DA 06-0064 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2009 MT 60 

STATE OF MONTANA, 

 Plainiff and Appellee, 

 v. 

TRACEY R. GODFREY, 

 Defendant and Appellant.

APPEAL FROM: District Court of the Twenty-First Judicial District, 

In and For the County of Ravalli, Cause No. DC 99-114 

Honorable Jeffrey H. Langton, Presiding Judge 

COUNSEL OF RECORD: 

For Appellant: 

James B. Wheelis, Chief Appellate Defender; David Avery, Assistant 

Appellate Defender; Helena, Montana 

For Appellee: 

Hon. Steve Bullock, Montana Attorney General; C. Mark Fowler, 

Assistant Attorney General; Helena, Montana 

George Corn, Ravalli County Attorney; T. Geoffrey Mahar, Chief Deputy 

County Attorney; Hamilton, Montana 

Submitted on Briefs: August 9, 2007 

 Decided: March 3, 2009 

Filed: 

__________________________________________ 

Clerk 

March 3 2009
 2 

Justice Jim Rice delivered the Opinion of the Court. 

¶1 Appellant Tracey Raymond Godfrey (Godfrey) appeals from the judgment of the 

Twenty-First Judicial District Court, Ravalli County, dismissing his petition for postconviction relief. We affirm. 

¶2 We consider the following issues on appeal: 

¶3 1. Did the District Court err in dismissing Godfrey’s claim that he was denied the 

right to confront the victim about her alleged recantation as a result of ineffective 

assistance of counsel and prosecutor error? 

¶4 2. Did the District Court err in dismissing Godfrey’s ineffective assistance of 

counsel claim regarding his trial counsel’s failure to object to questions about his pre-trial 

silence? 

¶5 3. Did the District Court err in dismissing Godfrey’s claim that he was denied a 

fair trial because he was not present during conferences when counsel and the court 

discussed inquiries from the jury during deliberations? 

¶6 4. Was Godfrey’s appellate counsel ineffective because he failed to challenge 

Godfrey’s conviction on the ground that the jury did not meaningfully pay attention to the 

parties’ presentation of evidence? 

FACTUAL AND PROCEDURAL BACKGROUND 

¶7 Following a jury trial, held April 24-25, 2000, Godfrey was convicted of one count 

of sexual assault. The jury determined that Godfrey had sexually assaulted his eight year 

old niece, K.M., during a visit to Godfrey’s residence in October of 1999. At trial, K.M. 
 3 

testified about the October incident, stating that she fell asleep on Godfrey’s couch and 

when she woke up in the middle of the night she felt his “private” against her bottom, and 

that it felt “like it was sticking to [her] bottom.” As a result of his conviction, the District 

Court sentenced Godfrey to thirty years in prison. The District Court determined that 

Godfrey was a persistent felony offender and imposed an additional ten-year sentence to 

run consecutively. Godfrey appealed and we affirmed his conviction. State v. Godfrey, 

2004 MT 197, 322 Mont. 254, 95 P.3d 166. The Sentence Review Division amended 

Godfrey’s sentence to a sixty-year prison term, with thirty years suspended. 

¶8 Godfrey filed a pro se post-conviction petition, asserting five grounds for relief: 

(1) his Fourteenth Amendment right to due process was violated by the prosecutor’s 

failure to disclose exculpatory evidence; (2) his Sixth Amendment right to confront 

witnesses was violated by his trial counsel’s ineffective assistance of counsel; (3) his 

right to be present at every stage of his trial was denied; (4) his Sixth Amendment right to 

counsel was violated because his trial counsel rendered ineffective assistance of counsel; 

and (5) he was denied counsel at his re-sentencing hearing, in violation of his right to 

counsel. Godfrey also submitted four motions: a motion for production, motion for an 

evidentiary hearing, motion for new trial, and a request for counsel. The District Court 

dismissed Godfrey’s petition for post-conviction relief and denied all motions. Godfrey 

appeals. 

¶9 Additional facts will be discussed as needed. 
 4 

STANDARD OF REVIEW 

¶10 We review a district court’s denial of a petition for post-conviction relief to 

determine if the court’s findings of fact are clearly erroneous and whether the conclusions 

of law are correct. State v. Morgan, 2003 MT 193, ¶ 7, 316 Mont. 509, 74 P.3d 1047. 

Ineffective assistance of counsel claims are mixed questions of law and fact which we 

review de novo. Morgan, ¶ 7. However, discretionary rulings in the post-conviction 

relief setting, such as whether to hold an evidentiary hearing, are reviewed for an abuse 

of discretion. Morgan, ¶ 7. Whether a criminal defendant’s right to be present at critical 

stages of his trial was violated is a question of constitutional law, for which our review is 

plenary. State v. Mann, 2006 MT 160, ¶ 10, 332 Mont. 476, 139 P.3d 159. 

DISCUSSION 

¶11 1. Did the District Court err in dismissing Godfrey’s claim that he was 

denied the right to confront the victim about her alleged recantation as a result of 

ineffective assistance of counsel and prosecutor error? 

¶12 Godfrey alleges that he was unconstitutionally denied his Sixth Amendment right 

to meaningfully confront his accusers because his counsel failed to cross-examine K.M. 

about her alleged recantation during a pre-trial interview and, thus, his trial counsel, Mark 

McLaverty (McLaverty), was ineffective. Alternatively, Godfrey argues that prosecutor 

Geoffrey Mahar (Mahar) withheld this exculpatory evidence and failed to meet his duty 

as an officer of the court when he stated during closing argument that K.M. was 

“unshakable” in her allegation of sexual abuse. The State responds that Godfrey failed to 
 5 

provide evidence in support of the allegations of his petition, and the District Court 

properly dismissed his claim. 

¶13 A petitioner in post-conviction relief proceedings has the burden to “show by a 

preponderance of evidence that the facts justify relief.” State v. Peck, 263 Mont. 1, 3, 

865 P.2d 304, 305 (1993). When seeking post-conviction relief, a defendant must 

“identify all facts supporting the grounds for relief set forth in the petition and have 

attached affidavits, records, or other evidence establishing the existence of those facts.” 

Section 46-21-104(1)(c); State v. Wright, 2001 MT 282, ¶ 31, 307 Mont. 349, 42 P.3d 

753. Mere conclusory allegations are not enough to support the petition. Wright, ¶ 31. 

A defendant’s affidavit, unsupported by evidence, is also insufficient to support a petition 

for post-conviction relief. Williams v. State, 2002 MT 189, ¶ 19, 311 Mont. 108, 53 P.3d 

864. 

¶14 We use the two-prong test defined in Strickland v. Washington to review claims of 

ineffective assistance of counsel. 466 U.S. 668, 104 S. Ct. 2052 (1984). Pursuant 

thereto, the defendant must show that “counsel’s performance fell short of the range of 

competence required of attorneys in criminal cases and that his counsel’s deficient 

performance was prejudicial to his case.” State v. Hendricks, 2003 MT 223, ¶ 6, 317 

Mont. 177, 75 P.3d 1268. With respect to the first prong, we have repeatedly stated that 

the defendant must overcome the “strong presumption” that trial counsel’s actions 

constituted trial strategy and were within the broad scope of reasonable professional 

conduct. Hendricks, ¶ 7. Under the second prong, the defendant bears the burden of 
 6 

establishing prejudice through a demonstration that, but for counsel’s errors, there is a 

reasonable probability that the result would have been different. State v. Turnsplenty, 

2003 MT 159, ¶ 14, 316 Mont. 275, 70 P.3d 1234. 

¶15 Godfrey’s petition alleges that on April 14, 2000, prior to trial and at the request of 

defense counsel, K.M. was interviewed by McLaverty, Mahar, and private defense 

investigator Jeff Patterson (Patterson). Godfrey contends that following the interview, 

McLaverty and Patterson told him that K.M., when asked if she was mistaken about what 

happened in October, 1999, stated “I probably am wrong.” Godfrey claims that 

McLaverty’s failure to question K.M. at trial about her alleged recantation indicates that 

McLaverty was ineffective. Godfrey further alleges that McLaverty and Mahar conspired 

to suppress the exculpatory evidence. 

¶16 However, before the question of whether counsel’s actions were ineffective or 

constituted prosecutorial misconduct can be determined, Godfrey must establish the 

predicate facts by a preponderance of evidence. In support of his contentions, Godfrey 

offered the District Court three pieces of evidence: (1) a motion for payment of private 

investigator fees; (2) notes from a telephone conversation between Patterson and a 

paralegal to Godfrey’s appellate counsel; and (3) his own sworn affidavit recounting 

McLaverty’s and Patterson’s comments to him regarding the alleged repudiation. While 

the telephone conversation notes support the interview’s occurrence, they do not provide 

evidence of K.M.’s alleged recantation. Incidentally, the telephone notes reveal that 

Patterson did not take any handwritten notes at the interview, but used a tape recorder 
 7 

which later proved faulty. Thus, the only evidence of the alleged recantation is found in 

Godfrey’s affidavit. As the District Court noted, Godfrey did not attach affidavits from 

either McLaverty or Patterson, his defense team, who could have corroborated his 

affidavit. Thus, Godrey’s petition fails to point to any evidence that would support his 

assertion that K.M. recanted. 

¶17 As noted above, conclusory allegations in the defendant’s own affidavit are not 

enough to support a petition for post-conviction relief. See Williams, ¶ 19; Wright, ¶ 31. 

In the absence of other affidavits, records, or evidence from which the substance of his 

allegations could be supported, we cannot disagree with the District Court’s assessment 

that Godfrey failed to meet his burden of proof for establishing the existence of a claim 

pursuant to § 46-21-104(1)(c), MCA. Accordingly, we conclude that the District Court 

properly dismissed Godfrey’s claim. 

¶18 2. Did the District Court err in dismissing Godfrey’s ineffective assistance of 

counsel claim regarding his trial counsel’s failure to object to questions about his 

pre-trial silence? 

¶19 Godfrey alleges that he suffered ineffective assistance of counsel because 

McLaverty failed to object to the prosecutor’s comments regarding his pre-trial silence. 

In support of this claim, Godfrey relies on our decision in his direct appeal. However, 

Godfrey mischaracterizes our holding. 

¶20 On direct appeal, Godfrey asserted that the prosecutor’s conduct deprived him of 

his constitutional right to due process. Godfrey, ¶ 2. The appeal stemmed from two 

instances of alleged prosecutorial conduct, for which no objection was made. Godfrey, 
 8 

¶¶ 18-19. The first occurred during Godfrey’s cross examination, in which the prosecutor 

insinuated that Godfrey had enough time to fabricate an explanation for K.M.’s 

testimony, and the second occurred during closing argument in which the prosecutor 

again implied that Godfrey’s story was fabricated. Godfrey, ¶¶ 18-19. Godfrey argued 

that the prosecutor’s conduct in both instances amounted to impermissible comments on 

his constitutional right to remain silent, and urged us to invoke the common law doctrine 

of plain error. Godfrey, ¶¶ 23-24. However, we affirmed Godfrey’s conviction and 

concluded that plain error review was unwarranted because no plain error existed, stating 

that, while the “prosecutor’s cross examination questions were inadvisable[,] . . . they 

were more a comment on Godfrey’s story than on his silence.” Godfrey, ¶ 37 (emphasis 

in original). Consequently, we held that there was “no clear comment on or infringement 

of Godfrey’s fundamental right to remain silent.” Godfrey, ¶ 40. 

¶21 In reliance on our opinion in Godfrey, Godfrey asserts that this “Court’s 

assessment of the comment implies that the conviction would have been reversed if 

counsel had objected to preserve [the] error.” However, this statement conflicts with our 

conclusion in Godfrey that “no clear comment on or infringement of Godfrey’s 

fundamental right to remain silent” occurred. Godfrey, ¶ 40. Therefore, we cannot now 

conclude that Godfrey’s trial counsel erred by not objecting to questions that did not 

warrant an objection. Accordingly, this claim is without merit and the District Court 

correctly dismissed it. 
 9 

 

¶22 3. Did the District Court err in dismissing Godfrey’s claim that he was 

denied a fair trial because he was not present during conferences when counsel and 

the court discussed inquiries from the jury during deliberations? 

¶23 Godfrey contends that he was deprived of his constitutional right, under the Sixth 

Amendment of the U.S. Constitution and Article II, Section 24 of the Montana 

Constitution, to be present at all criminal proceedings when the court discussed jury 

inquiries with counsel in-chambers and outside Godfrey’s presence.1

 Godfrey was 

detained in jail during the trial, and was not brought to the courtroom to attend the six 

meetings in chambers to discuss the questions sent by the jury during deliberations. 

¶24 The Sixth Amendment’s Confrontation Clause provides a criminal defendant with 

the right to be present at all criminal proceedings against him. Mann, ¶ 12 (citing Illinois 

v. Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 1058 (1970)); State v. Matt, 2008 MT 444, 

¶ 16, 347 Mont. 530, 199 P.3d 244. Similarly, the Montana Constitution includes express 

language protecting the accused’s right to “appear and defend in person and by counsel” 

in all criminal prosecutions. Mont. Const. art. II, § 24; Mann, ¶ 12; see also Matt ¶ 17. 

We have explained that this right provides that “‘the defendant must be present 

throughout the entire trial.’” Mann, ¶ 13 (quoting State v. Reed, 65 Mont. 51, 56, 210 P. 

756, 757 (1922)). Specifically, the defendant has the right to be present “‘when the jury 

[is] hearing his case, and at all times during the proceeding of the trial, when anything is 

1

 Because the State did not argue in the District Court that this claim is barred under § 46-21-

105(2), MCA, for Godfrey’s failure to raise it on direct appeal, that potential statutory violation 

is deemed to be waived pursuant to State v. Johnston, 2008 MT 318, ¶ 21, 346 Mont. 93, 193 P. 

3d 925. 
 10 

done which in any manner affects his right . . . .’” Mann, ¶ 13 (quoting Reed, 65 Mont. at 

58, 210 P. at 758). 

¶25 When analyzing whether the right has been violated, we generally first consider 

whether the defendant was excluded from a “critical stage” of the proceeding. Mann, 

¶ 15; Matt, ¶ 18. We have then considered “the effect the violation has on the defendant 

to determine whether the defendant suffered any conceivable prejudice.” Mann, ¶ 15. 

Where the circumstances present a situation where prejudice did not arise, we have 

affirmed. See State v. Kennedy, 2004 MT 53, ¶¶ 27, 34, 320 Mont. 161, 85 P.3d 1279 

(determining that Kennedy was excluded from a critical stage of his trial when the court 

conducted a private conversation with a juror, but holding that no prejudice occurred). In 

State v. Riggs, 2005 MT 124, 327 Mont. 196, 113 P.3d 281, we determined that the 

district court’s discussions with two jurors, outside the presence of the defendant was not 

prejudicial to the defendant’s case, but were little more than “brief interludes in a 

complex trial” and the “defendant had no role to play at either.” Riggs, ¶ 54 (citing U. S. 

v. Gagnon, 470 U.S. 522, 105 S. Ct. 1482 (1985). 

¶26 Recently, in Matt, we addressed the issue of prejudice within a harmless error 

analysis which considered whether the error was a structural or trial error. Matt, ¶ 38. 

Because we conclude that Godfrey was not prejudiced by his absence from the 

in-chambers meetings, we do not take up the initial question of whether those meetings 

were a “critical stage” of the trial. Rather, for purposes of our analysis, we assume, 

arguendo, that they constituted a critical stage. 
 11 

 

¶27 The court and counsel met six times to discuss ten of eleven2 jury inquiries sent to 

the court during deliberations. The jury questions primarily requested small segments of 

trial testimony. Upon receipt of these questions, an in-chambers meeting took place 

whereby the court and counsel discussed the proposed response to the jury’s request. At 

the conclusion of each meeting, the court responded by providing a “special instruction” 

to the jury. The court issued seven special instructions in response to the jury questions. 

Four of the seven responses, as discussed below, provided the relevant transcript the jury 

had requested. 

¶28 The jury first requested that the court provide a videotape of K.M.’s interview 

with the police. The court did not contact counsel about this question, simply advising 

the jury that “[n]either party offered that video tape into evidence and therefore I cannot 

allow you to see any such video.” 

¶29 In response to jury questions two through five, counsel met with the court for each 

question and discussed the court’s responses. In all four of these questions the jury 

requested portions of the trial transcript. In response to question two, the court provided 

very short segments, about 6-7 lines each, of K.H. and Godfrey’s testimony. In response 

to questions three, four, and five, the court refused to provide the requested transcript, 

informing the jury that it “should not give any undue emphasis to the testimony of any 

one witness to the exclusion of all others” and “it is very difficult and time consuming for 

the court reporter to review her notes for all relevant testimony to address these 

2

 The court refused the jury’s first request without consulting with counsel.
 12 

 

questions, consult with counsel, prepare it, and submit it to [you] piece by piece during 

deliberations.” The court thus instructed the jury to “rely on your memories and notes of 

testimony to deal with these issues.” 

¶30 Questions six through eleven were answered by three instructions, separated by an 

interval of time when the trial was recessed for the night. McLaverty, Godfrey’s counsel, 

objected to the form of the court’s instruction in response to question six, believing the 

jury was asking two questions, not just one. The court replied that it believed it was 

answering the specific question the jury had asked, but added “. . . if in fact there is a 

different question, I’ve invited them to submit a further written question to the Court.” 

Each of the three instructions provided segments of the trial transcript, with the final 

instruction again advising the jury to rely on memory and notes “to resolve further 

disputed issues of fact . . . .” 

¶31 After the last question, McLaverty moved for a mistrial on the ground that “it’s 

clear . . . from the questions from the jury and the transcripts that we’ve had to supply, 

that they were not, for whatever reason, paying attention to what was going on in the 

courtroom while the trial was proceeding” and could not therefore, be “considered true 

triers of fact . . . .” The District Court, explaining that “I did tell them at a particular 

point, that if they wanted a partial transcript, they had the right to ask for it,”3

 denied the 

motion. The court offered its observation that the jury appeared to be paying attention to 

the testimony, but stated that the court would not entertain any further requests and, if the 

3

 The District Court’s offer of transcript excerpts to the jury is not challenged on appeal.
 13 

jury was still in deliberations by 4:00 p.m., the court “may well be inclined to grant a 

mistrial.” The jury later returned with a verdict. 

¶32 In concluding that the error in Matt was a trial error, and not a structural error, the 

Court first described the content of the conference at issue: 

The court overruled defense counsel’s objection to testimony by a police 

detective, granted defense counsel’s request to call a probation officer to 

impeach witness Nimocks’s credibility, denied defense counsel’s request to 

introduce into evidence the note allegedly written by Oldhorn to Matt while 

in jail, and denied defense counsel’s motion to dismiss for insufficient 

evidence. 

Matt, ¶ 43. From this assessment the Court concluded that “[n]othing discussed at the 

conference and ruled on by the District Court concerned or affected the framework within 

which Matt’s trial proceeded or necessarily rendered the trial fundamentally unfair . . . . 

None of these issues and rulings contaminated the trial mechanism along the lines that a 

biased judge, lack of counsel, an erroneous reasonable-doubt instruction, or a juryselection error would.” Matt, ¶ 43. Here, the issuing of responses to jury questions, 

including the provision of several short transcript portions, could not have affected “the 

framework” of the trial or rendered the trial “fundamentally unfair” any more than the 

rulings at issue in Matt could have. The issues in Matt concerned requests to present, or 

objections to, witnesses or other evidence directly to the jury in case-in-chief or rebuttal, 

and a motion to dismiss for insufficient evidence. We thus conclude that, as in Matt, any 

error here necessarily constituted trial error. 

¶33 The Court held in Matt that prejudice to the defendant is presumed by such trial 

error, and that “the State has the burden to rebut the presumption by demonstrating there 
 14 

 

is no reasonable possibility the violation prejudiced the defendant in light of the interests 

the right of presence was designed to protect.” Matt, ¶ 38. Citing Kennedy, we explained 

that this right included the opportunity for the defendant to “participate in the 

preservation of his or her rights.” Matt, ¶ 21. We noted that a defendant can observe 

whether his attorney is advocating for him zealously and professionally, and can observe 

the demeanor of the trial judge and prosecutor as they address rulings on trial issues, and 

thus be in a position to provide information or to make informed decisions about whether 

to change his plea or pursue an ineffective assistance of counsel claim. Matt, ¶ 21. With 

this backdrop, we consider whether the State has met its burden. 

¶34 The State argues that there is no prejudice stemming from Godfrey’s absence. 

First, it notes that, unlike State v. Tapson, 2001 MT 292, 307 Mont. 428, 41 P.3d 305, the 

communications between the court and the jury in response to the jury’s questions are all 

documented, and reversal is not warranted by lack of a record.4

 The State also 

distinguishes State v. Bird, 2001 MT 2, 308 Mont. 75, 43 P.3d 266, offering that, unlike 

the exclusion from the in-chambers voir dire process in that case, here “nothing 

transpired that affected the conduct of the trial . . . . The State’s case-in-chief, the 

defense’s case, the arguments, and the instruction of the jury had all taken place.” The 

State argues that the interactions between the judge and jury at issue here were 

“nonverbal” and, referencing our rational in Riggs, describes the interactions as “brief 

4

 Minute entries document the receipt of jury questions, the convening of the meetings and the 

issuance of the court’s instructions. The jury’s questions and the court’s written instructions in 

response are included in the record. The discussions held when McLaverty objected to the 

court’s response to question six and later moved for mistrial were transcribed. 
 15 

interludes in a complex trial.” In Riggs, we also cited with approval United States v. 

Gagnon, 470 U.S. 522, 105 S. Ct. 1482. Riggs, ¶ 52. There, the United States Supreme 

Court held that an in-chambers discussion with a juror together with defense counsel but 

outside the presence of the defendant did not deprive the defendant of his constitutional 

right. Gagnon, 470 U.S. at 526, 105 S. Ct. at 1484. The Court reasoned that the 

“presence of a defendant is a condition of due process to the extent that a fair and just 

hearing would be thwarted by his absence, and to that extent only.” Gagnon, 470 U.S. at 

526, 105 S. Ct. at 1484 (citing Snyder v. Mass., 291 U.S. 97, 105-06, 54 S. Ct. 330, 332, 

333 (1934)). We agreed with this rationale in Riggs, saying that “a defendant has a due 

process right to be present at a given proceeding whenever his presence has a relation, 

reasonably substantial, to the fullness of his opportunity to defend against the charge.” 

Riggs, ¶ 52. 

¶35 The District Court provided small portions of the transcript in response to a 

number of questions, as it had previously promised the jury it would do but, in doing so, 

reminded the jury of its duty to consider the evidence in its entirety, to rely on notes taken 

at trial, and not to overemphasize any one part of the testimony. This was consistent with 

the court’s original charge to the jury. The court’s responses to the jury were largely 

routine, formulated in consultation with counsel and without objection. McLaverty 

objected to one response because he believed the entirety of the question had not been 

answered, and in response the court stated it would entertain a follow-up question from 

the jury if the answer was not sufficient. After the jury’s eleventh question, Godfrey’s 
 16 

counsel moved for a mistrial on the unique ground that the number of questions from the 

jurors was an indication they were not acting as “true triers of fact.” 

¶36 The conferences in question all took place after the case had been submitted to the 

jury. Therefore, the trial had proceeded beyond the point at which the court’s actions 

should have a bearing upon the evidence the jury would hear or the instructions the court 

would give. At this point, with the jury in deliberations, the information the court could 

lawfully share with the jury in response to their inquiries was limited to that which the 

jury had already heard, and any potential prejudice to the defendant by virtue of 

evidentiary rulings had already occurred. Most significantly, the court here did no more 

than release to the jury limited transcript excerpts, all the while instructing the jury that it 

must consider the evidence in its entirety. 

¶37 In Kennedy, after concluding Kennedy’s right to be present for all critical stages of 

the proceeding had been violated, we examined the particular circumstances and 

concluded that Kennedy had not been prejudiced by his exclusion from the District 

Court’s conversation with a juror. Kennedy, ¶ 34. Similarly, here, based upon the record 

of these proceedings relative to the jurors’ questions and the District Court’s responses, 

we conclude that the State has demonstrated there is no reasonable possibility that 

Godfrey’s exclusion from these proceedings prejudiced him in light of the interests his 

presence was designed to protect. In another case and under other circumstances, a 

potential for prejudice could well be demonstrated in the context of jury deliberations. 
 17 

¶38 We affirm the District Court’s denial of Godfrey’s claim that he was prejudiced by 

a denial of his fundamental constitutional right to be present at all proceedings. 

¶39 4. Was Godfrey’s appellate counsel ineffective because he failed to challenge 

Godfrey’s conviction on the ground that the jury did not meaningfully pay attention 

to the parties’ presentation of evidence? 

¶40 Godfrey’s last claim is that his appellate counsel was ineffective because he did 

not argue on direct appeal that Godfrey was denied a fair trial. Godfrey argues that the 

numerous inquires sent by the jury to the court during its deliberations is evidence of an 

unfair trial because “the jury essentially waited until deliberations to focus on those 

issues that it deemed in hindsight to be most important . . . .” 

¶41 This Court considers issues presented for the first time to be untimely and will not 

consider them on appeal. State v. Ferguson, 2005 MT 343, ¶ 38, 330 Mont. 103, 126 

P.3d 463. This includes new arguments and changes in legal theory. Ferguson, ¶ 38. 

“[I]t is fundamentally unfair to fault the trial court for failing to rule on an issue it was 

never given the opportunity to consider.” State v. Adgerson, 2003 MT 284, ¶ 12, 318 

Mont. 22, 78 P.3d 850. 

¶42 Godfrey’s petition asserted five grounds for post-conviction relief but did not 

include a claim for ineffective assistance of appellate counsel. Consequently, we agree 

with the State that Godfrey raises the issue of ineffective assistance of appellate counsel 

for the first time on appeal. Accordingly, Godfrey waived the issue for appeal and we 

refuse to reach the merits of Godfrey’s claim. 

¶43 Affirmed. 
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 /S/ JIM RICE 

We concur: 

/S/ JOHN WARNER 

/S/ PATRICIA COTTER 

/S/ BRIAN MORRIS