Michelotti v. State of Montana

11/24/2020
DA 19-0686
Case Number: DA 19-0686
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 296N
CHRISTOPHER JAMES MICHELOTTI,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV 19-565
Honorable Jessica T. Fehr, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Christopher James Michelotti, Self-Represented, Adelanto, California
For Appellee:
Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
Attorney General, Helena, Montana
Scott D. Twito, Yellowstone County Attorney, Ed Zink, Deputy Chief
County Attorney, Billings, Montana
Submitted on Briefs: October 14, 2020
Decided: November 24, 2020
Filed:
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__________________________________________
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 On December 3, 2014, Christopher James Michelotti was charged with one count
of aggravated burglary pursuant to § 46-18-201, MCA, a felony, and five counts of assault
with a weapon pursuant to § 46-18-201, MCA, all felonies.
¶3 On February 17, 2016, following a jury trial, Michelotti was convicted of one count
of aggravated burglary and four counts of assault with a weapon. Significant evidence—
including extensive testimony from victims and officers—was presented at trial regarding
allegations about the incidents on May 11, 2014. Up until the sentencing hearing on
September 26, 2016, Michelotti was represented by James Siegman (Siegman). In the
presentence investigation report, Michelotti asserted that he had not been fairly represented
at trial and alleged ineffective assistance of counsel (IAC) regarding Siegman. Prior to the
sentencing hearing, Siegman filed a motion requesting that the District Court conduct a
hearing to determine whether Michelotti was entitled to new counsel.
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¶4 On May 11, 2016, the court held a “Finley”1 hearing to address Michelotti’s claims
about his counsel. At the hearing, Michelotti asserted that Siegman failed to file a motion
for a new trial based on a disclosure violation which was based on prosecutorial failure to
provide Siegman with the results from a gunshot residue (GSR) swab, that Siegman failed
to call a witness at trial, and that Siegman had a conflict of interest because of a personal
experience with a home invasion. The District Court determined that communication
between Siegman and Michelotti had broken down significantly, such that alternate
counsel needed to be assigned. The court told Michelotti that if the alternate counsel
advised Michelotti in a similar manner to Siegman, it would not automatically lead to a
valid ineffective assistance of counsel claim.
¶5 On September 26, 2016, Cammi Woodward (Woodward) represented Michelotti at
the sentencing hearing. Woodward stated that Michelotti objected to any restitution
payments as he still maintained his innocence. The District Court decided Michelotti’s
sentence based on the violent nature of the crimes and his other criminal history. Michelotti
was sentenced to 40 years in Montana State Prison for the conviction of aggravated
burglary and 20 years for each count of assault with a weapon. The sentences for the
assault charges were ordered to run concurrently with each other, but consecutive to the
sentence for the aggravated burglary charge, effectively sentencing Michelotti to 60 years
in Montana State Prison.
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In Finley, we held that when a trial court determines that the conflict between a client and
counsel results in a breakdown of communication or if counsel fails to provide effective assistance
then new counsel should be appointed. State v. Finley, 276 Mont. 126, 915 P.2d (1996).
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¶6 Michelotti appealed his convictions arguing: (1) that the District Court abused its
discretion by admitting evidence of his gang affiliation, (2) that the District Court erred by
denying his motion for mistrial, and (3) that the evidence at trial was insufficient to support
one of his assault with a weapon convictions. We affirmed. State v. Michelotti, 2018 MT
158, 392 Mont. 33, 420 P.3d 1020.
¶7 On May 13, 2019, Michelotti filed a petition for post-conviction relief arguing: (1)
that his attorney, Siegman, was ineffective due to multiple conflicts of interest, (2) that
evidence from the GSR swab was wrongfully withheld, and (3) that his attorney should
have objected to prosecutorial misconduct. On August 1, 2019, Siegman filed an affidavit
with detailed responses to Michelotti’s claims against him. The State also filed a response
in opposition to Michelotti’s petition arguing that the court should dismiss the petition
without a hearing.
¶8 On October 25, 2019, the District Court dismissed Michelotti’s petition without a
hearing. Michelotti appeals.
¶9 Michelotti argues on appeal that his counsel was ineffective for failing to obtain
results from a GSR swab, failing to obtain fingerprint evidence, and conflicts of interest.
He further contends that the State’s failure to test the GSR swab and provide him the results
violated his due process rights.
¶10 We review a district court’s denial of a post-conviction relief petition to determine
whether the district court’s findings of fact are clearly erroneous and whether its
conclusions of law are correct. Maldonado v. State, 2008 MT 253, ¶ 10, 345 Mont. 69,
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190 P.3d 1043 (citation omitted). IAC claims are mixed questions of law and fact and are
reviewed de novo. Maldonado, ¶ 10.
¶11 Michelotti argues on appeal that Siegman was ineffective because of his failure to
obtain GSR test results and his failure to obtain fingerprint evidence from the guns in the
case. Michelotti also argues that Siegman was ineffective because of Siegman’s own
experience with a home invasion.
¶12 Michelotti’s claims of IAC are inadequate. We use a two-prong test in assessing
IAC claims. Heath v. State, 2009 MT 7, ¶ 17, 348 Mont. 361, 202 P.3d 118; Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Under the test from Strickland, a
defendant must establish that their counsel was deficient and that the deficient performance
was prejudicial and deprived the defendant of a fair trial. Heath, ¶ 17 (citations omitted).
It is not sufficient to find merely that an attorney could have done a better job, or that the
defendant had suffered some prejudice. State v. Hagen, 2002 MT 190, ¶ 23, 311 Mont.
117, 53 P.3d 885. Nor is it sufficient to provide conclusory allegations without evidence.
Hagen, ¶ 19 (citations omitted).
¶13 Michelotti did not establish that his attorney’s actions were deficient; rather, he
provided a myriad of claims which, when analyzed individually, involved decisions that
were either within Siegman’s own discretion as counsel or presented facts outside of
Siegman’s control. Siegman provided the court with a detailed affidavit outlining his
reasoning for the decisions he made in his course of representation. Siegman also
explained that the home invasion he experienced 25 years prior was significantly different
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and less serious than what occurred in this case. Michelotti has not met his burden of
showing deficient performance.
¶14 The balance of Michelotti’s arguments should have been raised on direct appeal.
Section 46-21-105(2), MCA. Section 46-21-105(2), MCA, provides that: “When a
petitioner has been afforded the opportunity for a direct appeal of the petitioner’s
conviction, grounds for relief that were or could reasonably have been raised on direct
appeal may not be raised, considered, or decided in a proceeding brought under this
chapter.” Michelotti, who appealed his convictions, cannot now raise issues that he could
have reasonably raised on direct appeal. State v. Baker, 272 Mont. 273, 281, 901 P.2d 54,
58 (1995). In his direct appeal, Michelotti argued (1) that the court abused its discretion in
admitting evidence that he was affiliated with a gang, (2) that the court erred by denying
his motion for mistrial, and (3) that the evidence presented by the State was insufficient to
support one of his convictions. Michelotti had the opportunity to raise the issue of the State
allegedly suppressing evidence in his direct appeal. Michelotti first makes this claim in
the present appeal, and it is barred.
¶15 This District Court did not abuse its discretion in dismissing Michelotti’s petition
without a hearing. Michelotti’s petition failed to state a claim for relief under § 46-21-104,
MCA.
¶16 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.
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¶17 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JIM RICE
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