NO. 92-576 IN THE SUPREME COURT OF THE STATE OF MONTANA 1394

STATE OF MONTANA, Plaintiff and Respondent,

-vsSCOTT SOR-LOKKEN, Defendant and Appellant,

APPEAL FROM: District Court of the Twentieth Judicial District, In and for the County of Sanders, The Honorable C. B. McNeil, Judge presiding.

COUNSEL OF RECORD: For Appellant: Scott D. Sor-Lokken, Pro Se, Deer Lodge,Montana For Respondent: Hon. Joseph P. Mazurek, Attorney General, John Paulson,AssrtAttorney General, Helena, Montana Robert Slomski, Sanders County Attorney, Thompson Falls, Montana

Filed: Submitted on Briefs: November 5, 1333 Decided: January 20, 1994

ClerkJustice John Conway Harrison delivered the Opinion of the Court.

Scott Sor-Lokken (Sor-Lokken] appeals a decision of the Twentieth Judicial District Court, Sanders County,deeming his pro se documents to be a motion for appointment of counsel and a petition for post-conviction relief and denying the same. We affirm. The only issue on appeal is whether the District Court properly considered the pleadings filed by Sor-Lokken to be a motion for appointment of coufisel,which was denied, and apetition for post-conviction relief, which was subject to dismissal as a matter of law. Sor-Lokken was convicted of two counts of felony assault and

was sentenced to two concurrent terms of ten years in the Montana State Prison and was designated a dangerous offender. He appealed that conviction,which was affirmed by this Court. State v. SorLokken (1990), 246 Mont. 70, 803 P.2d 638. In a separate proceeding, Sor-Lokken was convicted of one count of felony sexual assault and one count of incest. He was sentenced to twenty years on the felony sexual assault count,with five years suspended, and to ten years on the incest count, with the sentences to be served concurrently. He was also designated a dangerous offender. Sor-Lokken also appealed that conviction, which was affirmed by this Court. State v. Sor-Lokken (1991),247 Mont. 343, 805 P.2d 1367. Sor-Lokken subsequentlysent apro sedocument to the District 2Court,which was received on July 9, 1992. In this document, SorLokken stated that he "would like to file a petition for post conviction" and "would like to have an attorney appointed to do this." Theremainder of thedocument set forthvarious allegations concerning the effectiveness of his trial counsel. Sor-Lokken claimed,among other things, that his attorney failed to object to certain evidence, failed to utilize certain affirmative defenses (insanityand alibi), failed to present a timely motion for a new trial, failed to prevent him from testifying at trial, and failed to renew motions for an investigator and an expert witness. The SandersCountyAttorney treated thedocumentasa petition for post-conviction relief and filed a motion to dismiss. On August 12, 1992, Sor-Lokken filed anotherpro sedocument entitled "Amended Post Con~iction.'~1% this doccment, Sor-Lokken included another list of the alleged deficiencies of his trial counsel, although he contended that the first document he filed merely sought to have counsel appointed for post-conviction proceedings. On August 18, 1992, Sor-Lokken filed a third pro 

### se document entitled "Motion to Appoint Counsel for Post Conviction Relief." In this document, Sor-Lokken again complained of his trial counsel's alleged inexperience and errors. On September 1, 1992, the District Court issued an order addressing the various documents on file. The court construed the pro sedocuments filedby Sor-Lokken tobe amotion forappointment of counsel and a petition forpost-convictionrelief. The District Court denied themotion for appointment of counsel and granted 

### theState's motion to dismiss thepetition for post-conviction relief. In the memorandum opinion accompanying the order, the District Court noted that, at the commencement of both the underlying criminal proceedings, the District Court appointed James Handley (Handley) to represent Sor-Lokken; however, Sor-Lokken refused Handley's assistance and discharged him. The District Court then appointedtheattorney of Sor-Lokken's choice,RogerKehew (Kehew), to represent him. Kehew represented Sor-Lokken through both trials. Following the conclusion of both trials, the District Court appointed Dan McGregor (McGregor) to represent Sor-Lokken on appeal. McGregor reviewed the record inboth casesand advised the District Court and Sor-Lokken that his best chance for success on appeal was to raise the issue of ineffective assistance of trial counsel. Sor-Lokkenapparently disagreed and discharged McGregor; he then privately retained Kehew to represent him in both appeals to this Court. The District Court viewed Sor-Lokken" pro se documents as a claim forpost-conviction relief based upon ineffective assistance of trial counsel. The court concluded that Sor-Lokken was procedurally barred from raising this issue in a petition forpostconviction relief, as he had the opportunity to appeal this issue with the assistance of court-appointed counsel, and dismissed the petition. On September 30, 1992,Sor-Lokken filed a "Notice of Intent to Appeal Petition and Motion for Attorney and Post Conviction."Our standard of review relating to discretionary district court rulings is whether the court abused its discretion. Steer, Inc. V. Depltof Revenue (1990), 245Mont. 470, 475, 803 P.2d 601, 603-04. Our standard of review relating to conclusions of law is whether the trial judge's interpretation of the law is correct. Steer. Inc., 803 P.2d at 603. In considering the standard of review in this case, we must consider two standards. This Court has held: [Ilnreviewing conclusionsof law,our standard of review will be merely to determine if the agency's interpretationof the law is correct, insteadof applying an inappropriate abuse of discretion standard.

Our standard of review relating to conclusions of law is not to be confused with our review of discretionary trial courtrulings. This hasbeen defined as lqencompassingthe power of choice among several courses of action, each of which is considered permissible." SeeAldisert,The Judicial Process, 1976, page 759. Steer, Inc., 803 P.2d at 603-04. We note that there is no constitutional requirement that counsel be appointed in a post-conviction proceeding, as it is civil in nature. In re Petition of Martin (1989)' 240 Mont. 419, 420, 787 P.2d 746, 747. The appointment of counsel in a postconviction proceeding is discretionary. Section 46-8-104, MCA

(1991). Upon reviewing the record in this case, we hold that the DistrictCourt did not abuse its discretion indenying Sor-Lokken's motion for appointment of counsel for the purposes of postconvictionproceedings. We must, therefore, look to whether the District Court erredin treating the three pro se documents filed by Sor-Lokken as a petition for post-conviction relief. This Court frequently looks to the substance of a pro sepleading and often considers the same a petition for post-conviction relief,despite its denominationby the pro se petitioner. See Dahlman v. District Court (1985), 215 Mont. 470, 698 P.2d 423; State v, Laverdure (1984), 212 Mont. 31, 685 P.2d 375. Thesepro sedocumentsare often liberally construed to allow a review of the underlying claims. See United Statesv. Young (9th Cir. 1991), 936 F.2d 1050. Here, the District Court looked to the substance of Sor-Lokkenrs claims in order to determine if there was a basis for the relief sought in the postconviction pleadings. Wehavepreviously held that a claim of ineffective assistance of counselwhich could have reascnably been raised on direct appeal

was procedurally barred from post-conviction proceedings. In re Petition of Evans (1991), 250 Mont. 172, 173, 819 P.2d 156, 157. In this case, Sor-Lokken had the opportunity to raise the issue of ineffective assistance of counsel two separate times, in either or both of his prior appeals to this Court. He failed to do so: therefore, he is barred from raising this issue in a postconviction proceeding. The District Court properly dismissed the petition under 46-21-201, MCA (1991), which provides, in pertinent part: (1) 

# . . . Following its review of the responsive pleading, the courtmay dismiss the petition as a matter of law for failure to state a claim for relief or it may grant a prompt hearing on the petition. 

# .

# . . In this case, no hearing on the petition was held, because the 6District Court determined that, as a matter of law, the petition failed to state a claim upon which relief could be granted. We hold that the District Court properly treated Sor-Lokken's pro se documents as a petition for post-conviction relief, and properly dismissed the same. A££irmed. Pursuant to Section I,Paragraph 3(c),Montana Supreme Court 1988 Internal Operating Rules, this decision shall not be cited as precedent and shall be published by its filing as a public document with the Clerk of the Supreme Court and by a report of its result to Montana Law Week, State Reporter and West Publishing Company.

We concur: i-.January20, 1994 CERTIFICATEOFSERVICE Iherebycertifythatthefollowingorderwas sentbyUnited Statesmail, prepaid, tothefollowing named:

SCOTT D. SOR-LDKKEN 700ConleyLakeRd. Deer Lodge,MT59722

ROBERTSLOMSKI,County Attorney SandersCounty P.O. Box 519 Thompson Falls,MT 59873

HON.JosephP. Mazurek,AttorneyGeneral



### ,Assistant JusticeBldg. Helena,MT 59620

EDSMITH CLERKOFTHESUPREMECOURT STATEOFMONTANA