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State v. Hernvall

Supreme Court of Montana

March 7, 2017

STATE OF MONTANA, Plaintiff and Appellee,
JAMES RAND HERNVALL, Defendant and Appellant.

          Submitted on Briefs: January 18, 2017

         APPEAL 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.

          For Appellant: Paul M. Leisher, Paoli Law Firm, P.C., Missoula, Montana.

          For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana, Robert Zimmerman, Sanders County Attorney, Thompson Falls, Montana.



         ¶1 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 Montana Reports.

         ¶2 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.

         ¶3 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 impound yard.

         ¶4 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.

         ¶5 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.

         ¶6 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.

         ¶7 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.

         ¶8 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.

         ¶9 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 ...

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