Wilkes v. State

• Decision Date: 18 August 2015
• Docket Number: No. DA 14–0336.,DA 14–0336.
• Citation: 380 Mont. 388,2015 MT 243,355 P.3d 755
• Parties: Robert James WILKES, Jr., Petitioner and Appellant, v. STATE of Montana, Respondent and Appellee.
• Court: Montana Supreme Court

380 Mont. 388

355 P.3d 755

2015 MT 243

Robert James WILKES, Jr., Petitioner and Appellant

v.STATE of Montana, Respondent and Appellee.

No. DA 14–0336.

Supreme Court of Montana.

Submitted on Briefs March 4, 2015.

Decided Aug. 18, 2015.

For Appellant: Larry D. Mansch, Brendan McQuillan, Montana Innocence Project; Missoula, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant Attorney General; Helena, Montana, Kristen Pabst, Missoula County Attorney, Suzy Boylan, Deputy Missoula County Attorney; Missoula, Montana.

For Amicus Curiae The Innocence Network: Colin M. Stephens, Smith & Stephens, P.C.; Missoula, Montana.

Opinion

Justice MICHAEL E. WHEAT delivered the Opinion of the Court.

¶ 1 Robert Wilkes appeals from the order of the Montana Fourth Judicial District Court, Missoula County, denying his petition for post-conviction relief We reverse and remand.

ISSUES

¶ 2 We review the following issues:

1. Did the District Court err by failing to adequately address Wilkes's claims for post-conviction relief?

2. Did the District Court err by denying Wilkes's IAC claim?

3. Did the District Court abuse its discretion by denying Wilkes's post-conviction relief claims before conducting a hearing?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 Wilkes's three-month-old son, Gabriel, died on October 26, 2008, following hemorrhaging in his head sustained on or before October 4, 2008. According to Wilkes, he had put Gabriel to sleep on the evening of October 4, 2008, after retrieving Gabriel from the care of a babysitter. A few minutes later, he discovered that Gabriel had vomited and was limp. He attempted CPR and, unable to find his phone, took Gabriel to the babysitter's nearby apartment. The babysitter called 911 while Wilkes continued to perform CPR.

¶ 4 When paramedics arrived, Gabriel was taken to Missoula Community Hospital and then, on October 6, 2008, to Sacred Heart Children's Hospital in Spokane, Washington. Doctors in Spokane found evidence of retinal hemorrhaging and subdural hemorrhaging in Gabriel's brain, and they placed him on life support. Ultimately, Gabriel was removed from life support on October 21, 2008, and he died five days later.

¶ 5 Suspecting that Gabriel's injuries were non-accidental and caused by his father, the State charged Wilkes with deliberate homicide. At trial, the State argued that Gabriel died from abusive head trauma (AHT) (more commonly known as shaken baby syndrome ) caused by Wilkes. The State's theory was that Gabriel was healthy when he left the care of the babysitter and that because he was in Wilkes's exclusive control thereafter, Wilkes must have been the cause of Gabriel's AHT. To support this theory, the State provided evidence that the babysitter fed Gabriel a bottle of formula just before Gabriel left the babysitter's care. It then provided expert witness testimony that Gabriel's injuries were consistent with an AHT diagnosis, that symptoms of AHT are displayed almost immediately following injury, and that Gabriel would not have been able to drink the bottle of formula once he was suffering from AHT. Based on this evidence, the State concluded that Gabriel was not suffering from AHT when he left the babysitter's care; that he was suffering from AHT by the time Wilkes and Gabriel returned to the babysitter's; that the injury causing Gabriel's AHT occurred in the interim; and that because Wilkes had exclusive control over Gabriel during this time, Wilkes must have caused Gabriel's AHT and resulting death.

¶ 6 Wilkes, represented by Scott Spencer, did not call any expert witnesses or, for that matter, any witnesses other than himself at trial. When he testified, Wilkes maintained his innocence, claiming that he did not harm Gabriel in any way. Meanwhile, Wilkes, through Spencer, left much of the State's evidence unrefuted. At trial, Spencer told the jury that “virtually [ ] everything [in this case] is agreed to” but that Wilkes should be found not guilty because there was reasonable doubt as to the timing of the AHT. In the alternative, he argued that Wilkes was at most guilty of negligent homicide rather than deliberate homicide. Spencer did not introduce any evidence to support either of these theories. Ultimately a jury found Wilkes guilty of deliberate homicide. A judgment was entered on June 16, 2010, sentencing him to 40 years in Montana State Prison.

¶ 7 On July 18, 2011, Wilkes filed a petition for post-conviction relief pro se. In it, he claimed that he received ineffective assistance of counsel (IAC). Wilkes requested appointment of counsel on November 3, 2011, and on March 2, 2012, the Montana Innocence Project filed a notice of appearance to represent him. Following several continuances and an uncontested motion to amend Wilkes's petition, an amended petition for post-conviction relief was filed on September 5, 2012. In it Wilkes argued, supported by the testimony of several experts, that he should receive a new trial because he received IAC and because he had discovered new evidence warranting a new trial.

¶ 8 The State responded to the amended petition on May 3, 2013. Included with the response was an affidavit from Spencer. The State argued that Wilkes had not received IAC and that the evidence Wilkes presented did not warrant a new trial. Following a reply brief from Wilkes, the District Court decided that an evidentiary hearing was not necessary and that, based on the filings before it, Wilkes was not entitled to a new trial. It denied Wilkes's petition for post-conviction relief.

STANDARDS OF REVIEW

¶ 9 We review a district court's denial of a petition for post-conviction relief to determine whether the court's findings of fact are clearly erroneous and whether its conclusions of law are correct. Heath v. State, 2009 MT 7, ¶ 13, 348 Mont. 361, 202 P.3d 118. We review discretionary rulings in post-conviction relief proceedings, including rulings related to whether to hold an evidentiary hearing, for an abuse of discretion. Heath, ¶ 13. We review de novo the mixed questions of law and fact presented by claims of IAC. Heath, ¶ 13.

DISCUSSION

¶ 10 1. Did the District Court err by failing to adequately address Wilkes's claims for post-conviction relief?

¶ 11 Wilkes claims that the District Court erred when it inadequately addressed his IAC and newly discovered evidence claims. We address the IAC claim at paragraphs 18 through 33, and address his newly discovered evidence claim below.

¶ 12 A district court must adequately address a petitioner's post-conviction relief claims before dismissing them. We have remanded cases and ordered district courts to make further findings and conclusions when the district courts have failed to address each post-conviction relief claim. Heath, ¶ 26; Williams v. State, 2002 MT 189, ¶¶ 24–28, 311 Mont. 108, 53 P.3d 864. We have also remanded cases for further proceedings where we were unable to determine from a district court's order the facts upon which the district court based its legal conclusions. Beach v. State, 2009 MT 398, ¶ 51, 353 Mont. 411, 220 P.3d 667.

¶ 13 The District Court failed to specifically address Wilkes's newly discovered evidence claim. The District Court made no specific conclusion regarding this claim. Rather, it described the evidence and then restated and summarized the parties' arguments without comment or analysis. The District Court did not even identify the legal standard required for a petitioner to succeed on a newly discovered evidence claim. Although this claim is related to and involves much of the same evidence as Wilkes's IAC claim, and although the District Court analyzed much of the evidence when considering Wilkes's IAC claim, this does not make its analysis adequate. Wilkes is entitled to have his newly discovered evidence claim independently considered, and the District Court erred when it did not do so. Williams, ¶ 27.

¶ 14 Regardless, the State argues that the District Court correctly denied Wilkes's newly discovered evidence claim and that we should affirm its decision. Wilkes also makes arguments on the merits of its newly discovered evidence claim. We have considered such arguments—arguments on the merits of an issue that we have decided a District Court inadequately addressed—as harmless error arguments. See Kills On Top v. State, 2000 MT 340, ¶¶ 17–18, 303 Mont. 164, 15 P.3d 422. While we construe the State's argument to be a harmless error argument here, we cannot conclude that the District Court's failure to adequately address Wilkes's newly discovered evidence claim was harmless.

¶ 15 While this case was pending on appeal and after briefing had ended, we decided Marble v. State, 2015 MT 242, 380 Mont. 366, 355 P.3d 742. In that decision, we clarified that this Court no longer applies either of the standards that the parties in this case urge us to apply to Wilkes's newly discovered evidence claim. Specifically, we stated that neither the actual-innocence standard of the concurrence in State v. Beach, 2013 MT 130, 370 Mont. 163, 302 P.3d 47, nor the reasonable-probability-of-a-different-outcome standard of State v. Clark, 2005 MT 330, 330 Mont. 8, 125 P.3d 1099, provides the legal standard by which we judge newly discovered evidence claims that are made in timely filed petitions for post-conviction relief. Marble, ¶¶ 30–32. Instead, we decided that the standard is the one stated in § 46–21–102(2), MCA :

We therefore conclude that a district court presented with a postconviction petition based upon newly discovered evidence shall utilize the very test set forth in § 46–21–102, MCA. It shall determine whether the “newly discovered evidence ..., if proved and viewed in light of the evidence as a whole would establish that the petitioner did not engage in the criminal conduct” for which he or she was convicted.

Marble, ¶ 36 (quoting § 46–21–102(2), MCA ). The District Court has not had the opportunity to address Wilkes's claim according to this standard, and we will not address the...