DA 15-0271

IN THE SUPREME COURT OF THE STATE OF MONTANA

2016 MT 236N

JIMMIE LEE AKER,

 Petitioner and Appellant,

 v.

STATE OF MONTANA,

 Respondent and Appellee.

APPEAL FROM: District Court of the Third Judicial District,

In and For the County of Powell, Cause No. DV 13-96

Honorable Brad Newman, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jimmie Lee Aker, Self-Represented, Deer Lodge, Montana 

For Appellee:

Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant 

Attorney General, Helena, Montana

Lewis K. Smith, III, Powell County Attorney, Daniel M. Guzynski, Joel 

M. Thompson, Special Deputy County Attorneys, Helena, Montana 

Submitted on Briefs: August 3, 2016

 Decided: September 20, 2016

Filed:

__________________________________________

Clerk

09/20/2016

Case Number: DA 15-0271
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Justice James Jeremiah Shea delivered the Opinion of the Court. 

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating 

Rules, this case is decided by memorandum opinion and shall not be cited and does not 

serve as precedent. Its case title, cause number, and disposition shall be included in this 

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana 

Reports. 

¶2 Jimmie Lee Aker appeals an order of the Third Judicial District Court, Powell 

County, denying his petition for postconviction relief. We address whether the District 

Court erred in denying Aker’s petition. We affirm.

¶3 On May 19, 2011, a jury found Aker guilty of Sexual Intercourse Without 

Consent. Aker appealed the judgment, arguing that the prosecutor committed 

prosecutorial misconduct and that Aker’s counsel provided ineffective assistance during 

the trial. On September 4, 2013, this Court declined to exercise plain error review on 

Aker’s prosecutorial misconduct claim and further concluded that Aker’s ineffective 

assistance of counsel claim could only be raised in a postconviction relief petition. State 

v. Aker, 2013 MT 253, ¶¶ 27, 35-37, 371 Mont. 491, 310 P.3d 506.

¶4 On October 8, 2013, Aker filed a petition for postconviction relief alleging: (1) 

ineffective assistance of counsel for failing to object at several stages of trial and failing 

to call a physician as a defense expert witness; and (2) prosecutorial misconduct during 

closing argument through improper comments regarding witness credibility. On April 8, 

2015, the District Court denied Aker’s petition. The District Court denied Aker’s 

ineffective assistance of counsel claims because Aker inadequately pled the issues, 
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relying on conclusory and speculative statements, instead of facts supported with 

affidavits or citations to the record. The District Court denied Aker’s prosecutorial 

misconduct claim because this Court already addressed the issue, on the merits, and 

found that none was present. 

¶5 “We review a district court’s denial of a petition for postconviction relief to 

determine whether its findings of fact are clearly erroneous and whether its legal 

conclusions are correct.” Rose v. State, 2013 MT 161, ¶ 15, 370 Mont. 398, 304 P.3d 

387. 

¶6 Aker’s ineffective assistance of counsel claim is based on thirteen allegations. In 

the first eight allegations, Aker contends his trial counsel failed to: (1) call a nurse to 

testify that the State’s expert witness was not the first to examine the victim; (2) call over 

forty witnesses that Aker identified as allegedly being able to corroborate his location on 

the date in question; (3) object to photographs the State introduced to prove his mobility 

six months before the pictures were taken; (4) object or bring attention to alleged 

discrepancies between the testimony of the victim and her mother, or to present evidence 

that the television show the victim said she was watching during the underlying crime did 

not air on that date; (5) offer a lesser-included offense instruction; (6) negotiate a plea 

agreement; (7) spend sufficient time with Aker preparing for trial; and (8) accurately 

represent his trial experience. As a corollary to Aker’s ineffective assistance of counsel 

claims, Aker also alleges he was wrongfully accused of violating a restraining order on 

four separate occasions.
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¶7 “[W]e have repeatedly held, we will not address issues raised for the first time on 

appeal.” Ford v. State, 2005 MT 151, ¶ 12, 327 Mont. 378, 114 P.3d 244 (declining to 

address an issue raised for the first time when reviewing the denial of a postconviction 

petition). This Court does not “conduct such review where the district court has not been 

presented with an opportunity to rule on the issue.” State v. Ferguson, 2005 MT 343, 

¶ 65, 330 Mont. 103, 126 P.3d 463. Here, Aker’s first eight ineffective assistance of 

counsel allegations and his restraining order claim are made for the first time on appeal. 

In accordance with Ford and Ferguson, we therefore decline to address those eight 

ineffective assistance of counsel allegations and the restraining order issue.

¶8 In Aker’s ineffective assistance of counsel claims 9 through 13, he alleges his 

counsel failed to: (9) object to certain State witnesses’ hearsay statements regarding the 

victim’s account of the sexual abuse at issue; (10) object to a State expert witness’s 

opinion concerning the victim’s account’s veracity; (11) object to a State witness’s

out-of-court identification of Aker as her abuser; (12) object to the prosecutor’s 

comments in closing argument concerning witness credibility and references to Aker’s 

“social status”; and (13) call a physician as a defense expert to rebut the State’s expert 

testimony. The District Court concluded Aker improperly pled the ineffective assistance 

of counsel claims. The Court therefore dismissed the claims when denying Aker’s 

petition.

¶9 “To prove an ineffective assistance of counsel claim, the defendant must meet 

both prongs of the two-part test established in Strickland v. Washington . . . .” Hardin v. 

State, 2006 MT 272, ¶ 18, 334 Mont. 204, 146 P.3d 746 (citing Strickland v. Washington, 
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466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). A defendant meets both Strickland

prongs by showing that “his counsel’s performance was deficient and the deficient 

performance prejudiced him.” Hardin, ¶ 18 (citation omitted).

¶10 A petition must present more than self-serving, conclusory allegations without any 

supporting evidence to meet the Strickland test. State v. Wright, 2001 MT 282, ¶ 31, 307 

Mont. 349, 42 P.3d 753. Section 46-21-104(1)(c), MCA, states that the “petition for 

postconviction relief must . . . identify all facts supporting the grounds for relief set forth 

in the petition and have attached affidavits, records, or other evidence establishing the 

existence of those facts.”

¶11 Here, the District Court determined Aker’s petition “relies solely on conclusory 

allegations, not fact,” and “does not identify any particular testimony or portion of the 

record he deems objectionable.” Nevertheless, the District Court reviewed the merits of 

Aker’s ineffective assistance of counsel claims. The District Court concluded, after 

considering the defense counsel’s affidavit, that his performance was not deficient and 

that Aker did not overcome the “strong presumption that counsel’s conduct falls within 

the wide range of reasonable professional assistance.” Whitlow v. State, 2008 MT 140, 

¶ 15, 343 Mont. 90, 183 P.3d 861 (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 

2065). The District Court could not fully analyze the second Strickland prong because 

Aker’s petition “includes only speculation that the trial outcome might have been 

different and, as such, does not satisfy the statutory requirement of demonstrating 

prejudice.” 
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¶12 Our review of Aker’s petition reveals the document lacks the required elements of 

§ 46-21-104(1)(c), MCA. Although the petition asserts facts, they are conclusory and 

self-serving, and lack “attached affidavits, records, or other evidence establishing the 

existence of those facts.” See § 46-21-104(1)(c), MCA. The District Court did not err 

when finding that Aker failed to properly petition for postconviction relief, and the 

District Court correctly concluded that such failure necessitated denying Aker’s petition.

¶13 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of 

our Internal Operating Rules, which provides for memorandum opinions. In the opinion 

of the Court, the case presents a question controlled by settled law or by the clear 

application of applicable standards of review. The District Court’s findings of fact were 

not clearly erroneous and its conclusions of law were correct. We affirm.

/S/ JAMES JEREMIAH SHEA

We Concur: 

/S/ BETH BAKER

/S/ MICHAEL E WHEAT

/S/ JIM RICE

Justice Laurie McKinnon, dissenting.

¶14 Consistent with my dissent in State v. Aker, 2013 MT 253, 371 Mont. 491, I would 

allow Aker to proceed on his claims of ineffective assistance of counsel regarding 

counsel’s failure to object to the admission of hearsay evidence and counsel’s failure to 

object to improper closing argument by the State. To the extent we conclude otherwise, I 

dissent.

/S/ LAURIE McKINNON