DA 10-0465

IN THE SUPREME COURT OF THE STATE OF MONTANA

2011 MT 65N

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

SHEILA M. YOUNG,

 Defendant and Appellant.

APPEAL FROM: District Court of the Fifth Judicial District,

In and For the County of Jefferson, Cause No. DC 09-33

Honorable Loren Tucker, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Joslyn Hunt, Chief Appellate Defender; Matthew M. Wilcox, Assistant 

Appellate Defender, Helena, Montana

For Appellee:

Steve Bullock, Montana Attorney General; Mardell Ployhar, Assistant 

Attorney General, Helena, Montana

Steven Shapiro, Boulder City Attorney, Montana City, Montana

Submitted on Briefs: March 8, 2011

 Decided: April 5, 2011

Filed:

__________________________________________

Clerk

Justice Brian Morris delivered the Opinion of the Court.

April 5 2011
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¶1 Pursuant to Section I, Paragraph 3(d), 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 Appellant Sheila M. Young (Young) appeals following her conviction for driving 

under the influence of alcohol and resisting arrest. Young went to a restaurant and bar in 

Boulder, Montana, on June 18, 2009. She ordered take-out Chinese food and drank a double 

gin and tonic. Young argued with her son at the restaurant. She left the restaurant with her 

son and drove to his house. Young dropped off her son at his house where he proceeded to 

kick the door of Young’s car. Young left and drove toward her own house. 

¶3 Young’s son called the police and reported that Young was driving and had been 

drinking. Boulder police dispatch notified Officer Alicia Burns that Young’s son reported 

that Young potentially was under the influence of alcohol and driving a silver Cadillac. 

Officer Burns was familiar with Young and drove to Young’s house.

¶4 Officer Burns initially drove past Young’s house. Young arrived at her house as 

Officer Burns drove past. Officer Burns watched Young pull into her driveway, grab her 

bag, and carry the bag into her house. Officer Burns testified that Young had difficulty 

getting through her gate and was staggering slightly as she went into her house. Officer 

Burns followed Young to her porch. Officer Burns asked Young through the open door of 

Young’s house whether Young would come outside to talk to her. Young stepped outside to 
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talk to Officer Burns. Young apparently assumed that Officer Burns was there to talk about 

the incident with her son. 

¶5 Officer Burns testified that Young’s eyes appeared glassy and bloodshot during this 

encounter, that she was having difficulty balancing, and that a strong odor of alcohol 

emanated from her. Based on these observations, Officer Burns informed Young that she 

was placing her under arrest for suspicion of driving under the influence of alcohol. Young 

tried to walk away from Officer Burns. Officer Burns tried to restrain Young. Young 

swatted away Officer Burns’s hands. Young finally complied after Officer Burns threatened 

to use a tazer on Young.

¶6 Officer Burns transferred Young to the detention center where Officer Burns read 

Young the portion of the implied consent advisory stating that “You must decide to take or 

refuse this test without talking to an attorney. Your right to an attorney under Miranda does 

not apply.” Officer Burns then asked Young to perform a series of field sobriety tests. 

Young started several of the tests, but refused to complete them. Young provided a breath 

sample and the result indicated a blood alcohol content of 0.206. 

¶7 Officer Burns read Young her Miranda rights after she completed the field sobriety 

tests. Young agreed to speak to Officer Burns and signed a waiver of rights. Young told 

Officer Burns that she drank a double gin and tonic at the restaurant while she waited for her 

food. Young testified at trial that in addition to the double gin and tonic, she had several 

glasses of wine after she had arrived back at her house. Young testified that she had been 
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home for about five minutes when Officer Burns arrived on her property. The jury convicted 

Young of driving under the influence of alcohol and resisting arrest. Young appeals.

¶8 Young argues for the first time on appeal that Officer Burns lacked probable cause 

necessary to place her under arrest and that she was entitled to Miranda warnings during the 

investigation at the detention center. Young next contends that her counsel provided 

ineffective assistance that resulted in prejudice to her. Young finally argues that the District 

Court improperly failed to address her motion for a new trial. 

¶9 We use our power of plain error review on a case-by-case basis, or in those cases that 

implicate a defendant’s fundamental constitutional rights, where failing to review the 

claimed error may result in a manifest miscarriage of justice, may leave unsettled the 

question of the fundamental fairness, or may compromise the integrity of the judicial 

process. State v. Finley, 276 Mont. 126, 137-38, 915 P.2d 208, 215 (1996). We review for 

an abuse of discretion a district court’s decision on a motion for new trial. State v. James, 

2010 MT 175, ¶ 29, 357 Mont. 193, 237 P.3d 672. Ineffective assistance of counsel claims 

present mixed questions of law and fact that this Court reviews de novo. Whitlow v. State, 

2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d 861. 

¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(d), of our 

1996 Internal Operating Rules, as amended in 2006, that provide for memorandum opinions. 

We decline to engage in plain error review of Young’s claims regarding the legality of her 

arrest and whether she received timely Miranda warnings. Young failed to raise these issues 

in front of the District Court and thereby waived them. We similarly determine that the 
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District Court did not abuse its discretion in declining to review Young’s motion for a new 

trial as she failed to file a brief in support of her motion. We finally decline to resolve 

Young’s claim of ineffective assistance of counsel as it presents issues not clearly developed 

in the record. We apply the general rule that where the allegations of ineffective assistance 

of counsel cannot be documented from the record in the underlying case, those claims must 

be raised by petition for postconviction relief. Hagen v. State, 1999 MT 8, ¶ 12, 293 Mont. 

60, 973 P.2d 233. The record contains no answer as to “why” counsel took, or failed to take, 

action in not raising the challenge to Young’s arrest and the Miranda issue. State v. White, 

2001 MT 149, ¶ 20, 306 Mont. 58, 30 P.3d 340. We deem Young’s ineffective assistance of 

counsel claim best suited for postconviction proceedings. State v. Notti, 2003 MT 296, ¶ 8, 

318 Mont. 146, 79 P.3d 289. 

¶11 Affirmed. 

/S/ BRIAN MORRIS

We Concur:

/S/ MIKE McGRATH

/S/ JAMES C. NELSON

/S/ MICHAEL E WHEAT

/S/ PATRICIA COTTER