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No. 01-317 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2001 MT 263N 

ANDREW C. MENSING, 

Petitioner and Appellant,

v..

STATE OF MONTANA, 

Respondent and Respondent.

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow,

The Honorable John W. Whelan, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Andrew C. Mensing, Pro Se, Deer Lodge, Montana

For Respondent:

Hon. Mike McGrath, Attorney General; Pamela P. Collins,

Assistant Attorney General, Helena, Montana

Robert M. McCarthy, Silver Bow County Attorney, 

Butte, Montana

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Submitted on Briefs: November 15, 2001 

Decided: December 13, 2001

Filed:

__________________________________________

Clerk

Chief Justice Gray delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating 

Rules, the following decision shall not be cited as precedent. It shall be filed as a public 

document with the Clerk of the Supreme Court and shall be reported by case title, 

Supreme Court cause number and result to the State Reporter Publishing Company and to 

West Group in the quarterly table of noncitable cases issued by this Court.

¶2 Andrew C. Mensing, appearing pro se, appeals from the order of the Second Judicial 

District Court, Silver Bow County, dismissing his petition for postconviction relief. We 

affirm.

¶3 The sole issue on appeal is whether the District Court erred in dismissing Mensing's 

postconviction relief petition, which was based on ineffective assistance of trial and 

appellate counsel.

BACKGROUND 

¶4 The State of Montana charged Mensing with committing the offense of sexual 

intercourse without consent by allegedly having nonconsensual sexual intercourse with the 

victim on the evening of June 5, 1997, near the Speculator Mine in Butte, Montana. He 

was represented during the proceedings by appointed counsel Deirdre Caughlan and 

Michael Clague, and he testified during his jury trial that the sexual intercourse was 

consensual. The jury convicted Mensing, and the trial court subsequently sentenced him 

and entered judgment.

¶5 Mensing appealed to this Court and was represented on appeal by William F. Hooks, 

the Montana Appellate Defender. State v. Mensing, 1999 MT 303, 297 Mont. 172, 991 

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P.2d 950. The only issue raised in that appeal was whether the trial court had committed 

reversible error in admitting testimony from law enforcement officers regarding prior 

inconsistent statements made by the victim. Mensing, ¶ 2. We concluded the trial court 

had abused its discretion in admitting the testimony, but that the error did not prejudice 

Mensing. As a result, the court's error was harmless and we affirmed. Mensing, ¶¶ 17, 21-

22.

¶6 Thereafter, Mensing timely filed a petition for postconviction relief in the District 

Court based on ineffective assistance of trial counsel Caughlan and appellate counsel 

Hooks. No hearing was held on Mensing's petition and the District Court dismissed it by 

order on April 16, 2001. This appeal follows.

DISCUSSION 

¶7 Did the District Court err in dismissing Mensing's petition for postconviction relief, 

which was based on ineffective assistance of trial and appellate counsel?

¶8 We review the conclusions of law in a district court's denial or dismissal of a petition 

for postconviction relief to determine whether the conclusions are correct. See Dawson v. 

State, 2000 MT 219, ¶ 18, 301 Mont. 135, ¶ 18, 10 P.3d 49, ¶ 18 (citation omitted).

¶9 Mensing asserts trial counsel rendered ineffective assistance by failing to interview and 

call at trial defense witnesses to whom the victim allegedly admitted that the sexual 

intercourse with Mensing was consensual. He also asserts trial counsel failed to present 

allegedly exculpatory photographs showing an absence of bruises on the victim's thighs. 

Mensing contends appellate counsel was ineffective by failing to raise ineffective 

assistance of trial counsel as an issue on appeal.

¶10 In considering ineffective assistance of counsel claims on both direct appeal and in 

postconviction proceedings such as this one, we apply the two-part test established in 

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. The 

petitioner must establish that counsel's performance was deficient and that the deficient 

performance prejudiced his defense and deprived him of a fair trial. Dawson, ¶ 20 (citation 

omitted).

¶11 The underlying question in the deficient performance prong is "whether counsel acted 

within the range of competence demanded of attorneys in criminal cases." State v. 

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Niederklopfer, 2000 MT 187, ¶ 19, 300 Mont. 397, ¶ 19, 6 P.3d 448, ¶ 19 (citation 

omitted). Counsel is entitled to a presumption that the challenged actions might be sound 

trial strategy, and counsel's trial tactics and strategic decisions cannot be the basis for an 

ineffective assistance determination. Niederklopfer, ¶ 19 (citation omitted).

¶12 The prejudice prong requires a demonstration that "there is a reasonable probability 

that, but for counsel's unprofessional errors, the result of the proceeding would have been 

different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. "A 

reasonable probability is a probability sufficient to undermine confidence in the outcome." 

Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. 

Allegations regarding trial counsel

¶13 Mensing first alleges that trial counsel failed to interview and call at trial defense 

witnesses who would have testified that the victim told them the sexual intercourse with 

him was consensual. Mensing did not provide an affidavit with his petition for 

postconviction relief which either identified these witnesses or stated how many of them 

there were; nor did he attach to his petition affidavits from any of these alleged witnesses. 

Section 46-21-104(1)(c), MCA, requires a postconviction petition to "identify all facts 

supporting the grounds for relief set forth . . . and have attached affidavits, records, or 

other evidence establishing the existence of those facts." Mensing totally failed to meet 

this statutory requirement with regard to the alleged defense witnesses and, as a result, the 

District Court did not err in dismissing that portion of Mensing's petition for failure to 

state a claim upon which relief could be granted under § 46-21-101, MCA.

¶14 Mensing also contends that trial counsel failed to introduce allegedly exculpatory 

photographs of the victim's thighs which would have shown an absence of bruises, thereby 

contradicting the State's evidence--via testimony by the doctor who examined her at the 

hospital--that she had multiple scratches to her upper chest and shoulders, bruises on both 

of her inner thighs, and inflammation in the vaginal area, all of which were inconsistent 

with consensual sex. Mensing does not identify these photographs, which is sufficient to 

dismiss this portion of his petition under § 46-21-104(1)(c), MCA, as well. 

¶15 Moreover, the only photographs mentioned in the record on appeal were those 

apparently taken by an employee of the Butte-Silver Bow law enforcement agency the day 

after the events in question; the State did not introduce the photographs at trial. It is clear, 

however, that Mensing's trial counsel knew of the existence of the allegedly exculpatory 

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photographs. Indeed, counsel referenced the photographs in her closing argument to the 

jury, regarding her view that there had been a "fairly cursory and sloppy hospital 

exam . . . . We heard that there were some pictures, but apparently they must not have 

showed much because we certainly didn't see them here today or at any time during the 

trial." Thus, instead of introducing the photographs, which may or may not have shown 

bruises on the victim's thighs, trial counsel argued the photographs must not have 

supported the State's case. 

¶16 Counsel is presumed to have rendered adequate assistance. Strickland, 466 U.S. at 

689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694; see Niederklopfer, ¶ 19. On this record, it 

appears trial counsel made a tactical decision regarding the photographs which was within 

the range of competence demanded of criminal defense attorneys.

¶17 Even assuming arguendo, however, that counsel's performance was deficient in this 

regard, Mensing establishes no prejudice as defined in Strickland. Here, the victim's 

testimony detailed the events surrounding the sexual intercourse without consent, the 

location of the events near the Speculator Mine, and her escape. The doctor's testimony 

fully supported the probability that nonconsensual intercourse had occurred. The victim's 

boyfriend testified she told him very shortly after the events--in a "pretty distraught" state, 

with dirt on her clothes--that Mensing had raped her "front and back," the location where 

the rape occurred and how she had escaped. Another witness who saw the victim in the 

same time frame testified to her statements that Mensing had raped her and where the 

event took place. Furthermore, while Mensing initially denied to law enforcement that he 

had any sexual contact with the victim on the night in question and stated he had driven 

her to the Cabaret Lounge, law enforcement personnel compared tire tracks near the mine 

to the tread on Mensing's tires and testified at trial they were consistent. Contrary to his 

earlier statements, Mensing testified at trial that he had sexual intercourse with the victim 

on the night in question, near the Speculator Mine, but that the sex was consensual.

¶18 Briefly stated, the evidence against Mensing was overwhelming. On this record, there 

is no reasonable probability that, but for any deficient performance by trial counsel with 

regard to the photographs, the result of the trial would have been different; that is, there is 

not a probability sufficient to undermine confidence in the outcome of Mensing's trial. See 

Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. 

¶19 For these reasons, we hold the District Court did not err in dismissing Mensing's 

petition for postconviction relief with regard to his ineffective assistance claims against 

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trial counsel.

Allegation regarding appellate counsel

¶20 The Strickland test also applies to claims of ineffective assistance of appellate counsel 

with minor modifications. The prejudice prong can be met in this regard only by 

establishing a reasonable probability that the petitioner would have prevailed on appeal. 

See Dawson, ¶¶ 147, 155 (citation omitted).

¶21 Mensing contends his appellate counsel rendered ineffective assistance on appeal by 

failing to raise an issue of ineffective assistance of trial counsel. His contention requires 

only brief discussion.

¶22 With regard to the claim relating to trial counsel's failure to interview or present 

defense witnesses who would have contradicted the victim's story and supported his own 

trial testimony, Mensing presented no affidavits supporting the claim with his 

postconviction petition. As a result, we cannot ascertain that appellate counsel knew or 

should have known of it. More importantly, the claim is not based on the record. The 

record does not disclose the existence of such witnesses and, if they existed, the record 

does not indicate why trial counsel did not interview them or present their testimony at 

trial. Where allegations of ineffective assistance of counsel cannot be documented from 

the record, they must be raised by petition for postconviction relief rather than on appeal. 

State v. White, 2001 MT 149, ¶ 12, 306 Mont. 58, ¶ 12, 30 P.3d 340, ¶ 12 (citations 

omitted). 

¶23 With regard to Mensing's ineffective assistance claim against trial counsel regarding 

the photographs, we concluded above that he failed to establish ineffective assistance. As 

a result, Mensing cannot establish a reasonable probability that, but for appellate counsel's 

failure to raise the issue, he would have prevailed on appeal. 

¶24 We conclude, therefore, that appellate counsel did not render ineffective assistance to 

Mensing by failing to raise ineffective assistance of trial counsel on direct appeal. As a 

result, we hold the District Court did not err in failing to conclude otherwise.

¶25 Affirmed.

/S/ KARLA M. GRAY

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We concur:

/S/ JAMES C. NELSON

/S/ PATRICIA COTTER

/S/ W. WILLIAM LEAPHART

/S/ JIM RICE

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