No. 87-526 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsERNIE LEE HOCH, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fifteenth Judicial District, 

In and for the County of Roosevelt, 

The Honorable Leonard Langen, Judge presidins. 

COUNSEL OF RECORD: 

For Appellant: 

Ernie Lee Hoch, pro se, Spokane, Washington 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

George Schunk, Asst. Atty. General, Helena 

James A. McCann, County Attorney, P7olf Point, Montana 

ICT 

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C' 

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Submitted: September 29, 1988 

Decided: November 1, 1988 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The defendant, Mr. Hoch, was found guilty of sexual 

assault by a jury in the District Court of the Fifteenth 

Judicial District, Roosevelt County. He was sentenced to 

five years in prison with three years suspended. Mr. Hoch 

appeals his conviction and sentence. We affirm. The issues 

are : 

1. Did the District Court err in denying the defendant's request for disqualification of the judge? 

2. Was the defendant denied the effective assistance of 

counsel? 

In May 1986, Mr. Hoch's 13-year-old sister-in-law came 

to live with the Hochs and their two children because her own 

home life was unstable. The sister-in-law testified that she 

had been sexually abused on one occasion by her natural 

father and was undergoing counseling for that abuse while 

living with the Hochs. She testified that during a counseling session, she admitted to the psychologist that she had 

also been fondled once by her brother-in-law, Mr. Hoch. 

According to her testimony, the incident involved a touching 

of one of her breasts while Mr. Hoch was rubbing suntan 

1-otion on her back to relieve a sunburn. The sister-in-law 

testified that she consented to having Mr. Hoch apply the 

lotion, but was "shocked" and "scared" when his hand moved to 

her breast. The psychologist testified that the sister-inlaw exhibited many of the symptoms of child abuse ~~ictims, 

including severe depression, embarrassment, and an attempted 

suicide, indicating that she was unable to cope with the 

effects of abuse. 

Upon learning of the incident involving Mr. Hoch, the 

psychologist reported to social services, who contacted the 

Roosevelt County Attorney's office. The police report of the 
county sheriff's office became the basis of an information 

charging Mr. Hoch with sexual assault. 

Did the District Court err in denying the defendant's 

request for disqualification of the judge? 

Prior to the arraignment hearing, the defendant appeared 

in his own behalf and filed with the District Court an "Asseveration and Exception of Accusation." The asseveration 

stated in relevant part: 

That Judge M. James Sorte, is a defendant in a 

deprivation of rights suit commenced by the herein 

accused in February of 1987 . . . That by the above 

Asseveration of Fact, Judge M. James Sorte's prejudice and bias is obvious and therefore Judge M. 

James Sorte is hereby recused whether he leaves the 

bench or not and all orders, permissions, and/or 

warrants made, granted, or issued by him, past, 

present, or in the future are null and void. 

During the arraignment proceeding, Mr. Hoch appeared pro 

se and objected to Judge Sorte presiding over the matter 

because of his bias and prejudice. Following this hearing 

Judqe Sorte addressed Mr. Hoch's concerns as follob~s: 

Although it was not altogether clear to the Court, 

it seemed that Ernie Hoch was asking that this 

Judge be disqualified and although the Defendant is 

not timely in his request to disqualify the Judge, 

the Judge will deem the disqualification as appro-- 

priate and will be deemed disqualfied [sic] by 

Ernie Hoch. 

To keep this matter from being delayed, Judge Sorte 

will request the Honorable Leonard H. Langen to 

assume jurisdiction to hear this cause on the 22nd 

day of June, 1987, during the jury trial 

proceedings. 

After Judge Sorte disqualified himself, Mr. Hoch attempted to make a peremptory challenge of Judge Langen, but 
was refused on the grounds that he had previously exercised 

his one peremptory disqualification on Judge Sorte. Mr. Hoch 

then retained counsel and attempted to disqualify Judge 

Langen for cause, which was denied as untimely. 

Mr. Hoch contends that his disqualification of Judqe 

Sorte was for cause and that Judge Langen wrongly treated it 

as a peremptory challenge so as to preclude the exercise of a 

second peremptory challenge against Judge Langen. Section 

3-1-802, MCA (1985), required that in a disqualification for 

cause, a timely and sufficient affidavit must be filed, 

alleging facts which establish personal bias or prejudice on 

the part of the judge. The statute also required that the 

affidavit be accompanied by a certificate of counsel of 

record stating that it has been made in good faith. Mr. Hoch 

contends that the asseveration qualifies as an affidavit, in 

which he states that Judge Sorte "is a defendant in a deprivation of rights suit commenced by the herein accused in 

February of 1987," and that "by the above Asseveration of 

Fact, Judge Sorte's prejudice and bias is obvious . . . " 

Judge Langen found that Mr. Hoch had not complied with 

the statutory criteria in that no timely or sufficient affidavit was filed showing Judge Sorte to be biased or prejudiced against Mr. Hoch, and concluded Mr. Hoch was attempting 

to disqualify Judge Sorte for cause merely by filing a suit 

pro se against him. The District Court further concluded 

that we cannot condone efforts on the part of litigants to 

render the court impotent by filing suit against each substitute judge and then disqualifying him for cause. We agree 

with the District Court that Mr. Hoch failed to show any bias 

or prejudice on behalf of Judge Sorte which would disqualify 

him for cause. Furthermore, no certificate of good faith was 

filed as required by statute. While we recognize Mr. Hoch's 

pro se status, this Court has pre~riously noted the importance 
of the accompanying certificate when characterizing the 

nature of the disqualification in a pro se matter. See State 

v. Poncelet (1980), 187 Mont. 528, 540, 610 P.2d 698, 705. 

We conclude that Mr. Hoch's disqualification of Judge Sorte 

was not for cause. 

It is true that Mr. Hoch did not file a formal peremptory challenge against Judge Sorte in the words and form required by § 3-1-802, MCA (1985). However, Judge Langen 

determined that the defendant's challenge to Judge Sorte had 

the same effect as a peremptory challenge and that Judge 

Sorte treated it as such. He then concluded that, "Since the 

Defendant exercis d his o ly peremptory disqualification in 

Psic n rocus f 

order to recluse Judge Sorte, he had exhausted the peremptory 

challenges allowed by Sec. 3-1-802, and his attempt to disqualify the undersigned Judge by peremptory challenge is 

void." Section 3-1-802, MCA, allowed a defendant only one 

substitution of a judge in a criminal case. Judge Langen was 

correct in determining that Mr. Hoch's peremptory challenge 

against him was of no effect. 

I1 

Was the defendant denied the effective assistance of 

counsel? 

The principles governing a claim of ineffective assistance of counsel were set forth by the United States Supreme 

Court in Strickland v. Washington (1984), 466 U.S. 668, 104 

S.Ct. 2052, 80 L.Ed.2d 674. This Court adopted the two-part 

test from Strickland to resolve these claims in State v. 

Boyer (Mont. 1985), 695 P.2d 829, 42 St.Rep. 247: 

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 as the "counsel" guaranteed the 

defendant by the Sixth Amendment. Second, the 

defendant must show the deficient performance 
prejudiced the defense. This requires showing that 

counsel's errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is 

reliable. 

Boyer, 695 P.2d at 831. 

Mr. Hoch first contends that the failure of his attorney 

to correct the attempt at disqualification constitutes ineffective assistance of counsel. We do not agree. We find 

that Mr. Hoch's dissatisfaction with the attempts to disqualify Judge Langen is attributable to his own procedural errors 

rather than any subsequent attempts of the attorney. By the 

time Mr. Hoch retained counsel, the judge had made his determination. Therefore, no deficient performance on the part of 

the attorney has been shown. 

Mr. Hoch also contends that his attorney's comments to 

the jury on breast touching during voir dire and closing 

argument constitute ineffective assistance of counsel. 

Specifically, he objects to the statement made during voir 

dire: "The mere fact that Mr. Hoch has touched her breasts 

should not be enough to convict him . . ." and the statement 

made in closing argument: "In my lifetime, I have touched 

the breasts of women other than my wife more then [sic] a 

thousand times, in the course of walking down hallways, 

riding down or up elevators, and doing things like that." 

Given the nature of the charge and the facts of this 

case, it was neither deficient nor prejudicial for defense 

counsel to comment in this manner. Counsel was merely emphasizing the prosecutor's duty to prove sexual intent on the 

part of the defendant. In this case, the prosecutor must 

prove intent to make sexual contact for the purpose of arousing or gratifying the sexual desire of either party, as 

opposed to an accidental touching. We conclude that the 
record does not support the defendant's claim of ineffective 

assistance of counsel. 

Affirmed. 

We Concur: 

- / Justices