96-232

No. 96-232

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

THE STATE OF MONTANA,

Plaintiff and Respondent,

v.

DENNIS FINNEY,

Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and for the County of Flathead,

The Honorable Ted O. Lympus, Judge Presiding.

COUNSEL OF RECORD:

For Appellant:

Jeffrey T. Renz, Montana Defender Project,

Missoula, Montana

For Respondent:

Honorable Joseph P. Mazurek, Attorney General;

Patricia Jordan, Assistant Attorney General,

Helena, Montana

Ed Corrigan, Deputy County Attorney, Kalispell,

Montana

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Submitted on Briefs: December 5, 1996

Decided: January 9, 1997

Filed:

__________________________________________

Clerk

Chief Justice J. A. Turnage delivered the Opinion of the Court.

 Dennis Finney pled guilty before the Eleventh Judicial

District Court, Flathead County, to three counts of burglary and

one count of felony theft. Here, he appeals from the dismissal of

his second amended petition for post-conviction relief. We affirm.

 The following issues are raised on appeal:

 1. Were Finneyþs First Amendment rights violated and does

plain error exist as a result of reference at the sentencing

hearing to his affiliation with the Aryan Nations and "White

Power?"

 2. Was Finneyþs Sixth Amendment right to effective assistance

of counsel violated when counsel failed to inform him about his

right to appeal and failed to perfect the right by filing a notice

of appeal?

 In February 1993, Dennis Finney pled guilty to four crimes

committed in November 1992 in Kalispell, Montana: theft of

locksmith and keymaking equipment from his neighbor; and burglaries

at the Mennonite Church, the Sugar n' Spice Day Care in the

Christian Center Church, and an elementary and junior high school.

 At the sentencing hearing, the court heard evidence that

Finney, at age twenty-six, had accumulated a significant criminal

history, including possession of stolen property, multiple thefts,

probation violations, and arson of an apartment building. Finney's

previous efforts at probation and parole had been unsuccessful. He

had fled from supervision, used drugs, and committed crimes while

on probation for previous offenses. When he committed the first of

the instant burglaries, Finney had been paroled from Montana State

Prison for only a few weeks. 

 Finney testified at length at his sentencing hearing. He

stated that he had never been employed and that crime was his way

of making a living. He said it did not really matter to him

whether he was in prison or on the streets, and that he was more

used to prison life than to street life.

 Finney testified that the November 1992 crimes were his idea,

not that of his codefendants. He also admitted to being a chronic

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user of illegal drugs but denied that this was a problem for him. 

He had previously refused to enter treatment for drug addiction. 

 In a written statement prepared for the presentence investigation, Finney wrote: 

 I was arrested for 3 Burglarys and one Felony Theft. 

 I realy dont got anythink to say about these crimes. I

 know Ill be going back to prison and I know Ill go back

 agian after I get out from this ordeal--prison dosent

 bother me and its all I know my people are in prison

 "Aryan Nations" so like I said prison dosent bother me. 

 I do feel bad about one thing and that is messing with

 the Sugar-n-Spice day care I had no Idea it was a day

 care--thats about it.

The words "White Power" are tattooed on Finneyþs forehead. During

cross-examination on his written statement at sentencing, he

acknowledged that his ties to "White Power" are "pretty strong."

 The court imposed the maximum sentence of twenty years for

each of the three burglaries, ordering that two of those sentences

be served concurrently. It imposed a sentence of ten years for the

theft, resulting in a total sentence of fifty years. The court

found that Finney presented a danger to society and designated him

a dangerous offender. Although it noted that his record would

allow a designation as a persistent felony offender, the State did

not seek such a designation and the court did not impose it.

 The court imposed upon Finney responsibility for restitution

of approximately thirty-four thousand dollars, the exact sum to be

determined by Finney's parole and probation officer. The court

further recommended that, at the prison, Finney receive counseling

and treatment for drug addiction.

 Finney petitioned for sentence review, which action was stayed

pending disposition of his pro se petition for post-conviction

relief. Counsel on this appeal later assisted him in filing a

second amended petition for post-conviction relief, in which he

argued that he had received a longer sentence than his codefendants

because the court improperly considered his membership in the Aryan

Nations Church. The second amended petition also asserted that

Finney's counsel rendered ineffective assistance by failing to

request a psychiatric examination and failing to advise Finney of

his right to appeal. Finney later withdrew his allegation of

ineffective assistance for failure to obtain a psychiatric

examination. 

 The District Court denied Finney's second amended petition for

post-conviction relief, stating in part that his sentence was based

on his "own life history and unwillingness to even attempt

rehabilitation." 

 ISSUE I

 Were Finney's First Amendment rights violated and does plain

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error exist as a result of reference at the sentencing hearing to

his affiliation with the Aryan Nations and "White Power?" 

 In imposing sentence, the District Court orally discussed at

length the lack of mitigating circumstances and the aggravating

circumstances in this case. As to the State's recommendation of 

a substantial term of incarceration, the court stated: 

 Although I donþt want to impose the kind of a sentence or

 fashion the kind of a sentence that totally slams the

 door upon any possibility of rehabilitation, in the event

 that you some day decide that maybe that is a goal you

 want to direct your energies toward, I am concerned with

 your inclination at this time at least to direct your

 energies toward the cause of such organizations as the

 Aryan Nations. I think youþll find that that is not

 something that youþll find a great deal of receptance

 [sic] to at the Montana State Prison. You may have had

 that experience elsewhere. It may not play well at Deer

 Lodge, Montana. But that is an experience that you may

 have to learn for yourself.

At the end of the hearing, after imposing sentence, the court

stated: 

 I am not aware of any authority that I have to

 impose upon you any restrictions concerning your desire

 to become involved with the Aryan Nations, so I wonþt

 attempt to do so; other than to advise you that such

 behavior will not play well in any attempt you ever make

 toward probation or parole.

 That is merely offered as advice. It is up to you

 whether you take it or not[.] 

Finney argues that the court's references violated his First

Amendment rights to free speech and freedom of religion. He cites

as authority Dawson v. Delaware (1992), 503 U.S. 159, 112 S.Ct.

1093, 117 L.Ed.2d 309.

 In Dawson, the prosecution introduced evidence to a capital

sentencing jury that the defendant had the words "Aryan Brotherhood" tattooed on his hand. The prosecution also introduced into

evidence a stipulated statement that:

 The Aryan Brotherhood refers to a white racist prison

 gang that began in the 1960þs in California in response

 to other gangs of racial minorities. Separate gangs

 calling themselves the Aryan Brotherhood now exist in

 many state prisons including Delaware.

Dawson, 503 U.S. at 162. The United States Supreme Court considered but rejected Dawsonþs argument that because his association

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with the Aryan Brotherhood was constitutionally protected, the

admission into evidence of information about that association

constituted violation of his constitutional rights. The Court

held, however, that the admission into evidence of the statement

regarding Dawsonþs membership in the Aryan Brotherhood was

constitutional error because "the narrowness of the stipulation

left the Aryan Brotherhood evidence totally without relevance to

Dawsonþs sentencing proceeding." Dawson, 503 U.S. at 165. The

Court stated it had not been shown that the Aryan Brotherhood was

tied in any way to Dawsonþs crime, the prosecution did not prove

that the Aryan Brotherhood had committed any unlawful or violent

acts to indicate that Dawson posed a future danger to society, and

the evidence was not relevant to rebut any mitigating evidence. 

Dawson, 503 U.S. at 166-67.

 In another case cited by Finney, the defendant was convicted

of conspiracy to build a pipe bomb and other crimes in connection

with travel from Hayden Lake, Idaho, to Seattle, Washington, for

the purpose of exploding a bomb in a gay bar. United States v.

Winslow (9th Cir. 1992), 962 F.2d 845. In contrast to the holding

under the facts of Dawson, the Ninth Circuit Court of Appeals held:

 Because the term "Aryan Warrior" was relevant to back-

 ground material, and referred to in testimony and other

 evidence presented to the jury, it was not improper for

 the prosecutor to mention it when questioning [a co-

 defendant].

Winslow, 962 F.2d at 850.

 In this case, during one of the burglaries, Finney and his

codefendants wrote "White Power" and drew two lightning bolts on a

school wall with magic markers. Finney also brought up the subject

of Aryan Nations in his own written statement for the presentence

investigation. 

 The discussion of Aryan Nations and "White Power" at sentencing was limited. The prosecuting attorney asked Finney to clarify

that he had violated probation and gone to northern Idaho because

of the Aryan Nations presence there. The other references were the

court's advice to Finney that association with the Aryan Nations

might not be helpful to him within the Montana State Prison or in

seeking parole. 

 Moreover, in this case, Finney's sentence was imposed by the

court, rather than by a jury, before which possible inflammatory

information must be more carefully screened. See State v. Keith

(1988), 231 Mont. 214, 237, 754 P.2d 474, 488. 

 Finally, an abundance of other evidence in the record supports

the sentence imposed, which is within the range allowed for the

crimes of which Finney was convicted. The record does not support

a conclusion that the court relied upon Finneyþs support of Aryan

Nations or "White Power" in determining his sentence and in giving

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its reasons therefor pursuant to 46-18-102(3), MCA. We hold that

Finney has established neither violation of his First Amendment

rights nor plain error as a result of reference at the sentencing

hearing to his affiliation with the Aryan Nations.

 ISSUE 2

 Was Finneyþs Sixth Amendment right to effective assistance of

counsel violated when counsel failed to inform him about his right

to appeal and failed to perfect the right by filing a notice of

appeal?

 A claim of ineffective assistance of counsel requires a

showing that counselþs performance was deficient and that the

deficient performance prejudiced the defense so as to deny the

defendant a fair trial. Strickland v. Washington (1984), 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674, adopted by this Court in State

v. Boyer (1985), 215 Mont. 143, 147, 695 P.2d 829, 831. 

 Issues which may be raised on appeal after a criminal

defendant enters a plea of guilty are limited. United States v.

Broce (1989), 488 U.S. 563, 569, 109 S.Ct. 757, 762, 102 L.Ed.2d

927, 935. Further, no violation of a defendantþs due process

rights occurs if the defendant is denied an appeal but is afforded

a remedy in post-conviction proceedings. Evitts v. Lucey (1985),

469 U.S. 387, 399, 105 S.Ct. 830, 838, 83 L.Ed.2d 821, 832. 

 The issue which Finney claims he would have argued on appeal

has been considered on its merits by the District Court and under

Issue 1 above. We conclude, therefore, that the remedy for any

ineffective assistance of counsel has been granted and that

Finney's argument under Issue 2 has become moot.

 We affirm the decision of the District Court. 

 /S/ J. A. TURNAGE

We concur:

/S/ JAMES C. NELSON

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER

/S/ KARLA M. GRAY

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