The appellant Bryce Everett Peterson, by counsel (Peterson), has filed a motion for suspension of the rules of appellate procedure together with supporting affidavit. The State of Montana has filed a memorandum in opposition to the motion.
Peterson seeks to supplement the record with letters written by his medical care providers setting forth their diagnosis of Peterson's mental condition. These letters are not contained in the District Court record. Although he doesn't specify which Rule of Appellate Procedure he wants this Court to suspend, it appears Peterson seeks to suspend the operation of M. R. App. P. 8(1), which directs that the record on appeal shall be comprised of the original papers and exhibits filed in the District Court.
The matter before us on appeal is the District Court's December 2011 order denying Peterson's motion to withdraw his Alford plea. In his opening brief on appeal, Peterson raised a number of ineffective assistance of counsel allegations against the attorney representing him at the time he moved to withdraw his plea, David Stenerson. Included among his allegations is that Stenerson was ineffective for failing to obtain the testimony of his former treatment providers prior to sentencing, in order to refute a report tendered to the court at the time of sentencing which suggested that Peterson was not bipolar, as he claimed (the Warm Springs Report). Peterson argues that the District Court relied upon the Warm Springs Report in concluding that he was not treatable or likely to be rehabilitated.
In response to Peterson's contention in his opening brief that Stenerson was ineffective for failing to obtain the testimony of his former treatment providers, the State argued in its response brief that the ineffective assistance claim pertaining to this issue was non-record-based, and should not be entertained on direct appeal. The State contended that Peterson failed to demonstrate from the present record that any of his previous physicians were even available to provide testimony. The State concluded that "[t]he present silent record regarding the claim cannot rebut the strong presumption that Stenerson's conduct falls within the wide range of reasonable professional assistance."
It is in response to the foregoing contention that Peterson now moves to suspend the Rules of Appellate Procedure so as to allow him to introduce multiple letters and documents from previous health care providers which purport to refute the conclusions of the Warm Springs Report. Peterson maintains that consideration of these documents will expedite this Court's adjudication of the issue of whether his counsel rendered ineffective assistance.
In opposing Peterson's motion, the State cites multiple cases in which this Court has held that the parties on appeal are bound by the record and may not add non-record documents to briefs and appendices. It further argues that because the claim raised by Peterson is not record-based, it should be aired in post-conviction proceedings. Most persuasively, the State points out that Peterson seeks to introduce opinions concerning his mental state that were not before the District Court and not subject to cross-examination. These documents do not aid in demonstrating ineffective assistance; rather, they appear to be offered to call into question the propriety of the District Court's decision to deny Peterson's motion to withdraw his Alford plea.
We agree with the State's arguments. Because the records present matters of substantive content that are outside of the record, they are more appropriately addressed in a petition for post-conviction relief In re Petition of Hans, 1998 MT 7, ¶ 43, 288 Mont. 168, 958 P.2d 1175.
For the foregoing reasons,
IT IS HEREBY ORDERED that Peterson's motion to supplement the record is DENIED.
The Clerk is directed to provide a copy of this Order to all ...