State v. Baker
| Decision Date | 04 August 1995 |
| Docket Number | No. 94-335,94-335 |
| Citation | 901 P.2d 54,272 Mont. 273,52 St.Rep. 735 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Loren Robert BAKER, Defendant and Appellant. |
| Court | Montana Supreme Court |
Loren R. Baker, Deer Lodge, pro se.
Joseph P. Mazurek, Atty. Gen., Patricia Jordan, Asst. Atty. Gen., Mike McGrath, Lewis and Clark County Atty., Helena, for respondent.
Loren Robert Baker (Baker), pro se, appeals from the Decision and Order of the First Judicial District Court, Lewis and Clark County, denying his petition for post-conviction relief. We affirm.
As a result of a jury trial, Baker was convicted on June 21, 1990, of robbery, reckless driving and carrying a concealed weapon. He was subsequently sentenced to serve a total of 36 years in prison and was designated a dangerous offender for parole eligibility purposes. We affirmed Baker's conviction on appeal in State v. Baker (1991), 249 Mont. 156, 815 P.2d 587, and reference is made to our decision in that case for further background information. The Montana Sentence Review Board affirmed Baker's sentence on August 21, 1992.
Baker filed his petition for post-conviction relief on January 6, 1994, alleging ineffective assistance of counsel. In his petition Baker claimed that his counsel: (1) failed to litigate issues concerning an alleged illegal search, an alleged compelled self-incrimination, and the admission of other crimes evidence; (2) failed to raise other possible defenses; (3) failed to prevent the use of evidence of past behavior at sentencing; and (4) failed to request a hearing pursuant to § 46-18-222, MCA, regarding his mental condition.
In accordance with our decision in Petition of Gillham (1985), 216 Mont. 279, 704 P.2d 1019, the State moved for and obtained orders requiring Baker's trial counsel to respond to the claims of ineffective assistance of counsel. After briefing and the consideration of various documents and the responses of counsel, but without an evidentiary hearing, the District Court denied Baker's petition on May 20, 1994. Baker appeals.
Further facts are set forth in our following discussion as necessary to dispose of the issues raised.
In his opening brief, Baker raises twenty-five issues (Baker's issues) which we simply reiterate here as follows:
1. Whether an exception should be made to allow application of exclusionary rule to testimony of private individuals whose felonious conduct was first-aggression assault causing injury to the accused and whose subsequent search produced no physical evidence of alleged theft?
2. Whether merchant violation of standards of reasonableness in his treatment of a customer voids his right to assert a shoplifting claim?
3. Whether a strong showing of probable factual innocence of theft is reasonable doubt of guilt of robbery which merits relief?
4. Whether the state has denied Baker the equal protection of the laws?
5. Whether the state has denied Baker speedy remedy for injury of person and the administration of right and justice?
6. Whether the trial court errored [sic] and denied due process of law by precluding pretrial motions and evidentiary hearing from defense trial counsel?
7. Whether officer's testimony of Baker's admissions was evidence obtained from interrogation where officers compelled self-incrimination in absence of counsel, and the inadmissible testimony should have been suppressed?
8. Whether counsel was deficient in omission to perform pretrial investigation of plausible defenses?
9. Whether state procedural default of timely notice requirements prejudiced the defense with indefensible surprise?
10. Whether indefensible surprise from untimely notice compelled self-incrimination from the defendant?
11. Whether indefensible surprise shifted the burden of proof to the defense and unlawfully negated the state's responsibility to prove every element of crime beyond reasonable doubt?
12. Whether evidence of past acts and offenses prejudiced the jury?
13. Whether the state is required to meet the standards cited in its notice and omission to do so is unfair to the defense?
14. Whether the principles of fundamental fairness require the Just standards to be met, prerequisite to admission of evidence of past acts or offenses, regardless of what rule of procedure the evidence is introduced under?
15. Whether defense evidence was prejudicially suppressed?
16. Whether the Presentence Investigation Report is biased and contributed to prejudicial sentencing?
17. Whether Baker was deprived of fair hearing and consideration of mitigating circumstances for lesser sentence?
18. Whether the dangerous designation was improperly imposed?
19. Whether state default at trial prejudiced sentencing?
20. Whether it is an unjust succession of sentence to upon release from prison incarcerate Baker in the county jail for one year: where this would reverse earned custody reductions, would be contrary to rehabilitative processes, and would cause breach of family relationships?
21. Whether Baker's sentence is cruel punishment?
22. Whether defense counsel's performance was deficient, and the deficient performance prejudiced the defense?
23. Whether conviction was obtained through malicious prosecution?
24. Whether prejudicial error occurred when prosecution raised prior conviction for carrying a concealed weapon and rose [sic] issue of defendant's failure to obtain concealed weapon permit?
25. Whether defendant's testimony at trial was inadmissible, and his decision to testify was incompetent, because of mental impairment; and, whether these facts merit reversal?
For purposes of convenience and our discussion we adopt the following issues as proposed by the State:
1. Whether Baker's issues 2-6, 13-14, 16, 18-21, 23 and 25 are procedurally barred for failure of Baker to raise them in his original petition in District Court?
2. Whether Baker's issues 1, 7, 9-14, 17 and 19 are procedurally barred for failure of Baker to raise them in his direct appeal?
3. Whether Baker's issues 10-14 and 24 are barred by the doctrine of res judicata?
4. Whether Baker received effective assistance of counsel?
We review the District Court's denial of a petition for post-conviction relief to determine whether substantial evidence supports the findings and conclusions of the court. Walker v. State (1993), 261 Mont. 1, 6, 862 P.2d 1, 4 (citing State v. Coates (1990), 241 Mont. 331, 336, 786 P.2d 1182, 1185). We will not overturn the court's legal conclusions if the tribunal's interpretation of the law is correct. Wagner v. State (Mont.1995), --- Mont. ----, ----, 889 P.2d 1189, 1190, 52 St.Rep. 61, 61 (citing Eiler v. State (1992), 254 Mont. 39, 42, 833 P.2d 1124, 1126).
Section 46-21-105(1), MCA, provides:
All grounds for relief claimed by a petitioner under 46-21-101 must be raised in the original or amended petition. Those grounds for relief not raised are waived unless the court on hearing a subsequent petition finds grounds for relief that could not reasonably have been raised in the original or amended petition.
Baker's petition filed in District Court was premised upon his claim that he did not receive effective assistance of counsel; it was on that basis that the court denied his petition. Baker's issues 2-6, 13-14, 16, 18-21, 23 and 25, were not raised in his original petition filed in District Court, but are, instead, raised for the first time in this appeal.
Under the clear and unambiguous language of § 46-21-105(1), MCA, Baker's issues 2-6, 13-14, 16, 18-21, 23 and 25, have been waived and are procedurally barred from being raised inasmuch as these issues were not raised in Baker's original petition. Moreover, this being a direct appeal from the District Court's Decision and Order denying post-conviction relief under § 46-21-203, MCA, we will decline to consider issues not first raised in the trial court. Section 46-20-701, MCA; Rule 2(a), M.R.App.P.; State v. McColley (1991), 247 Mont. 524, 528, 807 P.2d 1358, 1361.
Accordingly, we will not consider Baker's issues 2-6, 13-14, 16, 18-21, 23 and 25, further.
Section 46-21-105(2), MCA, provides:
When a petitioner has been afforded a direct appeal of the petitioner's conviction, grounds for relief that could reasonably have been raised on direct appeal may not be raised in the original or amended petition.
Under this statute, a petitioner, like Baker, who has been afforded a direct appeal of his conviction may not raise in a post-conviction petition grounds for relief that he could reasonably have raised in his direct appeal. McColley, 807 P.2d at 1361. Moreover, we have held that the procedural bar applies to issues which were not properly preserved at the trial level for appeal. State v. Gorder (1990), 243 Mont. 333, 792 P.2d 370.
Here, Baker could reasonably have preserved his issues 1, 7, 9-14, 17 and 19, on their merits by first raising them in District Court. Having failed to do so the sole issue which he may now raise is one of ineffective assistance of counsel, by reason of the failure of counsel to preserve those issues.
Unless a post-conviction petitioner can demonstrate a fundamental miscarriage of justice (which Baker has failed to do here), we will consistently apply the procedural bar. See, Eiler; Petition of Evans (1991), 250 Mont. 172, 819 P.2d 156; McColley; Duncan v. State (1990), 243 Mont. 232, 794 P.2d 331; Tecca v. McCormick (1990), 246 Mont. 317, 806 P.2d 11; Petition of Martin (1989), 240 Mont. 419, 787 P.2d 746.
Accordingly, we conclude that Baker's issues 1, 7, 9-14, 17 and 19, are procedurally barred under § 46-21-105(2), MCA, as...
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