No. 54-356 INTHE SUPREME COURT OF THE STATE OF MONTANA 1985

STATE OF MONTANA, Plaintiff and Respondent,


### -vsCLIFFORD GRANT, Defendant and Appellant.

APPEAL FROM: 

### DistrictCourt 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

ClerkMr. Justice Frank R. Morrison, Jr. delivered the Opinion of theCourt. 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 thehigh.way, turnonto 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 tobe inthat lnctaion, Deputy Baker alsopulled off the road toobserve thevehicle and 

### itsoccupants. 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 parapherna1 ia. A driver's license check revealed thatthe individual in the driver's seat, defendant Grant, had been declared an habitual traffic offender in August of 1983. Deputy Baker informed Grant thathe would be issued a notice toappear for operating 

### a vehicle while designated an habitua1 traffic offender. The two 

### werethen escorted tothe Sheriff's office and "booked.

### " An affidavit and motion for leave tofilean information charging defendant with the trafficoffensewas filed inthe District Court on February 8, 1984. The information wasissued. That same day, defendantmade hisinitial 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 sentencewas served, defendant could post hisbail. Defendant's attorney entered a plea of not guilty for him at his arraignment on March 14, 1984, and a non-jury trialwas held April 11, 1984. Attrial, Deputy Baker 

### testified that the individuals he had observed through his field glasses occupied the same seatswhen he arrived atthe car; that he had not noticed any switching of places; and that he had not observed theopening of any cardoor. Defendant1 

### s father, Charles Grant, testified that he requested his son and William Buerkle todrive the car from Havre to Great Falls on January 25, 1984, and toattempt to tradethecar foranother. Herequested Buerkle todrive the automobile ashis son no longer had a valid driver's license. William Buerkle testified that he drove the car from Havre toGreat Falls and from Great Fallstotheturnoff 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, statingthat defendant had driventhe automobile from Great FallstoLoma. The defendant'

### s testimony was generally consistent with thatof WilliamBuerkle. The trialjudge 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 offender.Defendant raises eleven issues ina pro se appeal of his conviction. The State condenses those issues into three major categories. With some amplification, 

### we find the State's issues tobe 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 assistanceof counsel requires specific acts
or omissions by counsel which prejudice defendant's case and resu1.t inthe denial of 

### a fairtrial. State

### v. Boyer (Mont. 1985), 695 P.2d 829, 831, 42 St.Rep. 247, 250. In Boyer, 

### we adopted thetest 

### set forthby theUnited 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 asthe '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 todeprive the defendant of a fair trial, a trialwhose result 

### is re7iable." 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 meritto defendant's claimof ineffective assistance of counsel. 11. Defendant contends 

### that the State's failuretoinclude 

### a reference toWilliam Buerkle's February 8, 1984, sworn state

### ment in 

### its affidavit and motion for leave to file the

### information against defendant imposed ex post facto law on 

## - defendant. Defendant misunderstandsexpost facto law. 

## - "[Alny statute which punishes as a crime an act previously committed, whichwas innocentwhen done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one chargedwith crime of any defense available according to law at the time when the actwas 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 itwas when defendantwas tried. There is no expost facto problem. 

# - In addition, pursuant to 

### 5 26-1-302(7), MCA, and Rule 613,Mont.R.Evid., the February 8, 

### 1984, statementwas 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 determinewhich statementwas 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 inprison. The judge explained his reasons for the investigation,stating:"Now, because there 

### is a substantial penalty involved here inthis case, I don't want tosentence you atthis 

### time. I dowant toobtain a record of your traffic violations, and I do want toorder 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 hisappeal. Hisinitialbrief was not filed until February 21, 1985.

Punishment of defendant atthis

### time

### isnot contrary to the Montana Constitution. Defendant created the delay when he chose topostbailpending thisappeal. The conviction and sentence of defendant 

### is affirmed.

Weconcur: 

# /