State v. White, 99-096.

• Decision Date: 09 August 2001
• Docket Number: No. 99-096.,99-096.
• Court: Montana Supreme Court
• Parties: STATE of Montana, Plaintiff and Respondent, v. Deborah Jean WHITE, Defendant and Appellant.

30 P.3d 340

2001 MT 149

306 Mont. 58

STATE of Montana, Plaintiff and Respondent, v. Deborah Jean WHITE, Defendant and Appellant.

No. 99-096.

Supreme Court of Montana.

Submitted on Briefs September 21, 2000.

Decided August 9, 2001.

For Appellant: Kenneth R. Olson, Great Falls, MT.

For Respondent: Joseph P. Mazurek, Montana Attorney General, C. Mark Fowler, Assistant Montana Attorney General, Helena, MT; Chris R. Christensen, Pondera County Attorney, Conrad, MT.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Appellant Deborah Jean White (White) appeals the Judgment of Conviction and Sentencing Order entered by the Ninth Judicial District Court, Pondera County, sentencing her to three 10 year concurrent sentences for felony forgery, with eight years suspended from each. White claims, on direct appeal, that she was denied effective assistance of counsel. The State contends that her claim is procedurally barred because the effectiveness of her trial counsel cannot be substantiated by the record, and therefore this Court should dismiss her claim without prejudice.

¶ 2 We agree with the State, and affirm.

¶ 3 White raises the following issue:

Was White denied effective representation of counsel which prejudiced her right to a fair trial?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 An Information was filed on December 16, 1997, charging White with three counts of felony forgery in violation of § 45-6-325, MCA. White allegedly forged checks totaling $105,000 while employed by Chester Brown as a live-in housekeeper. Following a trial in October of 1998, a jury found White guilty on all three counts. A sentencing hearing took place in November, resulting in the entry of judgment and sentence on November 30, 1998. White was sentenced to three concurrent 10-year sentences with eight years suspended from each.

¶ 5 White contends that she was denied the effective representation of counsel in this case. She claims her counsel failed to develop a theory of defense, made no opening statement, failed to make timely objections to critical evidence, presented no evidence or defense, and failed to offer proper jury instructions. Accordingly, she requests that this Court reverse the District Court's jury verdict and remand for a new trial.

DISCUSSION

¶ 6 As a threshold issue, the State contends this Court cannot address White's ineffective assistance of counsel claim based on the record. The State directs our attention to an Order, dated October 14, 1999, where this Court declared that a petition for post-conviction relief would be the proper avenue for White's non-record-based ineffective assistance of counsel claim. The Order resulted from White's motion for an evidentiary hearing to allow her to develop facts that were not part of the record and that were necessary to sustain her claim of ineffective assistance of counsel.

¶ 7 The State points out that here, on direct appeal, White has now "reformulated" her non-record-based claims to integrate some assertions that are arguably resolvable based on the record, but are nevertheless best suited for post-conviction proceedings. The State stands by this Court's Order, and requests that we dismiss White's appeal without prejudice.

¶ 8 White, on the other hand, contends that her claim of prejudicial error resulting from her former trial counsel's various failures to provide her effective representation are supported by the record, and are therefore properly before this Court on direct appeal.

¶ 9 As for this Court's prior Order, White acknowledges that she "understands that the Court cannot consider matters not in the record." White contends, however, that she can "point out to the Court certain facts, based upon their absence from the record." The record shows, for example, that her counsel called no witnesses, including the failure to call an expert to rebut or discredit the testimony of the State's handwriting expert. Likewise absent from the record is an opening statement by her counsel and the offering of a "theory of the case" to the jury at any stage of the proceedings. White argues that these factors, which are evident by their absence from the record, clearly demonstrate her trial counsel's deficient performance.

¶ 10 Accordingly, in order for this Court to reach the issue of ineffective assistance of counsel, we must first resolve the procedural question addressed by the State and White.

¶ 11 In considering ineffective assistance of counsel claims on direct appeal or in post-conviction proceedings, we apply the two-pronged standard of review 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. See Hagen v. State, 1999 MT 8, ¶ 10, 293 Mont. 60,

¶ 10, 973 P.2d 233, ¶ 10. Under the Strickland test, the petitioner must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. See Hagen, ¶ 10 (citations omitted).

¶ 12 In Hagen, this Court set forth the general procedural rule drawn from prior case law that where ineffective assistance of counsel claims are based on facts of record in the underlying case, they must be raised in the direct appeal and, conversely, where the allegations of ineffective assistance of counsel cannot be documented from the record in the underlying case, those claims must be raised by petition for post-conviction relief. See Hagen, ¶ 12 (citations omitted). We further emphasized that raising record-based ineffective assistance of counsel claims on direct appeal does not foreclose raising non record-based claims via petition for post-conviction relief. See Hagen, ¶ 15 (citations omitted).

¶ 13 The underlying principle of the foregoing rule is that a silent record cannot rebut the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, under this Court's Strickland-based analysis. See State v. Langford (1991), 248 Mont. 420, 432-33, 813 P.2d 936, 946

. Absent a complete record, this Court will not speculate on counsel's alleged errors. See State v. Dyfort, 2000 MT 338, ¶ 11, 303 Mont. 153, ¶ 11, 15 P.3d 464, ¶ 11.

¶ 14 As for what constitutes on-record and off-record actions of counsel that may be adjudged ineffective, our case law supplies general guidelines. Most reflect a fairly bright line, separating recorded courtroom proceedings from other actions or omissions of counsel that are ordinarily associated with representing a criminal defendant. Nevertheless, the two distinct classifications tend to overlap at times where non-recorded actions are in turn reflected by the record, such as where a poorly executed pre-trial maneuver results in obvious prejudicial cross-examination of a key witness for the State, or the failure to launch an objection to damaging testimony or evidence during trial.

¶ 15 Generally, an alleged failure to object to the introduction of evidence, or to object to the testimony of a witness, or object to prosecutorial misconduct at trial has been deemed record-based, and therefore appropriate for direct appeal. See Hagen, ¶ 20 (citing cases and stating that "[t]he absence of an objection by counsel—that is, a failure to object—is a fact easily documented by reviewing the record ..."). See also State v. Raugust, 2000 MT 146, ¶ 41, 300 Mont. 54,

¶ 41, 3 P.3d 115, ¶ 41; State v. Hanson (1997), 283 Mont. 316, 327-29, 940 P.2d 1166, 1173-74.

¶ 16 This Court has, however, held that decisions regarding the timing and number of objections lie within counsel's tactical discretion, which would indicate that non-record based information explaining the tactic may be involved, and thus should be barred from review on direct appeal. See State v. Brown (1987), 228 Mont. 209, 212, 741 P.2d 428, 430

(citing State v. Matson (1987), 227 Mont. 36, 47, 736 P.2d 971, 978). Further, a non-record based act or omission by counsel may actually include a failure to object to the admission of evidence which is evidenced by the record. In State v. Dyfort, for example, the failure to object to the admission of another defendant's plea agreement resulted from an off-record discussion at trial. Thus, the record was inadequate to explain why counsel had, in fact, acquiesced to the admission of the evidence. See Dyfort, ¶¶ 9-10. Similarly, this Court concluded in State v. St. John, 2001 MT 1, ¶ 40, 304 Mont. 47, ¶ 40, 15 P.3d 970, ¶ 40, that counsel's failure to object on the record to a district court's failure to consider sentencing alternatives was not record-based, and therefore was an inappropriate claim for direct appeal.

¶ 17 Along these same lines, counsel's own conduct at trial in presenting the defendant's case—such as improperly eliciting damaging testimony from a witness, or rendering an improper opening statement or closing argument—may be pointed to as a record-based instance of ineffective representation. See Hagen, ¶¶ 23, 26; Petition of Hans, 1998 MT 7, ¶ 42, 288 Mont. 168, ¶ 42, 958 P.2d 1175, ¶ 42. Nevertheless, this Court has determined that where counsel chooses to offer no opening statement at all, such a "tactic"—if it is indeed a "tactic"—is a non-record matter best suited for post-conviction relief. See Dawson v. State, 2000 MT 219, ¶ 99, 301 Mont. 135,

¶ 99, 10 P.3d 49, ¶ 99.

¶ 18 As for those clearly non-record based areas of representation, this Court has identified counsel's failure to adequately investigate, or failure to prepare a defense, or failure to familiarize him or herself with critical areas of the applicable law. See Hagen, ¶ 21 (quoting Fitzpatrick v. State (1981), 194 Mont. 310, 638 P.2d 1002). More specifically, this Court has determined that counsel's alleged failure to interview and prepare witnesses for trial—although the witnesses may in fact prejudicially testify on the record— may be claimed as non-record based. See Hagen, ¶ 37. Also, the failure to fully inform a defendant of the consequences of his various...