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DA 21-0483

IN THE SUPREME COURT OF THE STATE OF MONTANA

2022 MT 189N

STATE OF MONTANA,

 Plaintiff and Appellee,

 v. 

JAMIE CAL FUSON,

 Defendant and Appellant.

APPEAL FROM: District Court of the Ninth Judicial District,

In and For the County of Pondera, Cause No. DC-19-17

Honorable Robert G. Olson, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Colin M. Stephens, Smith & Stephens, P.C., Missoula, Montana

For Appellee:

Austin Kundsen, Montana Attorney General, Mardell Ployhar, 

Assistant Attorney General, Helena, Montana

Rosanne Lockhart, Pondera County Attorney, Conrad, Montana

Submitted on Briefs: August 3, 2022

 Decided: September 27, 2022

Filed:

__________________________________________

Clerk

09/27/2022

Case Number: DA 21-0483
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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, 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 Jamie Fuson (Fuson) appeals from the September 20, 2020 Order of the Ninth 

Judicial District Court denying his motion to suppress testimony he made in a civil divorce 

proceeding from being admitted in his criminal prosecution. The basis of Fuson’s motion 

is that his attorney in the divorce proceeding rendered ineffective assistance. We affirm. 

¶3 On July 9, 2018, the District Court held a hearing to address a motion filed by 

Fuson’s ex-wife to set aside a property settlement agreement. Attorney Penelope Oteri 

represented Fuson in the proceeding. Fuson’s ex-wife alleged that Fuson had misstated the 

value of a semitruck for that property agreement. Fuson testified at the hearing that he 

agreed to sell George Ackerson a semitruck. Fuson acknowledged that Ackerson paid a 

portion of the agreed-upon selling price but, after receiving Ackerson’s initial payments, 

Fuson sold the truck to someone else and never refunded Ackerson.

¶4 On September 23, 2019, the State charged Fuson with theft based on his transaction 

with Ackerson. An affidavit in support of the charging documents referenced the testimony 

Fuson gave during the July 2018 dissolution hearing. Fuson filed a motion to suppress 

these statements, arguing they resulted from Oteri’s ineffective assistance of counsel 

during the July 2018 dissolution hearing. Fuson asserted Oteri’s ineffective assistance at 
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this hearing violated his constitutional due process rights, and such a violation required 

suppression of his statements in the criminal prosecution. The District Court denied 

Fuson’s motion to suppress, noting that it was “not aware of any cases from any jurisdiction 

adopting this position.” 

¶5 We review a district court’s denial of a motion to suppress to determine whether its 

findings of fact are clearly erroneous and whether its interpretation and application of the 

law is correct. State v. Neiss, 2019 MT 125, ¶ 13, 396 Mont. 1, 443 P.3d 435. We generally 

review a district court’s evidentiary rulings for an abuse of discretion; however, to the 

extent that a discretionary ruling is based on a conclusion of law, this Court’s review is de 

novo. State v. Smith, 2021 MT 148, ¶ 14, 404 Mont. 245, 488 P.3d 531.

¶6 In order to claim ineffective assistance of counsel, Fuson must first establish that he 

had a right to counsel in the first instance. See, e.g., Coleman v. Thompson, 501 U.S. 722, 

111 S. Ct. 2546 (1991) (holding there is no right to effective counsel in state discretionary 

or collateral proceedings because there is no right to counsel) abrogated in part by 

Martinez v. Ryan, 566 U.S. 1, 132 S. Ct. 1309 (2012); Wainwright v. Torna, 455 U.S. 586, 

102 S. Ct. 1300 (1982) (holding where there is no constitutional right to counsel there can 

be no deprivation of effective assistance of counsel). Although Fuson asserts he is entitled 

to make an ineffective assistance of counsel claim, he fails to establish the predicate 

condition that he had any right at all to counsel in the July 2018 dissolution proceeding. 

Fuson references other non-criminal cases in which we have held an individual has a right 

to effective assistance of counsel: parental termination and involuntary commitment. The 

distinguishing factor in both of those proceedings, of course, is that we have held there is 
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a constitutional right to counsel in parental termination and civil involuntary commitment 

proceedings. Fuson would have us make the unsupported leap of holding that “in civil 

proceedings, a claim of ineffective assistance of counsel can be raised and relief sought 

under the Due Process Clauses of the Fifth and Fourteenth Amendments and Article II,

section 17 of the Montana Constitution,” even when there is no right to counsel in the first 

place. We decline to do so.

¶7 To the extent Fuson argues that the District Court violated his right to due process 

when it failed “to put a halt to the travesty of justice occurring in its courtroom” at the July 

2018 dissolution hearing, Fuson cites to no legal authority requiring the District Court to 

determine whether testimony in a civil proceeding might expose a witness to criminal 

liability and then intervene sua sponte.

1 This Court does not “conduct legal research on 

appellant’s behalf, [] guess as to his precise position, or [] develop legal analysis that may 

lend support to his position.” State v. Hicks, 2006 MT 71, ¶ 22, 331 Mont. 471, 133 P.3d 

206 (internal quotations and citation omitted); see M. R. App. P. 12(1)(g) (requiring the 

argument section of an appellant’s brief to contain “citations to the authorities, statutes, 

and pages of the record relied on”). Having failed to establish that he had a right to counsel 

at the July 2018 dissolution proceeding or that the District Court was obligated to intervene 

sua sponte and halt his testimony, Fuson’s ineffective assistance of counsel claim fails.

¶8 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 

1 Although a great movie, Fuson’s citation to the Aaron Sorkin classic, A Few Good Men, 

does not count as legal authority.
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Court, the case presents a question controlled by settled law or by the clear application of 

applicable standards of review. The District Court did not err when it denied Fuson’s 

motion to suppress. We affirm.

/S/ JAMES JEREMIAH SHEA

We Concur: 

/S/ MIKE McGRATH

/S/ LAURIE McKINNON

/S/ INGRID GUSTAFSON

/S/ DIRK M. SANDEFUR