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Rose v. State

Supreme Court of Montana

June 18, 2013

ROBERT L. ROSE, Petitioner and Appellant,
v.
STATE OF MONTANA, Respondent and Appellee.

Submitted on Briefs: March 6, 2013

District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DV 10-538 Honorable Jeffrey H. Langton, Presiding Judge

For Appellant: Robert L. Rose, self-represented; Deer Lodge, Montana

For Appellee: Timothy C. Fox, Montana Attorney General; Tammy K. Plubell, Assistant Attorney General; Helena, Montana

OPINION

Michael E Wheat, Justice

¶1 This is Robert Rose's (Rose) third appeal before this Court. We previously affirmed Rose's conviction of aggravated kidnapping, assault with a weapon, and assault on a peace officer. State v. Rose, 2009 MT 4, 348 Mont. 291, 202 P.3d 749 (Rose I). We have also affirmed a grant of summary judgment for the State following Rose's petition for a declaration that the actions of the Montana Department of Corrections violated state open meeting and public participation laws. Rose v. State, 2012 MT 55N, 364 Mont. 552. Rose now appeals the denial of his Petition for Postconviction Relief by the Twenty-First Judicial District Court, Ravalli County. We affirm.

ISSUES

¶2 We restate the issues on appeal as follows:

¶3 1. Did the District Court err by denying Rose's postconviction relief claim alleging that his trial counsel provided ineffective representation during plea negotiations?

¶4 2. Did the District Court err by denying Rose's postconviction relief claim alleging that he was denied access to counsel during a critical stage of trial?

¶5 3. Did the District Court err by denying Rose's postconviction relief claim alleging that his appellate counsel provided ineffective representation by failing to raise certain issues on appeal?

FACTUAL AND PROCEDURAL BACKGROUND

¶6 Rose was charged with aggravated kidnapping, assault with a weapon, and assault on a peace officer on January 23, 2002. A jury found Rose guilty of all three charges on June 6, 2003 after a four-day trial. Rose's direct appeal of his convictions alleged a violation of his right to a speedy trial, claimed ineffective assistance of trial counsel, and challenged the District Court's denials of his request for a hearing to address complaints about his counsel and his motion for a new trial. We rejected these claims in Rose I and upheld Rose's convictions. Rose then filed a petition for rehearing, which we denied on March 11, 2009. Rose next petitioned the United States Supreme Court for a writ of certiorari, which was denied on October 5, 2009. Rose v. Montana, 558 U.S. 911, 130 S.Ct. 289 (2009). Rose thereafter filed a petition for postconviction relief (the petition) in Ravalli County District Court on September 30, 2010. The State filed a response, as ordered by the District Court, on February 18, 2011.

ΒΆ7 Rose's petition and accompanying memorandum alleged a multitude of ineffective assistance of counsel claims regarding Rose's appointed trial and appellate counsel. The District Court dismissed all of Rose's contentions in a 91-page order on January 18, 2012, and this appeal followed. However, Rose has not maintained every claim in his petition on appeal. Instead, Rose's appeal advances only three alleged instances of ineffective assistance of counsel. These issues concern the conduct of Rose's last appointed trial counsel, Kelli Sather (Sather), during plea negotiations, an allegedly unconstitutional restriction of Rose's access to counsel during an overnight recess, and whether Rose's appointed appellate counsel provided ineffective assistance by declining to raise certain issues on appeal. Rose's procedural "odyssey" both below and before this Court is long and ...


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