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, Assrt Attorney General, Helena, Montana 

Robert Slomski, Sanders County Attorney, Thompson 

Falls, Montana 

Filed: 

Submitted on Briefs: November 5, 1333 

Decided: January 20, 1994 

Clerk 
Justice 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 a petition 

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 subsequently sent a pro se document to the District 

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Court, 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." The remainder of the document set forth various 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 

(insanity and 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 Sanders County Attorney treated the document as a petition 

for post-conviction relief and filed a motion to dismiss. On 

August 12, 1992, Sor-Lokken filed another pro se document 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 se documents filed by Sor-Lokken to be a motion for appointment 

of counsel and a petition for post-conviction relief. The District 

Court denied the motion for appointment of counsel and granted the 
State's motion to dismiss the petition 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 

appointedthe attorney of Sor-Lokken's choice, Roger Kehew (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 in both cases and 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-Lokken apparently 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 for post-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 for postconviction 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. Deplt of Revenue (1990), 245 Mont. 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: 

[Iln reviewing conclusions of law, our standard of review 

will be merely to determine if the agency's 

interpretation of the law is correct, instead of 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 court rulings. This has been defined 

as lqencompassing the power of choice among several 

courses of action, each of which is considered 

permissible." See Aldisert, 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 

District Court did not abuse its discretion in denying Sor-Lokken's 

motion for appointment of counsel for the purposes of postconviction proceedings. 

We must, therefore, look to whether the District Court erred 
in 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 se pleading and often considers the same 

a petition for post-conviction relief, despite its denomination by 

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. These pro se documents are often liberally construed 

to allow a review of the underlying claims. See United States v. 

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. 

We have previously held that a claim of ineffective assistance 

of counsel which 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 court may 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 

6 
District 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-. 
January 20, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

SCOTT D. SOR-LDKKEN 

700 Conley Lake Rd. 

Deer Lodge, MT 59722 

ROBERT SLOMSKI, County Attorney 

Sanders County 

P.O. Box 519 

Thompson Falls, MT 59873 

HON. Joseph P. Mazurek, Attorney General 

, Assistant 

Justice Bldg. 

Helena, MT 59620 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA