State v. Adgerson

• Decision Date: 09 October 2003
• Docket Number: No. 02-740.,02-740.
• Citation: 78 P.3d 850,2003 MT 284,318 Mont. 22
• Parties: STATE of Montana, Plaintiff and Respondent, v. Reginald Bernard ADGERSON, Defendant and Appellant.
• Court: Montana Supreme Court

78 P.3d 850

2003 MT 284

318 Mont. 22

STATE of Montana, Plaintiff and Respondent, v. Reginald Bernard ADGERSON, Defendant and Appellant.

No. 02-740.

Supreme Court of Montana.

Submitted on Briefs June 12, 2003.

Decided October 9, 2003.

For Appellant: Jon G. Moog, Assistant Public Defender, Helena, Montana.

For Respondent: Mike McGrath, Attorney General; Jim Wheelis, Assistant Attorney General, Helena, Montana Leo J. Gallagher, Lewis and Clark County Attorney, Helena, Montana.

Justice JIM REGNIER delivered the Opinion of the Court.

¶ 1 A jury convicted Reginald Bernard Adgerson for violating Montana's stalking statute, § 45-5-220(1)(b) and (3), MCA, relating to numerous occurrences directed towards Adgerson's former wife during the months of March through July, 2001. He appeals his conviction. We affirm.

BACKGROUND

¶ 2 Reginald Adgerson (Adgerson) and Catherine Gordon (Gordon) married in 1995 and later had two children. Gordon separated from Adgerson in the Spring of 2000. She filed her initial dissolution papers with the assistance of Pamela Bucy, an attorney employed by Lewis and Clark County Attorney's Office, and completed the balance of the dissolution with the assistance of a different attorney.

¶ 3 Gordon worked as a probation and parole officer for the state of Montana, in Helena. As part of her job, Gordon interacted with the Lewis and Clark County Attorney's Office and the Lewis and Clark County Court. As such, Gordon was familiar with the prosecuting attorneys in this case, Michael Menahan and Leo Gallagher. Additionally, she was familiar with all the First Judicial District Court Judges through her work as a probation and parole officer in Helena. Adgerson worked as a car salesman.

¶ 4 During their separation period, both Adgerson and Gordon were subject to a mutual restraining order. Further, the divorce decree included a parenting plan outlining specific protocol to allow contact solely concerning custody, decision-making, and emergencies regarding the children. However, Adgerson did not comply with the restraining order and was convicted of misdemeanor stalking and contempt, entered by Helena City Court December 18, 2000, and March 15, 2001, respectively.

¶ 5 Between March and July 2001, Adgerson continuously contacted Gordon via the telephone and while Gordon dropped the children off for visitation regarding issues outside the scope of the parenting plan. He did this in such a manner that frightened Gordon to the point where she feared for her physical safety. Phone records indicate that Adgerson called Gordon many times during the day on numerous occasions. During children exchanges, the two sometimes had heated altercations. The record indicates that some of these encounters contemplated matters within the scope of the parenting plan and other encounters did not concern their children.

¶ 6 Ultimately, the State charged Adgerson by Information with felony stalking on August 1, 2001. Judge Dorothy McCarter of the First Judicial District heard the case. Adgerson moved to dismiss the Information claiming that § 45-5-220, MCA, was overbroad and vague. The District Court denied his motion. A jury convicted Adgerson of felony stalking on May 30, 2002, and the District Court sentenced him to the Montana Department of Corrections for five years, with two years suspended. From this, Adgerson appeals. We address the following issues on appeal:

¶ 7 1. Did the trial judge err in failing to recuse herself due to impartiality and did the prosecutor commit misconduct when he failed to remove his office as prosecutor due to impartiality?

¶ 8 2. Was Adgerson denied effective assistance of counsel by trial counsel's failure to move for disqualification of all the judges within the First Judicial District and for failure to move for removal of the prosecutor?

¶ 9 3. Did the trial court err in failing to grant Adgerson's motion to dismiss because Montana's stalking statute, § 45-5-220, MCA, is unconstitutional both on its face and as applied?

DISCUSSION

ISSUE ONE

¶ 10 Did the trial judge err in failing to recuse herself due to impartiality and did the prosecutor commit misconduct when he failed to remove his office as prosecutor due to impartiality?

¶ 11 On appeal, Adgerson claims that Gordon's interaction with the judges of the First Judicial District and the Lewis and Clark County Attorney's Office through her work created an irreparable bias against him which resulted in their having an interest in the outcome of the case. First, Adgerson contends an appearance of impropriety exists because Gordon, as a probation and parole officer, appeared before the First Judicial District Court Judges, including Dorothy McCarter, frequently for work related issues, thus Judge McCarter had an interest in the outcome, and therefore, should have recused herself. Second, he contends that Gordon's interaction with the Lewis and Clark County Attorney's Office and Pam Bucy's work on Gordon's initial filing of dissolution of marriage created an interest such that the office should have disqualified itself from prosecuting Adgerson, and therefore, should have removed itself.

¶ 12 The State argues that Adgerson did not raise this issue before the District Court, and as such he waived his right to raise it on appeal. We agree with the State. The rule is well established that this Court will not address an issue raised for the first time on appeal. State v. Peterson, 2002 MT 65, ¶ 24, 309 Mont. 199, ¶ 24, 44 P.3d 499, ¶ 24 (citing State v. Weaselboy, 1999 MT 274, ¶ 16, 296 Mont. 503, ¶ 16, 989 P.2d 836, ¶ 16). A party may not raise new arguments or change its legal theory on appeal, because it is fundamentally unfair to fault the trial court for failing to rule on an issue it was never given the opportunity to consider. State v. Martinez, 2003 MT 65, ¶ 17, 314 Mont. 434, ¶ 17, 67 P.3d 207, ¶ 17. The District Court record does not reflect Adgerson's claim, therefore we must limit our review only to issues raised before the District Court. ¶ 13 In his reply brief, Adgerson urges this Court to address his complaints by invoking the plain error doctrine. State v. Finley (1996), 276 Mont. 126, 137, 915 P.2d 208, 215,overruled on other grounds by State v. Gallagher, 2001 MT 39, 304 Mont. 215, 19 P.3d 817

. The plain error doctrine only applies to limited situations as prescribed in Finley. Finley, 276 Mont. at 137,

915 P.2d at 215. It applies only "where failing to review the claimed error at issue may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial or proceedings, or may compromise the integrity of the judicial process." Finley, 276 Mont. at 137,

915 P.2d at 215. We conclude that the plain error doctrine does not apply in the present case.

¶ 14 Therefore, we cannot address this issue on direct appeal because it has not been properly preserved for our consideration.

ISSUE TWO

¶ 15 Was Adgerson denied effective assistance of counsel by trial counsel's failure to move for disqualification of all the judges within the First Judicial District and for failure to move for removal of the prosecutor?

¶ 16 When contemplating ineffective assistance claims, this Court has adopted 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. The appellant must illustrate that counsel's performance was deficient and that the deficient performance prejudiced the defense. Hagen v. State, 1999 MT 8, ¶ 10, 293 Mont. 60, ¶ 10, 973 P.2d 233, ¶ 10. First, to demonstrate deficient performance by counsel, the appellant must show, considering all the circumstances, that counsel's performance fell below an objective standard of reasonableness. Kills On Top v. State (1995), 273 Mont. 32, 49, 901 P.2d 1368, 1379. The appellant must overcome the strong presumption that counsel provides a wide range of reasonable professional assistance through defense strategies and trial tactics. Kills On Top, 273 Mont. at 49, 901 P.2d at 1379. Second, the appellant must demonstrate that there was a reasonable probability of a different result had counsel not made unprofessional errors. State v. Harris, 2001 MT 231, ¶ 19, 306 Mont. 525, ¶ 19, 36 P.3d 372, ¶ 19. Upon such a challenge, the appellant must prove that the fact finder's reasonable doubt respecting guilt could have been directed by counsel's errors, and the court considers the totality of the evidence before the court and jury to determine if there could have been a different outcome. Harris, ¶ 19 (citing Strickland, 466 U.S. at 695, 104 S.Ct. at 2068-69).

¶ 17 However, before we can consider the ineffective assistance claim on its merits, it is necessary to consider whether the claim is properly before this Court. Such claims must be based upon facts within the district court record, not on "mere conclusory allegations," in order for an appellant to raise an ineffective assistance claim on direct appeal. State v. Hurlbert (1988), 232 Mont. 115, 120, 756 P.2d 1110, 1113 (quoting State v. Tome (1987), 228 Mont. 398, 403, 742 P.2d 479, 482). Conversely, ineffective assistance claims that cannot be construed from the record in the underlying case must be raised through a petition for postconviction relief. Hagen, ¶ 12.

¶ 18 When it is not clear whether a claim for ineffective assistance is record based, we stated in Soraich v. State, 2002 MT 187, 311 Mont. 90, 53 P.3d 878:

Though not easily distilled into a formula, the definitive question that distinguishes and decides which actions are record and which are nonrecord, is why? In other words, if counsel fails to object to the admission of evidence, or fails to offer an opening statement, does the record fully explain why counsel took the particular course of action? If not, then the matter is best-suited for post-conviction proceedings which permit a further inquiry into whether the particular

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