No. 94-335

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Plaintiff and Respondent,

v.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Dorothy McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Loren R. Baker, Deer Lodge, Montana, Pro Se

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Patricia Jordan, Ass't Attorney General, Helena,

Montana

Mike McGrath, Lewis and Clark County Attorney,

Helena, Montana

Filed:

Submitted on Briefs: June 29, 1995

Decided: August 4, 1995
Justice James C. Nelson delivered the Opinion of the Court.

Loren Robert Baker (Baker), pro se, appeals from the Decision

and Order of the First Judicial District Court, Lewis and Clark

County, denying his petition for post-conviction relief. We

affirm.

Background

As a result of a jury trial, Baker was convicted on June 21,

1990, of robbery, reckless driving and carrying a concealed weapon.

He was subsequently sentenced to serve a total of 36 years in

prison and was designated a dangerous offender for parole

eligibility purposes. We affirmed Baker's conviction on appeal in

State v. Baker (1991), 249 Mont. 156, 815 P.2d 587, and reference

is made to our decision in that case for further background

information. The Montana Sentence Review Board affirmed Baker's

sentence on August 21, 1992.

Baker filed his petition for post-conviction relief on January

6, 1994, alleging ineffective assistance of counsel. In his

petition Baker claimed that his counsel: (1) failed to litigate

issues concerning an alleged illegal search, an alleged compelled

self-incrimination, and the admission of other crimes evidence; (2)

failed to raise other possible defenses; (3) failed to prevent the

use of evidence of past behavior at sentencing; and (4) failed to

request a hearing pursuant to 5 46-18-222, MCA, regarding his

mental condition.

In accordance with our decision in Pet.it.ion of Gil.lham (1985),

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216 Mont. 279, 704 P.2d 1019, the State moved for and obtained

orders requiring Baker's trial counsel to respond to the claims of

ineffective assistance of counsel. After briefing and the

consideration of various documents and the responses of counsel,

but without an evidentiary hearing, the District Court denied

Baker's petition on May 20, 1994. Baker appeals.

Further facts are set forth in our following discussion as

necessary to dispose of the issues raised.

Issues

In his opening brief, Baker raises twenty-five issues (Baker's

issues) which we simply reiterate here as follows:

1 . Whether an exception should be made to allow

application of exclusionary rule to testimony of private

individuals whose felonious conduct was first-aggression

assault causing injury to the accused and whose

subsequent search produced no physical evidence of

alleged theft?

2 . Whether merchant violation of standards of reasonableness in his treatment of a customer voids his right

to assert a shoplifting claim?

3 . Whether a strong showing of probable factual

innocence of theft is reasonable doubt of guilt of

robbery which merits relief?

4. Whether the state has denied Baker the equal

protection of the laws?

5 . Whether the state has denied Baker speedy remedy for

injury of person and the administration of right and

justice?

6 . Whether the trial court errored [sic] and denied due

process of law by precluding pretrial motions and

evidentiary hearing from defense trial counsel?

7 . Whether officer's testimony of Baker's admissions was

evidence obtained from interrogation where officers

compelled self-incrimination in absence of counsel, and

the inadmissible testimony should have been suppressed?

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8 . Whether counsel was deficient in omission to perform

pretrial investigation of plausible defenses?

9 . Whether state procedural default of timely notice

requirements prejudiced the defense with indefensible

surprise?

10. Whether indefensible surprise from untimely notice

compelled self-incrimination from the defendant?

11. Whether indefensible surprise shifted the burden of

proof to the defense and unlawfully negated the state's

responsibility to prove every element of crime beyond

reasonable doubt?

12. Whether evidence of past acts and offenses prejudiced the jury?

13. Whether the state is required to meet the standards

cited in its notice and omission to do so is unfair to

the defense?

14. Whether the principles of fundamental fairness

require the Just standards to be met, prerequisite to

admission of evidence of past acts or offenses,

regardless of what rule of procedure the evidence is

introduced under?

15. Whether defense evidence Was prejudicially

suppressed?

16. Whether the Presentence Investigation Report is

biased and contributed to prejudicial sentencing?

17. Whether Baker was deprived of fair hearing and

consideration of mitigating circumstances for lesser

sentence?

18. Whether the dangerous designation was improperly

imposed?

19. Whether state default at trial prejudiced

sentencing?

20. Whether it is an unjust succession of sentence to

upon release from prison incarcerate Baker in the county

jail for one year: where this would reverse earned

custody reductions, would be contrary to rehabilitative

processes, and would cause breach of family

relationships?

21. Whether Baker's sentence is cruel punishment?

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22. Whether defense counsel's performance was deficient,

and the deficient performance prejudiced the defense?

23. Whether conviction was obtained through malicious

prosecution?

24. Whether prejudicial error occurred when prosecution

raised prior conviction for carrying a concealed weapon

and rose [sic] issue of defendant's failure to obtain

concealed weapon permit?

25. Whether defendant's testimony at trial was inadmissible, and his decision to testify was incompetent,

because of mental impairment; and, whether these facts

merit reversal?

For purposes of convenience and our discussion we adopt the

following issues as proposed by the State:

1 . Whether Baker's issues 2-6, 13-14, 16, 18-21, 23 and 25

are procedurally barred for failure of Baker to raise them in his

original petition in District Court?

2 . Whether Baker's issues 1, 7, 9-14, 17 and 19 are

procedurally barred for failure of Baker to raise them in his

direct appeal?

3 . Whether Baker's issues lo-14 and 24 are barred by the

doctrine of res judicata?

4 . Whether Baker received effective assistance of counsel?

Standard of Review

We review the District Court's denial of a petition for postconviction relief to determine whether substantial evidence

supports the findings and conclusions of the court. Walker v.

State (19931, 261 Mont. 1, 6, 862 P.2d 1, 4 (citing State v. Coates

(1990), 241 Mont. 331, 336, 786 P.2d 1182, 1185). We will not

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overturn the court ' s legal conclusions if the tribunal's

interpretation of the law is correct. Wagner v. State (Mont.

1995), 889 P.2d 1189, 1190, 52 St.Rep. 61, 61 (citing Eiler v.

State (1992). 254 Mont. 39, 42, 833 P.2d 1124, 1126).

Discussion

1 . Whether Baker's issues 2-6, 13-14, 16, 18-21, 23 and 25

are procedurally barred for failure of Baker to raise them in his

original petition in District Court?

Section 46-21-105(l), MCA, provides:

All grounds for relief claimed by a petitioner under

46-21-101 must be raised in the original or amended

petition. Those grounds for relief not raised are waived

unless the court on hearing a subsequent petition finds

grounds for relief that could not reasonably have been

raised in the original or amended petition.

Baker's petition filed in District Court was premised upon his

claim that he did not receive effective assistance of counsel; it

was on that basis that the court denied his petition. Baker's

issues 2-6, 13-14, 16, 18-21, 23 and 25, were not raised in his

original petition filed in District Court, but are, instead, raised

for the first time in this appeal.

Under the clear and unambiguous language of § 46-21-105(l),

MCA, Baker's issues 2-6, 13-14, 16, 18-21, 23 and 25, have been

waived and are procedurally barred from being raised inasmuch as

these issues were not raised in Baker's original petition.

Moreover, this being a direct appeal from the District Court's

Decision and Order denying post-conviction relief under § 46-21-

203, MCA, we will decline to consider issues not first raised in

the trial court. Section 46-20-701, MCA; Rule 2(a), M.R.App.P.;

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State v. McColley (lPPl), 247 Mont. 524, 528, 807 P.2d 1358, 1361.

Accordingly, we will not consider Baker's issues 2-6, 13-14,

16, 18-21, 23 and 25, further.

2 . Whether Baker's issues 1, 7, 9-14, 17 and 19 are

procedurally barred for failure of Baker to raise them in his

direct appeal?

Section 46-21-105(2), MCA, provides:

When a petitioner has been afforded a direct appeal

of the petitioner's conviction, grounds for relief that

could reasonably have been raised on direct appeal may

not be raised in the original or amended petition.

Under this statute, a petitioner, like Baker, who has been afforded

a direct appeal of his conviction may not raise in a postconviction petition grounds for relief that he could reasonably

have raised in his direct appeal. McCollev, 807 P.2d at 1361.

Moreover, we have held that the procedural bar applies to issues

which were not properly preserved at the trial level for appeal.

State v. Gorder (1990), 243 Mont. 333, 792 P.2d 370.

Here, Baker could reasonably have preserved his issues 1, 7,

9-14, 17 and 19, on their merits by first raising them in District

Court. Having failed to do so the sole issue which he may now

raise is one of ineffective assistance of counsel, by reason of the

failure of counsel to preserve those issues.

Unless a post-conviction petitioner can demonstrate a

fundamental miscarriage of justice (which Baker has failed to do

here), we will consistently apply the procedural bar. See, - I Eiler.

Petition of Evans (1991), 250 Mont. 172, 819 P.2d 156; McColley;

Duncan v. State (19901, 243 Mont. 232, 794 P.2d 331; Tecca v.

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McCormick (1990), 246 Mont. 317, 806 P.Zd 11; Petition of Martin

(1989), 240 Mont. 419, 707 P.2d 746.

Accordingly, we conclude that Baker's issues 1, 7, 9-14, 17

and 19, are procedurally barred under 5 46-21-105(2), MCA, as

having not been raised on direct appeal.

3 . Whether Baker's issues lo-14 and 24 are barred by the

doctrine of res judicata?

In his direct appeal, Baker raised, and we decided against

him, the issue of whether the trial court erred when it allowed the

State to offer testimony of prior crimes and alleged acts. -,Baker

815 P.2d at 589. Baker contended that the evidence relating to the

prior aggressive acts was inadmissible because it failed to conform

to Rule 404(b), M.R.Evid., and State v. Just (1979), 184 Mont. 262,

602 P.2d 957. Baker, 815 P.2d at 589. In support of his appeal,

Baker argued that the trial court erred when it allowed the State

to introduce evidence of other crimes on rebuttal; that the jury

was not voir-dired on this evidence; and that the State should not

have been allowed to raise the issue of character through crossexamination of a defense witness. Baker's issues lo-14 and 24 are

the same as those raised in his direct appeal.

We will apply the bar of res judicata to the re-litigation of

issues already determined on direct appeal if:

(1) the same ground presented in the subsequent

application was determined adversely to the applicant on

the prior application, (2) the prior determination was on

the merits, and (3) the ends of justice would not be

served by reaching the merits of the subsequent

application.

Coleman v. State (1981), 194 Mont. 428, 438, 633 P.2d 624, 630

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(quoting Sanders v. United States (1963), 373 U.S. 1, 15, 83 S.Ct.

1068, 1077, 10 L.Ed.2d 148, 161).

Having already decided Baker's issues lo-14 and 24 on direct

appeal, we conclude that the doctrine of res judicata bars

reconsideration of these issues in this appeal.

4 . Whether Baker received effective assistance of counsel?

The only issue which Baker has properly raised in this appeal

is his claim of ineffective assistance of counsel. We will only

consider the specific allegations of deficient performance which

were properly raised in the trial court. Walker, 862 P.2d at 5.

In Walker, citing the seminal case of Strickland v. Washington

(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, along with

McCollev and Coates, we summarized the nature of our review of

ineffective assistance of counsel claims as follows:

There is a heavy burden of proof on a defendant who

seeks to reverse a judgment on the grounds of ineffective

assistance of counsel. [Citation omitted.] In

evaluating ineffective assistance of counsel claims, we

utilize a two-part test as set forth in [Strickland].

First, the defendant must establish that counsel's

performance was deficient. [Citation omitted.]

Counsel's performance will be evaluated pursuant to the

"reasonably effective assistance" test; if counsel acted

within the range of competence demanded of attorneys in

criminal cases, his performance was not deficient.

[Citation omitted.]

To satisfy the second prong of the Strickland test,

the defendant must establish that the deficient

performance prejudiced the defendant so as to deprive him

of a fair trial. [Citation omitted.1 The standard for

evaluating prejudice is whether a reasonable probability

exists that, but for counsel's deficient performance, the

trial's outcome would have been different. [Citation

omitted.1 However, this Court will not second-guess

trial tactics and strategy. [Citation omitted.]

Walker, 862 P.2d at 4.

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Moreover, a defendant alleging ineffective assistance of

counsel bears the burden of provinq both deficient performance and

prejudice, and the proof must be grounded in facts found on the

record, not in mere conclusory allegations. State v. Hurlbert

(1988), 232 Mont. 115, 120, 756 P.2d 1110, 1112-13. If it is clear

that the defendant has not suffered prejudice depriving him of a

fair trial as a result of counsel's allegedly deficient

performance, the analysis ends at that point. Strickland, 466 U.S.

at 697. See also Hurlbert, 756 P.2d at 1113.

With these legal principles in mind, we address each of

Baker's ineffective assistance of counsel claims. Baker alleges

that counsel failed to move to suppress evidence obtained by a

private citizen search (Baker's issues 1 and 8). We conclude that

counsel did not err in so doing and that a motion to that effect

would have been frivolous under the facts of this case. Since our

decision in State v. Long (1985), 216 Mont. 65, 700 P.2d 153, we

have not applied the exclusionary rule to suppress the fruits of

private citizen searches, unless the citizens were "agents of the

State." State v. Christensen (19901, 244 Mont. 312, 797 P.2d 893.

Here, the patrons of Dapper Dan's bar in Helena were clearly not

acting at the behest of law enforcement.

Baker also contends that trial counsel did not provide

effective assistance in failing to move to suppress his statements

to Helena police officers Whitcomb and Hartman on the day following

his arrest as he was being transported from the Jefferson County

jail to the Lewis and Clark County jail (Baker's issues 7-8). We

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conclude that Baker's contentions are without merit. Officer

Whitcomb testified that he did advise Baker of his Miranda rights,

that he was not sure that the tape recorder had been turned on at

that point (the tape was inaudible), and that he did not recall

Baker asking for an attorney. The District Court concluded that

Baker offered no proof to the contrary.

Moreover, Baker suffered no prejudice as a result of the

introduction of his statements. Other witnesses at trial confirmed

much of what Baker stated to the police, and he never denied

committing the offenses charged, his defenses being self-defense

and mental disease and defect. In view of these circumstances and

because of the substantial quantum of evidence offered against

Baker at trial, it is unlikely that the outcome of the trial would

have been different even if his statements had been suppressed.

Baker maintains that counsel failed to effectively litigate

the admission of other crimes evidence (Baker's issues 9 and 14).

Again, we disagree. While Baker argues that he was prejudiced in

preparing his defense because the Just notice was not timely served

and that his counsel should, therefore, have asked for a

continuance, it is within trial counsel's professional judgment to

determine whether a continuance is necessary. Absent proof to the

contrary, we will not assume that defense counsel's failure to move

for a continuance prejudiced Baker's substantial rights. The

District Court found no prejudice, nor do we.

Baker argues that trial counsel erroneously failed to object

to the cross-examination of the aikido instructor. In Baker, we

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concluded that the State's cross-examination was proper, because

the defendant had put his character in issue and that rebuttal by

past acts was proper. -,Baker 815 P.Zd at 589. While there was no

objection to the cross-examination by defense counsel, any such

objection would have been overruled, the subject having been raised

on direct examination. Generally, whether to object is left to the

discretion of trial counsel in any event. Hurlbert, 756 P.2d at

1114; McCollev, 807 P.2d at 1360. Again Baker has failed to

demonstrate that his defense was prejudiced.

Baker contends that counsel was ineffective by failing to

obtain a gag order preventing an open trial (Baker's issue 15).

Baker wanted to present evidence that an assault on his wife in

1988 caused him to take measures to defend himself and caused

extreme mental stress which he contends affected his actions on the

night of the offenses. One of Baker's trial counsel stated that he

advised Baker against this course of action, because he felt that

the motion would be denied and create more adverse publicity; his

other counsel agreed with that analysis. The District Court found

that counsels' determination was a reasoned strategic decision. We

agree. Counsels' analysis of the law was correct. See, for

example, Globe Newspaper Co. v. Superior Court (1982), 457 U.S.

596, 102 S.Ct. 2613, 73 L.Ed.2d 248; Richmond Newspapers, Inc. v.

Virginia (1980), 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.Zd 973;

State ex rel. Smith v. District Court (1982), 201 Mont. 376, 654

P.2d 982.

Moreover, during the trial Baker had the opportunity to

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present evidence of the attack on his wife, of his mental state at

the time of the crime, and of his reaction to the attack. Baker

has failed to demonstrate how the attack on his wife some one and

one-half years prior to the offenses with which he was charged

would have provided a valid defense. Again, no prejudice has been

shown affecting Baker's substantial rights, and we reject his

arguments.

'Baker contends that trial counsel erred in failing to prevent

use of evidence of past behavior at sentencing (Baker's issue 19).

Again, we find no support for Baker's position. Baker's past

conduct had been introduced in rebuttal during the trial over the

objection of defense counsel. More importantly, even if such

conduct had not been introduced at trial, such evidence would have

been properly presented as part of the presentence investigation

report which the court would have reviewed and considered at

sentencing. Sections 46-18-101(3), MCA, and 46-18-111, MCA.

Defense counsel could not have prevented the introduction of

Baker's criminal history at sentencing had he tried.

Baker argues that counsel failed to request a hearing pursuant

to § 46-18-223, MCA, on whether the mandatory minimum sentence

should apply to him (Baker's issues 17 and 22). The District Court

ruled that the mandatory minimum sentence was not considered in

this case. Baker was given a twenty-five year term for his robbery

conviction and a ten year term for use of a weapon. Accordingly,

whether the exceptions to the mandatory minimum sentence would have

applied is moot. Moreover, Baker had every opportunity at trial to

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present his theory that he was the victim of threats, intimidation

and harassment which prevented him from acting with purpose or

knowledge on the date of the offense. He has failed to present any

new evidence relating to these factors which would have been

presented at a mitigation hearing, had one been held. Again, Baker

has failed to demonstrate how defense counsel's failure to request

a § 46-18-223, MCA, hearing prejudiced his defense.

In summary, having carefully reviewed the record and having

considered defendant's claims of ineffective assistance of counsel,

we conclude that Baker has failed in his burden to prove that trial

counsel made errors so serious that he was deprived of "counsel" as

guaranteed by the Sixth Amendment to the United States

Constitution. Moreover, Baker has failed in his burden to show

that counsel's performance in any way prejudiced his defense so as

to deny him a fair trial.

The District Court Decision and Order denying Baker's petition

for post-conviction relief is, in all res P&L, AFFIj@IED.

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Chief Justice

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