Cheetham v. State

• Decision Date: 17 December 2019
• Docket Number: DA 18-0686
• Citation: 398 Mont. 131,2019 MT 290,454 P.3d 673
• Parties: Timothy CHEETHAM, Sr., Petitioner and Appellant, v. STATE of Montana, Respondent and Appellee.
• Court: Montana Supreme Court

398 Mont. 131

454 P.3d 673

2019 MT 290

Timothy CHEETHAM, Sr., Petitioner and Appellant,

v.STATE of Montana, Respondent and Appellee.

DA 18-0686

Supreme Court of Montana.

Submitted on Briefs: October 9, 2019

Decided: December 17, 2019

For Appellant: Greg Beebe, Beebe & Flowers Law Firm, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana, Steven C. Haddon, Jefferson County Attorney, Boulder, Montana

Justice Jim Rice delivered the Opinion of the Court.

¶1 Timothy Cheetham, Sr. (Cheetham) appeals the order of the Fifth Judicial District Court, Jefferson County, denying his petition for postconviction relief. We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 In August 2014, a jury found Cheetham guilty of one count of Sexual Intercourse Without Consent (SIWC), a felony offense in violation of § 45-5-503, MCA ; one count of Sexual Assault, a felony offense in violation of § 45-5-502, MCA ; and one count of Sexual Abuse of Children, a felony offense in violation of § 45-5-625, MCA. The charges arose from Cheetham’s sexual abuse of five-year-old N.S., the granddaughter of his then-wife. Cheetham was represented at trial by assistant public defender Steven Scott (Scott). On Scott’s advice, Cheetham did not testify at trial.

¶3 After trial but prior to sentencing, Cheetham saw a reference in a Child Protective Services report to a medical report prepared following a forensic examination performed on N.S. by Dr. Jessie Salisbury of the Community Health Center in Butte, Montana (Salisbury Report). Cheetham brought this reference to Scott’s attention. The Salisbury Report had not been disclosed to the defense and, prior to sentencing, Scott filed a motion to dismiss the charges against Cheetham for negligent destruction of evidence, arguing the State failed to preserve and disclose a potentially exculpatory medical report. The Salisbury Report stated that a "copious amount" of N.S.’s hymen was intact, but also stated this observation did "not negate the possibility of a penetration injury." When it was demonstrated that the State did not have a copy of the Report, and Scott subsequently obtained one, he withdrew his motion.

¶4 Following sentencing, Cheetham appealed his conviction, asserting the District Court abused its discretion by failing to conduct adequate inquiry into his request for substitute counsel, and that he was denied effective assistance of counsel by Scott’s handling of the Salisbury Report. State v. Cheetham , 2016 MT 151, ¶ 1, 384 Mont. 1, 373 P.3d 45. This Court determined the District Court had not erred regarding Cheetham’s request for substitute counsel. Cheetham , ¶ 28. We further determined that, although several reasons for Scott’s approach to handling the Salisbury Report were reflected on the record, the effectiveness claim could not be resolved without further development of a record in a postconviction proceeding about Scott’s tactical decisions. Cheetham , ¶ 36.

¶5 Cheetham filed a petition for postconviction relief, alleging Scott had rendered ineffective assistance of counsel by failing to investigate and utilize statements in the Salisbury Report, including that, after the alleged assault, N.S.’s hymen was intact and "normal," and by coercing Cheetham into choosing not to testify.¹ The District Court held a hearing on Cheetham’s petition and heard testimony from Cheetham, his expert witness Dr. Theodore N. Hariton, Scott, defense investigator Christine Munsey, and Dr. Salisbury. Dr. Hariton testified that a pre-pubescent girl’s hymen would have shown signs of scarring had it been penetrated by an adult male penis, as alleged in the SIWC count. Dr. Salisbury testified that, while N.S.’s exam results could be considered "normal," she had observed a narrowing of the hymen that was "suspicious of a previous injury," and could not rule out a penetration injury. The District Court determined Cheetham had received effective assistance of counsel because Scott acted reasonably in his handling of the Salisbury Report, and in advising Cheetham against testifying.

¶6 Cheetham appeals. Additional facts are referenced herein.

STANDARD OF REVIEW

¶7 "We review a district court’s denial of a petition for postconviction relief to determine whether that court’s findings are clearly erroneous and whether its conclusions of law are correct." Mascarena v. State , 2019 MT 78, ¶ 4, 395 Mont. 245, 438 P.3d 323. Ineffective assistance of counsel claims present mixed questions of law and fact that we review de novo. State v. Hatfield , 2018 MT 229, ¶ 18, 392 Mont. 509, 426 P.3d 569. "A petitioner seeking to reverse a court’s denial of a petition for postconviction relief bears a heavy burden." State v. Cobell , 2004 MT 46, ¶ 14, 320 Mont. 122, 86 P.3d 20.

DISCUSSION

¶8 Did the District Court err by denying Cheetham’s petition for postconviction relief based on his claims of ineffective assistance of counsel?

¶9 The right to counsel in criminal prosecutions is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article II, Section 24 of the Montana Constitution. A two-prong test is applied to ineffective assistance of counsel claims:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) ; see Whitlow v. State , 2008 MT 140, ¶¶ 10-11, 343 Mont. 90, 183 P.3d 861. Both prongs of the test must be satisfied in order to prevail, and if the defendant makes "an insufficient showing" on one prong, there is no need to address the other prong. Whitlow , ¶ 11. "The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland , 466 U.S. at 686, 104 S. Ct. at 2064. We address Cheetham’s claims in turn.

Salisbury Report

¶10 Cheetham argues that Scott acted unreasonably in failing to pursue the Salisbury Report. He also argues Scott should have supported the Report’s finding that N.S.’s hymen was considered "normal" with available expert testimony, such as offered by Dr. Hariton during the postconviction hearing, which indicated penetration would have left scarring in a pre-pubescent girl. Cheetham argues Scott’s memory is distorted by hindsight, and that it was "more likely" that Scott’s decision not to investigate further was not based on his belief that the report would be unhelpful or counterproductive, but a result of neglect.

¶11 Scott testified he saw a summary of the Salisbury Report in a Child Protective Services report in February 2014, six months prior to trial. Based on his training in sexual assault evidence, Scott concluded at that time the Report would not be helpful to Cheetham’s defense. When Cheetham brought the issue to his attention in December 2014, Scott did not initially recall he had previously considered the Report in February. However, he had also discussed it with three of his colleagues, and their collective opinion was that the report was not exculpatory.² Scott filed a motion for dismissal based on the State’s failure to preserve the Report, arguing the Salisbury Report "could have been" exculpatory, but testified he would not have used the Report at trial, even if he had then possessed it.

¶12 Cheetham argues Scott’s training and knowledge regarding sexual assault evidence are not at issue, and that the question turns solely on the reasonableness of Scott’s decision to not further investigate the Salisbury Report. However, while classifying counsel’s decisions as either "ignorant/neglectful" or "strategic/tactical" no longer settles the question of whether they were objectively reasonable, Whitlow , ¶ 17, counsel’s knowledge and training are considerations in determining the reasonableness of his decisions. Scott testified that his training has indicated "there is no correlation between having a hymen or not as to whether a female has had sexual intercourse." This understanding was consistent with the indication in the CPS summary of the Salisbury Report that a "copious amount" of intact hymen "did not negate the possibility of a penetration injury." Scott pursued the issue by consulting with several of his colleagues, who advised him that his training matched their training and understanding, leading him to conclude the Report was not exculpatory, that is, "evidence that would have tended to clear the accused of guilt, to vitiate a conviction." State v. Meredith , 2010 MT 27, ¶ 25, 355 Mont. 148, 226 P.3d 571. Although Dr. Hariton, Cheetham’s expert witness, testified that Scott made an erroneous assessment of the evidence, and that Scott clearly could have offered expert testimony at trial to support Hariton’s approach, there was also support for Scott’s actions. Dr. Salisbury testified in contradiction to Dr. Hariton, opining that hymens stretch, injuries heal quickly, and that signs of the injury do not always remain, and reaffirmed her Report’s assessment that the possibility of injury could not be ruled out.

¶13 Indeed, Dr. Salisbury stated in her Report that the narrowing of the hymen was "suspicious of a previous injury." This was another reason for Scott not to use the Report in Cheetham’s defense. More, while it was established at trial that N.S. reported...