Thurston v. State

• Decision Date: 07 June 2004
• Docket Number: No. 02-283,02-283
• Citation: 91 P.3d 1259,2004 MT 142
• Parties: DAVID THURSTON, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Respondent.
• Court: Montana Supreme Court

2004 MT 142

91 P.3d 1259

DAVID THURSTON, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Respondent.

No. 02-283

Supreme Court of Montana.

Submitted on Briefs: August 28, 2003

Decided: June 7, 2004

For Appellant: Chad Wright, Montana Appellate Defender, Helena, Montana.

For Respondent: Hon. Mike McGrath, Attorney General; Jennifer Anders, Assistant Attorney General, Helena, Montana.

Justice Jim Regnier delivered the Opinion of the Court.

¶1 David Thurston (Thurston) was charged with two counts of sexual intercourse without consent and one count of sexual assault. Thurston pleaded guilty to the two counts of sexual intercourse without consent as part of a plea agreement. The District Court sentenced Thurston to twenty years in prison for the first Count of sexual intercourse without consent, and ten years suspended for the second count. Thurston later filed a Petition for Postconviction Relief which the District Court denied. Thurston appeals from the District Court's Order. We affirm in part, reverse in part, and remand.

¶2 We address the following issues on appeal:

¶3 1. Did the District Court err when it refused to address Thurston's postconviction claim that the District Court was without authority to sentence him without considering the statutory nonviolent offender criteria?

¶4 2. Did the District Court abuse its discretion when it denied four of Thurston's claims for postconviction relief?

¶5 3. Did the District Court abuse its discretion when it denied Thurston's request to amend his Petition for Postconviction Relief?

BACKGROUND

¶6 On September 4, 1992, David Thurston was charged with two counts of sexual intercourse without consent and one count of sexual assault. Steven Hudspeth (Hudspeth) represented Thurston before the District Court. As part of a plea agreement, Thurston pleaded guilty to the first two counts. In exchange, the State dropped the sexual assault charge and agreed to recommend up to a twenty-year prison sentence on Count I, and up to a ten-year suspended sentence on Count II. The District Court sentenced Thurston in accordance with the State's recommendation. Thurston did not appeal his sentence.

¶7 On November 30, 1998, Thurston filed a pro se Petition for Postconviction relief. Thurston was later appointed counsel to represent him in the postconviction proceedings. The District Court denied Thurston's Petition. Thurston appeals from the District Court's Order.

STANDARD OF REVIEW

¶8 We review a district court's denial of postconviction relief to determine whether the court's findings of fact are clearly erroneous and whether its conclusions of law are correct. Soriach v. State, 2002 MT 187, ¶ 13, 311 Mont. 90, ¶ 13, 53 P.3d 878, ¶ 13. Discretionary rulings in postconviction relief proceedings, including rulings relating to whether to hold an evidentiary hearing, are reviewed for an abuse of discretion. Soriach, ¶ 13. Moreover, claims of ineffective assistance of counsel are mixed questions of law and fact; therefore, this Court's review is de novo. Soriach, ¶ 13.

¶9 An order denying a motion to amend a postconviction petition is reviewed for an abuse of discretion. Kills On Top v. State (1996), 279 Mont. 384, 390, 928 P.2d 182, 187.

DISCUSSION

ISSUE ONE

¶10 Did the District Court err when it refused to address Thurston's postconviction claim that the District Court was without authority to sentence him without considering the statutory nonviolent offender criteria?

¶11 In Ground Eight of his Petition for Postconviction Relief, Thurston alleged the District Court erred by imposing a prison sentence without considering the statutory nonviolent offender criteria. Section 46-18-201(10), MCA (1991), the statute in effect at the time of Thurston's trial, provides that in sentencing a nonviolent felony offender, the sentencing judge shall consider alternatives to imprisonment in a state prison, including placement in a community corrections facility or program. The sentencing court apparently failed to do so. The District Court denied Thurston's postconviction claim regarding the nonviolent offender criteria, concluding it should have been raised on direct appeal pursuant to § 46-21-105(2), MCA. Section 46-21-105(2), MCA, provides that an issue which could have been reasonably raised on direct appeal may not be raised in a petition for postconviction relief.

¶12 On appeal Thurston argues that the sentencing court's failure to comply with § 46-18-201(10), MCA (1991), is an issue of subject matter jurisdiction and can therefore be raised at any stage of a judicial proceeding. He cites to State v. Moorman (1996), 279 Mont. 330, 928 P.2d 145, for the proposition that sentences imposed without statutory authority raise claims of subject matter jurisdiction which are never procedurally barred. In Moorman, the defendant claimed that the sentencing court lacked jurisdiction to continue his dangerous offender designation upon revocation of a suspended sentence. We stated that "If the District Court lacked the statutory authority to impose the dangerous offender designation on Moorman, then Moorman's sentence is void." Moorman, 279 Mont. at 336, 928 P.2d at 149.

¶13 While Thurston is correct that issues involving subject matter jurisdiction may be raised at any stage of a judicial proceeding, we disagree that subject matter jurisdiction is at issue here. Moorman is not applicable in this case. In Moorman, the defendant challenged the sentencing court's jurisdiction to impose a sentence in the first place. Moorman, 279 Mont. at 336, 928 P.2d at 149. Here, Thurston is arguing the sentencing judge failed to consider sentencing alternatives, not that it lacked jurisdiction to impose a sentence in the first place. We conclude the District Court did not err when it refused to address Thurston's postconviction claim that the District Court was without authority to sentence him without considering the statutory nonviolent offender criteria. Here, Thurston did not raise this matter on direct appeal and pursuant to § 46-21-105(2), MCA, he may not do so in this postconviction proceeding.

ISSUE TWO

¶14 Did the District Court abuse its discretion when it denied four of Thurston's claims for postconviction relief?

¶15 Thurston next argues that the District Court erred when it dismissed four other postconviction claims because they were not raised on direct appeal and were therefore barred by § 46-21-105(2). These claims include Ground Seven, alleging that Thurston's attorney, Hudspeth, had a conflict of interest; (2) Grounds Four and Six, alleging that Hudspeth provided ineffective assistance at sentencing because he failed to present arguments in mitigation of the sentence; and (3) Ground Thirteen, alleging that Hudspeth provided ineffective assistance when he advised Thurston about the length of the sentence.

¶16 Thurston argues that Hudspeth had a conflict of interest while representing Thurston because Hudspeth was a former Cascade County Deputy Attorney. Thurston states that Hudspeth exchanged information about the investigation of Thurston's case while he was a deputy county attorney.

¶17 A defendant claiming ineffective assistance of counsel due to a conflict of interest must show: (1) that counsel actively represented conflicting interests; and (2) that an actual conflict of interest adversely affected counsel's performance. State v. Deschon, 2002 MT 16, ¶ 18, 308 Mont. 175, ¶ 18, 40 P.3d 391, ¶ 18. The District Court denied Ground Seven in Thurston's Petition for Postconviction Relief stating, "First, this the conflict of interest was admittedly disclosed to the Defendant who did not elect to ask for other counsel. Second, there is no statement as to how this might have affected the performance of counsel or how Defendant might have been prejudiced."

¶18 Thurston cites us to Sanders v. Ratelle (9th Cir. 1994), 21 F.3d 1446. In Sanders, the Ninth Circuit stated, "Once an actual conflict has been demonstrated, prejudice is presumed since the harm may not consist solely of what counsel does, but of `what the advocate finds himself compelled to refrain from doing, not only at trial but also' during pretrial proceedings and preparation." Sanders, 21 F.3d at 1452, citing Holloway v. Arkansas (1978), 435 U.S. 475, 490, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426. The Ninth Circuit further stated that, "The existence of an actual conflict cannot be governed solely by the perceptions of the attorney; rather, the court itself must examine the record to discern whether the attorney's behavior seems to have been influenced by the suggested conflict." Sanders, 21 F.3d at 1452.

¶19 Thurston also cites to the American Bar Association's Standards for Criminal Justice. Standard 4-3.5 states:

(f) Defense counsel should not defend a criminal case in which counsel's partner or other professional associate is or has been the prosecutor in the same case.

(g) Defense counsel should not represent a criminal defendant in a jurisdiction in which he or she is also a prosecutor.

(h) Defense counsel who formerly participated personally and substantially in the prosecution of a defendant should not thereafter represent any person in the same or a substantially related matter. Defense counsel who was formerly a prosecutor should not use confidential information about a person acquired when defense counsel was a prosecutor in the representation of a client whose interests are adverse to that person in a matter.

ABA Standards on Criminal Justice 4-3.5(f)-(h), 3d Ed. (1993). In addition, Thurston directs us to § 37-61-413, MCA, which states:

Former public prosecutors not to defend. An attorney and counselor who has brought, carried on, aided, advocated, or prosecuted or has been in anyway connected with an action or special proceeding, civil or criminal, as attorney general, county attorney, or other public prosecutor, must not, at any time thereafter, directly or indirectly advise concerning, aid, or

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