Rose v. State, DA 12–0167.

• Decision Date: 23 July 2013
• Docket Number: No. DA 12–0167.,DA 12–0167.
• Citation: 370 Mont. 398,304 P.3d 387
• Parties: Robert L. ROSE, Petitioner and Appellant, v. STATE of Montana, Respondent and Appellee.
• Court: Montana Supreme Court

370 Mont. 398

304 P.3d 387

Robert L. ROSE, Petitioner and Appellant,

v.STATE of Montana, Respondent and Appellee.

No. DA 12–0167.

Supreme Court of Montana.

Submitted on Briefs March 6, 2013.

Decided June 18, 2013.

Rehearing Denied July 23, 2013.

For Appellant: Robert L. Rose, self-represented; Deer Lodge, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General; Tammy K. Plubell, Assistant Attorney General; Helena, Montana.

Justice MICHAEL E. WHEAT delivered the Opinion of the Court.

[370 Mont. 399]¶ 1 This is Robert Rose's (Rose) third appeal before this Court. We previously affirmed Rose's conviction of aggravated kidnapping, assault with a weapon, and assault on a peace officer. State v. Rose, 2009 MT 4, 348 Mont. 291, 202 P.3d 749( Rose I ). We have also affirmed a grant of summary judgment for the State following Rose's petition for a declaration that the actions of the Montana Department of Corrections violated state open meeting and public participation laws. Rose v. State, 2012 MT 55N, 364 Mont. 552, 2012 WL 732592. Rose now appeals the denial of his Petition for Postconviction Relief by the Twenty–First Judicial District Court, Ravalli County. We affirm.

ISSUES

¶ 2 We restate the issues on appeal as follows:

¶ 3 1. Did the District Court err by denying Rose's postconviction relief claim alleging that his trial counsel provided ineffective representation during plea negotiations?

¶ 4 2. Did the District Court err by denying Rose's postconviction relief claim alleging that he was denied access to counsel during a critical stage of trial?

¶ 5 3. Did the District Court err by denying Rose's postconviction relief claim alleging that his appellate counsel provided ineffective representation by failing to raise certain issues on appeal?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 Rose was charged with aggravated kidnapping, assault with a weapon, and assault on a peace officer on January 23, 2002. A jury found Rose guilty of all three charges on June 6, 2003 after a four-day trial. Rose's direct appeal of his convictions alleged a violation of his right to a speedy trial, claimed ineffective assistance of trial counsel, and challenged the District Court's denials of his request for a hearing to address complaints about his counsel and his motion for a new trial. We rejected these claims in Rose I and upheld Rose's convictions. Rose then filed a petition for rehearing, which we denied on March 11, 2009. Rose next petitioned the United States Supreme Court for a writ of certiorari, which was denied on October 5, 2009. Rose v. Montana, 558 U.S. 911, 130 S.Ct. 289, 175 L.Ed.2d 193 (2009). Rose thereafter filed a petition for postconviction relief (the petition) in Ravalli County District Court on September 30, 2010. The State filed a response, as ordered by the District Court, on February 18, 2011.

¶ 7 Rose's petition and accompanying memorandum alleged a multitude of ineffective assistance of counsel claims regarding Rose's appointed trial and appellate counsel. The District Court dismissed all of Rose's contentions in a 91–page order on January 18, 2012, and this appeal followed. However, Rose has not maintained every claim in his petition on appeal. Instead, Rose's appeal advances only three alleged instances of ineffective assistance of counsel. These issues concern the conduct of Rose's last appointed trial counsel, Kelli Sather (Sather), during plea negotiations, an allegedly unconstitutional restriction of Rose's access to counsel during an overnight recess, and whether Rose's appointed appellate counsel provided ineffective assistance by declining to raise certain issues on appeal. Rose's procedural “odyssey” both below and before this Court is long and convoluted, and the period between Rose's arrest and the trial is summarized in Rose I. SeeRose, ¶¶ 8–35. Recognizing this, we will only outline the facts relevant to the issues Rose maintains on appeal.

¶ 8 A. Facts Pertaining to Sather's Representation of Rose During Plea Negotiations.

¶ 9 Rose's first appealed issue concerns what he alleges was Sather's improper handling of a plea agreement offer. Sather was appointed to represent Rose on July 22, 2002 after Dustin Gahagan, Rose's second court-appointed attorney, filed a Motion for Substitution of counsel in anticipation of the end of his conflict public defender contract.¹ Ravalli County Attorney George Corn (Corn) sent Sather a letter on May 21, 2003 detailing a proposed plea agreement. Corn offered to dismiss the aggravated kidnapping charge and the felony assault on a police officer charge if Rose pled “open” to assault with a weapon and misdemeanor assault. The plea agreement proposed that the assault with a weapon and misdemeanor assault charges would run consecutively. Corn also stated he “would agree to cap the Persistent Felony Offender at 10 years with 5 suspended,” and that “[t]his would run consecutive to the Assault with a Weapon.” Corn further stated that in the “best case,” Rose faced 1 1/4 years before parole eligibility, and, in the “worst case,” 6 1/4 years. The letter concluded by stating “[p]lease feel free to give this letter to your client,” and advised that the offer would expire at 4:30 p.m. on May 23, 2003.

¶ 10 Rose attached an affidavit from Sather to his petition detailing the plea negotiations surrounding Corn's May 21 offer. In it, Sather claims that Rose had expressed interest in entering into a plea agreement prior to her receipt of Corn's offer. Sather further claims that she researched the Persistent Felony Offender statutes and case law after receiving Corn's offer. As a result of this research, Sather apparently came to believe that “Mr. Corn was recommending a sentencing that was not in conformity with the law.” In particular, Sather believed that Corn was improperly characterizing the Persistent Felony Offender (PFO) designation as a separate sentence in addition to the sentence for the underlying offense, and not as a sentencing enhancement meant to replace the offense's maximum sentence. Sather claims that she and Kathy Anderson, her co-counsel, met with Corn and a Detective Chinn on May 22, 2003 to discuss the proposed plea agreement. Her affidavit does not indicate that she discussed the offer with Rose prior to this meeting, and Rose claims that she did not. Sather's affidavit states that she presented her research on the nature of the PFO sentence to Corn and “informed him that we could not possibly enter into the type of agreement he had offered.” She then claims to have made a counter-offer in light of what she believed was an illegal plea agreement offer. Corn apparently responded angrily to Sather's discussion of the proper treatment of the PFO sentence and withdrew the offer. Thus, according to Sather's affidavit, Corn withdrew the proposed plea agreement after Sather objected to what she thought was an illegal sentence and made a counter-offer. This apparently occurred without Rose's involvement and without Sather presenting Rose with the offer.

¶ 11 B. Facts Pertaining to Rose's Access to Counsel During Trial.

¶ 12 Rose's second issue on appeal concerns what he claims was an unconstitutional denial of access to counsel during an overnight recess after the first day of trial. Trial ended the first day around 5:30 p.m., and Sather arrived at the jail around 9:00 p.m. that night to discuss the day's happenings and to go over potential defense strategies with Rose. According to another Sather affidavit attached to the petition, jail staff informed Sather that she had to leave around 10:00 p.m. Sather ultimately left the jail around 10:20 p.m. under the direction of the jail staff. Sather has claimed that when she was removed from her meeting with Rose, a considerable amount of information remained to be discussed. She further claimed that she would have stayed and continued to meet with Rose for several hours if the jail staff had not required her to leave.

¶ 13 C. Facts Pertaining to Rose's Representation on Direct Appeal.

¶ 14 Rose finally claims, at least with regards to the scope of this appeal, that his appointed appellate counsel provided ineffective representation by not raising his restricted access to Sather during the overnight recess as an issue on direct appeal. Rose's court-appointed appellate counsel chose to raise four issues on direct appeal. As noted, Rose's appellate counsel argued ineffective assistance of trial counsel, violation of Rose's right to a speedy trial, that Rose was improperly denied a hearing on the effectiveness of his counsel, and that the prosecutor made improper comments during the closing argument. Rose, ¶¶ 3–6.

STANDARD OF REVIEW

¶ 15 We review a district court's denial of a petition for postconviction relief to determine whether its findings of fact are clearly erroneous and whether its legal conclusions are correct. Rukes v. State, 2013 MT 56, ¶ 8, 369 Mont. 215, 297 P.3d 1195. Ineffective assistance of counsel (IAC) claims present mixed questions of law and fact that we review de novo. Miller v. State, 2012 MT 131, ¶ 9, 365 Mont. 264, 280 P.3d 272. To prevail on an IAC claim, a petitioner must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. Rukes, ¶ 9 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). This standard also applies to IAC claims involving appellate counsel. Rogers v. State, 2011 MT 105, ¶ 37, 360 Mont. 334, 253 P.3d 889.

DISCUSSION

¶ 16 1. Did the District Court err by denying Rose's postconviction relief claim alleging that his trial counsel provided ineffective representation during plea negotiations?

¶ 17 A. Rose's IAC claim is not record based and was properly brought in a Petition for Post–Conviction Relief

¶ 18 Ineffective assistance of counsel claims are appropriate for review in a petition for postconviction relief when it is not apparent on the face of the record why counsel...