No. 54-356 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsCLIFFORD GRANT, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Chouteau, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Clifford Grant, pro set Havre, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Allin Cheetham, Choteau County Attorney, Fort Benton, 

Montana 

Submitted on Briefs: June 19, 1985 

Decided: August 22, 1985 

Clerk 
Mr. Justice Frank R. Morrison, Jr. delivered the Opinion of 

the Court. 

Following a non-jury trial in the Eighth Judicial District Court, County of Choteau, defendant Clifford Grant was 

convicted of the offense of operating a motor vehicle while 

designated an habitual traffic offender, in violation of 

5 61-11-213, MCA. Grant was sentenced to one year in the 

Choteau County Jail, with six months suspended and given 

credit for 16 days already spent in the jail. Defendant 

appeals. 

Choteau County Deputy Sheriff David Baker observed a 

small red car leave the high.way, turn onto a road and proceed 

underneath a railroad bridge outside of Loma, Montana, on the 

evening of January 25, 1984. Since it seemed unusual for a 

car to be in that lnctaion, Deputy Baker also pulled off the 

road to observe the vehicle and its occupants. Once the dome 

light in the car came on, the deputy observed the occupants 

with his field glasses, noting both the hair color and 

clothing of each individual. When the occupants lit a pipe, 

Deputy Baker approached the car and asked the passenger, 

William Buerkle, to roll down his window. The smell of 

marijuana was prevalent and a pipe lay on the car seat. Both 

occupants were immediately arrested for possession of drug 

parapherna 1 ia. 

A driver's license check revealed that the individual in 

the driver's seat, defendant Grant, had been declared an 

habitual traffic offender in August of 1983. Deputy Baker 

informed Grant that he would be issued a notice to appear for 

operating a vehicle while designated an habitua 1 traffic 

offender. The two were then escorted to the Sheriff's office 

and "booked. " 

An affidavit and motion for leave to file an information 

charging defendant with the traffic offense was filed in the 

District Court on February 8, 1984. The information was 
issued. That same day, defendant made his initial appearance 

in court on that charge. Defendant requested a 

court-appointed attorney and the proceeding was continued. 

The trial judge also set bail at $500, noting that defendant 

was presently "serving some kind of a sentence out of the 

Justice Court here in Fort Benton," but that once that 

sentence was served, defendant could post his bail. 

Defendant's attorney entered a plea of not guilty for 

him at his arraignment on March 14, 1984, and a non-jury 

trial was held April 11, 1984. At trial, Deputy Baker testified that the individuals he had observed through his field 

glasses occupied the same seats when he arrived at the car; 

that he had not noticed any switching of places; and that he 

had not observed the opening of any car door. 

Defendant1 s father, Charles Grant, testified that he 

requested his son and William Buerkle to drive the car from 

Havre to Great Falls on January 25, 1984, and to attempt to 

trade the car for another. He requested Buerkle to drive the 

automobile as his son no longer had a valid driver's license. 

William Buerkle testified that he drove the car from 

Havre to Great Falls and from Great Falls to the turnoff near 

Loma. The car then became stuck in the mud and defendant 

took over the driver's seat in an effort to free the car. 

Upon cross-examination of Buerkle, the State introduced an 

affidavit signed by Buerkle on February 8, 1984, stating that 

defendant had driven the automobile from Great Falls to Loma. 

The defendant' s testimony was generally consistent with 

that of William Buerkle. 

The trial judge found th~ February 8, 1984, statement of 

William Buerkle to be more credible than his testimony at 

trial. Relying on Buerkle's affidavit and Deputy Baker's 

testimony, the judge found the defendant guilty of operating 

a motor vehicle while being adjudged an habitual traffic 

of fender. 
Defendant raises eleven issues in a pro se appeal of his 

conviction. The State condenses those issues into three 

major categories. With some amplification, we find the 

State's issues to be adequate. 

1. Whether defendant's attorney acted within the range 

of competence demanded of attorneys in criminal cases? 

2. Whether the District Court properly admitted the 

statement signed by Buerkle? 

3. Whether defendant's due process rights were 

violated? 

Ineffective assistance of counsel requires specific acts 

or omissions by counsel which prejudice defendant's case and 

resu1.t in the denial of a fair trial. State v. Boyer (Mont. 

1985), 695 P.2d 829, 831, 42 St.Rep. 247, 250. In Boyer, we 

adopted the test set forth by the United States Supreme Court 

for determining when ineffective assistance of counsel has 

occurred. 

"First, the defendant must show that counsel's 

performance was deficient. This requires showing 

that counsel made errors so serious that counsel 

was not functioning as the 'counsel' guaranteed the 

defendant by the Sixth Amendment. Second, the 

defendant must show that the deficient performance 

prejudiced the defense. This requires showing that 

counsel's errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is 

re7 iable. " Strickland v. Washington (1984) , 

U.S. I- , 104 S.Ct. 2052, 2064, 80 L.Ed.2d 

674, 693. 

Defendant points us to no evidence in support of his 

a1 legation that his counsel's performance was deficient. 

Furthermore, he has failed to prove his counsel's error 

deprived him of a fair trial. Therefore, we find no merit to 

defendant's claim of ineffective assistance of counsel. 

11. 

Defendant contends that the State's failure to include a 

reference to William Buerkle's February 8, 1984, sworn statement in its affidavit and motion for leave to file the 
information against defendant imposed ex - post facto law on 

defendant. Defendant misunderstands - ex post facto law. 

"[Alny statute which punishes as a crime an act 

previously committed, which was innocent when done, 

which makes more burdensome the punishment for a 

crime, after its commission, or which deprives one 

charged with crime of any defense available according to law at the time when the act was committed, 

is prohibited as ex post facto." Beazell v. Ohio 

(1925). 269 U.S. 167, 169-170, 46 S.Ct. 68, 68, 70 

L.Ed. 216, 217. 

Buerkle's prior statement has none of these effects. 

The law controlling the operation of a motor vehicle while 

designated an habitual traffic offender was the same when 

defendant performed the offense as it was when defendant was 

tried. There is no - ex post facto problem. 

In addition, pursuant to 5 26-1-302(7), MCA, and Rule 

613, Mont.R.Evid., the February 8, 1984, statement was admissible as a prior inconsistent statement. Buerkel was given 

the opportunity to explain the statement. Once the opposing 

statements were admitted, it was within the province of the 

fact finder, in this case the trial judge, to determine which 

statement was more credible. Fle find no error in the trial 

court's reliance on the prior inconsistent statement. 

Defendant's due process rights have not been violated. 

Defendant contends that failure to file until February 

8, 1984, the information charging him with the traffic offense prejudiced him and violated SS 46-7-1.01 through -103, 

MCA . Defendant raises this issue for the first time on 

appeal. Therefore, we will not consider it. 

The judge did not err in ordering a presentence investigation. Pursuant to 5 46-18-111, MCA, the judge, in his 

discretion, may order a presentence investigation when the 

potential penalty is less than one year in prison. The judge 

explained his reasons for the investigation, stating: 
"Now, because there is a substantial penalty involved here in this case, I don't want to sentence 

you at this time. I do want to obtain a record of 

your traffic violations, and I do want to order a 

presentence report here to be prepared by the 

probation office before I sentence you on this 

charge . . . ." Tr. p. 61. 

Defendant has failed to show how spending one week at 

Hi1.1 Top Recovery Center, from May 31, 1984 until June 6, 

1984, prejudiced his appeal. His initial brief was not filed 

until February 21, 1985. 

Punishment of defendant at this time is not contrary to 

the Montana Constitution. Defendant created the delay when 

he chose to post bail pending this appeal. 

The conviction and sentence of defendant is affirmed. 

We concur: /