No. 04-539 IN THE SUPREME COURT OF THE STATE OF MONTANA 2005 MT 313N

__________________________________________ STATE OF MONTANA, Plaintiff and Respondent,

v. JORGE L. MARRERO, Defendant and Appellant.

__________________________________________ APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, Cause No. DC-98-13335 The Honorable Douglas G. Harkin, Judge presiding.

COUNSEL OF RECORD: For Appellant: Christopher Daly, Attorney at Law, Missoula, Montana For Respondents: Honorable Mike McGrath, Attorney General, Micheal S. Wellenstein, Assistant Attorney Gene ral, Helena, Montana Fred Van Valkenburg, Missoula C ounty Attorney; Karen Townsend, Deputy County Attorney , Missoula, Montana

__________________________________________ Submitted on Briefs: November 9, 2005 Decided: December 12, 2005 Filed:

Clerk2 Justice Brian Morris delivered the Opinion of the Court. ¶1 Pursuant to Section I, Para graph 3(d)(v), Montana Supreme Court 1996 Internal Operating Rules, as amended in 2003, the following memorandum decision shall not be cited as precedent. Its case title, Supreme C ourt cause number and disposition shall be included in this Court's quarterly list of nonc itable cases published in the Pacific Reporter and Montana Reports. ¶2 Appellant Jorge L. Marrero (Marrero) appeals from an Order of the Fourth Judicial District, Missoula County, revoking his suspended sentence and sentencing him to fifteen years at the Montan a State Prison. We affirm. ¶3 Marrero contends that the District C ourt abused its discretion by failing to consider alternatives to incarcerati on. Marrero relies on our decision in State v. Lee , 2001 MT 176, 306 Mont. 173, 31 P.3d 998, in support of his claim that the District Court’s failure to consider alternatives to pr ison violated his due pr ocess right. We agree with the State, however, that th e Court considered alternatives and rejected them in light of the fact that Marrero’s non-incarceration proposal posed “too great a risk given the level of supervision and the original nature of the offense and what has occurred since.” Moreover, unlike the facts in Lee , the State was not responsibl e for Marrero’s failure to comply with the c onditions of his probationary sentence. ¶4 Marrero next contends that his counsel provided ineffective assistance of counsel in failing to object to the blood alcohol te st indicating that he had a blood alcohol concentration of 0.359 when he arrived at the Fort Harrison VA Hospital. We agree with the District Court that Marrero ’s status as a probationer di minished any privacy interest3 he may have had in such information. We recognize the fact that refraining from drinking any alcohol remained a conditi on of Marrero’s original probation and undermines any claim by Marrero that his co unsel should have objected to the State’s possession of his blood alcoho l concentration results. ¶5 Marrero also contends that his counsel pr ovided ineffective assistance of counsel in failing to seek an interpre tor, but Marrero fails to point to any prejudice resulting from this omission other than the fa ct that Marrero’s counsel went over the waiver of rights document at the beginnin g of a hearing in which Marrero entered a guilty plea. Marrero further contends that his counsel provided ineffective assistance in not challenging the failure of the probation offi cer to present a written stat ement of Marrero’s alleged violations within twelve hours of deliverin g Marrero to the detention center as required under § 46-23-1012(2), MCA. Finally, Marrero argues his counsel’s failure to request a bail hearing or to argue fo r release on his own recogniz ance constituted ineffective assistance of counsel. ¶6 As we noted in State v. Grixti , 2005 MT 296, ¶ 27, 329 Mo nt. 330, ¶ 27, ___ P.3d ___, ¶ 27, this Court does not automatically reach the merits of ineffective assistance of counsel claims. We deem th e matter more appropriate for postconviction relief where the record is insufficient to determine whether counsel’s performance fell below an objectively reasonable standard. Grixti , ¶ 27. Although the record in this case does not reveal why Marrero’s counsel fa iled to take the various actions that he raises, we deem further inquiry unnecessary to determine that Marrero’s counsel’s actions did not fall below an objectively reasonable st andard. We have said “the fact that some other lawyer4 . . . would have done differently . . . is not gr ound for branding an appointed attorney with the opprobrium of ineffectiveness.” State v. Turner , 2000 MT 270, ¶ 64, 302 Mont. 69, ¶ 64, 12 P.3d 934, ¶ 64. ¶7 Marrero’s ineffective assistance of counse l claim fails to meet the first prong of the standards set forth in Strickland v. Washington (1984), 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 , in that he has failed to establish that his counsel’s performance fell below an objectively reasonable standard. Therefore, we reject it on the record established at trial. Affirmed. ¶8 We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of our 1996 Internal Operating Rules, as amended in 2003, which provides for memorandum opinions.

/S/ BRIAN MORRIS

We Concur:

/S/ KARLA M. GRAY /S/ PATRICIA O. COTTER /S/ W. WILLIAM LEAPHART /S/ JIM RICE