November 19, 2013
STATE OF MONTANA, Plaintiff and Appellee,
JEREMY STEVEN MACGREGOR, Defendant and Appellant.
Appellant Jeremy Steven MacGregor (MacGregor) filed a Petition for Rehearing with this Court on November 8, 2013. MacGregor disagrees with this Court's October 15, 2013, Opinion affirming his conviction at trial on two counts of attempted deliberate homicide.
This Court will consider a petition for rehearing if it has "overlooked some fact material to the decision, " if the decision missed a question provided by counsel that would have decided that case, or if the decision "conflicts with a statute or controlling decision not addressed" by this Court. M. R. App. P. 20. This Court has determined that "a petition for rehearing is not a forum in which to rehash arguments made in the briefs and considered by the Court." State ex rel Bullock v. Phillip Morris, Inc., 2009 MT 261, 352 Mont. 30, 217 P.3d 475, 486.
The status of MacGregor's counsel is immaterial to our Opinion because the District Court made an adequate inquiry into MacGregor's ineffective assistance claims and found that they lacked merit. The District Court record also supports our conclusion that MacGregor is not entitled to plain error review of the jury instruction. Therefore, the error in the mitigated deliberate homicide instruction resulted in no unfairness to his position at trial.
We have, however, determined to make minor changes to this Court's Opinion.
IT IS ORDERED that the Opinion in this matter is AMENDED as follows:
(1) By striking the following language from ¶ 24: "But these complaints concerned his attorney's activity after he had been designated 'standby counsel.' Standby counsel does not constitute counsel for Sixth Amendment purposes. Halley v. State, 2008 MT 193, ¶ 22, 344 Mont. 37, 186 P.3d 859 (quoting United States v. Taylor, 933 F.2d 307, 313 (5th Cir. 1991). Because standby counsel does not fulfill the Sixth Amendment right to effective counsel, MacGregor cannot claim that standby counsel's action or inaction violated his right to effective assistance."
(2) By adding the following language to the end of ¶ 24: "At the time the trial court ordered the competency evaluation, MacGregor already had requested to represent himself. The court deferred decision on MacGregor's request until the evaluation was completed. MacGregor later complained that 'representation was forced upon him during the state's mental evaluation, ' while simultaneously criticizing Scott for failing to contact MacGregor while he was hospitalized. Given the District Court's familiarity with MacGregor's requests and its decision to postpone ruling on MacGregor's motion to represent himself, it did not err in failing to conduct additional inquiry into his complaint."
(3) By adding the following language to the end of ¶ 50: "Nor did any of MacGregor's witnesses corroborate his involuntary intoxication defense."
IT IS HEREBY ORDERED that the Petition for Rehearing is DENIED.
IT IS FURTHER ORDERED that the Clerk of this Court give notice of this Order by mail to Jeremy Steven MacGregor and to all counsel of record. DATED thisday of November, 2013.