No. 83-239 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

STATE OF MOIJTANA, 

Plaintiff and Respondent, 

-vsGARRY HENRICKS, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Mark P. Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Garry Henricks, pro se, Billings, Montana 

For Respondent: 

Eon. Mike Greely, Attorney General, Helena, Montana 

Robert McCarthy, County Attorney, Butte, Montana 

Submitted on Briefs: August 18, 1983 

Decided: November 10, 1983 

-- 

Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Petitioner Garry Henricks appeals an order of the 

District Court of the Second Judicial District of the State 

of Montana, County of Silver BOW, dismissing plaintiff's 

petition for post-conviction relief. We affirm. 

During the late evening hours of September 12, 1981, 

Richard Graham was struck and killed while crossing a street 

in Butte, Montana. Graham was struck by the Henricks automobile in a hit-and-run accident. Both Garry and his wife 

Lorraine were in the automobile at the time of the accident, 

and both had been drinking heavily throughout the afternoon 

and evening. 

Following the hit-and-run, Garry and Lorraine decided 

to abandon the car and report it stolen because they had both 

been drinking heavily and did not have insurance. 

The Henricks car was located by the police on September 

13, 1981. On October 10, 1981, Lorraine gave a statement in 

which she claimed that she was the driver of the vehicle 

which struck and killed Graham. Upon completion of her 

statement, she was arrested and charged with the crime of 

negligent homicide. On October 16, 1981, Lorraine gave a 

second statement in which she recanted her previous confession and in which she claimed that her husband Garry was 

actually driving at the time of the accident. The allegations contained in Lorraine Is second statement were investigated and on November 5, 1981, she was released from jail. 

On the same day, November 5, 1981, Garry was arrested and 

charged with the crime of negligent homicide. 

Henricks made an initial appearance in justice court on 

November 5, 1981, at which time he was advised of his rights, 
including his right to be represented by counsel. Henricks's 

initial appearance continued on November 6, 1.98 1, during 

which time Brad Belke, public defender for Butte-Silver Bow 

County, sat in on the proceedings. A preliminary examination 

was scheduled for November 10, 1981, but instead the District 

Court granted the State Leave to file an information pursuant 

to section 46-11-201, MCA. 

Henricks was arraigned in District Court on November 

23, 1981, at which time he was represented by his retained 

counsel, Gregory R. Todd. A plea of not guilty was then 

entered and trial was set for January 18, 1982. Henricks was 

represented by counsel at all stages in the proceedings 

except his initial appearance. 

On Januarv 4, 1982, Henricks signed and filed a consent 

to substitution of counsel, replacing Gregory R. Todd with 

attorney John G. Winston. Winston had been serving as county 

a.ttorney for Silver Bow County on a part-time basis until his 

termination on November 13, 1981. At the time of the hitand-run, Winston was assigned only juvenile and police court 

cases for the county attorney's office. 

On January 4, 1982, Winston filed a motion to continue 

and waiver of right to a speedy trial. Henricks signed the 

motion, which included the following paragraphs: 

"That defendant has been notified by his 

attorney, that John G. Winston was the 

County Attorney for Butte-Silver Bow for 

six (6) years and was working on a part 

time basis handling Juvenile and Police 

Court cases, for the County Attorney's 

office when this accident occurred. 
"V. 

"That the defendant does not view the 

facts stated in Paragraph IV (above), as 

being detrimental to his case because he 

has been informed that John G. Winston 

was not being assigned to felony cases 

and was doing only Juvenile and Nisdemeanor cases as stated above." 

Based upon the above facts, Henricks presents essentially three issues for review: 

1. Did Henricks receive effective assistance of 

counsel? 

2. Was it a conflict of interest for attorney Winston 

to represent Henricks a.nd for attorney Belke to sit in d.uring 

Henricks's initial appearance? 

3. Was Henricks prejudiced by inaccuracies in the 

presentence investigation report? 

Before beginning our discussion of the issues presented, we note that Henricks is appearing pro - se in this appeal 

of the denial. of his petition for post-conviction relief. 

Since Henricks has elected to a.ct in this capacity, we find 

that he will be held to the same standards as a.ny appellate 

attorney in a matter such as this. 

Secondly, as we noted recently in Fitzpatrick v. State 

(Mont. 1983), P.2d , 40 St.Rep. 1598, we observe 

that all of the issues presented here could have been brought 

at the time of Henricks's original appeal of his conviction. 

While we may consider these issues at this time, we will also 

take into consideration the fact that these issues, if valid., 

could and should have been raised at the time of appeal of 

the conviction. It is clea.rly an abuse of the post-conviction relief statute to raise or manufacture issues long after 

the proper time for presentation of such issues. With the 
above two factors in mind, we now proceed to the discussj.on 

of the issues presented. 

Did Henricks receive effective assistance of counsel? 

Henricks presents us with a list of twenty-eight charges which he alleges are evidence of "per - se" ineffective 

assistance of counsel. Most of these charges are frivolous 

and vague and are not supported by evidence in the record. 

Of the twenty-eight charges listed, the following might 

be of merit if supported by the record: 

(1) failure by Winston to invoke the spousal privilege 

set forth in section 46-16-212, MCA; 

(2) failure by Winston to interview a witness and call 

certain other witnesses; 

(3) failure by Winston in not being present during the 

present.ence investigation report interview; and, 

(4) fa.ilure by Winston to object to alleged prosecutoria.1 misconduct. 

As to the charge of failure by Winston to invoke the 

spousal privilege, Henricks has clearly waived his right to 

question that trial tactic at this time. When Lorraine 

Henricks was called to testify, the court interrupted the 

direct examination and asked.: 

"The Court: For the record now I would 

like Mr. Henricks to advise the Court 

whether he is consenting to Mrs. Henricks 

testifying. 

"Mr. Henricks: Yes, I do." 

We also note that Henricks signed an affidavit stating 

that the spousal privilege ha.d been explained to him. While 

this affidavit alone perhaps would not suffice, we find that 
the affidavit in conjunction with Henricks's response in 

court clearly constitutes waiver. Consequently, Yenricks 

cannot now claim failure to invoke the spousal privilege as 

evidence of ineffective assistance of counsel. 

Even if the affida.vit and testimony did not constitute 

waiver, Henricks has failed to show prejudice. Four other 

witnesses gave testimony from which the jury could infer 

Henricks was driving at the time of the hit-and-run. State 

v. Henricks (Mont. 1982), 653 P.2d 479, 481, 39 St.Rep. 2022, 

2024. 

(2) The second issue to be discussed is the failure by 

Winston to interview a witness and call- certain other witnesses. Henricks claims that Winston's failure to interview 

Dr. Mark Borke, an emerqency room physician who examined 

Henricks and his wife following the accident, constituted 

ineffective assistance of counsel. As in the other allegations, Henricks again fails to allege how this prejudiced 

him. It is also abundantly clear from the transcript that 

Dr. Borke's lack of experience, training and knowledge was 

clearly brought out by defense attorney Winston on 

cross-examination. 

Henricks also states that certain named witnesses 

should have been called. However, he fails to state the 

signif icance of these witnesses, i. e. , what they would have 

said, how their testimony would have assisted in his defense, 

and how he was prejudiced by Winston's failure to call them. 

There is also no evidence to show Henricks wanted these 

witnesses called during trial and that he informed Winston of 

of this. 

(3) The third allegation to be discussed is the failure 

by Winston in not being present during the presentence 
investigation report interview. Again, Henricks cites no 

authority for alleging this to be an act of ineffective 

assistance of counsel and again fails to show how he was 

prejudiced by Winston's absence. The State cites Baumann v. 

United States (9th Cir. 1982), 692 F.2d 565, as follows: "We 

hold that a routine presentence interview of an individual 

convicted of a noncapital federal offense is not, . . . a 

critical stage of the proceeding in which counsel's presence, 

or advice, is necessary to protect the defendant's right to a 

fair trial." Baumann, 692 F.2d at 578. We find no compelling reason to hold otherwise under these circumstances. 

(4) The fourth allegation to be discussed is the failure by Winston to object to alleged prosecutorial misconduct. 

This omission which Henricks alleges constitutes ineffective 

assistance of counsel relates to Winston's failure to object 

to the prosecutor giving a defense witness his Miranda warnings while the witness was on the stand preparing to testifv. 

Initially, Henricks cites no authority to support this allegation of failure to object as evidence of ineffective assistance. Nor does he cite anv authority in his original brief 

stating that such an act is prosecutorial misconduct. In his 

reply brief, Henricks again attempts to address this issue 

but cites cases which are not on point. 

We note that Henricks, in making the diverse allegations, has failed to show how these allegations, even if 

true, resulted in prejudice to him and stemmed from neglect 

or ignorance rather than from informed, professional deliberation. We stated this requirement in State v. Morigeau 

(Mont. 1982), 656 P.2d 185, 189, 39 St.Rep. 2311, 2317, and 

find that Henricks has failed to meet this burden. As we 

stated in State v. LaValley (Mont. 1983), 661 P.2d 869, 872, 
40 St.Rep. 527, 530, "[hlistorically, in Monta.na and elsewhere, the burden has been heavy on one who seeks to reverse 

a judgment on the grounds of incompetency of counsel. " In 

LaValley, the issue of heffective assistance of counsel was 

properly raised on direct appeal of the convi.ction of deliberate homicide and aggravated kidnapping. If the burden is 

heavy when the issue is raised on direct appeal, it follows 

that the burden on petitioner must be even heavier when the 

issue is raised, apparently as an afterthought, only after 

petitioner's conviction has been upheld on appeal. As we 

stated in Fitzpatrick, it is not the purpose of the post-conviction relief statute to provide successive opportunities 

for access to the appellate court simply because petitioner 

is not pleased with his conviction or has failed on direct 

appeal. The post-conviction relief statute requires petitioner to meet a two-part test, which test Henricks has 

failed to meet. Fitzpatrick, 40 St.Rep. at 1600. 

In State v. Rose (Mont. 1980), 608 P.2d 1074, 37 

St. Rep. 642, this Court adopted. the "reasonably effective 

assistance test" as stated by the Ninth Circuit Court of 

Appeals in Cooper v. Fitzharris (9th Cir. 1978), 586 F.2d 

1325: "Persons accused of crime are entitled to the effective assistance of counsel acting within the range of competence demanded of attorneys in criminal cases." State v. 

Rose, 608 P.2d at 1081. As we stated in LaVal-ley, "In evaluating defense counsel's representation, it is not our function to second-guess trial tactics and the strategv." 

LaValley, 661 P.2d at 872. We also noted that "reasonably 

effective counsel does not mean that the defendant is constitutionally guaranteed such assistance of counsel as will 

necessarily result in his acquittal." Lavalley, supra. 
"Success is not the test of efficient counsel, frequently 

neither vigor, zeal, nor skill can overcome the truth." 

State v. Rose, 608 P.2d at 1082, quoting State v. Forsness 

(1972), 159 Mont. 105, 110, 495 P.2d 176, 178-179. 

The second major issue raised by Henricks is whether it 

wa.s a conflict of interest for Winston to represent Henricks 

and for attorney Belke to sit in during Henricks's intitial 

appearance. 

We note that Winston was hired by Henricks a.nd not 

appointed by the court. We also note that the motion to 

continue, quoted above, a.nd signed by Henricks, clearly 

informed Henricks of Winston's prior association with the 

county attorney's office. Despite this fact, Henricks retained Winston as his defense counsel. Under these specific 

circumstances, Henricks, by his acts, waived his right to 

assert any conflict of interest charge against Winston based 

on Winston's prior employment. 

Henricks also asserts that it was a conflict of interest for Belke to sit in on Henricks's initial hearing. At 

the time of the hearing, Belke was a public defender representing Henricks's wife Lorraine. Belke sat in on the hearing at the request of the justice of the peace. We have 

stated the rule on representation at initial hearings as 

follows : 

"The United States Constitution requires 

the appointment of counsel for indigent 

defendants at all critical stages of the 

prosecution. . . The initial appearance 

is not a 'critical stage' of the prosecution in Montana. There was no potential 

for substantial prejudice to the defendant's rights. The defendant was merely 

made aware of the charges against him and 
informed of his constitutional rights. 

We therefore hold that the defendant's 

right to effective assistance of counsel 

was not violated." State v. Dieziger 

(Mont. 1982), 650 P.2d 800, 802, 39 

St.Rep. 1734, 1736. 

The State argues that since Henricks was not constitutionally entitled to an attorney at his initial hearing, he 

cannot now claim prejudice because his wife's attorney sat in 

on the proceedings. We find the State's argument persuasive 

and hold. accordingly. 

111. 

The third major issue raised by Henricks alleges prejudice due to inaccuracies in the presentence investigation 

report. 

It was pointed out to the court at the sentencing 

hearing that there was an error regarding a DUI charge listed 

on November 4, 1980. The court recognized that the date was 

incorrect. 

Henricks also claims that charges entered clearly on 

the report as having been dismissed should not have been 

included. This contention is contrary to law in this state 

and therefore without merit. State v. Baldwin (Mont. 1981) , 

629 P.2d 222, 224, 38 St.Rep. 882, 884. 

Henricks also states that a juvenile charge should not 

have been included in the presentence report. We have held 

it permissible to allow juvenile records as part of the 

presentence investigation report at a sentencing hearing. 

State v. Radi (Mont. 1979), 604 P.2d 318, 321, 36 St.Rep. 

2345, 2348. 

In conclusion, we find Henricks's allegations not only 

untimely but also without merit. Consequently, we affirm the 
order of the District Court dismissing Henricks's petition 

for post-conviction relief. 

%-k4 Chief Justice t-%Mcv.e-p~ 

We concur: