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Larry Bomar v. State of Montana

July 31, 2012

LARRY BOMAR, PETITIONER AND APPELLANT,
v.
STATE OF MONTANA, RESPONDENT AND APPELLEE.



APPEAL FROM: District Court of the Ninth Judicial District, In and For the County of Glacier, Cause No. DV 10-63 Honorable Laurie McKinnon, Presiding Judge

The opinion of the court was delivered by: Jim Rice

Submitted on Briefs: May 30, 2012

Decided: July 31, 2012

Filed:

Clerk

Justice Jim Rice delivered the Opinion of the Court.

¶1 Larry Bomar (Bomar) appeals from the order of the Ninth Judicial District Court, Glacier County, dismissing his petition for post-conviction relief, which alleged ineffective assistance of his trial counsel. We affirm and address the following issue:

¶2 Did the District Court err by dismissing Bomar's post-conviction petition?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In 2005, Bomar was charged with attempted sexual intercourse without consent and sexual assault, both felonies, upon K.J. The crimes were alleged to have occurred in 2000, when K.J. was six years old. K.J. was twelve years old at the time the trial was conducted in November, 2005. Bomar was represented by Daniel Donovan and Jeremy Yellin. The jury convicted Bomar of sexual assault and acquitted him of attempted sexual intercourse without consent. He was sentenced to twenty-seven years at the Montana State Prison with twelve years suspended.

¶4 Bomar appealed the conviction, and this Court affirmed. State v. Bomar, 2008 MT 91, 342 Mont. 281, 182 P.3d 47. We rejected Bomar's argument that there was insufficient evidence to support his conviction and declined to reach his arguments concerning the testimony of the State's expert witness, Rochelle Beley (Beley), on grounds that his arguments were waived for failing to timely raise them in the District Court. Bomar, ¶¶ 27, 33-41. Bomar thereafter filed a pro se petition for post-conviction relief and was appointed counsel by the District Court to represent him in the proceeding.

Bomar's counsel filed a supplemental brief in support of the petition, arguing that Bomar's trial counsel had rendered ineffective assistance by, inter alia, failing to present exculpatory medical evidence and failing to present adequate expert testimony to challenge the qualifications and testimony of Beley. The District Court conducted an evidentiary hearing and thereafter dismissed the petition. Bomar appeals. Additional facts will be discussed herein.

STANDARD OF REVIEW

¶5 In post-conviction relief proceedings, we review a district court's findings of fact to determine if they are clearly erroneous. We review its conclusions of law to determine if they are correct. Rogers v. State, 2011 MT 105, ¶ 12, 360 Mont. 334, 253 P.3d 889. "Ineffective assistance of counsel claims present mixed questions of law and fact that the Court reviews de novo." Rogers, ¶ 12. A petitioner seeking to reverse a district court's order denying post-conviction relief ...


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