Bagnell v. State
| Decision Date | 24 January 2023 |
| Docket Number | DA 22-0056 |
| Citation | 2023 MT 15 N |
| Parties | BRANDON BAGNELL, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. |
| Court | Montana Supreme Court |
For Appellant:
Brandon Bagnell, Self-Represented, Shelby, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Brad Fjeldheim, Assistant Attorney General, Helena, Montana
James Allen Lapotka, Lake County Attorney, Brendan McQuillan Deputy County Attorney, Polson, Montana
¶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 Brandon Bagnell (Bagnell) appeals from Twentieth Judicial District Court order denying his petition for postconviction relief (PCR). We affirm.
¶3 After the State presented evidence of hundreds of (frequently violent and sexually explicit) letters Bagnell had sent to L.L. from prison, Bagnell was found guilty of stalking at an October 2, 2015 trial and sentenced as a persistent felony offender to twenty years' imprisonment, with no time suspended. See State v. Bagnell, No. DA 18-0160 2020 MT 234N, ¶¶ 2-5, 2020 Mont. LEXIS 2317. On appeal, we concluded that an erroneous jury instruction was not sufficiently prejudicial to entitle Bagnell to a new trial on plain error review or to demonstrate ineffective assistance of counsel (IAC) for failure to object to the instruction. Bagnell, ¶2.
¶4 Bagnell filed a pro se PCR petition. The District Court dismissed the petition without a hearing, determining that the record conclusively showed that Bagnell was not entitled to relief. The District Court summarily concluded that Bagnell's IAC claim was already addressed on direct appeal and that Bagnell failed to show that the persistent felony offender sentence was imposed in violation of state or federal law.[1] Bagnell appeals.
¶5 We review a district court's denial of a petition for postconviction relief to determine whether the court's findings of fact are clearly erroneous and whether conclusions of law are correct. Heath v. State, 2009 MT 7, ¶ 13, 348 Mont. 361, 202 P.3d 118. We review discretionary rulings in PCR proceedings, including rulings related to whether to hold an evidentiary hearing, for an abuse of discretion. Heath, ¶ 13. Whether a defendant received ineffective assistance of counsel is a mixed question of law and fact we review de novo. Heath, ¶ 13.
¶6 A PCR petitioner must show, by a preponderance of the evidence, that the facts justify the relief. State v. Cobell, 2004 MT 46, ¶ 12, 320 Mont. 122, 86 P.3d 20. A petition for postconviction relief must "identify all facts supporting the grounds for relief set forth in the petition and have attached affidavits, records, or other evidence establishing the existence of those facts." Section 46-21-104(1)(c), MCA. A court may dismiss a PCR petition that does not satisfy this procedural threshold without holding an evidentiary hearing. Herman v. State, 2006 MT 7, ¶ 15, 330 Mont. 267, 127 P.3d 422. Moreover, a district court also may dismiss a petition for postconviction relief without ordering a response if the petition, files, and records "conclusively show that the petitioner is not entitled to relief." Section 46-21-201(1)(a), MCA.
¶7 In assessing claims of inadequate assistance of counsel, the reviewing court must apply the two-prong test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). Dawson v. State, 2000 MT 219, ¶ 20, 301 Mont. 135, 10 P.3d 49. Under the Strickland standard, a defendant must establish that counsel's performance was deficient and that the deficient performance prejudiced the defense and deprived the defendant of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Dawson, ¶ 20. Courts determine deficient performance based on whether a defendant's counsel acted within the broad range of competence demanded of attorneys in criminal cases. State v. Santoro, 2019 MT 192, ¶ 15, 397 Mont. 19, 446 P.3d 1141. A strong presumption exists that counsel's conduct falls within the wide range of reasonable professional conduct. Santoro, ¶ 15. With regard to prejudice, the defendant must demonstrate that a reasonable probability exists that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Dawson, ¶ 20; Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
¶8 Bagnell contends that the District Court erred in denying his IAC claims in his PCR petition on the basis of concluding that they had already been addressed on appeal. Bagnell points out that his direct appeal IAC claim was record-based, addressing only his trial counsel's failure to object to an allegedly erroneous jury instruction. See Bagnell, ¶ 13. In this PCR petition, Bagnell asserts errors by his multiple counsel[2] throughout the case unrelated to trial counsel's failure to object to the jury instruction, and he argues on appeal that some of his IAC claims were not record-based and are appropriate for review at the PCR stage.
¶9 We agree. However, we will affirm a district court that reaches the right result, even if for the wrong reason. State v. Marcial, 2013 MT 242, ¶ 20, 371 Mont. 348, 308 P.3d 69.
¶10 Bagnell first contends that his counsel was ineffective in failing to timely interview two potential witnesses and obtain a recorded jail phone call. Bagnell claims that such evidence would have demonstrated: (1) that L.L. had been threatening Bagnell and his family; (2) that during a third-party phone call with the witness, another inmate, L.L. had consented to receive calls from Bagnell; and (3) regarding various aspects of L.L.'s character. To succeed on an IAC claim premised on a failure to investigate, Bagnell must show that the information would have been admissible and effective. Hamilton v. State, 2010 MT 25, ¶ 16, 355 Mont. 133, 266 P.3d 588. With regard to the first item, threats by the victim is not a defense to the felony stalking statute and would not have been admissible as they are irrelevant.[3] See § 45-5-220(1), MCA (2015) (); M. R. Evid. 402 (irrelevant evidence inadmissible). With regard to the second, even if consent were to be admissible as relevant, trial counsel presented far more compelling material on the same matter: evidence that L.L. directly answered phone calls she knew to be from Bagnell and spoke with him. Thus, evidence that L.L. had consented to communication from Bagnell through a third party would have been merely duplicative of and far less compelling than the evidence that defense counsel did present. Counsel was not ineffective and Bagnell was not prejudiced by this failure in any event.
¶11 Third, Bagnell argues that witness testimony would have established that L.L. was addicted to methamphetamine and was routinely violent and dishonest. Methamphetamine use and violence are irrelevant to the charge of stalking under § 45-5-220(1), MCA (2015). While a witness's character for truthfulness may be attacked through opinion or reputation evidence admissible under M. R. Evid. 608, Bagnell failed to attach a sufficient affidavit, record, or evidence to his PCR petition specifically demonstrating that effective and admissible witness testimony was available to attack L.L.'s credibility. See § 46-21-104(1)(c), MCA (PCR petition must “have attached affidavits, records, or other evidence establishing the existence of those facts”); Ellenburg v. Chase, 2004 MT 66, ¶ 16, 320 Mont. 315, 87 P.3d 473 (); Kelly v. State, 2013 MT 21, ¶ 10, 368 Mont. 309, 300 P.3d 120 ().
¶12 In any event, defense counsel succeeded in undermining L.L.'s credibility through much more compelling means. On cross-examination, defense counsel challenged L.L.'s assertion that she had not opened all but a couple of the offending letters received from Bagnell that she gave to authorities by asking her whether she was "aware that Officer Simpson told us that all of the letters were opened when he got them" More importantly, L.L. denied accepting more than one call from Bagnell while he was incarcerated and responded "Hell, no" when asked if she ever let Bagnell talk to her granddaughter over the phone. Defense counsel then played recordings of two phone calls initiated by Bagnell from a detention center that were knowingly answered and engaged in by L.L., at least one of which had L.L.'s granddaughter on the line. L.L., despite officially still being under subpoena, left the courtroom during the playing of these recordings and could not subsequently be located to be recalled to the witness stand. Defense counsel contended at length during closing argument that L.L. left and failed to return because "she was caught in a lie" made on the witness stand. Any generic reputation or opinion testimony regarding L.L.'s truthfulness would have done far less to undermine L.L.'s credibility than what defense counsel managed to elucidate at trial. Thus, trial counsel's failure to present...
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