State v. Andress, DA 11–0297.
| Decision Date | 24 April 2013 |
| Docket Number | No. DA 11–0297.,DA 11–0297. |
| Citation | 368 Mont. 248,299 P.3d 316 |
| Parties | STATE of Montana, Plaintiff and Appellee, v. Joshua Kaye ANDRESS, Defendant and Appellant. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
For Appellant: Wade Zolynski, Chief Appellate Defender, Jennifer A. Hurley, Assistant Appellate Defender, Helena, Montana.
For Appellee: Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana, Fred Van Valkenburg, Missoula County Attorney, Missoula, Montana.
[368 Mont. 249]¶ 1 The defendant Joshua Kaye Andress appeals from his conviction of felony violation of a permanent order of protection and tampering with a witness. We affirm in part and reverse and remand in part.
¶ 2 Under the terms of a permanent order of protection (POP) dated March 2009, Joshua Andress is prohibited from any contact with his ex-girlfriend, Sara Nichols. In October 2010, Andress saw Nichols in a Missoula bar. It is undisputed that he was within fifteen hundred feet of Nichols in violation of the POP. Andress was on felony probation at this time for previous violations of this POP. Nichols called the police and Andress was subsequently arrested and charged with violating the order of protection.
¶ 3 While incarcerated at the Missoula County Detention Center, Andress created various notes he claimed were for his attorney. One note, however, was obtained by a soon-to-be-released cellmate, Paul Randleas. Randleas claimed Andress gave him the note to give to one of Andress's acquaintances, Morgan Styles. The note asked Styles to make an untruthful statement to the authorities to help Andress. Randleas turned the note over to the police upon his release which resulted in Andress being charged with tampering with a witness. Following a jury trial in the Fourth Judicial District Court, Andress was convicted on both counts and sentenced from the bench to 15 years for each charge with 10 years for each charge suspended, to be served concurrently. The subsequent written sentence contained 26 terms and conditions that were not expressly stated during oral pronouncement of sentence, and imposed fines and fees in the amount of $260.
¶ 4 On appeal, Andress does not challenge any action taken by the District Court nor does he challenge his sentence; rather, he claims his attorney was ineffective in offering erroneous jury instructions and in failing to file a motion to conform the written sentence to the orally-pronounced sentence.
¶ 5 The issue on appeal is whether counsel rendered ineffective assistance.
¶ 6 In March 2009, after a few years of dating, Sara Nichols sought and obtained a permanent order of protection against Josh Andress, claiming physical and mental abuse. Andress responded by leaving at least ten extremely profane and frightening messages on Nichol's answering machine. These calls and other actions quickly resulted in multiple violations of the POP, the third and subsequent offenses being felonies.
¶ 7 On October 16, 2010, while on probation for these charges, Andress entered the Rhino Bar in Missoula and immediately saw Nichols. He left the bar but returned shortly thereafter at which time he saw Nichols was still there and he left again. Nichols claimed he subsequently left and re-entered two more times. She also claimed that he approached her after his third entrance, tapped her on the shoulder and spoke to her.1 He then left the bar and returned for the last time. Nichols left and called 9–1–1. The police came and interviewed Nichols, Nichols' companion, and Andress, but did not arrest Andress that night. The following day, Nichols called Andress's probation officer, the county attorney's office, and one of the responding police officers. Andress was subsequently arrested and charged with violating the POP.
¶ 8 While jailed in Missoula County, Andress made numerous notes about his case. He claims he made these notes to discuss with his attorney. One note, however, came into the possession of a soon-to-be-released cellmate, Randleas. Randleas testified that Andress gave him the note and asked that he deliver the message contained in it to Morgan Styles, a former co-worker of Andress. The note asked Styles to testify that he saw Andress at the Rhino Bar on the night of October 16 but that Andress spoke with no one and left the bar without returning. Styles never received the note, however, because Randleas, a police informant, turned it over to the police. The police contacted Styles who reported that he was not at the Rhino Bar that night and was out of town for that entire weekend. Andress was charged with tampering with a witness.
¶ 9 A jury trial was conducted on January 31, 2011, and Andress's defense was that his contact with Nichols at the bar was unintentional and he never intended to violate the order of protection. He also admitted writing the Styles note but denied giving it to Randleas for delivery. A unanimous jury convicted Andress on both charges.
¶ 10 On March 23, 2011, the District Court judge orally pronounced sentence, sentencing Andress, as a persistent felony offender, to Montana State Prison (MSP) for 15 years for each charge with 10 years for each charge suspended. The sentences were to run concurrently with each other but consecutive to a two-year sentence that had been imposed on Andress the day before in another Montana district court.2 On March 25, 2011, the District Court issued its written judgment which included the prison sentence as well as 26 terms and conditions of probation and the requirement that Andress pay $260 in fines and fees.
¶ 11 Andress filed a timely appeal claiming his trial counsel was ineffective for offering jury instructions that set forth an incorrect mental state for the charged offenses, and for failing to move the District Court to conform Andress's written sentence to his oral sentence in accordance with § 46–18–116(2), MCA.
¶ 12 We affirm in part and reverse and remand in part.
¶ 13 We review claims of ineffective assistance of counsel under the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail under Strickland, a defendant must show (1) that counsel's performance was deficient, and (2) that counsel's deficient performance prejudiced him or her. Both prongs of this test must be satisfied; thus, an insufficient showing on one prong negates the need to address the other. This Court must also “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” State v. Mitchell, 2012 MT 227, ¶ 21, 366 Mont. 379, 286 P.3d 1196. Claims of ineffective assistance of counsel are mixed questions of law and fact which this Court reviews de novo. St. Germain v. State, 2012 MT 86, ¶ 7, 364 Mont. 494, 276 P.3d 886.
¶ 14 Jury instructions serve an important role in trial. They guarantee decisions consistent with the evidence and the law, which can be accomplished when the instructions are as plain, clear, concise, and brief as possible. District courts have broad discretion when issuing jury instructions, but this discretion is restricted by the overriding principle that jury instructions must fully and fairly instruct the jury regarding the applicable law. The instructions must prejudicially affect the defendant's substantial rights to constitute reversible error. State v. Hovey, 2011 MT 3, ¶ 10, 359 Mont. 100, 248 P.3d 303 (citations omitted).
¶ 15 The Supreme Court reviews a district court's imposition of sentence for legality only. This is a question of law which we review to determine whether the court's interpretation of the law is correct. State v. Kroll, 204 MT 203, ¶ 12, 322 Mont. 294, 95 P.3d 717.
¶ 16 Did Andress's trial counsel provide ineffective assistance?
¶ 17 Andress was charged with violating § 45–5–626(1), MCA, which states in relevant part:
A person commits the offense of violation of an order of protection if the person, with knowledge of the order, purposely or knowingly violates a provision of ... an order of protection under Title 40, chapter 15.
Andress stipulated to having knowledge of the protective order and its contents, including the prohibition of being within fifteen hundred feet of Nichols.
¶ 18 Andress was also charged with witness tampering. Section 45–7–206(1)(a), MCA, provides, in relevant part:
A person commits the offense of tampering with witnesses and informants if, believing that an official proceeding or investigation is pending or about to be instituted, the person purposely or knowingly attempts to induce or otherwise cause a witness or informant to: testify or inform falsely....
[368 Mont. 253]¶ 19 By their express language, these statutes provide that violation of the statute requires a person to commit an act “purposely or knowingly.” During settlement of jury instructions, Andress's counsel proposed instructions that defined the terms “purposely” and “knowingly” as used in the statutes. Counsel proposed the following jury instructions derived from § 45–2–101, MCA, and the Montana Criminal Jury Instructions:
A person acts purposely when it is his/her conscious object to engage in conduct of that nature; or to cause such a result.
A person acts knowingly: when the person is aware of his or her conduct; or when the person is aware there exists the high probability that the person's conduct will cause a specific result. (Emphasis added.)
The District Court accepted these proposed instructions and gave them to the jury.
¶ 20 Andress argues that his counsel's proposed instructions included definitions of purposely and knowingly that did not apply to his charged offenses and, as a result, allowed the jury to convict him based upon his conduct,...
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