Soraich v. State

• Decision Date: 29 August 2002
• Docket Number: No. 01-875.,01-875.
• Citation: 53 P.3d 878,311 Mont. 90,2002 MT 187
• Parties: Luke SORAICH, Petitioner, v. STATE of Montana, Respondent.
• Court: Montana Supreme Court

53 P.3d 878

2002 MT 187

311 Mont. 90

Luke SORAICH, Petitioner, v. STATE of Montana, Respondent.

No. 01-875.

Supreme Court of Montana.

August 29, 2002.

Chad Wright, Appellate Defender, Helena, Montana, for Petitioner.

Mike McGrath, Montana Attorney General, C. Mark Fowler, Assistant Montana Attorney General, Helena, Montana; Dennis Paxinos, Yellowstone County Attorney, Billings, Montana, for Respondent.

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

¶ 1 Luke Soraich appeals the summary dismissal of his petition for postconviction relief by the District Court for the Thirteenth Judicial District, Yellowstone County. We reverse and remand for an evidentiary hearing.

¶ 2 We address the following issue on appeal: Whether the District Court abused its discretion in summarily dismissing Soraich's petition for postconviction relief.

Factual and Procedural Background

¶ 3 On January 20, 1996, Dane Jensen was killed by a single gunshot to the head fired at close range. Soraich was charged with his murder and brought to trial before a jury on February 3, 1997.

¶ 4 During opening statements, defense counsel, rather than merely holding the State to its burden of proof, promised the jury that he would provide exculpatory evidence that would exonerate Soraich and that would cast the testimony of the only other witness, Leonard Driver, in doubt. Soraich had stated that he watched Driver kill Jensen and that Driver had sworn him to secrecy. Defense counsel told the jury that Driver killed Jensen and that Soraich had lied to the police about the events surrounding Jensen's death in an effort to protect Driver. Defense counsel then told the jury that Driver was the one who gave statements to the police that did not make sense and that Driver had told an investigator for the public defender's office that he was seated in a different location when Jensen was shot. Defense counsel claimed that this evidence would dismantle Driver's credibility and that, with the evidence he would present at trial, the jury would have reason to doubt Driver's testimony.

¶ 5 When Driver testified, he admitted giving a statement to the investigator, however, he unequivocally denied that he told the investigator he was sitting on Jensen's couch when the gun was fired. Thereafter, defense counsel informed the court that he intended to call the investigator to impeach Driver's testimony. The prosecutor objected to calling the investigator because the investigator had compiled a report of his conversation with Driver that had never been turned over to the State. Defense counsel refused to turn over the investigator's report directly to the prosecutor, but he did agree to an in camera review of the report. Defense counsel wanted an opportunity to review the report himself, in case disclosing the report's contents would change his strategy. The record does not reflect what occurred next, other than defense counsel did not call the investigator to testify.

¶ 6 During closing arguments, the prosecutor capitalized on defense counsel's failure to call the investigator and to live up to his promise that he would prove that Driver was a liar. The prosecutor specifically referenced various claims defense counsel made in his opening statement and emphasized that defense counsel failed to back up those claims. Defense counsel moved for a mistrial claiming that the prosecutor's closing argument impermissibly shifted the burden of proof to Soraich. The court denied Soraich's motion for a mistrial. Thereafter, the jury convicted Soraich of deliberate homicide and the court sentenced him to 100 years in the Montana State Prison.

¶ 7 On March 12, 1997, defense counsel filed a motion for a new trial arguing that the prosecutor's emphasis on Soraich's failure to deliver on the promises made during defense counsel's opening statement violated Soraich's constitutional right to remain silent. The State responded that defense counsel invited the closing remarks when counsel called Driver a liar in his opening statement. The District Court agreed with the State and denied Soraich's motion. The court concluded that each of the prosecutor's closing remarks was justified by defense counsel's attack on Driver's credibility in counsel's opening statement.

¶ 8 Soraich then appealed to this Court arguing that the prosecutor impermissibly shifted the State's burden of proof during closing argument when the prosecutor told the jury that defense counsel failed to prove the claims he made during opening statements regarding Driver's credibility. We rejected Soraich's burden-shifting argument holding that the prosecutor's closing remarks were not improper comments on Soraich's failure to testify and that the prosecutor was entitled to comment on claims made by defense counsel during opening statements because the defense's theories lacked evidentiary support. State v. Soraich, 1999 MT 87, ¶¶ 22-26, 294 Mont. 175, ¶¶ 22-26, 979 P.2d 206, ¶¶ 22-26.

¶ 9 On July 17, 2000, Soraich filed a petition for postconviction relief in the District Court. In his petition, Soraich claimed that defense counsel rendered ineffective assistance when counsel stated he would prove that Driver gave inconsistent statements without first determining whether he would be able to introduce the investigator's report as impeachment evidence. Soraich argued that defense counsel's opening statements opened the door for the prosecutor to directly attack Soraich's failure to prove his defense and that counsel's failure to produce the investigator's report to support his opening statements bolstered rather than impeached the credibility of the State's key witness, Driver.

¶ 10 The District Court denied Soraich's petition for postconviction relief on September 27, 2001. In its Order and Memorandum denying the petition, the court determined that Soraich should have raised his claim of ineffective assistance of counsel when he filed his direct appeal because his claim is based on facts of record in the underlying case. Thus the court determined that by failing to raise a claim of ineffective assistance of counsel on direct appeal, that claim may not be raised, considered or decided in a proceeding for postconviction relief pursuant to § 46-21-105(2), MCA.

¶ 11 Soraich now appeals from the District Court's summary dismissal of his petition for post-conviction relief.

Discussion

¶ 12 Whether the District Court abused its discretion in summarily dismissing Soraich's petition for postconviction relief.

¶ 13 We review a district court's denial of postconviction relief to determine whether the court's findings of fact are clearly erroneous and whether its conclusions of law are correct. State v. Turner, 2000 MT 270, ¶ 47, 302 Mont. 69, ¶ 47, 12 P.3d 934, ¶ 47; State v. Hanson, 1999 MT 226, ¶ 9, 296 Mont. 82, ¶ 9, 988 P.2d 299, ¶ 9. Discretionary rulings in postconviction relief proceedings, including rulings relating to whether to hold an evidentiary hearing, are reviewed for an abuse of discretion. Hanson, ¶ 9 (citing State v. Sullivan (1997), 285 Mont. 235, 239, 948 P.2d 215, 218). Moreover, claims of ineffective assistance of counsel are mixed questions of law and fact, therefore, this Court's review is de novo. Turner, ¶ 47 (citing Strickland v. Washington (1984), 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674; Iaea v. Sunn (9th Cir.1986), 800 F.2d 861, 864; Langford v. Day (9th Cir.1997), 110 F.3d 1380, 1386).

¶ 14 The right to effective assistance of counsel is guaranteed by the Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution. This Court has adopted the two-prong approach set forth in Strickland in deciding ineffective assistance of counsel claims. State v. Harris, 2001 MT 231, ¶ 18, 306 Mont. 525, ¶ 18, 36 P.3d 372, ¶ 18 (citing Hagen v. State, 1999 MT 8, ¶ 10, 293 Mont. 60, ¶ 10, 973 P.2d 233, ¶ 10).

¶ 15 Under the Strickland test, the petitioner must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. State v. White, 2001 MT 149, ¶ 11, 306 Mont. 58, ¶ 11, 30 P.3d 340, ¶ 11 (citing Hagen, ¶ 10). To that end, we stated in Harris that

the defendant bears the burden of showing that counsel's performance fell below an objective standard of reasonableness. The defendant must overcome a strong presumption that counsel's defense strategies and trial tactics fall within a wide range of reasonable and sound professional decisions.

The second prong of the Strickland test examines the prejudicial impact of counsel's errors, and the defendant must demonstrate the existence of a reasonable probability that the result of the proceeding would have been different absent counsel's unprofessional errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome. When a defendant challenges a conviction, the defendant must show the fact finder's reasonable doubt respecting guilt could have been routed by the unprofessional errors of counsel. In making this determination, a court must consider the totality of the evidence before the judge or jury. When alleged ineffective assistance does not prejudice the defendant to the degree that the outcome is implicated, the claim may be dismissed without evaluating counsel's performance.

Harris, ¶¶ 18-19 (citing Strickland, 466 U.S. at 688-89, 694-97, 104 S.Ct. at 2064-65, 2068-69) (other internal citations omitted).

¶ 16 In the case sub judice, the State maintains that the District Court correctly determined that because Soraich's ineffective assistance of counsel claims are record based, they should have been raised on direct appeal. The State argues that because Soraich's claims were not raised on direct appeal, they are procedurally barred from postconviction review by § 46-21-105(2), MCA. This statute reads, in pertinent part:

When a petitioner has been afforded the opportunity for a direct appeal of the

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