moore filed a speedy trial motion to dismiss in January 2009 and a hearing was
held in February 2009. Moore did not introduce letters Sartain had written to him, which
referenced Sartain’s concerns about speedy trial and other work he wanted Moore to
undertake, or a motion to dismiss for lack of speedy trial that Sartain had personally
drafted. The District Court thereafter denied the motion, and on direct appeal, Sartain
challenged the denial. We addressed the issue on the merits, concluding the District
Court had not erred. Sartain, ¶ 26. We agreed with the District Court’s assessment of
factor three, accused’s response to the delay, weighing that factor against Sartain as part
of the Ariegwe1 analysis. Sartain, ¶ 20. Sartain contends the outcome would likely have
been different had Moore introduced Sartain’s letters and the self-prepared speedy trial
1
State v. Ariegwe, 2007 MT 204, 338 Mont. 442, 167 P.3d 815.
6
motion he had provided to Moore, to demonstrate his lack of acquiescence in the delay of
his trial.
¶15 We initially note that, although a part of Moore’s file, these documents were not
referenced by Sartain in his briefing on the direct appeal in support of his argument that
he had not acquiesced in the delay.2 A possible explanation is that these items had not
been introduced into the trial record, but it is further notable that Sartain also failed to
reference these documents when he testified at the pre-appeal speedy trial hearing,
despite the fact that an issue was being made of his acquiescence to the delay. During
cross examination, Sartain testified as follows:
Q. And at that August of ‘08 Omnibus Hearing, trial was set for March ‘09,
correct?
A. That’s correct.
Q. And you received notice of that, correct?
A. Yes, I did.
Q. And when did you receive notice of that?
A. I think it would have been at least a month after the Omnibus Hearing.
Q. Okay. So around September of ‘08, is that fair to say?
A. That is correct.
Q. Okay. And yet no speedy trial motion was filed until January of ‘09,
correct?
A. That’s correct.
Q. All right. And so there’s a six, seven-month gap in there? That’s not
correct . . . a five-month gap in there?
A. Correct.
2
Sartain has made no claim of ineffectiveness against his appellate counsel on this basis.
7
Q. From when you found out about the trial date and until a speedy trial
motion was filed?
A. Correct.
. . .
Q. Okay. So when the trial was set in March of ‘09 you didn't immediately
file the speedy trial complaint --
A. No, I did not.
Q. -- or you didn’t notify your defense? Okay . . . [emphasis added]
At the close of testimony, the presiding judge returned to this point and asked Sartain
again when he had learned of the trial setting. Sartain confirmed that he had learned of it
in September 2008. Again, Sartain made no mention of his letters or motion.
¶16 Following the close of evidence, and in Sartain’s presence, the prosecutor
premised her speedy trial argument upon Sartain’s testimony:
. . . the Defendant himself found out about it in September and yet we
didn’t get the Speedy Trial Motion until January.
So I mean the policy behind this, Your Honor, is that a defendant
cannot ask for a later trial date and know about it and then come in after
speedy [trial] is run and say “Well, hey, wait a minute, this is a speedy trial
violation.” They’re just basically doing the end run around another
conviction. Because, you know, they set themselves procedurally for a
speedy trial issue, so they can’t generate the problem and then claim it.
. . .
I mean the fundamental issue with this case is not the fact that he
was on parole, it’s the fact that he knew about this trial setting. The trial
was set, he knew about it and we don’t even have a motion filed until
January. And so that takes—I mean the third element [of Ariegwe] that
responds to the delay is something the Court should give considerable
weight to. You can’t ask for a trial setting to accommodate the Defendant
8
and have it set out past speedy trial, then come in and say there’s been a
speedy trial violation. It just—it is completely nonsensical
. . .
The Court: At what point does a Defendant have to assert that right?
[Prosecutor]: Your Honor, I would think—I mean it goes to the response to
the delay. It’s something for the Court to consider. But, you know, if I was
sitting in prison and I found out that I was going to be sitting there for
several months more and I objected to that, because I wanted to get my trial
moving along, I mean you would do it right away. Five months is a long
time . . . .
The Court: It’s actually four months.
[Prosecutor]: It’s a long time particularly under the circumstances that the
Defendant was describing.
¶17 Despite having the opportunity to testify, being asked about the issue of
acquiescence, and observing the argument and questions about his acquiescence, Sartain
made no effort to offer the evidence of which he was fully aware and that he now views
as critical to the outcome and thus essentially abandoned it. Consequently, this Court did
not have the benefit of that evidence when we considered the merits of the speedy trial
issue on direct appeal. Moreover, even if the blame for all of this could be shifted to
counsel, our review of the record does not convince us the documents would likely have
altered the result, had they been considered. Sartain’s letters to Moore were dated in May
2008, before his initial appearance and before his March 2009 trial date was set by the
court in August 2008. The time period cited by the District Court and this Court as
establishing Sartain’s acquiescence was the four month delay between September 2008,
when he learned of the trial setting, and Moore’s filing of a motion to dismiss for lack of
9
speedy trial in January 2009. Sartain, ¶¶ 19-20. Sartain has not demonstrated or even
alleged that his letters to Moore and his motion were prepared in timely response to the
setting of the trial date. While the documents establish that Sartain expressed an interest
in the speedy trial issue at some point, they do not constitute proof sufficient to refute the
District Court’s determination that Sartain acquiesced in the delay during that critical
period.3 We thus affirm the District Court’s rejection of the claim.
B. Trial issues
¶18 Sartain contends that trial counsel failed to give an opening statement, failed to
object several times, did not allow him to testify, did not adequately consult with him
prior to trial, and failed to move for a new trial based on what Sartain terms “evidence
tampering.”
i. Failing to give an opening statement
¶19 Sartain argues that his trial counsel’s failure to give an opening statement
prejudiced him, and counsel should have at least informed the jury about the presumption
of innocence and the State’s burden of proof. We have held that trial counsel’s decision
about whether to give an opening statement is “ordinarily a matter of trial tactics and
strategy which will not form the basis for a claim of ineffective assistance of counsel.”
Dawson v. State, 2000 MT 219, ¶ 99, 301 Mont. 135, 10 P.3d 49 (citation omitted).
Moore stated in his affidavit that his trial strategy was based on cross-examination of the
3
The record copy of Sartain’s self-prepared motion bears an electronic facsimile stamp date of
January 7, 2009, the day before Moore filed his motion to dismiss, and an attached note from
Sartain is dated January 5, 2009. There is no further evidence regarding the time of its
preparation or its delivery to Moore.
10
State’s witnesses and that he specifically chose not to give an opening statement because
he did not want to “tip off” the State about his defense strategy or give the State any
assistance in preparing witnesses for his cross-examination. Sartain has not demonstrated
that Moore’s strategy was unreasonable under the circumstances, and thus the claim fails
to satisfy the first prong of Strickland. Whitlow, ¶ 15; Strickland, 466 U.S. at 689, 104
S. Ct. at 2065.
ii. Objections
¶20 Sartain argues his trial attorney missed several opportunities to object, which were
prejudicial. First, he claims counsel should have objected when the prosecutor referred to
certain witnesses as “eyewitnesses” because the burglary victim, Hop, was the only
person who actually saw the crime occurring and, therefore, was the only “eyewitness.”
Sartain argues his counsel should have objected when the prosecutor referred to other
witnesses who merely observed Sartain during his flight as “eyewitnesses.” Sartain fails
to cite any authority that would support this theory. “A petitioner who argues that trial
counsel’s failure to object rendered counsel ineffective must show that counsel’s trial
objection would have been proper and that the court likely would have sustained the
objection.” Foston v. State, 2010 MT 281, ¶ 11, 358 Mont. 469, 245 P.3d 1103 (citing
Ford v. State, 2005 MT 151, ¶ 7, 327 Mont. 378, 114 P.3d 244). We decline to address
the issue further.
11
¶21 Secondly, during examination of the arresting officer, the prosecutor asked if the
officer had any doubt that his testimony was the truth. Sartain argues his attorney should
have objected to this question, although he offers no authority. Assuming arguendo that
the question was improper, Sartain makes no showing of prejudice. The question and
answer were very brief, and their impact on the outcome, if any, appears to be negligible.
¶22 Sartain next alleges that the prosecutor made improper remarks during his closing
argument about, and mischaracterized the role of, the defense attorney. Sartain cites
McGuire v. State, 677 P.2d 1060, 1063-64 (Nev. 1984), for the proposition that “it is not
only improper to disparage defense counsel personally, but also to disparage legitimate
defense tactics.” During closing argument, the prosecutor said, “Casey Moore is a
wonderful criminal defense attorney. I have the utmost respect for him. A criminal
defense attorney’s job, if it’s anything, is to muddy the waters. Muddy the waters, create
confusion, and he did a good job of that.” In his affidavit, Moore stated that he did not
consider this statement to be disparaging, and he made a tactical decision not to object to
it. Instead, Moore responded to the comment in his own closing by saying “If my job is
to muddy the waters, then it’s the State’s job to make my client look bad, to make him
look guilty.” We agree with the District Court’s conclusion that “[t]here is nothing
‘ineffective’ about this trial strategy” and that the failure to object did not constitute
ineffective assistance.
12
iii. Failure to testify
¶23 Sartain contends that he wanted to testify at trial, but Moore did not give him the
opportunity to do so. After the State rested its case, Sartain was asked if he wished to
testify, to which he answered “[y]ou bet.” Moore said to Sartain, “you can have a
conversation with me about whether you actually want to [testify],” to which Sartain
responded, “[y]eah, I think that would be fair.” The court then instructed Sartain and
Moore to discuss their strategy over the noon break. Moore advised the court that they
would discuss it, and if Sartain chose not to testify, then the defense would rest. After
coming back from the noon recess, the defense rested its case without Sartain testifying.
¶24 The District Court found Sartain’s assertion that he was not allowed to testify
lacked credibility because Sartain did not object when Moore rested the defense without
Sartain testifying. Sartain has not demonstrated that the District Court’s findings were
clearly erroneous, and we affirm.
iv. Consultation prior to trial
¶25 Sartain contends that Moore did not adequately consult with him prior to trial.
Sartain claims he met with Moore only three times, that the meetings ranged in length
from fifteen to thirty minutes, and that he had difficulty reaching Moore by phone.
Sartain was incarcerated at Montana State Prison during the proceeding. Moore indicated
he and his investigator met with Sartain at the Prison several times and also
communicated by telephone and through letters. Moore indicated that Sartain’s
assessment of the length of the meetings was not true. Moore stated he would clear his
13
schedule for the entire day to travel to Deer Lodge to meet with Sartain, and the meetings
were clearly longer than Sartain alleges. Although Sartain would no doubt have preferred
to meet more often, this alone does not establish ineffective assistance. See State v. Senn,
244 Mont. 56, 59, 795 P.2d 973, 975 (1990) (“[d]efendant’s allegation that his counsel
did not meet with him as often as he would have preferred, does not establish his
counsel's competence or incompetence in such a situation.”). Without more, Sartain has
failed to satisfy the first prong of Strickland.
v. Evidence tampering
¶26 Sartain alleges a pry bar that was allegedly used in the crime was removed from
the chain of custody and tampered with by police and that his trial counsel should have
moved for a mistrial on this ground.4 Moore countered that the transcript clearly
explained that police merely took measurements from the pry bar and that no evidence
tampering or chain of custody issues existed. The District Court concluded that a motion
for mistrial would have been frivolous. “A petition requesting post-conviction relief
must show, by a preponderance of the evidence, that the facts justify the relief.”
Hamilton v. State, 2010 MT 25, ¶ 10, 355 Mont. 133, 226 P.3d 588 (citing Heath v. State,
2009 MT 7, ¶ 16, 348 Mont. 361, 202 P.3d 118). A review of the record reveals there is
no evidence supporting Sartain’s contention that the pry bar was removed from evidence
or that it had been tampered with. There is no indication from the testimony that the
chain of custody was broken in order to take the measurements of the pry bar.
4
The pry bar was found following a police execution of a “dog track” with a police dog, which
led to the discovery of the pry bar and a footprint matching Sartain’s shoes in a nearby alley.
14
¶27 None of the allegations set forth by Sartain pertaining to trial issues meet the
criteria set forth in Strickland regarding ineffective assistance of counsel.
C. Suppression Issues
¶28 Sartain argues Moore was deficient by failing to challenge the “show-up”
identifications, his warrantless arrest, statements he made to officers after the arrest, and
by failing to raise a potential Brady5 violation.
¶29 After Sartain was apprehended by police on a Bozeman street, police transported
him to the victim’s house to determine if Hop could identify Sartain as the intruder.
Police also took Sartain to another witness’s house for possible identification. Although
both witnesses indicated that Sartain matched the general descriptions they had given to
police, neither was able to positively identify Sartain. Sartain argues that these
“show-up” identifications violated his due process rights because they were
impermissibly suggestive, and Moore’s failure to challenge them constituted ineffective
assistance.
¶30 Moore explained that, after researching the issue, he chose not to challenge the
identifications because neither individual could positively identify Sartain, and he wanted
to exploit that weakness during cross-examination. He believed drawing attention to the
witnesses’ inability to identify Sartian would be a stronger strategy than attempting to
suppress that information and losing the opportunity to cross-examine the witnesses. At
5
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). Under Brady, a prosecutor’s failure to
provide exculpatory evidence to a defendant violates the defendant’s right to due process. See
State v. James, 2010 MT 175, ¶ 32, 357 Mont. 193, 237 P.3d 672 (citing State v. Johnson, 2005
MT 318, ¶ 12, 329 Mont. 497, 125 P.3d 1096).
15
trial, Hop positively identified Sartain as the assailant, stating that he was certain it was
Sartain who was in his house. Moore then challenged Hop’s credibility because he could
not identify Sartain at the scene shortly after the events took place. The District Court
concluded Moore’s actions fell within the broad range of competent legal assistance and
did not constitute ineffective assistance. We agree.
¶31 Sartain next argues, rather incredibly, that Moore should have challenged his
arrest for lack of probable cause. We agree with the District Court’s conclusion that a
motion challenging probable cause to arrest Sartain would have been frivolous because
there was more than sufficient evidence to support the officer’s determination to arrest
Sartain. We therefore do not find it necessary to address Sartain’s argument that the
statements he made to officers after his arrest should have been suppressed based on an
improper arrest.
¶32 Sartain alleges Moore improperly failed to raise a Brady violation. Hop initially
stated he found nothing missing from his home but testified he later discovered a gold
and diamond “gentleman’s bracelet” was missing. Neither Sartain nor Moore was aware
of the missing bracelet. Sartain asserts the State committed a Brady violation by failing
to inform the defense about the missing bracelet and that Moore was ineffective by
failing to raise the issue.
¶33 Moore believed there was not a basis for a Brady objection and instead used the
new information about the bracelet during cross-examination. He noted he had never
been provided with information about the bracelet, got Hop to admit that on his
16
restitution form Hop had indicated that nothing was missing, and obtained Hop’s
admission that police had not recovered a bracelet from Sartain upon his arrest shortly
after Hop’s apartment was broken into. Moore’s approach was a tactical decision used to
attack the victim’s credibility during cross-examination, and his determination to not
raise a Brady violation falls within a wide range of reasonable professional assistance and
therefore does not meet the first prong of Strickland.
D. Sartain’s Sentence
¶34 Sartain claims his forty year sentence is in excess of the maximum penalty
allowed under the statute and that Moore failed to challenge it. Under § 45-6-204(3),
MCA, the maximum penalty for burglary is incarceration for a period of twenty years.
However, Sartain was sentenced as persistent felony offender. Under § 46-18-501,
MCA, an individual may be designated as a persistent felony offender by the sentencing
court under certain criteria, which Sartain satisfied. Under § 46-18-502, MCA, “a
persistent felony offender shall be imprisoned in the state prison for a term of not less
than 5 years or more than 100 years.” When one is sentenced as a persistent felony
offender, this sentence replaces the underlying felony sentence that one would otherwise
receive. See State v. Johnson, 2010 MT 288, ¶¶ 16-17, 359 Mont. 15, 245 P.3d 1113(quoting State v. DeWitt, 2006 MT 302, ¶ 11, 334 Mont. 474, 149 P.3d 549; State v.
Gunderson, 2010 MT 166, ¶ 54, 357 Mont. 142, 237 P.3d 74). It was well within the
District Court’s discretion to sentence Sartain to forty years at the Montana State Prison
because of his designation as a persistent felony offender.
17
¶35 2. Did the District Court err in dismissing Sartain’s ineffective assistance of
counsel claims against his appellate counsel?
¶36 When evaluating claims of ineffective assistance of appellate counsel, we again
look to the Stickland test. Rogers, ¶ 37. The defendant must show that appellate
counsel’s representation fell below an objective standard of reasonableness and that there
is a reasonable probability that, but for counsel’s unprofessional errors, the defendant
would have prevailed on appeal. DuBray v. State, 2008 MT 121, ¶ 31, 342 Mont. 520,
182 P.3d 753 (citing Dawson, ¶ 147).
¶37 Sartain argues Schwartz should have raised the alleged Brady violation and
requested a new trial based on the prejudice caused by the prosecution’s failure to
provide the defense with information on the missing bracelet. In an affidavit obtained by
the State in response to Sartain’s petition, Schwartz stated that she respectfully disagreed
that this constituted a Brady violation because there was no evidence that the failure to
inform the defense was an intentional omission on the part of the prosecution, and in any
event, the omission did not rise to the level of a Brady violation. The District Court held:
“Raising this issue would have been frivolous because evidence of the victim’s ‘missing
bracelet:’ (1) was effectively used to impeach the victim’s testimony; (2) was not
material to the State’s case; (3) was not ‘exculpatory;’ and (4) was not intentionally
withheld by the State.” Sartain has failed to prove that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the petitioner would have prevailed on
appeal.” DuBray, ¶ 31 (citing Dawson, ¶ 147).
18
¶38 Sartain also argues that Schwartz was ineffective for failing to raise the pry bar
evidence tampering issue. As stated above, there was simply no evidence of “evidence
tampering.” Both trial counsel and appellate counsel chose not to raise the issue because,
as the District Court correctly found, “[r]aising this issue would have been frivolous.”
¶39 Finally, Sartain challenges Schwartz’s failure to challenge the admissibility of the
pry bar, a shoe print, and K-9 tracking evidence. Prior to trial, Moore filed a motion in
limine, and the court conducted a hearing. Schwartz stated she reviewed the transcript
and case law cited by the parties and also completed independent research on the
admissibility of these items. After her review, she concluded that, although the issue had
been preserved for appeal, she “did not believe that the admission of this evidence,
limited as it had been by the trial court, would result in reversible error.” Schwartz
further stated that “[i]n my opinion, Sartain had more viable issues . . . I made the tactical
decision to focus on what I believed were the stronger issues . . . .” Schwartz’s approach
fell within the range of reasonable profession assistance and did not constitute ineffective
assistance of counsel. Whitlow, ¶ 15, Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
¶40 3. Did the District Court abuse its discretion by failing to hold an evidentiary
hearing on Sartain’s petition?
¶41 Sartain asserts the District Court erred by failing to conduct an evidentiary hearing
“to develop a full and accurate record of [Sartain’s] ineffective assistance of counsel
claims, speedy trial violation and the prosecutorial misconduct, as these claims raise clear
violations of Sartain’s Fourth, Fifth, Sixth and Fourteenth Amendment rights.”
19
¶42 Section 46-21-201, MCA, grants discretion in the manner district courts are to
review petitions for postconviction relief. If a court determines that “the petition and the
files and records of the case conclusively show that the petitioner is not entitled to relief,”
it can dismiss the proceedings without requiring a response by the State. If a court orders
a response, it can, after reviewing the State’s pleading, “dismiss the petition as a matter of
law for failure to state a claim for relief or it may proceed to determine the issue.”
Section 46-21-201(1)(a); Hamilton, ¶ 10 (citations omitted). Here, the District Court
dismissed the petition for failure to state a claim for relief.
¶43 “We review discretionary rulings in post-conviction relief proceedings, including
rulings related to whether to hold an evidentiary hearing, for an abuse of discretion.”
Hamilton, ¶ 7 (citing Beach v. State, 2009 MT 398, ¶ 14, 353 Mont. 411, 220 P.3d 667).
We have determined that none of Sartain’s claims against either his trial or appellate
counsel satisfied the standards for establishing ineffective assistance, and we further
conclude that he has not demonstrated that resolution of any of his claims necessitated an
evidentiary hearing. The District Court did not abuse its discretion.
¶44 Sartain “bore the burden to overcome the presumption that his counsel acted in a
reasonable, professional manner.” Sellner v. State, 2004 MT 205, ¶ 48, 322 Mont. 310,
95 P.3d 708. Sartain has failed to do so.
¶45 Affirmed.
/S/ JIM RICE
20
We concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
21