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State of Montana v. Richard Kenneth Peart

December 4, 2012

STATE OF MONTANA, PLAINTIFF AND APPELLEE,
v.
RICHARD KENNETH PEART, DEFENDANT AND APPELLANT.



APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADC 09-501 Honorable Thomas M. McKittrick, Presiding Judge

The opinion of the court was delivered by: Justice Brian Morris

Submitted on Briefs: August 1, 2012

Decided: December 4, 2012

Filed:

Clerk

Justice Brian Morris delivered the Opinion of the Court.

¶1 Richard Peart (Peart) appeals his conviction of one count of incest in the Eighth Judicial District Court, Cascade County. The District Court sentenced Peart to 100 years in the Montana State Prison with a possibility of parole after fifty years. The District Court designated Peart a Level 3 sexual offender. We affirm.

¶2 Peart raises the following issues:

¶3 Did Peart's trial counsel fail to subject the State's case to meaningful adversarial testing at sentencing and thereby render ineffective assistance of counsel?

¶4 Did Peart's trial counsel render ineffective assistance of counsel by making no alternative sentencing recommendation?

BACKGROUND

¶5 Peart was arrested on December 15, 2009, and charged with five counts of incest and one count of obscenity. The State later amended these charges to one count of incest. Law enforcement officers arrested Peart after they were contacted by the Department of Family Services and informed that Peart's 10-year-old daughter, A.P., was alleging that Peart had sexually abused her. Peart was later determined to be A.P.'s stepfather.

¶6 Peart made incriminating statements against his interest when questioned by law enforcement. Peart admitted to having photographed acts of abuse and admitted that he had touched A.P. inappropriately. Law enforcement officials obtained a search warrant for Peart's residence. Law enforcement officers seized Peart's computer and camera and recovered images from these items. The recovered images graphically revealed Peart's sexual abuse of A.P.

ΒΆ7 Peart's counsel engaged in multiple pre-trial actions on Peart's behalf. Peart's counsel filed five separate motions before the District Court. These filings included motions to produce records and a motion to depose a witness. Peart's trial counsel filed these motions to access information that Peart's counsel believed would support Peart's theory in the case-that the person in the photos was not Peart. Peart's counsel argued in support of ...


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