NO. 94-120

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Respondent and Respondent,

LAWRENCE R. SHEPPARD,

Petitioner and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable John Henson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William Boggs, Missoula, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General, Jennifer

Anders, Assistant Attorney General, Helena, Montana;

Robert L. Deschamps, III, Missoula County Attorney,

Betty Wing, Deputy County Attorney, Missoula,

Montana

Submitted on Briefs: December 1, 1994

Decided: February 23, 1995

Filed:
Justice James C. Nelson delivered the Opinion of the Court.

After an evidentiary hearing, the District Court for the

Fourth Judicial District, Missoula County, denied Lawrence

Sheppard's petition for post-conviction relief alleging ineffective

assistance of counsel. We affirm.

The sole issue on appeal is whether the District Court erred

in denying Sheppard's petition for post-conviction relief.

BACKGROUND

This case was previously before this Court in State v.

Sheppard (1992), 253 Mont. 118, 832 P.2d 370 (Sheppard I), wherein

Sheppard appealed his conviction of sexual intercourse without

consent, a felony in violation of § 45-5-503, MCA (1989). The

underlying facts giving rise to his conviction are set out fully in

Sheppard I, and will not be repeated here.

In his appeal, Sheppard argued that the trial court should

have instructed the jury, sua sponte, on the lesser-included

offense of misdemeanor sexual assault, and that the court's failure

to give the lesser-included offense instruction resulted in a

denial of his right to a fair trial. We disagreed and affirmed

Sheppard's conviction, holding that the trial court had no duty to

instruct on a lesser-included offense in the absence of a request

for such an instruction. Our basis for that decision is that

counsel must be allowed to determine his or her own trial strategy,

and that to require the court to instruct, sua sponte, on the

lesser-included offense might impinge on the advocate's role.

Sheppard, 832 P.2d at 373.

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On October 5, 1992, Sheppard filed a petition for postconviction relief alleging ineffective assistance of counsel, based

upon his counsel's failure to offer a lesser-included offense

instruction of misdemeanor sexual assault at the time instructions

were settled. Upon Sheppard's request, the District Court held an

evidentiary hearing to determine whether counsel's failure to offer

a lesser-included instruction, whether by inadvertence or as a

tactical decision constituted ineffective assistance of counsel.

Both Sheppard and his trial counsel testified at the hearing.

Sheppard testified that he did commit a crime, but that he was not

guilty of sexual intercourse without consent because the victim

originally consented to the act and, upon her resistance, Sheppard

desisted from his conduct. Sheppard stated he thought he was

guilty of "solicitation to prostitution" or a "lewd and lascivious

act," believing these were synonymous with misdemeanor sexual

assault. Sheppard also testified that his counsel never informed

him of the possibility of giving a lesser-included offense

instruction.

Counsel testified, that prior to trial, the State offered

Sheppard a plea bargain for felony sexual assault. Sheppard and

his attorney discussed the elements of both misdemeanor and felony

sexual assault. Counsel explained that felony sexual assault

required proof of the additional element of bodily injury. Counsel

informed Sheppard that the potential penalty for felony sexual

assault was imprisonment for twenty years and that he believed

Sheppard could be found guilty of the felony because the victim was

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prepared to testify that she experienced pain during the incident.

Sheppard rejected the plea bargain.

Counsel testified that he also explained how both misdemeanor

and felony sexual assault differed from the crime of sexual

intercourse without consent, the latter requiring a showing of

penetration. Sheppard adamantly denied the victim did not consent,

denied that penetration occurred, and insisted he was innocent of

the crime charged. Counsel stated that he believed the State's

case was weak regarding the element of penetration, and he believed

he could attack the victim's credibility. In addition, the State

had mentioned it was considering filing an amended information

charging sexual intercourse without consent or in the alternative

felony sexual assault as a means of increasing a chance of

conviction. Given these circumstances, and the potential that the

jury might find Sheppard guilty of felony sexual assault, the

decision was made to proceed to trial and attempt to gain an

acquittal on the sexual intercourse without consent charge.

Counsel testified that the trial strategy was to attempt to

gain an acquittal by demonstrating consent and lack of penetration,

and that they did not vary from the strategy throughout the trial.

Counsel also stated that while he believed he had put on a strong

case by attacking the victim's credibility, Sheppard's own

testimony was damaging to his case. When asked if he had

considered offering misdemeanor sexual assault as a lesser-included

offense at the end of trial, counsel testified he did not consider

offering a lesser-included offense instruction, because the defense

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strategy had already been established, and they continued with this

strategy. Counsel stated he did not offer the misdemeanor sexual

assault instruction even after the State had lost its ability to

charge felony sexual assault, by failing to file an amended

information.

Upon considering the testimony and the parties' briefs, the

District Court issued an opinion and order on October 20, 1993,

denying Sheppard's petition. The court concluded that counsel's

decision to forgo a lesser-included offense instruction was a

tactical decision based upon all of the facts available to him and

Sheppard's strident proclamations of innocence. Sheppard appeals

from this order.

DISCUSSION

First, we discuss a preliminary matter which was not addressed

by either party, i.e., whether sexual assault is in fact a lesserincluded offense of sexual intercourse without consent. This Court

has decided three prior cases in which it was assumed, without the

issue being actually raised or decided, that sexual assault is a

lesser-included offense of sexual intercourse without consent.

State v. Ogle (1992), 255 Mont. 246, 841 P.2d 1133; State v.

Lundblade (1986), 221Mont. 185, 717 P.2d 575, Sheppard I, 832 P.2d

370.

In Oqle, the defendant alleged the trial court erred by

offering the State's instructions defining sexual assault as a

lesser-included offense of sexual intercourse without consent.

However, we declined to discuss the precise issue of whether sexual

5
assault is a lesser-included offense of sexual intercourse without

consent because the defendant failed to properly object to the

instruction at the time it was offered. Osle, 841 P.2d at 1136.

In Lundblade, the jury was given an instruction defining

sexual assault as a lesser-included offense of sexual intercourse

without consent, and neither side objected to the instruction.

Lundblade, 717 P.2d at 578. However, the issue on appeal was not

whether sexual assault was, in fact, a lesser-included offense of

sexual intercourse without consent. Therefore, we did not analyze

the relationship of sexual assault to sexual intercourse without

consent under the established test from Blockburger v. United

States (I932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, in order

to determine "whether each [statutory] provision requires proof of

an additional fact which the other does not . .'I State v. Madera

(198X), 206 Mont. 140, 151, 670 P.2d 552, 557-50, citing

Blockburaer, 284 U.S. at 304, 52 S.Ct. at 180, 76 L.Ed. at 309.

Rather, we concluded that the record contained sufficient evidence

to establish the crime of sexual assault, and proceeded on the

basis of the parties' and the district court's assumption that

sexual assault was a lesser-included offense of sexual intercourse

without consent. Lundblade, 717 P.2d at 578. We note here, in

passing, that the dissent in Lundblade concluded that sexual

assault is not a lesser-included offense of sexual intercourse

without consent. Lundblade, 717 P.2d at 579.

Similarly, in Sheppard I, the parties did not raise the

specific question of whether sexual assault is, in fact, a lesser6
included offense of sexual intercourse without consent. We simply

addressed the issue of whether the trial court was required to

provide, SUa sponte, a lesser-included offense instruction.

Sheooard I, 832 P.2d at 372. Our decision in Sheupard I,

therefore, was directed to that issue and not to whether sexual

assault is a lesser-included offense of sexual intercourse without

consent.

In the instant case, we will, again, proceed on the assumption

that sexual assault is a lesser-included offense of sexual

intercourse without consent because that precise issue was not

properly preserved for appeal or raised in Sheppard I. Having not

been raised on appeal, that issue is now barred from consideration

in this post-conviction relief proceeding. Section 46-21-105(2),

MCA.

Moreover, if sexual assault is not a lesser-included offense

of sexual intercourse without consent, that would not help Sheppard

in his instant petition in any event, as his counsel could hardly

be found ineffective for failing to offer an instruction for an

offense that was not a lesser-included offense of the greater crime

with which he was charged and convicted. We emphasize, however,

that the precise issue of whether sexual assault is a lesserincluded offense of sexual intercourse without consent under

Blockburqer, under our prior case law defining lesser-included

offenses, and under 5 46-11-410, MCA, remains to be decided in some

future case, and we do not resolve that question here.

The standard of review for a denial of a petition for post7
conviction relief is whether, substantial evidence supports the

findings and conclusions of the district court. State v. Barrack

(1994), 882 P.2d 1028, 1031, 51 St.Rep. 983, 985.

This court reviews claims of ineffective assistance of counsel

under the two-part test set forth in Strickland v. Washington

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

Robbins (1985), 218 Mont. 107, 114, 708 P.Zd 227, 232; State v.

Mahoney (19941, 870 P.2d 65, 72-73, 51 St.Rep. 160, 164. According

to the two-prong Strickland test, the defendant must first show

that counsel's performance was deficient, by demonstrating that

counsel made errors so serious that counsel was not functioning as

the "counsel" guaranteed the defendant by the Sixth Amendment. The

second prong requires the defendant to show that counsel's

deficient performance so prejudiced the defendant that he was

deprived his right to a fair trial. Mahonev, 870 P.2d at 72-73.

"The standard for evaluating prejudice is whether a reasonable

probability exists that but for counsel's deficient performance,

the trial's outcome would have been different." State v. Coates

(1990), 241 Mont. 331, 337, 786 P.2d 1182, 1185. This Court will

not, however, second guess trial tactics and strategy when

evaluating a defense counsel's performance. Coates, 786 P.2d at

1185.

Sheppard claims that his trial counsel's failure to ask for a

lesser-included offense instruction of misdemeanor sexual assault

constituted ineffective assistance of counsel. Sheppard contends

that while his counsel may have made a decision as tactical

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strategy not to request such an instruction at the beginning of the

case, he should have reconsidered his decision at the conclusion of

the case, after the State gave up its opportunity to file felony

sexual assault charges and following the defendant's own damaging

testimony.

While it is correct that counsel did not consider offering a

lesser-included offense instruction after the close of evidence,

counsel's testimony indicated that he believed he had put on a

strong defense and decided to continue with the established

strategy of attempting to gain an acquittal. Counsel testified:

We had our strategy mapped out and planned, and we did

not vary from it according to the evidence of the trial,

because I think we both felt, even given his damaging

testimony, that we were still doing okay, because we had

attacked her credibility reasonably well.

Although this decision, in hindsight, appears to have been

questionable, we will not second guess counsel's tactical

decisions. State v. Jungers (1990), 245 Mont. 519, 523-24, 802

P.2d 615, 618.

Our decision in Sheuuard I, supports our conclusion here, as

we have already concluded that:

[Ulnder our adversarial system of justice, the

prosecution and defense must have the option of foregoing

a lesser charge instruction for strategic reasons.

Lawyers, not judges, should try cases. Although the

record does not enlighten us, both prosecution and

defense counsel may have made a decision to force the

jury to either convict or acquit of the offense charged

without being given the opportunity to take the middle

ground and convict on misdemeanor sexual assault.

Sheppard I, 832 P.2d 373.

As stated earlier, counsel's testimony at the post-conviction

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relief hearing demonstrates that counsel and his client made a

decision to force the jury to either convict or acquit. Counsel

continued with this strategy after the close of the evidence based

on the lack of evidence of penetration and the conflicting evidence

concerning consent. Given these circumstances, we conclude that it

was not improper for counsel to continue with his original

strategy.

Sheppard also maintains that if counsel's decision not to

offer the lesser-included offense instruction was a tactical

decision, it was unreasonable. He argues that "tactical decisions

which are ill-considered, uninformed, or made neglectfully or

ignorantly, may constitute ineffective assistance, if they

substantially prejudice the defendant." Accordingly, Sheppard

concludes that counsel's tactical choices must be minimally

reasonable, and he provides a set of proposed guidelines for this

Court to follow to determine if counsel's decision was minimally

reasonable.

We decline to review or adopt these guidelines for the same

reasons as did the United States Supreme Court in Strickland. That

Court warned:

The availability of intrusive post-trial inquiry

into attorney performance or detailed guidelines for its

evaluation would encourage the proliferation of

ineffectiveness challenges. Criminal trials resolved

unfavorably to the defendant would increasingly come to

be followed by a second trial, this one of counsel's

unsuccessful defense. Counsel's performance and even

willingness to serve could be adversely affected.

Intensive scrutiny of counsel and rigid requirements for

acceptable assistance could dampen the ardor and impair

the independence of defense counsel, discourage the

independence of defense counsel, discourage the

10
acceptance of assigned cases, and undermine the trust

between attorney and client.

Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.

Finally, Sheppard argues that the District Court erred in

concluding that offering the lesser-included offense instruction of

misdemeanor sexual assault would have been problematic for defense

counsel. Defense counsel argued, and the District Court agreed,

that it would have been difficult for counsel to maintain the

victim's consent as part of Sheppard's defense and then offer

misdemeanor sexual assault as a lesser-included offense instruction

when an element of that crime is lack of consent.

Sheppard claims this conclusion is in error on two grounds.

First, he argues that while the jury may not have concluded that

the victim consented, the defense had presented strong evidence

regarding lack of penetration. Therefore, according to Sheppard,

counsel should have offered a misdemeanor sexual assault

instruction and vigorously argued that there was no penetration.

However, this argument does not support an ineffective

assistance of counsel claim. Counsel testified at the evidentiary

hearing that a misdemeanor sexual assault instruction would have

weakened his strategy of attempting to gain an acquittal. This

Court has previously held that when defense counsel makes a

tactical decision to forgo an instruction that is inconsistent with

the defense, we will not find error supporting an ineffective

assistance of counsel claim. State v. Johnson (1993), 257 Mont.

157, 163, 848 P.2d 496, 499.

Second, Sheppard argues that counsel was mistaken in

11
concluding that the two defenses were inconsistent. He maintains

that the "without consent" element of sexual assault and sexual

intercourse without consent involve two different standards

concerning lack of consent. According to § 45-5-501(l), MCA

(19891, and § 45-5-403, MCA (19891, the term "without consent" for

the crime of sexual intercourse without consent, requires

submission to sexual intercourse induced by "force or by threat of

imminent death, bodily injury, or kidnapping to be inflicted on

anyone." Section 45-5-510(l), MCA (1989). Under the sexual

assault statute, without consent does not include this element.

Section 45-5-502, MCA (1989).

Therefore, according to Sheppard, because the consent element

in the crime of sexual intercourse without consent requires the

additional showing of force or threat of force, it would have been

consistent to argue that while the victim did not consent, she did

not submit as a result of force or threat of force. Sheppard

argues that the victim's own testimony established that the level

of consent "absolutely precluded a conviction of a felony, but did

not necessarily preclude a conviction of misdemeanor sexual

assault." (Emphasis in original.) Sheppard concludes that the

jury should have been advised of the two different standards and

offered the misdemeanor sexual assault instruction.

We conclude, however, that Sheppard is merely providing an

example of how he would have tried the case. Furthermore, his

argument actually supports trial counsel's all or nothing strategy,

because according to Sheppard, the victim's testimony "absolutely

12
precluded conviction of a felony," i.e., sexual intercourse without

consent.

Upon review, we conclude that substantial evidence supports

the District Court's conclusion that counsel's decision to forgo

offering the lesser-included offense instruction was a reasonable

tactical decision. That Sheppard would now, with the benefit of

hindsight, adopt a different trial strategy, does not render his

first defense ineffective. Accordingly, we hold that the District

Court properly denied Sheppard's petition for post-conviction

relief.

AFFIRMED.

1 3
February 23, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

William Boggs

Attorney at Law

P.O. Box 7881

Missoula, MT 59807

HON. JOSEPH P. MAZUREK, Attorney General

, Assistant

Justice Bldg.

Helena, MT 59620

Robert L. Deschamps, III, County Attorney

Betty Wing, Deputy

Missoula County Courthouse

Missoula. MT 59802

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA