State v. Sor-Lokken

NO. 92-576
IN THE SUPREME COURT OF THE STATE OF MONTANA
1394
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
SCOTT SOR-LOKKEN,
Defendant and Appellant,
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Sanders,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Scott D. Sor-Lokken, Pro Se, Deer Lodge, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, John
Paulson, Assrt Attorney General, Helena, Montana
Robert Slomski, Sanders County Attorney, Thompson
Falls, Montana
Submitted on Briefs: November 5, 1333
Decided: January 20, 1994
Filed:
Clerk
Justice John Conway Harrison delivered the Opinion of the Court.
Scott Sor-Lokken (Sor-Lokken] appeals a decision of the
Twentieth Judicial District Court, Sanders County, deeming his pro
se documents to be a motion for appointment of counsel and a
petition for post-conviction relief and denying the same. We
affirm.
The only issue on appeal is whether the District Court
properly considered the pleadings filed by Sor-Lokken to be a
motion for appointment of coufisel,which was denied, and a petition
for post-conviction relief, which was subject to dismissal as a
matter of law.
Sor-Lokken was convicted of two counts of felony assault and
was sentenced to two concurrent terms of ten years in the Montana
State Prison and was designated a dangerous offender. He appealed
that conviction, which was affirmed by this Court. State v. Sor-
Lokken (1990), 246 Mont. 70, 803 P.2d 638.
In a separate proceeding, Sor-Lokken was convicted of one
count of felony sexual assault and one count of incest. He was
sentenced to twenty years on the felony sexual assault count, with
five years suspended, and to ten years on the incest count, with
the sentences to be served concurrently. He was also designated a
dangerous offender. Sor-Lokken also appealed that conviction,
which was affirmed by this Court. State v. Sor-Lokken (1991), 247
Mont. 343, 805 P.2d 1367.
Sor-Lokken subsequently sent a pro se document to the District
2
Court, which was received on July 9, 1992. In this document, Sor-
Lokken stated that he "would like to file a petition for post
conviction" and "would like to have an attorney appointed to do
this." The remainder of the document set forth various allegations
concerning the effectiveness of his trial counsel. Sor-Lokken
claimed, among other things, that his attorney failed to object to
certain evidence, failed to utilize certain affirmative defenses
(insanity and alibi), failed to present a timely motion for a new
trial, failed to prevent him from testifying at trial, and failed
to renew motions for an investigator and an expert witness.
The Sanders County Attorney treated the document as a petition
for post-conviction relief and filed a motion to dismiss. On
August 12, 1992, Sor-Lokken filed another pro se document entitled
"Amended Post Con~iction.'~1% this doccment, Sor-Lokken included
another list of the alleged deficiencies of his trial counsel,
although he contended that the first document he filed merely
sought to have counsel appointed for post-conviction proceedings.
On August 18, 1992, Sor-Lokken filed a third pro se document
entitled "Motion to Appoint Counsel for Post Conviction Relief."
In this document, Sor-Lokken again complained of his trial
counsel's alleged inexperience and errors.
On September 1, 1992, the District Court issued an order
addressing the various documents on file. The court construed the
pro se documents filed by Sor-Lokken to be a motion for appointment
of counsel and a petition for post-conviction relief. The District
Court denied the motion for appointment of counsel and granted the
State's motion to dismiss the petition for post-conviction relief.
In the memorandum opinion accompanying the order, the District
Court noted that, at the commencement of both the underlying
criminal proceedings, the District Court appointed James Handley
(Handley) to represent Sor-Lokken; however, Sor-Lokken refused
Handley's assistance and discharged him. The District Court then
appointedthe attorney of Sor-Lokken's choice, Roger Kehew (Kehew),
to represent him. Kehew represented Sor-Lokken through both
trials.
Following the conclusion of both trials, the District Court
appointed Dan McGregor (McGregor) to represent Sor-Lokken on
appeal. McGregor reviewed the record in both cases and advised the
District Court and Sor-Lokken that his best chance for success on
appeal was to raise the issue of ineffective assistance of trial
counsel. Sor-Lokken apparently disagreed and discharged McGregor;
he then privately retained Kehew to represent him in both appeals
to this Court.
The District Court viewed Sor-Lokken" pro se documents as a
claim for post-conviction relief based upon ineffective assistance
of trial counsel. The court concluded that Sor-Lokken was
procedurally barred from raising this issue in a petition for post-
conviction relief, as he had the opportunity to appeal this issue
with the assistance of court-appointed counsel, and dismissed the
petition.
On September 30, 1992, Sor-Lokken filed a "Notice of Intent to
Appeal Petition and Motion for Attorney and Post Conviction."
Our standard of review relating to discretionary district
court rulings is whether the court abused its discretion. Steer,
Inc. V. Deplt of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601,
603-04. Our standard of review relating to conclusions of law is
whether the trial judge's interpretation of the law is correct.
Steer. Inc., 803 P.2d at 603. In considering the standard of
review in this case, we must consider two standards. This Court
has held:
[Iln reviewing conclusions of law, our standard of review
will be merely to determine if the agency's
interpretation of the law is correct, instead of applying
an inappropriate abuse of discretion standard.
Our standard of review relating to conclusions of
law is not to be confused with our review of
discretionary trial court rulings. This has been defined
as lqencompassingthe power of choice among several
courses of action, each of which is considered
permissible." See Aldisert, The Judicial Process, 1976,
page 759.
Steer, Inc., 803 P.2d at 603-04.
We note that there is no constitutional requirement that
counsel be appointed in a post-conviction proceeding, as it is
civil in nature. In re Petition of Martin (1989)' 240 Mont. 419,
420, 787 P.2d 746, 747. The appointment of counsel in a post-
conviction proceeding is discretionary. Section 46-8-104, MCA
(1991). Upon reviewing the record in this case, we hold that the
District Court did not abuse its discretion in denying Sor-Lokken's
motion for appointment of counsel for the purposes of post-
conviction proceedings.
We must, therefore, look to whether the District Court erred
in treating the three pro se documents filed by Sor-Lokken as a
petition for post-conviction relief. This Court frequently looks
to the substance of a pro se pleading and often considers the same
a petition for post-conviction relief, despite its denomination by
the pro se petitioner. See Dahlman v. District Court (1985), 215
Mont. 470, 698 P.2d 423; State v, Laverdure (1984), 212 Mont. 31,
685 P.2d 375. These pro se documents are often liberally construed
to allow a review of the underlying claims. See United States v.
Young (9th Cir. 1991), 936 F.2d 1050. Here, the District Court
looked to the substance of Sor-Lokkenrs claims in order to
determine if there was a basis for the relief sought in the post-
conviction pleadings.
We have previously held that a claim of ineffective assistance
of counsel which could have reascnably been raised on direct appeal
was procedurally barred from post-conviction proceedings. In re
Petition of Evans (1991), 250 Mont. 172, 173, 819 P.2d 156, 157.
In this case, Sor-Lokken had the opportunity to raise the issue of
ineffective assistance of counsel two separate times, in either or
both of his prior appeals to this Court. He failed to do so:
therefore, he is barred from raising this issue in a post-
conviction proceeding. The District Court properly dismissed the
petition under 46-21-201, MCA (1991), which provides, in
pertinent part:
(1) . . . Following its review of the responsive
pleading, the court may dismiss the petition as a matter
of law for failure to state a claim for relief or it may
grant a prompt hearing on the petition. ...
In this case, no hearing on the petition was held, because the
6
District Court determined that, as a matter of law, the petition
failed to state a claim upon which relief could be granted. We
hold that the District Court properly treated Sor-Lokken's pro se
documents as a petition for post-conviction relief, and properly
dismissed the same.
A££ irmed.
Pursuant to Section I, Paragraph 3 ( c ) , Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
We concur: i-.
January 20, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
SCOTT D. SOR-LDKKEN
700 Conley Lake Rd.
Deer Lodge, MT 59722
ROBERT SLOMSKI, County Attorney
Sanders County
P.O. Box 519
Thompson Falls, MT 59873
HON. Joseph P. Mazurek, Attorney General
, Assistant
Justice Bldg.
Helena, MT 59620
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA