No. 05-102

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 60N

THOMAS J. NOVAK, Petitioner and Appellant,

v. STATE OF MONTANA , Respondent and Respondent.

APPEAL FROM: The District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 2004-972, Honorable Russell C. Fagg, Presiding Judge COUNSEL OF RECORD: For Appellant: Thomas J. Novak, pro se , Alexander, North Dakota For Respondent: Honorable Mike McGrath, Attorney General; Joslyn M. Hunt, Assistant Attorney Genera l, Helena, Montana Dennis Paxinos, County Attorney ; Scott Twito, Deputy County Attorney, Billings, Montana

Submitted on Briefs: December 29, 2005 Decided: March 21, 2006 Filed:

__________________________________________ Clerk2 Justice Jim Rice delivered th e Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c ), Montana Supreme Court 1996 Internal Operating Rules, the following decision shall not be cited as precedent. It shall be filed as a public document with the Clerk of the Su preme Court and shall be reported by case title, Supreme Court cause number and result in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Thomas Novak appeals th e order denying his petition for postconviction relief

entered in the Thirteenth Judicial District Court, Yellowstone County. We affirm. ¶3 Novak was charged with offenses in two cause s. In the first cause, he was charged with felony stalking. In the second, Novak was charged with stalking, tampering with a witness, and impersonating a public servant, a ll felonies. He was also charged in the second cause with resisting arrest, a misdem eanor. The stalking victim was the same person in both causes, and the District Cour t processed the causes simultaneously. In exchange for dismissal of the other charges, Novak pled guilty to felony st alking in the first cause and to tampering with a witness in the second cause and was sentenced on July 22, 2003, to serve two five-year terms to run concurrently, each with two years suspended. Novak did not appeal either judgment. ¶4 On September 20, 2004, N ovak filed a petition for post conviction relief. The only information Novak pr ovided the District Court to support his petition was his own conclusory affidavit alleging th at his counsel rendered ineffe ctive assistance by failing to investigate the contents of a tape recording of telephone calls with the victim whom he3 stalked. Novak alleged that on the tape the victim stated that she wanted contact with him. Novak contended that, had his counsel properly investigated the contents of the tape, it may have provided a defense to the charges against him an d he would not have entered a guilty plea. ¶5 In denying the petition, the District C ourt ruled that Novak’s counsel made a reasonable tactical decision not to investigate the tapes, that Novak failed to present facts demonstrating that he was prejudiced by his counsel’s action, and that no evidentiary hearing showing what an investigation by hi s counsel may have produced was required. ¶6 The issue on appeal is whether the District Court erred in denying the petition for postconviction relief. In State v. McColley (1991), 247 Mont. 524, 527, 807 P.2d 1358, 1360, we stated, “A claim of ineffective assistance of coun sel must be grounded in facts found in the record, not on mere conclusory allegations .” Novak has offered only a conclusory allegation. In State v. Cady , 2000 MT 353, ¶ 10, 303 Mont. 258, ¶ 10, 15 P.3d 479, ¶ 10, this Court confirmed that a “petitioner must sh ow that counsel’s performance was deficient and that the defi cient performance prejudiced the defense.” Novak has not met this burden. Finally, in Bishop v. State (1992), 254 Mont. 100, 107, 835 P.2d 732, 737, quoting Coleman v. State (1981), 194 Mont. 428, 433, 633 P.2d 624, 627, we stated, “[I]t is not error to deny an application for post-conviction relief without an evidentiary hearing if the allegations ar e without merit or would otherwise not entitle the petitioner to relief.” Novak’s allegations are without merit and would not otherwise4 entitle him to relief; thus, an evidentiary hearing was not required. Therefore, we

conclude that the District Court di d not err in denying Novak’s petition. ¶7 It is appropriate to decide this case pur suant to our Order of February 11, 2003, amending Section 1.3 of our 1996 Inte rnal Operating Rules and providing for memorandum opinions. It is manifest on the face of the briefs and the record before us that the appeal is without me rit because the findings of fact are supported by substantial evidence, the legal issues are clearly contro lled by settled Montana la w which the District Court correctly interpreted, and there was clea rly no abuse of discretion by the District

Court. ¶8 We affirm the judgment of the District Court.

/S/ JIM RICE

We concur:

/S/ JOHN WARNER /S/ JAMES C. NELSON /S/ W. WILLIAM LEAPHART /S/ PATRICIA COTTER