DA 07 - 0175 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 200 8 MT 6N TRAVIS A. McLEES, Petitioner and Appellant, v. ST ATE OF MONTANA, Respondent and Appellee.
APPEAL FROM: District Court o f the Eighteenth Judicial District,

In and For the County

of Gallat in, Cause No. DV 03 - 372 Honorable Holly Brown, Presiding Judge COUNSEL OF RECORD:

For Appellant: Jim Wheelis, Chief Appellate Defender; Joslyn M. Hunt, Assistant Appellate Defender, Helena, Montana For Appellee : Honorable Mike McGrath, Attorney General; Sheri K. Sprigg, Assistant Attorney

General, Helena, Montana Marty Lambert, County

A ttorney, Bozeman, Montana Submitted on Briefs: December 12, 2007 Decided: January

8 , 2008 Filed:

__________________________________________ Clerk January 8 20082

Justice W. William Leaphart delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court 1996 Internal Operating Rules, as amended in 2003, the following me morandum decision shall not be cited as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and its case title, Supreme Court cause number and disposition shall be included in this C ourt’s quarterly list o f noncitab le cases published in the Pacific Reporter and Montana Reports. ¶2 Travis McLees (McLees) appeals from the District Court’s denial of his amended petition for post- convictionrelief alleging ineffective assistance of counselin the Eighteenth Judicial Distric t, Gallatin County. We affirm. ¶3 On December 6, 2001, the Gallatin County Attorney’s Office (S tate) charged McLees with seven felony counts: aggravated burglary( later amended to burglary) , aggravated kidnapping, sexual assault, criminal endangerment, ag gravated burglary, assault with a weapon, and attempted burglary. M cLees eventuallyp led guilty to six of the charges , and the District Court convicted him of the seventh charge following a bench trial. ¶4 The State asked th at the District Court impose conse cutive sentenceso n McLees and sentence him to a 320 - year prison sentence. D efense counsel urged the District Court to adopt the recommendation from the Pre - Sentence Investigation report (PSI report): a sixty - year sentence, with ten years suspended. The P SI report detailed McLees’s extensive criminal history, including ten traffic convictions and several felony convictions . The PSI report further noted that the sentence and judgment relating to the3

felonies werevacated following our decision in State v. M cLees , 200 0M T 6, 298 Mont. 15, 994 P.2d 683. At sentencing, defense counsel informedthe District Court that it was sentencing McLees for crimes that were his first felony convictions. Before pronouncing sentence, the District Court stated:

The Court finds before it a 25 - year- old man who has pled guilty

—or been found guilty of seven separate felony offenses involving serious crimes. H e has a significant pre - existing record. A nd for the crimes that have been committed in this particular matter, the Court finds that Mr. McLees is a danger to society and he deserves an extended sentence at the Montana State Prison to punish him for his offenses and to protect society. The District Court imposed concurrent sentences on McLees for a total of sixty yearsat Montana State Prison, with a ten - year enhancement for use of a weapon. ¶5 In a petition for post - conviction relief, McLees challenged the weapons enhancement and asserted an ineffective assistance of counsel claim. M cL ees claimed that his c ounsel provided ineffective assistance when counsel failed to reiterate to the court or mention in his sentence recommendation that the court was sentencing McLees for his first felony. The District Court granted McLees’s petition regarding the weapons enhancement and denied his petition on the ineffective assistance of counsel claim. The District Court determined that McLees’s ineffective assistance claim was record-based, and thus, hisc laim was procedurally barred from a post- conviction proceeding. The District Court further concluded that , eve n if a post- conviction proceeding were appropriate, McLees had failed toe stablish his counsel’s ineffective assistance under the test set forth in Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052 (1984).4

¶6 We review adistrict court’s denial of a petition for post - conviction relief to determine whether its findings of fact are clearly erroneous and its conclusions of law are correct. The party seeking to reverse a denial of post- conviction relief bears a heavy burden . Garrett v. State , 2005 MT 197, ¶ 10, 328 Mont. 165, ¶ 10, 119 P.3d 55, ¶ 10 . Ineffective assistance of counsel claims constitute mixed questions of law and fact that we review de novo. State v. Racz , 2 007 MT 244, ¶ 1 3 , 339 Mont. 218, ¶ 13, 168 P.3d 685 , ¶ 13 . To establish ineffective assistance of counsel, a defendant must satisfy the two -pronged Strickland

test : ( 1) the defendant must prove that counsel’s performance was deficient, and (2) the defendant mu st prove that counsel’sdeficient p erformance prejudiced the defense. Racz , ¶ 22. ¶7 Section 46 - 21 - 105, MCA, provides that a petitioner may not seek post- conviction relief on grounds “that were or could reasonably have been raised on direct appeal.” We will address a claim on direct appeal if we can di scern from the record the reasons that counsel performed or failed to perform as alleged. Racz , ¶ 23 . If we cannot discern counsel’s reasons , then the petitioner must raise the claim in a post- conviction proceeding. Racz , ¶ 23. ¶8 The District Court determined that the record contained all the evidencerelating to the ineffective assistancec laim and that no reference to non - record materials was required ; thus, the District Court ruled that McLees was procedurally barred from raising hisineffective assistance of counsel claim. On appeal, McLees argues that his claim is not record-based simply because his c ounsel “is on record as having said that it w as McLees’ first felony and just because the judge is on record as having referenced5

McLees’ significant pre - existing record .” McLees argues that his claim is appropriate for a post- conviction proceeding because: Wes till do not know why [defense counsel] failed to clarify for the judge, at the time the judge referenced that McLees had a significant pre - existing record, the fact that it w as, again , McLees’ first felony, and some of the other offenses included careless driving and speeding. W e also still do not know why [defense counsel] f ailed to reiteratethis fact when making his sentencing recommendations. (Emphasis added.) ¶9 We agree with McLees that a post- conviction proceeding generally is appropriate when the record fails to reveal counsel’sreasons for a particular action or inaction . A post- conviction proceeding likely would be appropriate in this c ase if McLees’s trial counsel had failed to inform the District Court that it was sentencing McLees for his first f elony. In this case , however, the District Court had every reason to know that it w as sentencing M cL eesf

or his first felony: defense counse l informed the District Court that McLees was being sentenced for his first felony, and the PSI report also indicated that McLees was being sentenced for his first felony. In essence, McLees does not argue that his attorney was ineffective for fail ing to inform the District Court that this was his first felony, but that his attorney was ineffective for fail ing to do it again . McLees argues that the record failsto illuminate the reasons that his attorney neglectedto clarify or reiterate McLees’s felony c onviction status . We disagree . A plain, record-based answer exists to the question of why counsel did not further edify the District Court : McLees’s trial counsel had just notified the District Court that it w as sentencing McLees for his first felony mere minutes beforethe District C ourt imposed sentence . No requirement exists6

that counsel continuously repeat his o r her point to a court ; on the contrary, unless waived, “[a] point once saved is saved for all purposes .” State v. District Court, 76 Mont. 222, 236, 246 P. 250, 255 (1926). ¶10 McLees also repeatedly mentions the District Court’s reference to his “significant pre - existing record” as an event that should have triggered his c ounsel’s immediate admonition to the court that this was his first felony. M cLees does possess a significant pre - existing record, and we reject McLees’s inference that his prior convictions do not amount to a “significant pre - existing record” simply because they are not felony convictions. We further note the District Court ’s clear statement that McLees’s crimes “in this particular matter” warranted an extended sentence, not his prior convictions. ¶11 We conclude that McLees’s ineffective assistance of counsel claim is record -based and that his petition for post- conviction relief w as procedurally barred by § 46 - 21 - 105(2), MCA. Moreover, to the extent that McLees could raise an ineffective assistanceclaim on direct appeal, our review of the record indicates that McLees fail s to meet the first prong of the Strickland

test ; as dis cus sed above, his counsel’s performance was not deficient . ¶12 It is appropriate to decide this case pursuant to our Order of February 11, 2003, amending Section 1.3 of our 1996 Internal Operating Rules and providing for me morandum opinions. It is manifest o n the face of the briefs and the record before us that the appeal is without merit because the findings of fact are supported by substantial evidence, the legal issues are clearly controlled by settled Montana law which the District Court correctly interpreted, and there was clearly no abuse of discretion by the District Court.7

¶13 We affirm. /S/ W. WILLIAM LEAPHART We concur: /S/ PATRICIA COTTER /S/ JOHN WARNER /S/ JIM RICE /S/ BRIAN MORRIS