Miller v. State, DA 11–0493.

• Decision Date: 19 June 2012
• Docket Number: No. DA 11–0493.,DA 11–0493.
• Citation: 365 Mont. 264,2012 MT 131,280 P.3d 272
• Parties: Michael M. MILLER, Petitioner and Appellant, v. STATE of Montana, Respondent and Appellee.
• Court: Montana Supreme Court

365 Mont. 264

280 P.3d 272

2012 MT 131

Michael M. MILLER, Petitioner and Appellant,

v.STATE of Montana, Respondent and Appellee.

No. DA 11–0493.

Supreme Court of Montana.

Submitted on Briefs April 11, 2012.

Decided June 19, 2012.

For Appellant: Michael Max Miller, self-represented; Deer Lodge, Montana.

For Appellee: Steve Bullock, Montana Attorney General; Micheal S. Wellenstein, Assistant Attorney General; Helena, Montana.

Justice JIM RICE delivered the Opinion of the Court.

[365 Mont. 264]¶ 1 Appellant Michael Miller (Miller) appeals from the order of the Eighth Judicial District Court, Cascade County, dismissing his postconviction relief petition. We affirm.

¶ 2 The sole issue is whether the District Court erred by dismissing the petition.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 Miller was convicted of the deliberate homicide of his brother-in-law, Lamar Windham (Windham), after a jury trial. Miller appealed, and we affirmed his conviction. State v. Miller, 2009 MT 314N, 352 Mont. 553, 218 P.3d 500 (table). The facts of the case are detailed in that opinion, and we review only those facts necessary to resolve the issues in this appeal.

¶ 4 On June 25, 2006, Miller attended his wife's funeral in Browning and rode back to Great Falls with Windham in Windham's van. The next day, Windham and Miller picked up Al Johnson (Johnson), a recent acquaintance of Miller's and new acquaintance of Windham's. The three men drank alcohol and drove around town, eventually parking at the Rainbow Dam Overlook of the Giant Springs area. Johnson remained in the van due to sickness, but he observed Windham and Miller arguing as they walked down a trail leading to the river and dam. Less than an hour later, Miller returned alone, sweating and out of breath, and he got into the driver's seat of Windham's van. Johnson inquired about Windham's whereabouts, and Miller responded with conflicting stories. Johnson talked Miller into waiting for Windham and looking for him. After an hour and a half, Miller said he would take Johnson home and come back to look for Windham. Miller, ¶¶ 8–9.

¶ 5 In the following days, Miller told different stories about what had happened to Windham. Miller continued to use Windham's van. Windham's family became concerned and contacted Johnson, who told them about what had happened at Giant Springs. Miller and Johnson drove to Giant Springs with Windham's family to search for Windham. Family members testified that Miller did not seem to be looking hard to find Windham. After failing to find Windham, the group went to police. While Johnson related his observations, Miller left before speaking to police. On July 18, 2006, law enforcement conducted a search of the area and found Windham's body on the river bottom below the cliff at the Rainbow Scenic Overlook. Miller, ¶¶ 10–12.

¶ 6 Miller was arrested and interviewed by law enforcement. He was charged with deliberate homicide and convicted by a jury in November 2007. Miller, ¶ 13. On appeal, Miller raised four issues to this Court: whether the district court properly denied his motion to dismiss for speedy trial violation, whether the district court properly instructed the jury on witness credibility, whether the district court properly denied his motion to compel the mental health care records of a witness, and whether prosecutors committed plain error in their closing arguments. Miller, ¶¶ 3–7.

¶ 7 Following his appeal, Miller filed a petition for postconviction relief in the District Court alleging his trial counsel rendered ineffective assistance because counsel: failed to object to the State's use of PowerPoint presentations during opening and closing arguments and failed to request that the PowerPoint presentations be entered into the record; failed to object to the prosecutor's closing argument and rebuttal; failed to impeach Johnson; failed to impeach witness Ray Little Youngman; and failed to object to the prosecutor's comments made during Miller's motion to dismiss for insufficient evidence. Miller also argued that his appellate counsel's failure to raise his trial counsel's ineffectiveness on direct appeal constituted ineffective assistance. The court ordered that Miller be appointed counsel, but later vacated that order.¹

¶ 8 The District Court dismissed Miller's petition for failure to state a claim pursuant to § 46–21–201(1)(a), MCA, reasoning that Miller had exhausted his remedy of appeal and that his ineffectiveness claims were record-based assertions which he did or reasonably could have raised on appeal. Miller requests that we reverse the dismissal of his petition and remand, grant an evidentiary hearing, and order appointment of counsel.

STANDARD OF REVIEW

¶ 9 “We review a district court's denial of a petition for postconviction relief to determine whether the district court's findings of fact are clearly erroneous and whether its conclusions of law are correct.” Hammer v. State, 2008 MT 342, ¶ 9, 346 Mont. 279, 194 P.3d 699 (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 are reviewed de novo. Whitlow, ¶ 9 (citation omitted).

DISCUSSION

¶ 10 Did the District Court err by dismissing Miller's postconviction petition?

¶ 11 Miller argues that his appellate counsel rendered ineffective assistance by failing to raise claims of ineffective assistance against his trial counsel in the direct appeal. He argues the District Court erred in dismissing his claims against his appellate counsel as procedurally barred because he could not have raised such claims in his direct appeal. The State concedes that Miller's claims against his appellate counsel were not procedurally barred and should have been addressed on their merits, but argues the record is sufficient for this Court to resolve Miller's claims and that a remand is unnecessary. The State argues that appellate counsel's performance “was not deficient because there is no underlying merit to Miller's claims that his trial counsel provided ineffective assistance.” Although district courts generally undertake initial consideration of ineffectiveness claims, see Hagen v. State, 1999 MT 8, ¶ 42, 293 Mont. 60, 973 P.2d 233, we agree with the State that the record is sufficient to permit review of the merits of the trial claims underlying Miller's appellate claims, making remand unnecessary.

¶ 12 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. St. Germain v. State, 2012 MT 86, ¶ 8, 364 Mont. 494, 276 P.3d 886. “The right to counsel on appeal includes the right to effective assistance of counsel.” Hans v. State, 283 Mont. 379, 408, 942 P.2d 674, 692 (1997) (citing Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985)), overruled in part on other grounds, Whitlow, ¶¶ 13, 20.

¶ 13 This Court reviews claims of ineffective assistance of appellate counsel like those of trial counsel. St. Germain, ¶ 7 (citing Rogers v. State, 2011 MT 105, ¶ 37, 360 Mont. 334, 253 P.3d 889). We analyze ineffective assistance of counsel claims by using the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Whitlow, ¶ 10. “Under this test, the defendant must demonstrate (1) that counsel's performance was deficient, and (2) that counsel's deficient performance prejudiced the defendant.” St. Germain, ¶ 8 (citation omitted). In evaluating whether counsel's performance was deficient under the first prong, “we must determine whether counsel's representation fell below an objective standard of reasonableness considering prevailing professional norms and all the circumstances.” St. Germain, ¶ 10 (citing Whitlow, ¶ 14). Under the second prong, “the defendant must show that, but for counsel's errors, a reasonable probability exists that the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings.” St. Germain, ¶ 11 (internal citation omitted). In the context of a claim against appellate counsel, we have stated the standard as “whether there is a reasonable probability that, but for counsel's unprofessional errors, the petitioner would have prevailed on appeal.” DuBray v. State, 2008 MT 121, ¶ 31, 342 Mont. 520, 182 P.3d 753 (citation omitted). A defendant must satisfy both prongs of the Strickland test to prevail on an ineffective assistance of counsel claim. Whitlow, ¶ 11 (citation omitted). If an insufficient showing is made on one prong of the test, we do not need to address the other prong. Baca v. State, 2008 MT 371, ¶ 16, 346 Mont. 474, 197 P.3d 948 (citing Whitlow, ¶ 11).

¶ 14 “We observe that counsel has no constitutional obligation to raise every non-frivolous issue on appeal. The presumption of effective assistance of counsel will be overcome only when ignored issues are clearly stronger than those presented.” DuBray, ¶ 31 (citations omitted). “A petitioner for post-conviction relief must prove by a preponderance of evidence that he or she is entitled to relief.” Rogers, ¶ 15 (citation omitted). “A defendant bears a heavy burden in seeking to overturn a district court's denial of postconviction relief based on ineffective assistance of counsel claims.” Baca ¶ 16 (citing Whitlow, ¶ 21).

A. Prosecutor's Closing Argument

¶ 15 Miller challenges his trial counsel's failure to object to the State's vouching for Johnson's credibility and to the prosecutor's statement that Miller had lied. In his direct appeal, Miller's appellate counsel raised these claims in the context of an argument requesting plain error review, as trial counsel had failed to object. Miller, ¶ 28. While we ultimately declined to exercise plain error review, we considered the claims and concluded that the prosecutor had not...