Hagen v. State

• Decision Date: 22 January 1999
• Docket Number: No. 97-351,97-351
• Parties: Bruce Holte HAGEN, Petitioner and Appellant, v. STATE of Montana, Respondent and Respondent.
• Court: Montana Supreme Court

Page 233

973 P.2d 233

1999 MT 8

Bruce Holte HAGEN, Petitioner and Appellant, v. STATE of Montana, Respondent and Respondent.

No. 97-351.

Supreme Court of Montana.

Submitted on Briefs July 23, 1998.

Decided Jan. 22, 1999.

David F. Ness, Attorney at Law, Missoula, Montana, for Appellant.

Hon. Joseph P. Mazurek, Attorney General, C. Mark Fowler, Ass't Attorney General, Helena, Montana, Bob Slomski, Sanders County Attorney, Thompson Falls, Montana, for Respondent.

Justice Karla M. GRAY delivered the Opinion of the Court.

¶1 Bruce Holte Hagen (Bruce) appeals from the order entered by the Twentieth Judicial District Court, Sanders County, dismissing his petition for postconviction relief. We affirm in part, reverse in part, and remand.

ISSUE

¶2 Did the District Court err in dismissing Bruce's petition for postconviction relief on the grounds that Bruce's assertions of ineffective assistance of counsel did not state a claim entitling him to relief?

BACKGROUND

¶3 In 1993, the State of Montana (State) charged Bruce with deliberate homicide for the death of Alice Goodrich (Alice) and aggravated assault for the injury of Jim Enger (Jim). The incident which gave rise to the charges occurred at Bruce's home between Plains and Thompson Falls in Sanders County, Montana.

¶4 Bruce pled not guilty to the charges and asserted the defenses of justifiable use of force and defense of an occupied structure. The case was tried to a jury in 1994, and Jim, Bruce's wife Gabby, and Reece Cobeen (Reece), a friend of Jim and Alice who also was present during the incident, were among those who testified. The jury found Bruce guilty of both charges, and the District Court sentenced him to lengthy and consecutive terms of imprisonment.

¶5 Bruce appealed and new counsel was appointed for purposes of the appeal. Two issues were raised on appeal: 1) whether the District Court erred in refusing Bruce's proposed jury instruction on the justifiable use of force in defense of an occupied structure; and 2) whether Bruce was denied effective assistance of counsel. State v. Hagen (1995), 273 Mont. 432, 434, 903 P.2d 1381, 1386. The ineffective assistance of counsel issue was predicated on four alleged failings by trial counsel: failure to object to a reference by the prosecution during voir dire; failure to request an instruction on Bruce's right to rely on appearances when asserting the defense of justifiable use of force; failure to request an instruction on negligent homicide as a lesser offense; and failure to call a witness whose testimony tended to impeach the credibility and accuracy of Reece's testimony. Hagen, 273 Mont. at 440-44, 903 P.2d at 1386-88. We affirmed the District Court on all issues and claims presented on appeal. Hagen, 273 Mont. at 445, 903 P.2d at 1389.

¶6 Bruce filed the petition for postconviction relief presently before us in April of 1997. He raised nine claims of ineffective assistance of trial counsel, asserting that none of them could have been raised on direct appeal and all were properly raised in his petition for postconviction relief because they required an evidentiary hearing. Bruce also contended that appellate counsel was ineffective in raising a particular claim on appeal. Finally, Bruce alleged that, in the event some or all of the claims relating to trial counsel's alleged ineffective assistance should have been raised on direct appeal and were now barred as a result of not being raised at that time, his appellate counsel had provided ineffective assistance in failing to present significant and obvious issues on appeal.

¶7 The State responded that six of Bruce's claims were procedurally barred under § 46-21-105(2), MCA (1995), because they could have been raised on direct appeal. The State also contended that one of the claims was barred by the doctrine of res judicata because it had been decided adversely to Bruce in his direct appeal. Finally, the State argued that three of Bruce's claims were not supported by the record or under the law and could be decided on the merits without the need for an evidentiary hearing. Bruce replied to the State's memorandum opposing his petition and submitted a number of affidavits. He contended, among other things, that he was entitled to an evidentiary hearing.

¶8 The District Court did not hold a hearing. In its order dismissing Bruce's petition, the District Court observed that Bruce's sole claim for relief was ineffective assistance of counsel and determined that "[t]hat issue was raised by Defendant's appellate

                counsel and decided by the Montana Supreme Court in a specific holding that Defendant was not denied effective assistance of counsel."   On that basis, and without further explanation or rationale, the District Court concluded that Bruce's "adequate remedy of appeal" had been pursued and his postconviction relief petition "fails to state a claim entitling him to relief as a matter of law."   Bruce appeals
                

DISCUSSION

¶9 Did the District Court err in dismissing Bruce's petition for postconviction relief on the grounds that Bruce's assertions of ineffective assistance of counsel did not state a claim entitling him to relief?

¶10 As set forth above, all of the claims contained in Bruce's petition for postconviction relief are premised on alleged denials of effective assistance of counsel. In considering ineffective assistance of counsel claims on the merits on direct appeal and in postconviction proceedings, Montana courts apply the two-pronged test set forth by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See Hagen, 273 Mont. at 440, 903 P.2d at 1386; Kills on Top v. State (1995), 273 Mont. 32, 49, 901 P.2d 1368, 1379. Under that test, the petitioner must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. Hagen, 273 Mont. at 440, 903 P.2d at 1386 (citations omitted). Moreover, the Strickland test applies to claims of alleged ineffective assistance of both trial and appellate counsel. See, e.g., Hans v. State (1997), 283 Mont. 379, 408, 942 P.2d 674, 692.

¶11 Before reaching the merits of ineffective assistance claims in postconviction relief proceedings, however, it often is necessary to determine whether such claims are properly before the court or whether they are procedurally barred. Such claims may be barred by either § 46-21-105(2), MCA (1995), or the doctrine of res judicata.

¶12 Section 46-21-105(2), MCA (1995), provides that grounds for relief which reasonably could have been raised on direct appeal may not be raised thereafter in a petition for postconviction relief. In that regard, where ineffective assistance of counsel claims are based on facts of record in the underlying case, they must be raised in the direct appeal; conversely, where the allegations of ineffective assistance of counsel cannot be documented from the record in the underlying case, those claims must be raised by petition for postconviction relief. See, e.g., State v. Bromgard (1995), 273 Mont. 20, 23, 901 P.2d 611, 613 (citation omitted); Petition of Evans (1991), 250 Mont. 172, 173, 819 P.2d 156, 157 (citation omitted).

¶13 The doctrine of res judicata also may pose a procedural bar to postconviction relief. Under that doctrine, claims which were raised on direct appeal are barred from being raised again in a petition for postconviction relief. State v. Baker (1995), 272 Mont. 273, 281, 901 P.2d 54, 59. Furthermore, the doctrine of res judicata is similar in effect to § 46-21-105(2), MCA (1995), in that it bars postconviction claims which "could have been raised on direct appeal." Beach v. Day (1996), 275 Mont. 370, 373, 913 P.2d 622, 624 (citation omitted).

¶14 In the present case, the District Court's denial of Bruce's petition for postconviction relief for failure to state a claim apparently was based on the court's conclusion that Bruce's ineffective assistance of counsel claims had been raised and resolved on direct appeal and were thereby barred by the doctrine of res judicata. In reviewing a district court's denial of postconviction relief, we will not overturn the court's legal conclusions if its interpretation of the law is correct. Wagner v. State (1995), 270 Mont. 26, 28, 889 P.2d 1189, 1190.

¶15 Before turning to the individual claims contained in Bruce's petition, we conclude that the District Court erred in part by "painting with too broad a brush." While it is clear that Bruce raised several specific ineffective assistance of trial counsel claims in his direct appeal (see Hagen, 273 Mont. at 440-44, 903 P.2d at 1386-88), it is equally clear that not all of the ineffective assistance claims contained in his postconviction relief petition were raised in--and resolved during--the appeal. Raising record-based ineffective assistance of counsel claims on direct appeal does not foreclose raising non record-based claims via petition for postconviction relief. Indeed, only those ineffective assistance claims which are essentially record-based can be raised on direct appeal; where allegations of ineffective assistance cannot be documented from the record in the underlying case, such claims can only be raised in a postconviction proceeding. See, e.g., Bromgard, 273 Mont. at 23, 901 P.2d at 613; Evans, 250 Mont. at 173, 819 P.2d at 157.

¶16 Thus, the District Court erred in concluding that all of Bruce's claims were barred by the doctrine of res judicata merely because some ineffective assistance claims were raised and resolved on direct appeal. Each claim must be analyzed to determine if it is barred. Therefore, with the controlling principles regarding procedural bars to postconviction relief claims in mind, we turn to the application of those principles in order to determine which, if any, of Bruce's claims of ineffective assistance of counsel are procedurally barred.

Claim B(1)

¶17 Bruce contends that trial counsel rendered...