Heddings v. State

• Decision Date: 14 September 2011
• Docket Number: No. DA 10–0055.,DA 10–0055.
• Citation: 265 P.3d 600,2011 MT 228,362 Mont. 90
• Parties: Scott P. HEDDINGS, Petitioner and Appellant, v. STATE of Montana, Respondent and Appellee.
• Court: Montana Supreme Court

2011 MT 228

265 P.3d 600

362 Mont. 90

Scott P. HEDDINGS, Petitioner and Appellant,

v.STATE of Montana, Respondent and Appellee.

No. DA 10–0055.

Supreme Court of Montana.

Submitted on Briefs April 26, 2011.Decided Sept. 14, 2011.

For Appellant: Joslyn Hunt, Chief Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena, Montana.

For Appellee: Steve Bullock, Montana Attorney General, John Paulson, Assistant Attorney General, Helena, Montana, John Parker, Cascade County Attorney, Marvin Anderson, Deputy County Attorney, Great Falls, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

[362 Mont. 91] ¶ 1 Scott Heddings, a self-represented litigant, filed a Petition for Postconviction Relief in the District Court for the Eighth Judicial District, Cascade County, alleging that he was denied the effective assistance of counsel and that he was subjected to double jeopardy during the trial court proceedings that led to his conviction and sentence for the offense of incest. The District Court denied Heddings' request for postconviction relief and dismissed his petition. Heddings appealed and we affirm.

¶ 2 We address the following issue on appeal: Whether the District Court correctly determined that Heddings was not denied the effective assistance of counsel.

Factual and Procedural Background

¶ 3 In September 2005, the State charged Heddings with one count of felony incest based on Heddings' sexual abuse of his stepdaughter during the summer of 2000. During the course of the investigation on the incest charge, Heddings made incriminating statements about his possession of child pornography which, in turn, prompted a federal investigation.

¶ 4 In April 2006, while the State court incest charge was pending, Heddings was indicted and charged in federal court with receipt of child pornography, possession of child pornography, and destruction or removal of property to prevent seizure. The indictment alleged that Heddings committed these offenses in 2004 and 2005. On May 1, 2007, Heddings pled guilty in federal court to these charges, admitting that he possessed over 50,000 images of child pornography, and that after his arrest, he had instructed his wife to delete the computer files and destroy the DVDs containing these images.

¶ 5 A presentence investigative report was prepared in advance of Heddings' September 6, 2007 federal sentencing hearing. In the offense level computations under the federal sentencing guidelines, the federal probation officer recommended an increase of five levels in Heddings' sentence since Heddings had engaged in a pattern of activity involving the sexual abuse or exploitation of a minor. This five-level increase would amount to an additional nine years added to Heddings' sentence.

[362 Mont. 92] ¶ 6 At the federal sentencing proceedings, the federal court considered the fact that Heddings had been charged with incest in State court. The federal court sentenced Heddings to 240 months in federal prison for receipt of child pornography and lesser concurrent sentences for the remaining two charges.

¶ 7 Heddings pled guilty to the incest charge in State court on October 23, 2007. Pursuant to a plea agreement, the State recommended a sentence of 20 years commitment to the Department of Corrections with 16 years suspended. The District Court so ordered and stipulated that the sentence was to be served concurrently to Heddings' federal sentence.

¶ 8 Heddings challenged several of the conditions of his suspended sentence in an appeal to this Court. State v. Heddings, 2008 MT 402, 347 Mont. 169, 198 P.3d 242 ( Heddings I ). While we upheld the majority of the sentencing conditions, we reversed and remanded for clarification two of the conditions of Heddings' sentence. Heddings I, ¶¶ 22–23. Heddings did not challenge the State court prosecution and conviction on double jeopardy grounds in the District Court proceedings or on direct appeal to this Court.

¶ 9 On January 21, 2009, Heddings filed his Petition for Post Conviction Relief wherein he raised two claims. First, he argued that he was subjected to double jeopardy because he was sentenced in State court for conduct that was used to enhance his federal sentence. Second, he argued that his trial counsel was ineffective because counsel did not challenge the State court charges on double jeopardy grounds. Along with his petition, Heddings submitted a supporting memorandum to which he attached an affidavit, the federal district court judgment, portions of the federal presentence investigative report, a partial transcript of the federal district court sentencing hearing and a partial transcript of the State court change-of-plea hearing.

¶ 10 Without conducting an evidentiary hearing, the District Court denied Heddings' Petition for Postconviction Relief on January 13, 2010. The court concluded that Heddings' double jeopardy claim had no legal merit because the federal charge and the State charge were based on separate conduct. The court also concluded that because Heddings' double jeopardy claim had no merit, it would have been frivolous for his counsel to raise that claim. Consequently, the court determined that Heddings was not denied the effective assistance of counsel.

¶ 11 Heddings appealed the denial of his petition to this Court, filing both his opening brief and his reply to the State's brief without the benefit of counsel. Thereafter, this Court determined that “extraordinary circumstances exist that require the appointment of counsel to prevent a miscarriage of justice” and that rebriefing of the appeal was necessary. Consequently, the Court appointed the Office of the Appellate Defender to represent Heddings and to file supplemental appellate briefs on his behalf.

Standard of Review

¶ 12 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 its conclusions of law are correct. Becker v. State, 2010 MT 93, ¶ 8, 356 Mont. 161, 232 P.3d 376 (citing Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d 861). Ineffective assistance of counsel claims are mixed questions of law and fact that we review de novo. Becker, ¶ 8. A district court's denial of a defendant's motion to dismiss a criminal charge on double jeopardy grounds presents a question of law that we review for correctness. State v. Maki, 2008 MT 379, ¶ 9, 347 Mont. 24, 196 P.3d 1281 (citing State v. Cech, 2007 MT 184, ¶ 7, 338 Mont. 330, 167 P.3d 389).

Discussion

¶ 13 Whether the District Court correctly determined that Heddings was not denied the effective assistance of counsel.

¶ 14 In his supplemental brief on appeal, Heddings argues that his State prosecution violated both § 46–11–504, MCA, and Article II, Section 25 of the Montana Constitution regarding double jeopardy. Thus, Heddings argues that the District Court erred in concluding that his trial counsel provided effective assistance when counsel failed to raise a double jeopardy objection to Heddings being prosecuted in State court for what he claims was the same conduct that was used to increase his sentence in federal court.

¶ 15 The State contends that Heddings' double jeopardy protections were not violated because the State court prosecution and the federal court prosecution were based on different transactions that occurred at different times and involved different victims. Consequently, the State argues that the District Court correctly concluded that trial counsel did not provide ineffective assistance when counsel did not seek dismissal of Heddings' State court charge on double jeopardy grounds.

¶ 16 Both the Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution guarantee individuals the right to the effective assistance of counsel in all criminal prosecutions. When we review ineffective assistance of counsel claims, we employ the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Ankeny, 2010 MT 224, ¶ 52, 358 Mont. 32, 243 P.3d 391 (citing State v. Gunderson, 2010 MT 166, ¶ 67, 357 Mont. 142, 237 P.3d 74). The Strickland test requires that a defendant establish (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that a reasonable probability exists that, but for counsel's errors, the result of the proceeding would have been different. Ankeny, ¶ 52. Because a defendant must satisfy both parts of the Strickland test to prevail on a claim of ineffective assistance of counsel, if a defendant makes an insufficient showing regarding one part of the test, there is no need for us to address the other part. Ankeny, ¶ 53.

¶ 17 As to the first part of the test, Strickland provides that “a reviewing court ‘must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance’ and the defendant ‘must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.’ ” Whitlow, ¶ 21 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065). As to the second part of the test, we have stated that a reasonable probability is a probability sufficient to undermine confidence in the outcome. Ankeny, ¶ 54.

¶ 18 In his brief on appeal, Heddings correctly points out that both prongs of the Strickland analysis in this case depend on whether Heddings' double jeopardy claims have merit. If the double jeopardy claims are without merit, then Heddings' trial counsel could not be deemed to have provided ineffective assistance by failing to raise a double jeopardy objection to the District Court in an attempt to have the incest charge dismissed.

¶ 19 Heddings relies on our decisions in State v. Tadewaldt, 277 Mont. 261, 922 P.2d 463 (1996), and State v. Neufeld, 2009 MT 235, 351 Mont. 389, 212 P.3d 1063, to argue that his State court prosecut...