Submitted on Briefs: December 14, 2016
FROM: District Court of the Eighth Judicial District, In and
For the County of Cascade, Cause No. BDV 07-658 Honorable
George Huss, Presiding Judge
Appellant: Chad M. Wright, Chief Appellate Defender, Helena,
Montana Colin M. Stephens, Smith & Stephens, P.C.,
Appellee: Timothy C. Fox, Montana Attorney General, Tammy K
Plubell, Assistant Attorney General, Helena, Montana John W.
Parker, Cascade County Attorney, Great Falls, Montana
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
Rodney Dubois appeals the Eighth Judicial District
Court's order denying his petition for postconviction
relief on the ground that he received ineffective assistance
from his trial and appellate counsel. We affirm.
The State charged Dubois in 2003 with deliberate homicide for
allegedly killing Dion Guckeen with a baseball bat. Dubois
admitted to hitting Guckeen with the bat but argued that he
acted in self-defense. The District Court appointed Vincent
van der Hagen to represent Dubois at trial. Dubois moved for
reassignment of counsel due to his dissatisfaction with van
der Hagen. The District Court considered Dubois' request
but ultimately denied it.
Leading up to trial, van der Hagen moved the court to declare
§ 45-2-203, MCA, unconstitutional insofar as it
prohibits a jury from considering voluntary intoxication as a
defense to a crime. The court denied this motion. Van der
Hagen also filed a motion for discovery of the criminal
records of the State's witnesses, but the court denied
this motion as well. On February 6, 2004, a Cascade County
jury convicted Dubois of deliberate homicide.
In April 2004, one of the State's witnesses, Tony
Sambenedetto, wrote a letter recanting his eyewitness
testimony against Dubois. Sambenedetto claimed in the letter
that he had been under the influence of drugs and did not
know what happened on the day Guckeen was fatally injured. At
the time Sambenedetto wrote the letter, he and Dubois were
housed in the same detention facility, and there was evidence
to suggest that Sambenedetto wrote the letter under duress.
When van der Hagen declined to move for a new trial, Dubois
filed a motion pro se. The District Court denied his motion
as untimely. The court then sentenced Dubois to life without
Through appointed appellate counsel, Jeffrey Olson, Dubois
appealed his conviction to this Court. Olson raised five
issues on appeal. He reviewed the appellate brief with
Dubois, and Dubois expressed satisfaction with the brief.
This Court affirmed Dubois' conviction in State v.
Dubois, 2006 MT 89, 332 Mont. 44, 134 P.3d 82.
Dubois then filed a petition for postconviction relief based
on alleged ineffective assistance of his trial and appellate
counsel. Dubois argued that van der Hagen was ineffective for
failing to seek a new trial based on Sambenedetto's
letter. He contended that Olson was ineffective for failing
to raise three issues on appeal: (1) the trial court's
denial of Dubois' motion for reassignment of counsel; (2)
the trial court's denial of van der Hagen's motion
challenging the constitutionality of § 45-2-203, MCA;
and (3) the trial court's denial of van der Hagen's
discovery request for the criminal records of the State's
witnesses. Olson indicated in an affidavit that he considered
numerous issues to argue on appeal, but felt it would be poor
strategy to argue every potential issue. He chose not to
argue these three issues in particular because he believed
them to be less compelling than the other issues he
ultimately decided to raise.
The District Court denied Dubois' petition for
postconviction relief. The court reasoned that Dubois failed
to establish that either his trial or appellate counsel's
performance fell below an objective standard of
reasonableness or that the result of either his conviction or
appeal would have been different but for the alleged errors
We review a district court's denial of a petition for
postconviction relief to determine whether the court's
findings of fact are clearly erroneous and whether its
conclusions of law are correct. Heavygun v. State,
2016 MT 66, ¶ 8, 383 Mont. 28, 368 P.3d 707. Ineffective
assistance of counsel claims ...