APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC 11-362B Honorable Mike Salvagni, Presiding Judge
The opinion of the court was delivered by: Jim Rice
Submitted on Briefs: May 23, 2012
Justice Jim Rice delivered the Opinion of the Court.
¶1 Danny Sartain (Sartain) appeals from an order of the Eighteenth Judicial District Court, Gallatin County, denying his motion for post-conviction relief. We affirm and address the following issues:
¶2 1. Did the District Court err in dismissing Sartain's ineffective assistance of counsel claims against his trial counsel?
¶3 2. Did the District Court err in dismissing Sartain's ineffective assistance of counsel claims against his appellate counsel?
¶4 3. Did the District Court abuse its discretion by failing to hold an evidentiary hearing on Sartain's petition?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 On March 25, 2008, Sartain was arrested and charged with burglary after he was found intruding in the house of Timothy Hop, of Bozeman. Hop grabbed a pistol, fired a warning shot, chased Sartain out of his house, and called 911. Other area residents observed Sartain cutting through yards, jumping a fence, and running down a street, where police apprehended him. See State v. Sartain, 2010 MT 213, ¶ 4, 357 Mont. 483, 241 P.3d 1032.
¶6 In January of 2009, Sartain's appointed counsel filed a motion to dismiss the burglary charge for lack of a speedy trial. After a hearing, the District Court denied the motion. Sartain was convicted of burglary following a two-day jury trial and sentenced as a persistent felony offender to 40 years in prison.
¶7 Sartain was assigned new counsel and filed an appeal. He challenged the District Court's denial of his speedy trial motion and alleged ineffective assistance by his trial counsel. This Court denied Sartain's speedy trial claim on its merits and dismissed his ineffective assistance claims "without prejudice to raising them in a post-conviction proceeding" because the trial record was silent about why defense counsel had acted or failed to act as claimed by Sartain. Sartain, ¶¶ 26, 31.
¶8 Sartain thereafter filed a petition for post-conviction relief alleging that both his trial and appellate counsel were ineffective. Without conducting a hearing, the District Court issued an order dismissing Sartain's petition. Sartain appeals.
¶9 In post-conviction relief proceedings, we review a district court's findings of fact to determine if they are clearly erroneous and 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 order denying post-conviction relief based on ineffective assistance of counsel has a heavy burden. State v. Morgan, 2003 MT 193, ¶ 9, 316 Mont. 509, 74 P.3d 1047.
¶10 Sartain alleges that both his trial counsel, Casey R. Moore (Moore), and appellate counsel, Nancy G. Schwartz (Schwartz), provided ineffective assistance of counsel. Sartain's primary claims against Moore are that he failed to introduce letters and a motion to dismiss penned by Sartain regarding speedy trial, failed to make an opening statement at trial, failed to challenge a "show-up" identification, failed to challenge the warrantless arrest, failed to move to suppress statements Sartain gave to police, failed to make certain objections during trial, did not allow Sartain to testify, failed to raise a potential Brady violation, and failed to challenge Sartain's sentence as illegal. Sartain alleges Schwartz was ineffective because she failed to raise the alleged Brady violation and the admissibility of evidence regarding a shoe print, a pry bar, and K-9 tracking.
¶11 When evaluating a claim of ineffective assistance of trial counsel, we use the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861. Under the first prong of the Strickland test, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Whitlow, ¶ 14 (quoting Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064). Under the second prong of Strickland, the defendant must show that counsel's performance prejudiced the defense. Whitlow, ¶ 10 (citing State v. Racz, 2007 MT 244, ¶ 22, 339 Mont. 218, 168 P.3d 685). "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In short, the defendant must prove (1) that counsel's performance was deficient and (2) that counsel's deficient performance prejudiced the defense. Whitlow, ¶ 10 (citation omitted). Because a defendant must prove both prongs, an insufficient showing under one prong eliminates the need to address the other.
Whitlow, ¶ 11 (citing Adams v. State, 2007 MT 35, ¶ 22, 336 Mont. 63, 153 P.3d 601). In order to eliminate "the distorting effects of hindsight," judicial scrutiny of counsel's performance is highly deferential. Whitlow, ¶ 15; Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. As the U.S. Supreme Court has noted, "[t]here are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
¶12 1. Did the District Court err in dismissing Sartain's ineffective assistance of counsel claims against his trial counsel?
¶13 Following Sartain's arrest and release on bond, he was taken into custody by a parole officer and returned to Montana State Prison on a parole violation, delaying his appearance in the District Court on these charges until July 7, 2008. Sartain, ¶ 6. During the omnibus hearing in August 2008, defense counsel Moore asked for a three-day trial setting. Moore was unavailable in September because of National Guard commitments, and thus the next available three-day setting was in March 2009. Although the prosecutor indicated a preference for an earlier date, she conceded to the later date in light of the defense request for a three-day setting. Sartain, ¶ 7. Moore testified by affidavit in the post-conviction proceeding concerning his reasoning for the request:
I did not waive Defendant's speedy trial rights . . . . [T]he case was set for trial at the earliest possible time I felt was appropriate to be fully prepared and ready to challenge the State.
I was still working with my investigator at the time of the omnibus hearing. Not all interviews were completed at the time of the omnibus hearing . . . . My investigator and I were still working on pinning down an exact to the minute timeline. Additionally, I knew I would need some extra time to ...