Submitted on Briefs: January 18, 2017
FROM: District Court of the Twentieth Judicial District, In
and For the County of Sanders, Cause No. DC-15-19 Honorable
Deborah Kim Christopher, Presiding Judge.
Appellant: Paul M. Leisher, Paoli Law Firm, P.C., Missoula,
Appellee: Timothy C. Fox, Montana Attorney General, C. Mark
Fowler, Assistant Attorney General, Helena, Montana, Robert
Zimmerman, Sanders County Attorney, Thompson Falls, Montana.
JEREMIAH SHEA JUSTICE.
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
James Rand Hernvall appeals his jury conviction and judgment
in the Twentieth Judicial District Court, Sanders County, for
one count of theft, in violation of § 45-6-301, MCA, and
for two counts of burglary, in violation of § 45-6-204,
MCA. We address: (1) whether Hernvall's ineffective
assistance of counsel claim is proper on direct appeal, and
(2) whether there was sufficient evidence to convict Hernvall
of theft of a truck and of accountability for the two
burglaries. We affirm.
On the evening of March 19, 2015, Sanders County Deputy Robyn
Largent discovered Hernvall and Jessica Pullan trespassing on
Shawn Ballard's vacant property located on Four Wheel
Drive Road in Trout Creek, Montana. Largent initially
concealed himself to surreptitiously observe Hernvall and
Pullan. Before revealing his presence to Hernvall and Pullan,
Largent heard Hernvall say, "Let's get this done,
" as Hernvall and Pullan got out of a blue Mitsubishi
coupe and walked towards a black Dodge Ram truck that was
stuck in the mud. After revealing himself, Largent arrested
Hernvall and Pullan. Police seized the cars that were on
Ballard's property and towed them to the Sanders County
Ballard, who lives in Wenatchee, Washington, inspected his
property after the arrests. He testified that his yard was
torn up by vehicles, a replacement part for a Polaris Ranger
kept in his shop had been moved to his barn on the property,
a wheelbarrow and two shovels kept in his barn were found
near where one vehicle was stuck in the mud, and items from
Brian Jensen's nearby residence were found in his barn.
On March 20, 2015, Jensen discovered signs that his
house-which was for sale at the time-had been burglarized,
and Deputy Noah Hathorne was dispatched to investigate.
Hathorne testified that two days before Hernvall and Pullan
were arrested, Jensen told him he had left the house in neat
condition. Upon inspecting the house the day after the
arrests, Jensen told Hathorne that he found doors and
cabinets inside the house were opened, a welder kept in his
garage had been moved outside, and his son's motorcycle
was missing from his garage. The motorcycle tire tracks led
from Jensen's property to Ballard's property where
the motorcycle was recovered.
Near the tire tracks on Jensen's property, officers found
a piece of a car's bumper that was later matched to the
Mitsubishi. Officers also recovered various stolen items in
Ballard's barn, including Jensen's chainsaw and a
plastic tub containing Jensen's son's graduation
gifts. The Mitsubishi contained, among other things,
Jensen's collection of license plates, as well as three
rifles and a shotgun that had been reported stolen from a
Thompson Falls storage unit nine days earlier. The Dodge Ram,
which also contained items stolen from Jensen's property,
was reported stolen from Polson in December 2014.
On May 19, 2015, the State charged Hernvall by amended
information with the following counts: (I) possession of a
dangerous drug; (II) possession of drug paraphernalia; (III)
theft of a black 2006 Dodge Ram truck of value more than $1,
500; (IV) possession of property subject to criminal
forfeiture; (V) burglary of a storage unit rented by Leslie
Gingerly; (VI) burglary of a residence owned by Brian Jensen;
(VII) burglary of a residence owned by Shawn Ballard.
Hernvall pleaded not guilty to all charges. On June 29, 2015,
the District Court granted the State's motion to dismiss
the possession charges. On July 22, 2015, a jury convicted
Hernvall on Count III, theft of the Dodge Ram, Count VI,
burglary of the Jensen residence, and Count VII, burglary of
the Ballard residence. On December 1, 2015, the District
Court entered its final judgment and sentenced Hernvall to
the Department of Corrections for ten years with five years
suspended for theft, and to the Department of Corrections for
twenty years with fifteen years suspended for each of the two
counts of burglary, with all sentences to run concurrently.
Hernvall contends that his trial counsel was ineffective
because he failed to call Pullan as a witness. Hernvall
contends Pullan's testimony could have exculpated him.
Pullan allegedly made statements to law enforcement before
trial that implicated others in the burglaries but did not
implicate Hernvall. Hernvall argues that had Pullan been
called as a witness, she could have provided the jury with an
explanation as to why Hernvall was present on property that
did not belong to him in the presence of a stolen truck and a
bunch of stolen items from multiple burglaries.
Claims of ineffective assistance of counsel (IAC) are mixed
questions of law and fact we review de novo. St. Germain
v. State, 2012 MT 86, ¶ 7, 364 Mont. 494, 276 P.3d
886. However, before reaching the merits of an IAC claim, we
must determine whether the allegations are properly before
us. State v. Gunderson, 2010 MT 166, ¶ 70, 357
Mont. 142, 237 P.3d 74. In general, "[t]he test to
determine if an ineffective assistance claim is properly
brought on direct appeal is whether the record contains the
answer as to 'why' counsel took, or failed to take,
action in providing a defense." State v.
Upshaw, 2006 MT 341, ¶ 33, 335 Mont. 162, 153 P.3d
579 (citing State v. White, 2001 MT 149, ¶ 20,
306 Mont. 58, 30 P.3d 340). If the record on appeal explains
why trial counsel acted as he or she did, we will address the
issue on appeal. If, however, the claim is based on matters
outside the record on appeal, we may refuse to address the
issue on appeal and allow the defendant to file a
postconviction proceeding in order to develop a record as to
"why" counsel acted as alleged, thus allowing the
court to determine whether counsel's performance was
ineffective or merely a tactical decision.
Gunderson, ¶ 71.
In this case, the answer as to why Hernvall's counsel
opted not to call Pullan as a witness is not apparent from
the record. The record is silent as to whether Pullan would
have actually testified as Hernvall contends, as well as
whether trial counsel may have had legitimate tactical
reasons for not calling her as a witness even if she ...