Submitted on Briefs: February 1, 2017
FROM: District Court of the Fourth Judicial District, In and
For the County of Missoula, Cause No. DV-13-249 Honorable
Karen S. Townsend, Presiding Judge
Appellant Colin M. Stephens, Smith & Stephens, P.C.,
Appellee Timothy C. Fox, Montana Attorney General, Mardell
Ployhar, Assistant Attorney General, Helena, Montana, Kirsten
Pabst, Missoula County Attorney, Susan E. Boylan, Deputy
County Attorney, Missoula, 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
Charles Ivan Branham (Branham) appeals from the District
Court's order denying his petition for post-conviction
relief. We affirm.
On October 22, 2010, Branham was convicted of mitigated
deliberate homicide after he stabbed an acquaintance to
death. He was sentenced to forty years in the Montana State
Prison without the possibility of parole. Branham appealed,
and this Court upheld his conviction in State v.
Branham, 2012 MT 1, 363 Mont. 281, 269 P.3d 891.
On February 28, 2013, Branham retained private counsel and
filed a petition for post-conviction relief in District
Court. Branham claimed his trial attorneys provided
ineffective assistance of counsel. Specifically, he claims
they: opened the door to and failed to object to Detective
Guy Baker's blood spatter testimony, failed to move for a
curative instruction regarding the prosecutor's remarks
on his credibility during closing arguments, failed to
challenge the State's forensic pathologist's
conclusions or offer testimony to rebut the same, failed to
investigate the case and present testimony from the defense
investigator, failed to understand Branham's version of
the events, and misstated the location of the knife used
during the events resulting in Branham's conviction.
In order to respond to Branham's petition, the State
filed a motion requesting a "Gillham
order" to allow Branham's former attorneys to
address the ineffective assistance of counsel claims. The
District Court granted the motion. One attorney filed two
affidavits. Branham's new attorney filed a motion
requesting the District Court issue a "Gillham
order" with limited scope for the other trial attorney.
The District Court granted the order but not the limited
scope. The other attorney also filed an affidavit. The State
argued that Branham failed to demonstrate that his attorneys
were ineffective or that either's performance affected
the outcome of his trial.
The District Court reviewed and denied Branham's six
claims without conducting an evidentiary hearing. Branham
filed a timely notice of appeal on June 3, 2015.
We review discretionary rulings in post-conviction relief
proceedings, including rulings related to whether to hold an
evidentiary hearing, for an abuse of discretion. Heath v.
State, 2009 MT 7, ¶ 13, 348 Mont. 361, 202 P.3d
118. However, to the extent an evidentiary ruling is based on
a conclusion of law our review is plenary. State v.
Bomar, 2008 MT 91, ¶ 14, 342 Mont. 281, 182
P.3d 47. Ineffective assistance of counsel claims constitute
mixed questions of law and fact for which our review is de
novo. Whitlow v. State, 2008 MT 140, ¶ 9, 343
Mont. 90, 183 P.3d 861.
A district court considering a petition for post-conviction
relief may hold an evidentiary hearing, § 46-21-201,
MCA, and must enter findings of fact and conclusions of law,
§ 46-21-202, MCA. In a forty-two-page order the District
Court fully analyzed the six ineffective assistance of
counsel claims Branham posited. The District Court clearly
understood the nature of Branham's claims. The District
Court determined it did not need additional argument or
testimony in order to rule on Branham's post-conviction
relief petition. The District Court did not abuse its
discretion when it denied Branham's post-conviction
relief petition without an evidentiary hearing.
This Court evaluates claims of ineffective assistance of
counsel under the test established in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).
Whitlow, ¶ 10. First, the defendant must show
that his attorney's performance was deficient by
demonstrating that it fell below an objective standard of
reasonableness. Whitlow, ¶ 14. There is a
strong presumption that the attorney's performance fell
within the wide range of reasonable professional assistance,
Whitlow, ¶ 15, ...