State v. Rogers, 00-364.

• Decision Date: 21 August 2001
• Docket Number: No. 00-364.,00-364.
• Citation: 306 Mont. 130,32 P.3d 724,2001 MT 165
• Parties: STATE of Montana, Plaintiff and Respondent, v. Donald P. ROGERS, Defendant and Appellant.
• Court: Montana Supreme Court

32 P.3d 724

2001 MT 165

306 Mont. 130

STATE of Montana, Plaintiff and Respondent, v. Donald P. ROGERS, Defendant and Appellant.

No. 00-364.

Supreme Court of Montana.

Submitted on Briefs January 11, 2001.

Decided August 21, 2001.

Chad Wright, Appellate Defender, Helena, MT, For Appellant.

Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General, Helena, MT, Fred Van Valkenburg, County Attorney, Missoula, MT, For Respondent.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Donald Rogers (Rogers) appeals from the order of the Fourth Judicial District Court denying post-conviction relief. The District Court found that Rogers's claims of defense counsel's error in failing to request a "failure to agree" jury instruction and failing to preserve Rogers's right to appeal lacked merit and, therefore, any error was harmless. The court granted Rogers's double jeopardy claim and reversed the ten-year sentence enhancement for use of a weapon. We reverse.

¶ 2 The following issues are raised on appeal:

I. Did the District Court err when it found that the failure to request a "failure to agree" jury instruction did not constitute ineffective assistance of counsel?

II. Did the District Court err when it found that defense counsel's failure to preserve Rogers's right to appeal was harmless?

Factual and Procedural Background

¶ 3 In the fall of 1995, Angela Tretteen (Tretteen) and Rogers were in Rogers's car when he fired a gun out the window several times. Although Tretteen's version of what happened differs from Rogers's version, both agree that Rogers made sexual advances, that Tretteen rebuffed his advances and that the gun was fired. Tretteen testified that Rogers made sexual advances and when she rebuffed him, he pulled out the gun and pointed it at her demanding that she have sex with him. After she again refused, Tretteen testified, he shot the gun out the window before again demanding she have sex with him. Witnesses for Rogers testified that shortly after the incident, Tretteen said that Rogers did not point the gun at her and that he did not try to rape her.

¶ 4 Rogers was charged with one count of attempted sexual intercourse without consent and one count of felony assault. At trial, the District Court provided jury instructions with misdemeanor sexual assault and misdemeanor assault as lesser included offenses of the two charged offenses. Rogers's attorney requested the "acquittal first" instruction which provided that the jury was not to consider the lesser included offenses unless they first acquitted on the greater offenses. The jury acquitted Rogers of attempted sexual intercourse without consent and its lesser included offense of misdemeanor sexual assault and convicted him of felony assault. Rogers was subsequently sentenced to ten years for felony assault with a ten-year sentence enhancement for the use of a weapon in the commission of the felony assault.

¶ 5 The attorney who represented Rogers at trial declined to file a notice of appeal, asserting that he saw no appealable issues. Nine months after final judgment was entered, Rogers attempted to file a notice of appeal, pro se. This Court dismissed that appeal and ordered that any claims abandoned due to counsel's failure to file a notice of appeal could be raised before the District Court in a petition for post-conviction relief.

¶ 6 Rogers filed a petition for post-conviction relief in which he alleged: 1) his counsel was ineffective when he did not request a "failure to agree" instruction for the lesser included offenses; 2) his counsel was ineffective for failing to preserve his right to appeal; 3) the ten-year sentence enhancement for use of a weapon in the commission of the felony assault subjected Rogers to double jeopardy. After a hearing, the District Court denied Rogers's first two claims, finding that neither justified reversal of his conviction and therefore constituted harmless error. The court granted Rogers's double jeopardy claim and ordered the removal of the ten-year sentence enhancement.

Discussion

I. Did the District Court err when it found that the failure to request a "failure to agree" jury instruction did not constitute ineffective assistance of counsel?

¶ 7 A defendant's right to assistance of counsel is guaranteed by Article II, Section 24 of the Montana Constitution and by the Sixth Amendment to the United States Constitution. The right to counsel means the right to effective assistance of counsel. State v. Enright (1988), 233 Mont. 225, 758 P.2d 779; Strickland v. Washington (1984), 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692.

¶ 8 In Boyer, we adopted the Strickland standard which provides that a defendant is denied effective assistance of counsel if: (1) counsel made errors so serious that his conduct fell short of the range of competence required of attorneys in criminal cases; and (2) counsel's errors were prejudicial. State v. Boyer (1985), 215 Mont. 143, 695 P.2d 829. The United States Supreme Court recently warned however, that "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel. Rather, courts must judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Roe v. Flores-Ortega (2000), 528 U.S. 470, 477, 120 S.Ct. 1029, 1034-35, 145 L.Ed.2d 985, 995 (internal citations omitted).

¶ 9 We recently reiterated that, to constitute ineffective assistance, counsel's actions must stem from ignorance or neglect rather than from professional strategic decisions. State v. Aliff, 2001 MT 52, ¶ 13, 304 Mont. 310, ¶ 13, 21 P.3d 624, ¶ 13 (citing State v. Gonzales (1996), 278 Mont. 525, 532, 926 P.2d 705, 710). In Aliff and Gonzales, counsel for each defendant made a tactical decision to not offer a jury instruction regarding a defense available to him, but not presented at trial. In both Aliff and Gonzales, the defendant failed, on appeal, to sustain the substantial burden of proving that the tactical decision of defense counsel fell outside of the range of competence demanded of an attorney in a criminal case.

¶ 10 We have also found that because there is a strong presumption that counsel will exercise professional judgment, a defendant fails to meet his burden of establishing that counsel's actions were in error if the record is devoid of evidence indicating that counsel's choice of instruction was the result of neglect or ignorance. State v. Hubbel, 2001 MT 31, ¶ 21, 304 Mont. 184, ¶ 21, 20 P.3d 111, ¶ 21.

¶ 11 Rogers contends that not requesting the "failure to agree" jury instruction allowed by § 46-16-607(3), MCA, constituted deficient performance. Section 46-16-607(3) provides that "[u]pon request of the defendant at the settling of instructions, the court shall instruct the jury that it may consider the lesser included offense if it is unable after reasonable effort to reach a verdict on the greater offense." Rogers argues that the "acquittal first" instruction significantly limited the jury's ability to consider the lesser included offense of misdemeanor assault. In support of his claim, Rogers relies on United States v. Jackson, in which the Ninth Circuit warned against the risk of requiring acquittal of the greater offense before allowing consideration of the lesser included offense, stating:

[J]urors harboring a doubt as to defendant's guilt of the greater offense but at the same time convinced that defendant had committed some offense might wrongly yield to the majority and vote to convict of the greater offense rather than not convict defendant of any offense at all.

United States v. Jackson (9th Cir.1984), 726 F.2d 1466, 1470.

¶ 12 Rogers argues that since § 46-16-607(3), MCA, was drafted to protect against the serious risk identified by the Jackson court, defense counsel had an obligation to offer it unless he had a strategic reason for not doing so. In support of his contention that counsel had no strategic reason, Rogers relies on defense counsel's statements that he was unaware that the jury instruction he offered did not include the "failure to agree" clause allowed by the statute. Rogers relies on defense counsel's testimony that he did know that he was allowed to offer the "failure to agree" instruction provided for in § 46-16-607(3), MCA, and that he did not make a conscious choice not to do so.

¶ 13 The District Court found that counsel's failure to offer the "failure to agree" instruction was error. Although Rogers's attorney stated he knew that the "failure to agree" instruction was available, he could articulate no reason for limiting the jury's consideration of the misdemeanor assault charge. In this case, the attorney exercised no professional judgment and made no strategic decision in not offering the instruction allowing the jury to consider the misdemeanor charge without first acquitting Rogers on the felony assault charge. We agree that the failure to offer this potentially beneficial instruction, when that failure is not part of counsel's trial strategy, is an error so serious that it falls outside of the range of competence required of attorneys in criminal cases. Thus the first prong of the Strickland test is satisfied, and we move on to address whether the deficient performance was prejudicial.

¶ 14 To establish prejudice, a defendant must show there is a reasonable probability that but for counsel's errors, the result of the proceedings would have been different. "A reasonable probability is a probability sufficient to undermine confidence in the outcome," but it does not require that a defendant demonstrate that he would have been acquitted. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

¶ 15 We have previously held that a court must accept the "failure to agree" instruction when defense counsel timely offers it. State v. Robbins,...