Temple v. State

• Decision Date: 21 December 2021
• Docket Number: DA 20-0303
• Citation: 499 P.3d 1174 (Table)
• Parties: Brian John TEMPLE, Petitioner and Appellant, v. STATE of Montana, Respondent and Appellee.
• Court: Montana Supreme Court

499 P.3d 1174 (Table)

Brian John TEMPLE, Petitioner and Appellant,

v.STATE of Montana, Respondent and Appellee.

DA 20-0303

Supreme Court of Montana.

Submitted on Briefs: November 17, 2021

Decided: December 21, 2021

For Appellant: Nick K. Brooke, Smith & Stephens, P.C., Missoula, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana, Leo Gallagher, Lewis and Clark County Attorney, Helena, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Brian John Temple (Temple) appeals from the April 6, 2020 Order of the First Judicial District Court, Lewis and Clark County, denying his petition for postconviction relief (PCR), as he failed to meet pleading standards, failed to demonstrate his counsel was deficient, and failed to demonstrate he was prejudiced by counsel's performance. We affirm.

¶3 In his PCR petition and notices of supplemental facts, Temple asserted his trial counsel was ineffective by failing to obtain records from CVS pharmacy, showing Temple obtained Oxycodone through valid prescriptions on April 6, April 11, April 19, and April 29 (five days before his arrest), in addition to the April 2 prescription admitted at trial; failing to address that it was not unlawful to crush, heat, and inject a prescription drug obtained pursuant to a valid prescription; and failing to interview and call Linda and Brian Graham, who would have testified that some of the coins Temple was alleged to have stolen from Miller's Coin Shop were actually owned by the Grahams and given to Temple.¹ To provide context for these claims some background information is necessary.

¶4 In May 2011, Temple was charged with assault on a peace officer, obstructing a peace officer, criminal possession of drug paraphernalia (for possessing a "drug kit" consisting of a spoon, tourniquet

, pill crusher, and syringe), and theft (based on theft of valuable coins from Wayne Miller Coins). After laboratory analysis confirmed residue on the spoon was Oxycodone, the State added a felony charge of criminal possession of dangerous drugs. Prior to trial, the District Court granted Temple's motion to dismiss the assault on a peace officer charge. Temple proceeded to jury trial on the remaining charges.

¶5 At trial, Temple admitted to possessing drug paraphernalia and Oxycodone. His defense was that he had filled a legally valid prescription in April 2011, and therefore, his possession of the residue on the spoon was legal. At the close of trial, the District Court instructed the jury on the elements of criminal possession of dangerous drugs and that Temple could assert as a defense that he had obtained the Oxycodone pursuant to a valid prescription. During deliberations, the jury appeared to struggle not with whether Temple had a valid prescription but with the method of use of the Oxycodone prescription:

The jury asked the court during deliberations whether crushing prescription Oxycodone violated the law. The court declined to answer and referred the jury to the original instructions.

...

Neither party had proposed an instruction on the legality of crushing prescription Oxycodone, and the court gave no such instruction in its initial charge to the jury. But during deliberations, the jury sent a note with the following questions: (1) "According to the law, when you alter the form of a prescription drug ... by either applying heat or crushing, does that change the chemical compound of the drug?"; and (2) "If so, does that chemical change make it illegal?" The court responded with the statement, "You are instructed to rely on your collective memory of the testimony and evidence presented."

The jury sent another note, asking, "Is it illegal to crush Schedule II Oxycodone?" Temple's counsel urged the court to answer "no," arguing that the relevant statutes did not criminalize such conduct. The court acknowledged that the legality of crushing Oxycodone was "obviously ... tying [the jury] up." Nonetheless, the court responded to the jury, "You are instructed to rely on your collective memory of the testimony and evidence presented and on the instructions previously given."

State v. Temple , 2016 MT 284, ¶¶ 1, 7, 8, 385 Mont. 287, 384 P.3d 54 (second, third, and fourth alterations in original).

¶6 Temple was convicted of all remaining charges. Temple appealed, arguing the District Court abused its discretion in refusing to further instruct the jury on the legality of crushing prescription Oxycodone. Temple , ¶ 9. Upon review of the evidentiary presentation and instructions, this Court concluded:

The trial court charged the jury on the elements of the crime charged and on Temple's "ultimate user" defense using the language of the controlling statutes. The relevant statutes do not speak directly to the issue the jury raised during deliberations. The District Court was obligated to instruct the jury only as to "the law applicable to the case," [ State v. ] Bieber , [2007 MT 262,] ¶ 67, [339 Mont. 309, 170 P.3d 444,] not as to a legal question on which the parties had not been heard prior to the jury's retiring to deliberate and on which the law presented no clear answer. There is no abuse of discretion if, as a whole, the instructions fairly and fully covered the applicable law.

The outcome of this case hinged on the jury's determination of whether the Oxycodone found in Temple's possession in May 2011 was obtained "pursuant to" his April 2, 2011 prescription. Section 50-32-302(3), MCA. We conclude that the court's initial instructions on the "ultimate user" defense, using the phrases "under a valid prescription" and "pursuant to a valid prescription," fulfilled its obligation to "fully and fairly instruct the jury on the law applicable to the case." Bieber , ¶ 67. Its decision to refer the jury back to the instructions in response to the jury's questions did not constitute an abuse of discretion.

Temple , ¶¶ 17-18 (additional citations omitted).

¶7 IAC claims are mixed questions of law and fact that we review de novo. State v. Rodriguez , 2021 MT 65, ¶ 16, 403 Mont. 360, 483 P.3d 1080.

¶8 Article II, Section 24, of the Montana Constitution and the Sixth Amendment to the United States Constitution, as incorporated through the Fourteenth Amendment, guarantee a defendant the right to effective assistance of counsel. See State v. Kougl , 2004 MT 243, ¶ 11, 323 Mont. 6, 97 P.3d 1095.

¶9 A PCR petition must identify all facts that support the claims for relief. See § 46-21-104(1)(c), MCA ; Kelly v. State , 2013 MT 21, ¶ 9, 368 Mont. 309, 300 P.3d 120. If the district court determines the petition and the record show the petitioner is not entitled to relief, the district court may dismiss the proceedings without requiring a response or without holding an evidentiary hearing. Section 46-21-201(1)(a), MCA ; see Lacey v. State , 2017 MT 18, ¶ 40, 386 Mont. 204, 389 P.3d 233. Consequently, a petitioner seeking to reverse a district court's denial of a PCR petition "bears a heavy burden." State v. Cobell , 2004 MT 46, ¶ 14, 320 Mont. 122, 86 P.3d 20.

¶10 In assessing IAC claims, we apply the two-pronged test set forth in Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052 (1984). See Kougl , ¶ 11. Under the Strickland test, the defendant must (1) demonstrate that "counsel's performance was deficient or fell below an objective standard of reasonableness" and (2) "establish prejudice by demonstrating that there was a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different." Kougl , ¶ 11 (quoting State v. Turnsplenty , 2003 MT 159, ¶ 14, 316 Mont. 275, 70 P.3d 1234 ). Courts determine deficient performance based on whether a defendant's counsel acted within the broad "range of competence demanded of attorneys in criminal cases." Schaff v. State , 2003 MT 187, ¶ 18, 316 Mont. 453, 73 P.3d 806. A strong presumption exists that counsel's conduct falls within the wide range of reasonable professional conduct. See Kougl , ¶ 11. A defendant must satisfy both prongs of this test in order to prevail on an ineffective assistance of counsel claim. If a petitioner fails to prevail on one prong, "there is no need to address the other prong." Whitlow v. State , 2008 MT 140, ¶ 11, 343 Mont. 90, 183 P.3d 861.

No IAC related to not obtaining and presenting later Oxycodone prescriptions.

¶11 Temple asserts his trial counsel was ineffective for failing to obtain, and present CVS prescription records, which Temple obtained posttrial and submitted in supplementation of his PCR petition, showing Temple had filled prescriptions for Oxycodone on April 6 (60 pills), April 11 (60 pills), April 19 (60 pills), and April 29 (60 pills) and the District Court erred in not considering these prescriptions as they were not accompanied by an affidavit. Temple asserts presentation of these prescriptions at trial would have bolstered his defense theory by showing valid ongoing prescriptions, including the one—that of April 29—five days before his arrest, rather than only the prescription of April 2 for 20 pills—five weeks before arrest—which was submitted into evidence by his counsel at trial.²

¶12 The District Court denied Temple's PCR claim relating to the additional prescriptions, concluding they were not properly before the court, as when they were presented in supplement to the PCR petition, they were not accompanied by an affidavit. The State concedes the District Court erred in interpreting § 46-21-104(1)(c), MCA, to require an affidavit accompany records supplementing a PCR petition, but nevertheless correctly concluded on...