No. 00-718 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2002 MT 329 

JAMES WATSON, 

Petitioner and Appellant, 

v. 

STATE OF MONTANA, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

Honorable Susan P. Watters, Judge Presiding 

COUNSEL OF RECORD: 

For Appellant: 

James Watson, Pro Se, Deer Lodge, Montana 

For Respondent: 

Honorable Mike McGrath, Attorney General; Stephen C. 

Bullock, Assistant Attorney General, Helena, Montana 

Dennis Paxinos, County Attorney; Mark A. English, 

Deputy County Attorney, Billings, Montana 

Submitted on Briefs: September 5, 2002 

 Decided: December 20, 2002 

Filed: 

__________________________________________ 

Clerk 
2 

Justice Jim Rice delivered the Opinion of the Court. 

¶1 James Watson (Watson) appeals from an order entered by the 

Thirteenth Judicial District Court, Yellowstone County, denying his 

petition for postconviction relief. We reverse and remand for an 

evidentiary hearing. 

¶2 We address the following issue on appeal: Whether the 

District Court erred in determining that Watson’s ineffective 

assistance of counsel claim was record-based and should have been 

raised on direct appeal. 

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Watson was charged by information on June 12, 1995, with the 

crimes of aggravated kidnapping under § 45-5-303(1), MCA, and 

felony robbery under § 45-5-401(1)(b), MCA. The charges stemmed 

from a March 25, 1995, incident in which Watson and two other 

individuals, beat, robbed and kidnapped a pizza delivery man at 

knife-point. Watson entered a guilty plea to both charges on 

September 1, 1995. On September 29, 1995, a sentencing hearing was 

held. Dr. Lowell Stratton, the psychiatrist who examined Watson, 

testified as to Watson’s mental condition. 

¶4 On October 13, 1995, the District Court entered its judgment. 

 Watson was sentenced to the Department of Corrections for ten 

years for the charge of aggravated kidnapping, with an additional 

three years for the use of a weapon. On the charge of robbery, 

Watson was sentenced to ten years, with an additional two years for 

the use of a weapon. The sentences were ordered to run 

consecutively. Watson did not appeal. 
3 

¶5 On May 24, 2000, Watson filed a petition for postconviction 

relief. The District Court entered its Order denying Watson’s 

petition for postconviction relief on August 9, 2000. Watson now 

appeals. 

STANDARD OF REVIEW

¶6 The standard of review of a district court’s denial of a 

petition for postconviction relief is whether the district court’s 

findings of fact are clearly erroneous and whether its conclusions 

of law are correct. State v. Charlo, 2000 MT 192, ¶ 7, 300 Mont. 

435, ¶ 7, 4 P.3d 1201, ¶ 7. Discretionary rulings in 

postconviction relief proceedings, including rulings related to 

whether to hold an evidentiary hearing, are reviewed for an abuse 

of discretion. State v. Hanson, 1999 MT 226, ¶ 9, 296 Mont. 82, ¶ 

9, 988 P.2d 299, ¶ 9. 

DISCUSSION

¶7 Did the District Court err in determining that Watson’s claim 

concerning his mental condition was record-based and should have 

been raised on direct appeal? 

¶8 Watson claims he received ineffective assistance of counsel 

when his attorney failed to question whether Watson suffered from a 

mental disease or defect rendering him unable to conform his 

behavior to the requirements of the law. Watson argues that if 

this issue had been developed at the sentencing hearing, he would 

have been sentenced to the Department of Public Health and Human 

Services, pursuant to § 46-14-312, MCA, rather than the Department 

of Corrections. 
4 

¶9 In considering ineffective assistance of counsel claims in 

postconviction proceedings this Court has adopted the two-pronged 

test set forth by the United States Supreme Court in Strickland v. 

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

State v. Wright, 2001 MT 282, ¶ 11, 307 Mont. 349, ¶ 11, 42 P.3d 

753, ¶ 11. The two-prong test requires, first, that the defendant 

bears the burden of showing that counsel’s performance was 

deficient or fell below an objective standard of reasonableness. 

Wright, ¶ 11. The defendant must overcome a strong presumption 

that counsel’s defense strategies and trial tactics fall within a 

wide range of reasonable and sound professional decisions. 

Strickland, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; 

State v. Harris, 2001 MT 231, ¶ 18, 306 Mont. 525, ¶ 18, 36 P.3d 

372, ¶ 18. The second prong of the test requires the defendant to 

show that the deficient performance of counsel prejudiced the 

defense. Wright, ¶ 11. The defendant must demonstrate the 

existence of a reasonable probability that the result of the 

proceeding would have been different absent counsel’s errors; a 

reasonable probability is a probability sufficient to undermine 

confidence in the outcome. Harris, ¶ 19. 

¶10 Before reaching the merits of an ineffective assistance of 

counsel claim in a postconviction relief proceeding it is necessary 

to determine whether such a claim is properly before the Court or 

whether the claim is procedurally barred. Wright, ¶ 12 (citing 

Hagen v. State, 1999 MT 8, ¶ 11, 293 Mont. 60, ¶ 11, 973 P.2d 233, 

¶ 11). Section 46-21-105(2), MCA, provides that grounds for relief 
5 

which reasonably could have been raised on direct appeal may not be 

raised thereafter in a petition for postconviction relief. This 

Court has stated, 

[W]here ineffective assistance of counsel claims are 

based on facts of record in the underlying case, they 

must be raised in the direct appeal; conversely, where 

the allegations of ineffective assistance of counsel 

cannot be documented from the record in the underlying 

case, those claims must be raised by petition for 

postconviction relief. 

Wright, ¶ 12 (quoting Hagen, ¶ 12). 

¶11 This Court applies the statutory bar “in order to prevent the 

abuse of postconviction relief by criminal defendants who would 

substitute those proceedings for direct appeal and in order to 

preserve the integrity of the trial and direct appeal.” State v. 

Hanson, 1999 MT 226, ¶ 14, 296 Mont. 82, ¶ 14, 988 P.2d 299, ¶ 14. 

¶12 The State argued and the District Court concluded that 

Watson’s ineffective assistance of counsel claim was record-based 

and should have been raised on direct appeal. According to the 

State, the record in this case contains the transcript of the 

sentencing hearing, during which Dr. Stratton testified, as well as 

Dr. Stratton’s report, which was introduced as an exhibit at the 

sentencing hearing. In his report, Dr. Stratton concluded that 

Watson had the capacity to appreciate the criminality of his 

actions and to assist in his own defense. 

¶13 In Harris, this Court reviewed its recent application of § 46-

21-105(2), MCA, to determine whether certain claims of ineffective 

assistance of counsel should be raised on direct appeal or in a 

postconviction petition. Harris, ¶ 21 (citing State v. Whitlow, 
6 

2001 MT 208, 306 Mont. 339, 33 P.3d 877; State v. St. Johns, 2001 

MT 1, 304 Mont. 47, 15 P.3d 970). To resolve the question, we 

outlined a two-step process in Harris. First, the trial record 

must adequately document a challenged act or omission of defense 

counsel for a defendant to raise an ineffective assistance claim on 

direct appeal. Harris, ¶ 21. Second, in addition to documenting 

the error, the record available to this Court on appeal must afford 

sufficient understanding of the reasons for counsel’s act or 

omission to answer the threshold question of whether the alleged 

error expresses a trial strategy or tactical decision. Harris, ¶ 

21. If the record does not supply the reason for counsel’s act or 

omission, the claim must be raised by petition for postconviction 

relief. Harris, ¶ 21. 

¶14 We set forth the following explanation for deciphering the 

record and determining the appropriate forum for adjudicating 

ineffective assistance of counsel claims in Harris: 

Though not easily distilled into a formula, the 

definitive question that distinguishes and decides which 

actions are record and which are nonrecord, is why? In 

other words, if counsel fails to object to the admission 

of evidence, or fails to offer an opening statement, does 

the record fully explain why counsel took the particular 

course of action? If not, then the matter is best-suited 

for post-conviction proceedings which permit a further 

inquiry into whether the particular representation was 

ineffective. Only when the record will fully explain why 

counsel took, or failed to take, action in providing a 

defense for the accused may this Court review the matter 

on direct appeal. 

Harris, ¶ 21. 

¶15 Recently in Soraich v. State, 2002 MT 187, 311 Mont. 90, ___ 

P.3d ___, we held that the district court abused its discretion in 
7 

summarily dismissing Soraich’s petition for postconviction relief. 

 Soraich’s ineffective assistance of counsel claim was based on his 

counsel’s failure to call an investigator as a witness after 

counsel had promised the jury during opening statement that the 

investigator would show the State’s main witness was lying. The 

district court concluded that Soraich should have raised his claim 

on direct appeal, thus denying his petition for postconviction 

relief. However, this Court determined the record did not contain 

any information about why defense counsel had promised the jury 

that the investigator’s testimony would prove Soraich’s defense, 

but then failed to call the investigator as a witness. Soraich, ¶ 

24. “As was the case in Harris, we do not know whether the alleged 

errors in this case reflect a coherent trial strategy or whether 

they were reasonable and deserve deference and we refuse to 

speculate.” Soraich, ¶ 24. Without being able to answer why

defense counsel failed to call the investigator as a witness, we 

determined an evidentiary hearing was necessary to answer that 

question and remanded to the district court. 

¶16 In this matter, the record on appeal establishes that Watson’s 

counsel did not question whether Watson suffered from a mental 

disease or defect during the sentencing hearing. However, the 

record does not reveal whether counsel’s inaction was a reasonable 

tactical decision or a mistake. Because the record is void of any 

evidence as to why defense counsel did not question Watson’s 

mental condition, Watson could not have properly raised an 

ineffective assistance of counsel claim on direct appeal. 
8 

Consequently, Watson’s claim of ineffective assistance of counsel 

is not barred by § 46-21-105(2), MCA, but is a question which must 

be resolved in a postconviction relief proceeding. 

¶17 We hold that the District Court abused its discretion in 

summarily denying Watson’s petition for postconviction relief; and 

therefore, we reverse and remand to the District Court for an 

evidentiary hearing consistent with this opinion. 

/S/ JIM RICE 
9 

We concur: 

/S/ JAMES C. NELSON 

/S/ W. WILLIAM LEAPHART 

/S/ JIM REGNIER 
10 

Justice Terry N. Trieweiler specially concurs. 

¶18 I concur with the majority's conclusion that Watson could not 

have properly raised his ineffective assistance of counsel claim on 

direct appeal because his counsel's reasons for the conduct he 

complains of are not apparent from the record. I disagree with 

Justice Cotter that Dr. Lowell A. Stratton's written report is 

sufficiently specific to explain counsel's alleged omission. 

¶19 I also disagree, however, with much of the language in the 

majority Opinion. Although I realize the idea did not originate 

with this Opinion, I disagree with the suggestion that in all 

instances, we must know counsel's reason for acting or failing to 

act before we are able to decide on direct appeal whether effective 

assistance of counsel was provided to a criminal defendant. 

Specifically, I disagree with the language in ¶ 13 of the majority 

Opinion which states that, "if the record does not supply the 

reason for counsel's act or omission, the claim must be raised by 

petition for postconviction relief. Harris, ¶ 21." 

¶20 There are some acts or omissions of counsel for which there is 

no acceptable tactical explanation and which must be decided on 

direct appeal lest those who have been the victims of ineffective 

assistance of counsel waste away in prison while proceeding at a 

snail's pace through the tortuous criminal process only to have the 

critical issue decided in a proceeding in which they have no right 

to the assistance of counsel. The sweeping language of the 

majority Opinion suggests that very few ineffective assistance of 

counsel claims can be raised on direct appeal. I disagree. 
11 

¶21 There are many acts or omissions of counsel for which there is 

no satisfactory explanation and for which the answer to the 

question "why?" is irrelevant. One example is a failure of counsel 

to challenge jurors for cause who demonstrate clear bias during 

voir dire examination or meet some other statutory ground for 

disqualification. See State v. Chastain (1997), 285 Mont. 61, 947 

P.2d 57. A more extreme example would be counsel's failure to 

challenge a juror for cause and then use a peremptory challenge to 

excuse that same juror. By doing so, counsel would be denying his 

or her client the same number of peremptory challenges provided to 

the State. We have held that a greater number of peremptory 

challenges for the State is presumptively prejudicial. See State 

v. Williams (1993), 262 Mont. 530, 866 P.2d 1009, rev'd in part on 

other grounds; State v. Good, 2002 MT 59, 309 Mont. 113, 43 P.3d 

948; and King v. Special Resource Management (1993), 256 Mont. 367, 

371-74, 846 P.2d 1038, 1040-42. Furthermore, there can be no 

tactical justification for using a defendant's peremptory 

challenges to excuse jurors who could have been excused for cause. 

¶22 Other examples of where this Court has, in the past, 

considered claims of ineffective assistance of counsel on direct 

appeal without regard to "why" counsel acted or failed to act are 

given in State v. White, 2001 MT 149, 306 Mont. 58, 30 P.3d 340. 

State v. White preceded and formed the partial basis for State v. 

Harris, 2001 MT 231, 306 Mont. 525, 36 P.3d 372, on which the 

majority now relies. In State v. White, we observed that: 

Generally, an alleged failure to object to the 

introduction of evidence, or to object to the testimony 
12 

of a witness, or object to prosecutorial misconduct at 

trial has been deemed record-based, and therefore 

appropriate for direct appeal. See Hagen, ¶ 20 (citing 

cases and stating that "[t]he absence of an objection by 

counsel–that is, a failure to object–is a fact easily 

documented by reviewing the record . . ."). See also 

State v. Raugust, 2000 MT 146, ¶ 41, 300 Mont. 54, ¶ 41, 

3 P.3d 115, ¶ 41; State v. Hanson (1997), 283 Mont. 316, 

327-29, 940 P.2d 1166, 1173-74. 

State v. White, ¶ 15. 

Along these same lines, counsel's own conduct at trial in 

presenting the defendant's case–such as improperly 

eliciting damaging testimony from a witness, or rendering 

an improper opening statement or closing argument–may be 

pointed to as a record-based instance of ineffective 

representation. . . . [Citations omitted.] 

State v. White, ¶ 17. 

As indicated above, the failure to raise an objection, 

generally, has been deemed record-based, and therefore 

appropriate for direct appeal. See Hagen, ¶ 20. 

However, decisions regarding the timing and number of 

objections lie within counsel's tactical discretion. 

Brown, 228 Mont. at 212, 741 P.2d at 430. 

State v. White, ¶ 24. 

¶23 There are any number of serious acts or omissions for which 

there is no legitimate explanation by defense counsel. Failing to 

object to state criticism of a defendant's choice to remain silent; 

failing to object to a prejudicial jury instruction which is 

incorrect as a matter of law; failing to object to incriminating 

evidence which has been suppressed by the trial court; and failure 

to object to improper, inflammatory and prejudicial comments of the 

prosecution are all examples of ineffective assistance of counsel 

for which the answer to "why" is irrelevant. 

¶24 The language of the majority Opinion which mirrors and expands 

on language in previous majority opinions is overly broad and will 
13 

eventually have serious consequences for some individual sitting in 

prison awaiting an opportunity to demonstrate that he or she does 

not belong there because that person was denied his or her Sixth 

Amendment right to effective assistance of counsel. The 

opportunity to present that claim will be delayed and when it is 

ultimately presented, it will inevitably be by pro se application 

for postconviction relief which is a completely inadequate 

substitute for representation by trained and informed counsel on 

appeal. 

¶25 For these reasons, while I concur with the result of the 

majority Opinion in this case, I disagree with the overly and 

unnecessarily broad statements made therein. 

/S/ TERRY N. TRIEWEILER 
14 

Justice Patricia O. Cotter dissents. 

¶26 Watson argues that the record does not establish why his 

counsel failed to inquire of Dr. Stratton whether Watson could 

conform his behavior to the requirements of the law (¶ 8), and that 

because the “why” cannot be determined from the record, the matter 

must be resolved on postconviction proceedings. The Court agrees 

with him. While I agree with the Court’s recitation of the law in 

this regard, I dissent, as I did in Soraich, from the Court’s 

conclusion that the “why” cannot be determined from the record. 

¶27 Dr. Stratton’s report was made a part of the record. As the 

District Court pointed out in its Order and Memorandum, Dr. 

Stratton’s report specifically states that Watson “. . . has the 

capacity to understand and meet the requirements of the law.” In 

the face of such a categorical conclusion, it is impossible for me 

to conclude that the record does not adequately explain why 

Watson’s counsel did not ask the doctor whether Watson could 

conform his behavior to the requirements of the law. The answer is 

obvious: Because the doctor clearly said in his report that Watson

could conform his conduct to the law’s requirements. Why fault 

counsel for failing to ask a question that has already been 

answered? A remand to make the inquiry is simply senseless. 

¶28 The District Court concluded that this issue, being recordbased, should have been raised on direct appeal, and further 

concluded that defense counsel was not ineffective in any event for 

failing to raise a frivolous argument. I agree on both grounds and 

would affirm the District Court. 

/S/ PATRICIA COTTER 

Chief Justice Karla M. Gray joins in the foregoing dissent. 

/S/ KARLA M. GRAY