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, Mont ana 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 20092 Justice Jim Rice delivered the Opinion of the Court. ¶1 Appellant Tracey Raymond Godf rey (Godfrey) appeals from the judgment of the Twenty-First Judicial District Court, Ra valli 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 dismissi ng Godfrey’s claim that he was denied the right to confront the victim about her alle ged recantation as a result of ineffective assistance of counsel and prosecutor error? ¶4 2. Did the District Court err in dismi ssing 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 dismi ssing Godfrey’s claim that he was denied a fair trial because he was not present durin g conferences when counsel and the court discussed inquiries from the ju ry during deliberations? ¶6 4. Was Godfrey’s appellate counsel ine ffective 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 PROCED URAL 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 se xually assaulted his eight year old niece, K.M., during a visit to Godfrey’s residence in Octobe r 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 middl e of the night she felt his “pri vate” 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 pr ison. The District Court determined that Godfrey was a persistent felony offender and imposed an add itional ten-year sentence to run consecutively. Godfrey appealed and we affirmed his conviction. State v. Godfrey , 2004 MT 197, 322 Mont. 25 4, 95 P.3d 166. The Senten ce Review Division amended Godfrey’s sentence to a sixty-year pris on term, with thirty years suspended. ¶8 Godfrey filed a pro se post -conviction petition, asserti ng five grounds for relief: (1) his Fourteenth Amendment right to due process was violated by the prosecutor’s failure to disclose exculpat ory 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 st age 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 moti ons: a motion for production, motion for an evidentiary hearing, motion for new trial, a nd a request for counsel. The District Court dismissed Godfrey’s petition for post-convicti on 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 ev identiary hearing, are reviewed for an abuse of discretion. Morgan , ¶ 7. Whether a criminal defendan t’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 di smissing Godfrey’s claim that he was denied the right to confront the victim ab out her alleged recantat ion as a result of ineffective assistance of coun sel and prosecutor error? ¶12 Godfrey alleges that he was unconstituti onally denied his Si xth Amendment right to meaningfully confront hi s 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. A lternatively, 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 res ponds that Godfrey failed to5 provide evidence in support of the allegati ons of his petition, an d the District Court properly dismissed his claim. ¶13 A petitioner in post-convictio n relief proceedings has th e 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 th e 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 ar e not enough to support the petition. Wright , ¶ 31. A defendant’s affidavit, unsupported by eviden ce, is also insufficien t to support a petition for post-conviction relief. Williams v. State , 2002 MT 189, ¶ 19, 31 1 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 perform ance fell short of the range of competence required of attorneys in crimin al 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 pr esumption” that tria l counsel’s actions constituted trial strategy and were within the broad scope of re asonable professional conduct. Hendricks , ¶ 7. Under the second prong, th e defendant bears the burden of6 establishing prejudice through a demonstration that, but for counsel’s errors, there is a reasonable probability that the resu lt would have been different. State v. Turnsplenty , 2003 MT 159, ¶ 14, 316 M ont. 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 in terviewed by McLaverty, Mahar, and private defense investigator Jeff Patterson (Patterson). God frey contends that fo llowing the interview, McLaverty and Patterson told him that K.M., wh en asked if she was mistaken about what happened in October, 1999, stated “I pr obably 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 McLavert y and Mahar conspired to suppress the exculp atory evidence. ¶16 However, before the question of whether counsel’s acti ons 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 tele phone conversation be tween Patterson and a paralegal to Godfrey’s appe llate 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 in terview’s occurrence, they do not provide evidence of K.M.’s alleged re cantation. Incidentally, the telephone notes reveal that Patterson did not ta ke any handwritten notes at the inte rview, but used a tape recorder7 which later proved faulty. Thus, the only evid ence of the alleged recantation is found in Godfrey’s affidavit. As the District Court noted, Godfrey did not attach affidavits from either McLaverty or Patters on, his defense team, who co uld have corroborated his affidavit. Thus, Godrey’s petition fails to po int to any evidence th at 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 hi s burden of proof for establishi ng the existence of a claim pursuant to § 46-21-104(1)(c), MCA. Accordingl y, we conclude that the District Court properly dismissed Godfrey’s claim. ¶18 2. Did the District Court err in dismissi ng Godfrey’s ineffective assistance of counsel claim regarding his tr ial counsel’s failure to obje ct to questions about his pre-trial silence? ¶19 Godfrey alleges that he suffered ine ffective 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 condu ct, for which no objection was made. Godfrey ,8 ¶¶ 18-19. The first occurred du ring Godfrey’s cross examina tion, 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 th e common law doctrine of plain error. Godfrey , ¶¶ 23-24. However, we affirmed Godfrey’s conviction and concluded that plain error review was unwarran ted because no plain error existed, stating that, while the “prosecu tor’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 cl ear comment on or infringement of Godfrey’s fundamental right to remain silent.” Godfrey , ¶ 40. ¶21 In reliance on our opinion in Godfrey , Godfrey asserts th at this “Court’s assessment of the comment implies that th e 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 rema in silent” occurred. Godfrey , ¶ 40. Therefore, we cannot now conclude that Godfrey’s trial counsel erred by not objecting to que stions that did not warrant an objection. Accordingly, this cl aim is without merit and the District Court correctly dismissed it.9 ¶22 3. Did the District Court err in di smissing Godfrey’s claim that he was denied a fair trial because he was not pr esent during conferences when counsel and the court discussed inquiries from the jury during deliberations? ¶23 Godfrey contends that he was deprived of his constitu tional right, under the Sixth Amendment of the U.S. Co nstitution and Article II, Section 24 of the Montana Constitution, to be present at all criminal proceedings wh en 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 questi ons sent by the jury dur ing deliberations. ¶24 The Sixth Amendment’s Confrontation Clau se provides a criminal defendant with the right to be present at all cr iminal 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, 19 9 P.3d 244. Similarly, the Mo ntana Constitution includes express language protecting the accused’s right to “a ppear 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 th e 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 poten tial 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 ex cluded from a “critic al 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 we re little more than “b rief interludes in a complex trial” and the “defendant ha d 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 pr ejudice within a harmless error analysis which considered whether the e rror was a structural or trial error. Matt , ¶ 38. Because we conclude that Godfrey was not prejudiced by hi s absence from the in-chambers meetings, we do not take up the initial questi on of whether those meetings were a “critical stage” of the trial. Rath er, for purposes of our analysis, we assume, arguendo , that they constituted a critical stage.11 ¶27 The court and counsel met six tim es to discuss ten of eleven 2 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 resp onded by providing a “s pecial instruction” to the jury. The court issued seven special in structions 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 th at the court provide a vide otape of K.M.’s interview with the police. The court di d 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 God frey’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” an d “it is very difficult and time consuming for the court reporter to review her notes fo r 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. McLave rty, Godfrey’s counsel, objected to the form of the court’s instructio n 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 aske d, but added “. . . if in fact there is a different question, I’ve invited them to subm it a further written question to the Court.” Each of the three instructions provided segmen ts of the trial transc ript, with the final instruction again advising the jury to rely on memory an d 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 a nd the transcripts that we’ve had to supply, that they were not, for whatever reason, pa ying attention to what was going on in the courtroom while the trial was proceeding” and could not ther efore, be “considered true triers of fact . . . .” The District Court, ex plaining that “I did tell them at a particular point, that if they wanted a partial tran script, they had the right to ask for it,” 3 denied the motion. The court offered its observation that th e jury appeared to be paying attention to the testimony, but stated that the court would not entertain a ny further requests and, if the

3 The District Court’s offer of transcript exce rpts 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 re turned 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 defens e 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 dismi ss for insufficient evidence.
Matt , ¶ 43. From this assessment the Court c oncluded that “[n]othing discussed at the conference and ruled on by the District Court concerned or a ffected the framework within which Matt’s trial proceeded or necessarily rendered the trial fundamentally unfair . . . . None of these issues and ruli ngs contaminated the trial me chanism along the lines that a biased judge, lack of counse l, an erroneous reasonable-do ubt instruction, or a juryselection error would.” Matt , ¶ 43. Here, the issuing of responses to jury questions, including the provision of several short transc ript portions, could not have affected “the framework” of the trial or rendered the tria l “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 direc tly to the jury in case -in-chief or rebuttal, and a motion to dismiss for insufficient evid ence. 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 there14 is no reasonable possibility the vi olation prejudiced the defendan t in light of the interests the right of presence was designed to protect.” Matt , ¶ 38. Citing Kennedy , we explained that this right included th e opportunity for th e defendant to “p articipate in the preservation of his or her rights.” Matt , ¶ 21. We noted that a defendant can observe whether his attorney is advo cating 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 provi de information or to make in formed decisions about whether to change his plea or pursue an ineffe ctive assistance of counsel claim. Matt , ¶ 21. With this backdrop, we consider whet her the State has met its burden. ¶34 The State argues that there is no prejud ice 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, offe ring 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 instruc tion of the jury had a ll taken place.” The State argues that the interactions betwee n 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 c onvening 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 reco rd. The discussions held wh en McLaverty objected to the court’s response to question six and later moved for mist rial 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 de fendant did not deprive the de fendant 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 abse nce, 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 proc eeding 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 promis ed the jury it would do but, in doing so, reminded the jury of its duty to consider the ev idence 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 respon ses to the jury were largely routine, formulated in cons ultation with counse l and without objection. McLaverty objected to one response because he believe d 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 no t sufficient. After the jury’s eleventh question, Godfrey’s16 counsel moved for a mistrial on the unique gro und 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 ha d proceeded beyond the point at which the court’s actions should have a bearing u pon the evidence the ju ry would hear or the instructions the court would give. At this point, with the jury in deliberations, the info rmation 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 evid ence in its entirety. ¶37 In Kennedy , after concluding Ke nnedy’s right to be present for all critical stages of the proceeding had been viol ated, we examined the particular circumstances and concluded that Kennedy had no t been prejudiced by his ex clusion 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 reason able possibility that Godfrey’s exclusion from these proceedings pr ejudiced him in light of the interests his presence was designed to protect. In anot her case and under other circumstances, a potential for prejudice could well be demonstrat ed 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 righ t to be present at all proceedings. ¶39 4. Was Godfrey’s appellate counsel ine ffective because he failed to challenge Godfrey’s conviction on the ground that the jury did not meaningfully pay attention to the parties’ presen tation of evidence? ¶40 Godfrey’s last claim is that his appellate counsel was ineffec tive because he did not argue on direct appeal that Godfrey was denied a fair tr ial. Godfrey argues that the numerous inquires sent by the ju ry to the court during its delib erations 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 argu ments and changes in legal theory. Ferguson , ¶ 38. “[I]t is fundamentally unfair to fault the tria l 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 rais es the issue of ineffective a ssistance 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.18 /S/ JIM RICE

We concur:

/S/ JOHN WARNER /S/ PATRICIA COTTER /S/ BRIAN MORRIS