State v. Lucero, 02-578.

• Decision Date: 08 September 2004
• Docket Number: No. 02-578.,02-578.
• Citation: 97 P.3d 1106,2004 MT 248,323 Mont. 42
• Parties: STATE of Montana, Plaintiff and Respondent, v. Manuel Emilio LUCERO, Defendant and Appellant.
• Court: Montana Supreme Court

97 P.3d 1106

2004 MT 248

323 Mont. 42

STATE of Montana, Plaintiff and Respondent, v. Manuel Emilio LUCERO, Defendant and Appellant.

No. 02-578.

Supreme Court of Montana.

Submitted on Briefs July 3, 2003.

Decided September 8, 2004.

For Appellant: William F. Hooks, Helena, Montana.

For Respondent: Mike McGrath, Attorney General; C. Mark Fowler, Assistant Attorney General, Helena, Montana, Dennis Paxinos, County Attorney; Rod Souza, Deputy County Attorney, Billings, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Manuel Lucero (Lucero) appeals his conviction of assault on a peace officer following a jury trial, and from the sentence imposed by the Thirteenth Judicial District Court, Yellowstone County. We affirm in part, reverse in part, and remand.

¶ 2 The following issues are raised on appeal:

¶ 3 1. Did Lucero's attorney provide ineffective assistance of counsel?

¶ 4 2. Did the District Court err by imposing conditions in the written judgment that it did not impose at the oral pronouncement of sentence?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 On the evening of April 13, 2001, Detention Officer Jeff McRae was working in the maximum security unit of the Yellowstone County Detention Facility where Lucero was an inmate. At approximately 9:00 p.m. that evening, Lucero was outside his cell visiting with inmates in lock-down at the lower level of the cell block. When Officer McRae and his partner, Detention Officer Timothy Rickett, asked Lucero to return to his cell, which was located on the upper level, Lucero became agitated and refused to comply. Officer McRae again instructed Lucero to "lock-down," or return to his cell, and motioned for him to head up the stairs. Lucero eventually began to ascend the stairway, with Officers McRae and Rickett behind him. As he did so, he continued to exhibit agitation by cursing at the officers. When Lucero reached the top of the stairs, he turned around and attempted to strike Officer McRae. McRae blocked Lucero's punch with his hands, wrapped Lucero in a "hug," so that his arms were down at his sides, and carried Lucero to his cell approximately eight feet away. Once inside the cell, Officer McRae laid Lucero down on his bunk. Lucero, who was still extremely combative, bit the officer's right forearm, drawing blood. The officers then moved Lucero from the bunk to the floor, and attempted to restrain him in handcuffs. Lucero began spinning his body around on the floor, kicking and attempting to bite the officers whenever they came near. The officers eventually restrained Lucero after radioing for assistance, and Officer McRae obtained medical treatment for his injuries.

¶ 6 On April 18, 2001, Lucero was charged with assault on a peace officer, a felony, in violation of § 45-5-210, MCA (2001). Lucero entered a plea of not guilty, and the Yellowstone County Defender's Office was appointed as counsel. Shortly thereafter, the State filed a sealed notice of intent to have Lucero designated a persistent felony offender. On May 18, 2001, attorney David Duke was substituted as counsel for Lucero.

¶ 7 A jury trial followed on September 10 and 11, 2001. After approximately two and one-half hours of deliberation, the jury found Lucero guilty of the offense charged. Several days later, Lucero brought a pro se motion in District Court alleging that Duke had failed in multiple respects to ensure he received a fair trial. In particular, Lucero claimed to have a hearing impairment that prevented him from hearing people in open court. He also claimed to have the equivalent of a ninth grade education, which caused him to occasionally experience difficulty expressing his thoughts. Altogether, Lucero claimed that Duke had rendered ineffective assistance of counsel on thirteen grounds, including that Duke had failed to communicate a plea offer made by the State. Lucero requested a hearing and the appointment of replacement counsel. The District Court granted Lucero's motion, and, on March 27, 2002, Lucero appeared before the District Court represented by new defense counsel, Kevin Gillen, for an evidentiary hearing.

¶ 8 At the hearing, Duke testified that Lucero did not inform him of his hearing disability until shortly before he was to testify at trial. Duke explained that during Lucero's testimony, efforts were made to ensure that Lucero could hear the questions asked, including reminding counsel to speak loudly and requesting that Lucero inform questioning counsel, whether during direct or cross-examination, if he was unable to hear the question. Duke further testified that the State had orally offered a ten-year sentence and withdrawal of the Notice of Persistent Felony Offender designation. Duke communicated this offer to Lucero, but stated that he believed it was unreasonable given that the maximum sentence allowed under the statute was ten years.

¶ 9 On April 22, 2002, the District Court entered findings of fact, conclusions of law, and an order denying Lucero's ineffective assistance of counsel claims. In particular, the court found that Lucero had not shown that he suffered any prejudice as a result of his alleged hearing impairment and concluded that Duke had not rendered ineffective assistance by failing to make special accommodations on Lucero's behalf. The court further found Lucero's testimony that Duke had failed to communicate a plea offer was not credible, and concluded that Duke had fully informed Lucero of any plea offer made by the State, and that Lucero had elected to proceed to trial.

¶ 10 A sentencing hearing was thereafter held on May 23, 2002. At sentencing, the State recommended a term of commitment at the Montana State Prison of thirty years, with ten years suspended. Defense counsel requested imposition of the minimum sentence under § 45-5-210, MCA, with an additional five years imposed due to Lucero's status as a persistent felony offender. After noting Lucero's extensive criminal history from his presentence investigation report, the District Court designated Lucero a persistent felony offender and sentenced him to twenty years at the Montana State Prison, with five years suspended.

¶ 11 On May 31, 2002, the District Court reduced the oral pronouncement of sentence to a written judgment which included approximately twenty conditions not previously pronounced in open court. For the most part, the sentencing conditions were "stock restrictions," or conditions commonly imposed on probationers. However, they also included conditions restricting Lucero from entering any place where intoxicating liquor or beer is the chief item of sale, entering into any game of chance, or any place where gambling may be taking place, and requiring Lucero to undergo a chemical dependency evaluation. Lucero appeals from the court's judgment and imposition of these written conditions, as well as its denial of his claim for ineffective assistance of counsel.

STANDARD OF REVIEW

¶ 12 The Supreme Court reviews a district court's imposition of sentence for legality only. State v. Thompson, 2004 MT 131, ¶ 7, 321 Mont. 332, ¶ 7, 91 P.3d 12, ¶ 7. This is a question of law, which we review to determine whether the court's interpretation of the law is correct. Dept. of Corrections v. Phelps, 2000 MT 18, ¶ 8, 298 Mont. 135, ¶ 8, 995 P.2d 963, ¶ 8. However, claims of ineffective assistance of counsel are mixed questions of law and fact, and we therefore employ a de novo standard of review. State v. Turner, 2000 MT 270, ¶ 47, 302 Mont. 69, ¶ 47, 12 P.3d 934, ¶ 47.

DISCUSSION

¶ 13 Did Lucero's attorney provide ineffective assistance of counsel?

¶ 14 Lucero maintains that he received ineffective assistance of counsel at the plea bargaining stage of the proceedings. He claims that, while Duke may have communicated the State's oral plea offer to him, he failed to adequately explain the nature and terms of that offer. In response, the State contends that Lucero's claim is not appropriate for review on direct appeal because there are insufficient facts on record to support his claim.

¶ 15 Ineffective assistance of counsel claims are analyzed under the two-prong test from Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Under the first part of the test, the defendant bears the burden of showing that his counsel's performance was deficient or fell below the objective standard of reasonableness. State v. St. John, 2001 MT 1, ¶ 37, 304 Mont. 47, ¶ 37, 15 P.3d 970, ¶ 37, overruled on other grounds by State v. Brister, 2002 MT 13, 308 Mont. 154, 41 P.3d 314

. In so doing, 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. Davis v. State, 2004 MT 112, ¶ 20, 321 Mont. 118, ¶ 20, 88 P.3d 1285, ¶ 20 (citing Strickland, 466 U.S. at 688-89,

104 S.Ct. at 2064-65,

80 L.Ed.2d at 693). Second, the defendant must show that he was prejudiced by counsel's deficient performance. Prejudice is established when the defendant shows reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. State v. Hagen, 2002 MT 190, ¶ 18, 311 Mont. 117, ¶ 18, 53 P.3d 885, ¶ 18.

¶ 16 Normally, the record on appeal must adequately document why counsel acted in a particular manner before this Court will review an ineffective assistance of counsel claim on direct appeal. State v. Jefferson, 2003 MT 90, ¶ 49, 315 Mont. 146, ¶ 49, 69 P.3d 641, ¶ 49. If the record does not supply the reason for counsel's act or omission, the claim is more appropriately raised by petition for postconviction relief. State v. Harris, 2001 MT 231, ¶ 21, 306 Mont. 525, ¶ 21, 36 P.3d 372, ¶ 21.

¶ 17 However, in this case, the claimed act or omission cannot be considered "trial strategy." Rather, counsel's communication of the oral plea offer to Lucero was obligatory, not strategic. Hans v. State (1997), 283 Mont. 379,...