DA 06-0398

IN THE SUPREME COURT OF THE STATE OF MONTANA

2007 MT 338

TERRENCE JOHN YECOVENKO,

 Petitioner and Appellant,

 v.

STATE OF MONTANA,

 Respondent and Appellee.

APPEAL FROM: District Court of the Seventeenth Judicial District,

In and For the County of Valley, Cause No. DV 2005-066

Honorable John C. McKeon, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Robert M. Peterson, Peterson Law Office, Havre, Montana

For Appellee:

Hon. Mike McGrath, Montana Attorney General, Ilka Becker,

Assistant Attorney General, Helena, Montana

Kenneth L. Oster, Valley County Attorney, Glasgow, Montana

Submitted on Briefs: March 7, 2007

 Decided: December 14, 2007 

Filed:

__________________________________________

Clerk

December 14 2007
2

Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Terrence Yecovenko (Yecovenko) appeals from the Seventeenth Judicial District 

Court’s order denying his Petition for Postconviction Relief. We reverse and remand.

ISSUE

¶2 The sole issue on appeal is whether the District Court erred in denying 

Yecovenko’s Petition for Postconviction Relief. 

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In November 2000 Yecovenko was charged with two counts of sexual assault.

These charges stemmed from allegations of sexual contact with the ten-year old and 

twelve-year old daughters of his former live-in girlfriend. He was also charged with two 

counts of sexual abuse of children. These charges were unrelated to the assault charges

and arose from the discovery by law enforcement of collected images of child 

pornography on Yecovenko’s computer and on zip disks in his possession. Prior to trial, 

Yecovenko moved to sever the sexual assault charges from the sexual abuse/pornography 

charges. He argued that the elements of the assault and abuse charges were different, and 

that he would suffer prejudice by the introduction of the State’s evidence from one case 

to the other. In other words, he would be prejudiced vis-à-vis the sexual assault charges 

by introduction of the pornography in the State’s case against him for sexual abuse. 

Alternatively, if the State introduced its evidence of sexual assault first, he would be 

prejudiced vis-à-vis the sexual abuse charges. The District Court denied his motion

finding that Yecovenko had not alleged the manner in which he would be prejudiced by 

joinder of the charges into one trial.
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¶4 After listening to the testimony of the two children and after viewing the State’s 

evidence of sexual abuse consisting of ten printed child pornographic images from the 

collection on Yecovenko’s computer and disk, the jury convicted him on all counts of 

sexual abuse and sexual assault. With new counsel, he appealed the convictions in part

on the ground that the District Court erred in denying his motion to sever the charges. 

However, Yecovenko’s appellate counsel did not argue on appeal that trial counsel had 

been ineffective for failing to adequately assert the “prejudice” element of his motion to 

sever; rather, his argument centered upon the type and manner of prejudice to which 

Yecovenko had been exposed in a single trial setting. In July 2004 we affirmed the 

convictions on procedural grounds and did not address the merits of the “motion to sever” 

issue. Our decision is reported at State v. Yecovenko, 2004 MT 196, 322 Mont. 247, 95 

P.3d 145.

¶5 In October 2005 Yecovenko, with new counsel yet again, filed a Petition for 

Postconviction Relief and supporting memorandum arguing ineffective assistance of both 

trial counsel and appellate counsel. He sought reversal of his convictions and requested 

separate trials on the assault and abuse charges. In March 2006 the District Court denied 

the Petition finding that Yecovenko’s trial counsel was ineffective but that Yecovenko 

had failed to demonstrate that trial counsel’s deficient performance prejudiced his 

defense in a manner that denied him a fair trial. The court, having resolved Yecovenko’s 

petition on the issue of trial counsel’s ineffectiveness, declined to address Yecovenko’s 

allegations of ineffective assistance by appellate counsel. 

¶6 Yecovenko filed a timely appeal. 
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¶7 Additional facts will be discussed as needed for our analysis.

STANDARD OF REVIEW

¶8 We review a district court’s denial of a petition for postconviction relief to 

determine whether the court’s findings of fact are clearly erroneous, and whether its 

conclusions of law are correct. Camarillo v. State, 2005 MT 29, 326 Mont. 35, 107 P.3d 

1265.

DISCUSSION

¶9 As referenced above, three different attorneys have represented Yecovenko 

relative to these charges: trial counsel, appellate counsel and postconviction counsel. 

Trial counsel represented Yecovenko before the District Court in the underlying jury 

trial. Appellate counsel represented Yecovenko before this Court in the appeal of his 

convictions. Postconviction counsel represented Yecovenko in the District Court in his 

request for postconviction relief and currently represents Yecovenko in this appeal of the 

District Court’s order denying postconviction relief.

¶10 To determine whether the District Court erred in denying Yecovenko’s Petition for 

Postconviction Relief we must examine Yecovenko’s claims of ineffective assistance of

trial counsel and appellate counsel. 

¶11 Trial counsel filed a motion to sever in the District Court seeking separate trials 

for Yecovenko—one trial on the sexual assault charges and a second trial on the sexual 

abuse charges. While counsel posited that Yecovenko would be “extremely prejudiced” 

by the presentation of the State’s evidence, counsel simply set forth in his motion the 

different elements required to establish the different crimes. In his accompanying 
5

affidavit, however, trial counsel, without providing specific detail, argued that the 

physical evidence the State intended to present to prove the sexual abuse charges was

“base” and “disgusting” and of “such a nature that it would be viewed . . . pornographic” 

and “create great prejudice towards [his client]” and “have a damaging effect on the 

jurors.” 

¶12 Relying on State v. Hocevar, 2000 MT 157, 300 Mont. 167, 7 P.3d 329, the State 

responded by arguing that Yecovenko had not alleged any specific type of prejudice that 

would result from joinder of all charges in a single trial. In Hocevar, we discussed three 

types of prejudice which may result from consolidating charges. First, a jury may 

consider the criminal defendant facing multiple charges a “bad man” and accumulate 

evidence until it finds the defendant guilty of something. Second, a jury may use proof of 

guilt on one count to convict the defendant of a second count even though that proof 

would be inadmissible at a separate trial on the second count. Third, the defendant may 

be prejudiced if he or she wishes to testify on one charge but not on another. Hocevar, 

¶ 68 (citation omitted). Notably, even though the State pointed out, with specificity, the 

deficits in trial counsel’s assertions of prejudice, trial counsel did not file a reply to the 

State’s response.

¶13 The District Court ruled that Yecovenko had failed to show that he would be 

unfairly prejudiced by joining the offenses into a single trial. The court addressed each of 

the three scenarios presented in Hocevar and held that Yecovenko failed to allege any 

one of them. As a result, the court determined that a single trial on all charges served the 

interest of judicial economy. Trial counsel did not request reconsideration of this ruling 
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or attempt to supplement his prior inadequate motion for severance. The joint trial 

proceeded and Yecovenko was found guilty of all charges.

¶14 Upon conviction on all counts, Yecovenko obtained new counsel and appealed his 

conviction to this Court. Appellate counsel argued that the District Court had erred in 

denying Yecovenko’s motion to sever because Yecovenko was subject to two types of 

prejudice—specifically, that the accumulated evidence caused the jury to consider him a 

“bad man” and that evidence of the counts dealing with child pornography would have 

been inadmissible in a separate trial on the sexual assault counts. Yecovenko, ¶ 20. 

While appellate counsel correctly identified the types of prejudice to which Yecovenko 

had been exposed, he failed to assert that trial counsel was ineffective for failing to raise 

the same. As a result, this Court was asked to address arguments concerning prejudice 

that were never presented to the District Court, but without any justification being offered 

by appellate counsel for why we should do so. In affirming the District Court we 

explained, “Although he attempts to demonstrate prejudice on appeal, this Court will not 

consider . . . changes in legal theory on appeal. We will not put a trial court in error on 

an issue raised by a party on appeal where it was not given the opportunity to address the 

issue.” Yecovenko, ¶ 22 (internal citations omitted). In our analysis, however, we 

observed that trial counsel’s “bald assertions” of prejudice failed “to fulfill the 

requirement for pretrial motions.” Yecovenko, ¶ 21. 

¶15 After obtaining new counsel Yecovenko sought postconviction relief from the 

District Court alleging ineffective assistance of both trial and appellate counsel. In his 

Petition, he detailed the deficiencies of counsel discussed above. In his Memorandum in 
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Support of Postconviction Relief, he argued that the type of evidence presented at his trial 

demanded an assessment of prejudice based on the “bad man” theory and an analysis of 

the potential that he would be found guilty on one charge based on inadmissible evidence 

from the other charge. He also argued that, because of the prejudice he experienced at 

trial as a result of trial counsel’s ineffectiveness, “confidence in the outcome of this 

proceeding . . . must be found to be seriously undermined.”

¶16 The District Court reviewed Yecovenko’s postconviction petition and determined 

that Yecovenko had established that trial counsel’s “performance fell below the range of 

competence required of attorneys in criminal cases,” thus meeting the first prong of the 

two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 

(1984). The District Court concluded, however, that Yecovenko had failed to satisfy the 

second prong of the Strickland test, i.e., 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. As a result, the District Court 

denied Yecovenko’s postconviction petition concluding that the court’s jury instructions 

adequately addressed and dealt with potential prejudice to Yecovenko.

¶17 On appeal, Yecovenko argues that the District Court erroneously denied his 

Petition for Postconviction Relief. He requests that his Petition be granted, his prior 

convictions reversed, and that we order the District Court to grant separate trials on the 

assault charges and the abuse charges.

¶18 Article II, Section 24, of the Montana Constitution and the Sixth Amendment of 

the United States Constitution guarantee a person the right to the effective assistance of 
8

counsel. As referenced above, the U. S. Supreme Court established a two-prong test in

Strickland to evaluate claims of ineffective assistance of counsel. This Court 

subsequently adopted that test. State v. Boyer, 215 Mont. 143, 695 P.2d 829 (1985). 

¶19 Applying the Strickland test to trial counsel’s performance, we conclude, as we 

observed in Yecovenko, ¶ 22, that trial counsel ineffectively represented Yecovenko by

proffering a motion to sever to the District Court that did not satisfy the threshold 

requirements for a pretrial motion. Section 46-13-101(4), MCA, specifically requires that 

all pretrial motions must “state with particularity the grounds for the motion and the order 

or relief sought.” Section 46-13-211, MCA, authorizes a court to order separate trials “if 

it appears that a defendant . . . is prejudiced by a joinder of charges . . . .” It is the 

defendant’s burden to prove that severing the charges pursuant to § 46-13-211(1), MCA, 

is necessary to prevent unfair prejudice and that such prejudice is so great as to prevent a 

fair trial. State v. Harlson, 2006 MT 312, ¶ 37, 335 Mont. 25, ¶ 37, 150 P.3d 349, ¶ 37 

(internal citations omitted). Yecovenko’s trial counsel failed to carry this burden in his 

motion, and when given a chance after the State pointed out the deficiencies of his 

motion to file a reply brief supplying the necessary arguments, he did not do so. Trial 

counsel’s failure to allege the nature or type of prejudice which would occur absent a 

severance did not constitute sound trial strategy or fall within a wide range of reasonable 

professional conduct—it constituted ineffective assistance.

¶20 Similarly, appellate counsel’s failure to raise ineffective assistance of trial counsel 

before this Court on appeal cannot be viewed as legitimate appellate strategy under these 

circumstances. Presenting new arguments on appeal without justification for doing so, in 
9

light of the volume of cases holding that such arguments will not be entertained, falls 

short of reasonable professional assistance.

¶21 Having determined that both trial counsel and appellate counsel ineffectively 

assisted Yecovenko, we turn to the District Court’s denial of his postconviction petition. 

Yecovenko effectively argued that trial counsel and appellate counsel were ineffective in 

their representation of him during the earlier proceedings. The District Court agreed and 

concluded that Yecovenko satisfied the first prong of Strickland and that trial counsel 

inadequately fulfilled the requirements for pretrial motions.

¶22 However, the District Court subsequently determined that Yecovenko had not 

satisfied the second prong of Strickland requiring demonstration of a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different. We disagree. The pornographic images shown to the jury as 

proof of the sexual abuse charges were, quite simply, horrific. In fact, they were so 

offensive that the court felt compelled to both clear the courtroom before they could be 

published by overhead projection to the jury, and limit the jury’s view of each image to 

five seconds. These pictures had absolutely no probative value with respect to the sexual 

assault case, and would have been flatly inadmissible in that case had the matter been 

tried separately. But, they came into evidence in the combined trial. The jury was 

virtually certain to be disgusted with Yecovenko after viewing these images, which, 

while acceptable in the context of the sexual abuse trial, is unacceptable in connection 

with their obligation to dispassionately evaluate the evidence supporting the separate 

charges of sexual assault on minor children. As Yecovenko argued in his motion, his 
10

ability to challenge the credibility of the children’s accounts in the sexual assault case 

was completely undermined by the introduction of the pornographic images to the jury.

¶23 The second prong of Strickland requires the Court to assess whether 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. 

We conclude that Yecovenko has satisfied this prong, having shown that the prejudice to 

him “seriously undermined” the verdict. Our review of the record leads us to conclude 

that the failure to sever resulted in a level of prejudice, the absence of which could have 

reasonably resulted in a different outcome. Therefore we hold that the District Court 

erred in denying Yecovenko’s Petition for Postconviction Relief.

¶24 We are thus left with the question of what relief to afford. While Yecovenko’s 

counsel urges us in the conclusion of his brief to grant him new and separate trials on 

both the sexual assault and sexual abuse charges, his actual argument focuses solely and 

repeatedly on the prejudicial impact that the pornographic images had on his ability to 

receive a fair trial on the sexual assault charges. Given how odious these images are, the 

presumptive prejudice clearly does run in this direction. Moreover, Yecovenko was able 

to fully present to the jury his defenses to the sexual abuse charges. For these reasons, 

we decline to order a new trial on the sexual abuse charges. However, we reverse 

Yecovenko’s conviction of sexual assault, and remand this matter to the District Court for 

a new trial. In addition, because the District Court imposed concurrent sentences of forty 

years with twenty suspended for the crimes of sexual assault and sexual abuse, and we 
11

are now reversing the sexual assault conviction, we deem it appropriate to remand the 

sexual abuse conviction for resentencing.

¶25 Reversed and remanded for further proceedings consistent with this Opinion.

/S/ PATRICIA COTTER

We concur: 

/S/ JAMES C. NELSON

/S/ JOHN WARNER

/S/ BRIAN MORRIS

Justice Jim Rice dissenting. 

¶26 The Court concludes that the District Court erred by denying Yecovenko’s claim 

for ineffective assistance of counsel and grants a new trial on the sexual assault charges, 

Opinion, ¶¶ 23-24, concluding that Yecovenko was entitled to separate trials for the 

charges because the evidence filed against him in support of the sexual abuse charge was 

“horrific.” Opinion, ¶ 22. I do not disagree with the Court’s characterization of the 

evidence, but I do disagree that reversal for a new trial is appropriate.

¶27 In considering whether Yecovenko would have been entitled to separate trials, had 

his counsel filed a properly supported motion, we should apply the law which governs 

such motions. First, “[t]he burden is on the defendant to prove that severing the charges 

pursuant to § 46-13-211(1), MCA, is necessary to prevent unfair prejudice.” State v. 

Harlson, 2006 MT 312, ¶ 37, 335 Mont. 25, ¶ 37, 150 P.3d 349, ¶ 37. “This burden 

cannot be met by proving either that the defendant will face some prejudice from the joint 
12

trial or will stand a better chance of acquittal in separate trials; rather, the defendant must 

prove the prejudice is so great as to prevent a fair trial.” Harlson, ¶ 37. In Harlson, we 

explained that the statute governing joinder of charges provides:

Two or more offenses or different statements of the same offense may be 

charged in the same charging document in a separate count, or alternatively, 

if the offenses charged, whether felonies or misdemeanors or both, are of 

the same or similar character . . . .

Harlson, ¶ 34 (citing § 46-11-404(1), MCA) (emphasis added).

¶28 The Court’s opinion suffers from tunnel vision by focusing only on the evidence 

related to the sexual abuse charge and ignoring the evidence presented in support of the 

sexual assault charges. I submit that these charges, and the evidence offered in support of 

the charges, were of “similar character,” § 46-11-404(1), MCA, allowing Yecovenko to 

be tried on both charges without inordinate prejudice. Indeed, the evidence submitted 

regarding the sexual assault charge was similarly “horrific.” 

¶29 Yecovenko was charged with two counts of sexual assault arising from the 

allegations of his sexual contact with the ten-year-old W.E.S. and twelve-year-old 

V.A.S., daughters of his girlfriend. At trial, the jury was first introduced to the sexual 

assault charges through the testimony of Glasgow police officer, Bruce Barstad, who 

interviewed W.E.S. and V.A.S. regarding their molestations. Barstad testified that 

V.A.S. told him that Yecovenko “had touched her chest and had rubbed her in the vaginal 

area with his fingers.” Barstad stated that V.A.S. informed him that this touching 

occurred directly on the skin and Yecovenko would often “bribe” her by offering “her 

something in return for her permission to allow him to [touch] her.” 
13

¶30 Each girl then took the witness stand and testified about her respective 

experiences. W.E.S. stated that Yecovenko would ask to see her private parts and that 

Yecovenko touched and rubbed her “upper” and “lower” private parts both through her 

clothing and after asking her to undress. V.A.S. recounted that Yecovenko would 

promise her things if she allowed him to touch her. These promises, which V.A.S. called 

“bribes,” included money and other privileges such as having a friend over or going to a 

friend’s house. V.A.S. explained that “he told [her] to take off [her] clothes” and he 

would rub his fingers on her skin, over her “breasts and [her] front private [area] down 

below the belt.” Further testimony revealed that Yecovenko repeatedly requested to 

perform oral sex on V.A.S. and that she felt “disgusted” and “bad” after theses instances. 

¶31 Although the Court concludes that upon viewing the pornographic images related 

to the sexual abuse charge the “jury was virtually certain to be disgusted with 

Yecovenko,” Opinion, ¶ 22, I respectfully submit that the jury would have been similarly 

disgusted after hearing the very clear testimony offered by the two young girls who were 

Yecovenko’s victims in the sexual assault case. This was not a trial for sexual abuse and 

burglary or some other dissimilar charge, for which the horrific evidence would unfairly 

prejudice the defendant with regard to the unrelated charge. This trial was for charges 

which involved similar subject matter: sexual contact with, and abuse upon, minor 

children.

¶32 We have recognized that there is “no reason to assume the jury will be confused 

and cannot keep the relevant evidence separate when the charges are few and the 

evidence straight forward.” State v. Southern, 1999 MT 94, ¶ 41, 294 Mont. 225, ¶ 41, 
14

980 P.2d 3, ¶ 41. Here, the charges were few, and the evidence about each was 

piercingly straightforward. Further, the jury was instructed that “[e]ach count charges a 

distinct offense” and that they “must decide each count separately.” Nothing in the 

record suggests that the jurors did not follow their instructions or did not keep the 

relevant evidence separate or were so inflamed by the pornographic images that they 

convicted Yecovenko of sexual assault because of this “horrific” evidence. Indeed, there 

was plenty of “horrific” evidence—of similar character—also introduced in the sexual 

assault case. I would conclude that the jurors properly did their duty and followed the 

instructions. There is no reason to reverse the convictions premised upon the clear and 

courageous testimony of two young sexual victims simply because the accompanying 

sexual abuse charge included evidence with similarly horrific content.

¶33 Although defense counsel may have erred by filing an insufficient motion to sever, 

I would conclude the defendant was not prejudiced because he was not entitled to 

severance of the charges under the law. 

¶34 Unfortunately, the Court’s decision today will strike a blow to future child sexual 

assault prosecutions. When searches are conducted of an accused’s residence, it is not 

uncommon to find child pornography, which gives rise to secondary charges. Today’s 

decision will likely force double trials in such cases and thereby greatly increase the 

efforts the State must take to obtain convictions in each case.

¶35 I dissent.

/S/ JIM RICE