93 P.3d 1231 (Mont. 2004), 03-553, State v. Henderson

Docket Nº:03-553.
Citation:93 P.3d 1231, 322 Mont. 69, 2004 MT 173
Opinion Judge:[11] The opinion of the court was delivered by: Justice W. William Leaphart
Party Name:STATE of Montana, Plaintiff and Respondent, v. Alan B. HENDERSON, Defendant and Appellant.
Attorney:[7] Counsel OF Record:
Case Date:June 30, 2004
Court:Supreme Court of Montana

Page 1231

93 P.3d 1231 (Mont. 2004)

322 Mont. 69, 2004 MT 173

STATE of Montana, Plaintiff and Respondent,


Alan B. HENDERSON, Defendant and Appellant.

No. 03-553.

Supreme Court of Montana.

June 30, 2004.

Submitted on Briefs March 3, 2004

APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 96-12063, Honorable John W. Larson, Presiding Judge.

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[322 Mont. 70] For Appellant: William Boggs, Missoula, Montana.

For Respondent: Mike McGrath, Attorney General; Jim Wheelis, Assistant Attorney General, Helena, Montana, Fred Van Valkenburg, County Attorney; Suzy Boylan, Deputy County Attorney, Missoula, Montana.



¶ 1 Henderson was charged with criminal possession of dangerous drugs. He pled guilty to the charge and received a five-year sentence. Afterwards, Henderson filed a petition for postconviction relief asserting the ineffective assistance of counsel. The Missoula County Public Defender's office opposed his petition, and the District Court appointed other counsel for Henderson. After an evidentiary hearing, the District Court denied Henderson's petition for relief. He now appeals the District Court's denial of relief. We reverse the District Court.

¶ 2 The underlying facts of the original charge stem from a traffic stop of a suspected DUI at 4:25 a.m. on March 14, 1996; Henderson was the passenger. One of the sheriff's officers performing the stop reported that he observed an empty and unlabeled pill bottle on the floor of the vehicle. After asking Henderson to step out of the vehicle, the officer saw six yellow-colored pills on the seat. Henderson claims that he did not know the pills were there and that the pills were not his, but [322 Mont. 71] rather, belonged to the driver. The officer seized the pills, placed Henderson in the back of his patrol car and drove to St. Patrick's Hospital, where the pharmacist identified the pills as dextroamphetemine sulfite, a controlled narcotic. The officer then took Henderson to the jail, where it was discovered that he was on probation. Henderson was booked, and, during a routine search, white pills and yellow pills were found in his pocket. Those pills were never identified. Henderson claims the pills in his pocket were planted.

¶ 3 Henderson's sole issue on appeal is that the District Court abused its discretion in denying his assertion that he received ineffective assistance of counsel. Claims of ineffective assistance of counsel are mixed questions of law and fact. Strickland v. Washington (1984), 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674, 700. Therefore, our review is de novo. State v. Jefferson, 2003 MT 90, ¶ 42, 315 Mont. 146, ¶ 42, 69 P.3d 641, ¶ 42.

¶ 4 The Due Process clause requires that the trial process be fair. The requirements of the Sixth Amendment ensure the fairness of the procedure:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

U.S. Const. amend. VI; Strickland, 466 at 685, 104 S.Ct. at 2063, 80 L.Ed.2d at 691-92. The right to counsel is also guaranteed under the Montana Constitution, Article II, Section 24. The effective assistance of counsel is critical to our adversarial system of justice; a lack of effective counsel may impinge the fundamental fairness of the proceeding being challenged. Strickland, 466 at 687, 696, 104 S.Ct. at 2064, 2069, 80 L.Ed.2d at 693, 699. We have adopted the two-part Strickland test for measuring claims of ineffective assistance of counsel. State v. Boyer (1985), 215 Mont. 143, 147, 695 P.2d 829, 831

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Under the first part, a defendant must show that counsel's performance was deficient. Second, the defendant must show that he was prejudiced by counsel's deficient performance. The defendant must show within a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.

¶ 5 Under the first part of the Strickland test, a petitioner must show that counsel made such serious errors that counsel was not functioning [322 Mont. 72] as the "counsel" guaranteed under both the United States and Montana Constitutions. Our standard is highly deferential to the actions of the attorney, eschewing the distorting effects of hindsight. We indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Under the first part, we require a record establishing the reasoning, or the why of an attorney's strategic decisions. State v. Turnsplenty, 2003 MT 159, ¶ 17, 316 Mont. 275, ¶ 17, 70 P.3d 1234, ¶ 17. The deference given on review to an attorney's strategic decisions is such that we rarely grant relief if there is some evidence that the decision was strategic. However, when the attorney makes no decision or exercises no discretion, we give little deference. In State v. Rose, 1998 MT 342, ¶ 18, 292 Mont. 350, ¶ 18, 972 P.2d 321, ¶ 18, we could discern no tactical advantage to the attorney's actions when the attorney failed to request a jury instruction to view an accomplice's testimony with distrust, and we concluded the first part of the Strickland test was met. Similarly, it was outside the range of competence required of attorneys in criminal cases when the attorney, for no strategic reason, neglected to request a "failure to agree" jury instruction which would have allowed the jury to consider a lesser included offense before first acquitting the defendant of the greater charge. State v. Rogers, 2001 MT 165, ¶ 13, 306 Mont. 130, ¶ 13, 32 P.3d 724, ¶ 13. In State v. Jefferson, 2003 MT 90, ¶ 50, 315 Mont. 146, ¶ 50, 69 P.3d 641, ¶ 50, no plausible justification existed for an attorney admitting to the defendant's guilt on a lesser included offense during the opening statement, because the admission undermined the defendant's purpose in previously withdrawing his guilty plea and going to trial.

¶ 6 In the present case, Henderson's counsel was appointed to represent Henderson in...

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