Submitted on Briefs: February 28, 2018
FROM: District Court of the Twentieth Judicial District, In
and For the County of Lake, Cause No. DV-17-89 Honorable
James A. Manley, Presiding Judge
Appellant: Robert Crawford, Self-Represented, Anaconda,
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana Steven N.
Eschenbacher, Lake County Attorney, James Lapotka, Deputy
County Attorney, Polson, Montana
JEREMIAH SHEA JUSTICE
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion, 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.
Robert Crawford ("Crawford"), appearing pro se,
appeals from the April 20, 2017 Order of the Twentieth
Judicial District Court, Lake County, denying and dismissing
his Petition for Postconviction Relief ("PCR"). We
address whether the District Court erred in dismissing
Crawford's PCR Petition. We affirm.
In 2013, a jury found Crawford guilty of criminal possession
of dangerous drugs. The District Court sentenced him as a
persistent felony offender for a term of twenty years with
ten years suspended. Crawford timely appealed. In 2016, we
affirmed Crawford's conviction, addressing issues related
to: (1) the suppression of methamphetamine that officers
found on Crawford incident to his arrest for violating the
terms of his parole; (2) claims of ineffective assistance of
counsel ("IAC"), on the basis that Crawford's
trial counsel was ineffective because he did not submit
proposed findings of fact and conclusions of law following
the suppression motion hearing; (3) the denial of
Crawford's third discovery request; (4) the District
Court's failure to arraign him on the Second Amended
Information; and (5) the District Court's adequacy in
addressing his complaints about his assigned trial counsel.
State v. Crawford, 2016 MT 96, 383 Mont. 229, 371
On April 18, 2017, Crawford filed a PCR Petition, raising
thirteen grounds: (1) IAC based on multiple allegations of
deficient performance; (2) illegal search and seizure; (3)
the arresting officer acted outside the scope of his
authority; (4) evidence seized pursuant to a facially invalid
warrant; (5) conviction based on false evidence; (6) the
State's failure to produce evidence; (7) the State's
destruction of evidence; (8) the district court's failure
to arraign him on the Second Amended Information; (9)
prosecutorial misconduct for exploiting Crawford's post
arrest "silence"; (10) due process violations for
preventing Crawford from arguing the legality of the stop,
arrest, and search to the jury; (11) prosecutorial misconduct
for vouching for State witnesses and denigrating defense
witnesses; (12) a speedy trial violation due to systemic
breakdown in public defender office; and (13) a due process
violation because the State intentionally overcharged and
penalized him for taking the case to trial by asking for a
forty-year sentence. On April 20, 2017, the District Court
denied and dismissed Crawford's Petition without
requiring a response from the State on the basis that
"the petition and files and records of the case
conclusively show that the petitioner is not entitled to the
relief requested, and because the issues raised in the
petition (suppression of evidence and [IAC]) were raised and
addressed on direct appeal. MCA 46-21-201;
46-21-105(2)." On appeal, Crawford argues the District
Court erred in dismissing his PCR Petition without addressing
his non-record-based claims of IAC.
We review a district court's denial of a PCR petition to
determine whether its findings of fact are clearly erroneous
and its conclusions of law are correct. Sartain v.
State, 2012 MT 164, ¶ 9, 365 Mont. 483, 285 P.3d
407. We review discretionary rulings in PCR proceedings,
including rulings related to whether to require the
State's response or to hold an evidentiary hearing, for
an abuse of discretion. Sartain, ¶¶ 9,
42-44 (quoting § 46-21-201, MCA). We review mixed
questions of law and fact presented by IAC claims de novo.
Sartain, ¶ 9.
A PCR petition may not be based upon grounds for relief that
were or could reasonably have been raised on direct appeal.
Section 46-21-105(2), MCA; Rukes v. State, 2013 MT
56, ¶ 8, 369 Mont. 215, 297 P.3d 1195. The petition must
identify all facts that support the claims for relief.
Section 46-21-104(1)(c), MCA; Ellenburg v. Chase,
2004 MT 66, ¶ 12, 320 Mont. 315, 87 P.3d 473. The
petitioner has the burden to show by a preponderance of the
evidence that the facts justify relief. Ellenburg,
¶ 12 (citing § 46-21-104, MCA); Sartain,
¶ 9 (providing that a petitioner seeking to reverse a
district court's denial of a PCR petition bears a heavy
burden.). If a district court determines that "the
petition and the files and records of the case conclusively
show that the petitioner is not entitled to relief, "
the district court may dismiss the proceedings without
requiring a response by the State or without holding an
evidentiary hearing. Sartain, ¶¶ 42-44
(quoting § 46-21-201(1)(a), MCA).
When addressing an IAC claim, we distinguish between claims
that are record-based and non-record-based: "If the
record does not supply the reason for counsel's act or
omission, the claim must be raised by petition for
post-conviction relief." State v. Bateman, 2004
MT 281, ¶ 23, 323 Mont. 280, 99 P.3d 656 (internal
citations omitted). We apply a two-prong test to review IAC
claims as set forth in Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052 (1984). Whitlow v. State,
2008 MT 140, ¶ 20, 343 Mont. 90, 183 P.3d 861. A
petitioner claiming IAC must show by a preponderance of the
evidence that: (1) counsel's performance was deficient;
and (2) the deficient performance prejudiced the defense.
Whitlow, ¶ 10; Strickland, 466 U.S. at
688, 104 S.Ct. at 2064. Trial counsel's performance is
deficient if it falls "below an objective standard of
reasonableness measured under prevailing professional norms
and in light of surrounding circumstances."
Whitlow, ¶ 20. A strong presumption exists that
counsel's actions were within the broad range of
professional assistance, Whitlow, ¶ 15, because
'[t]here are countless ways to provide assistance in any
given case." Strickland, 466 U.S. at 689, 104
S.Ct. at 2065. To establish prejudice by counsel's
deficient performance, a petitioner must demonstrate a
reasonable probability that, but for counsel's deficient
performance, the result of the proceeding would have been
different. Whitlow, ¶¶ 20-21. A petitioner
must satisfy both prongs of the test to prevail; and if a
petitioner fails to prevail on one prong, we are not
obligated to address the other. Whitlow, ¶ 11;
Strickland, 466 U.S. at 687, 697, 104 S.Ct. at 2064,
The State argues Crawford waived Grounds 2 through 13, and is
otherwise procedurally barred from raising his non-IAC claims
because they were either decided by this Court on direct
appeal or could have been raised on appeal but were not. The
State further argues Crawford's IAC claims are barred
because this Court affirmed the District Court's rulings
on many of the issues underlying his claims against trial
counsel, determining such claims lacked merit. See State
v. Southwick, 2007 MT 257, ¶¶ 15-19, 339 Mont.
281, 169 P.3d 698 (holding that res judicata generally
precludes review of issues already decided in a prior
appeal). Alternatively, the State asserts Crawford's IAC
claims fail to overcome the strong presumption that his
attorney's performance was within the wide range of
reasonable and sound professional decisions and has not
established counsel performance was deficient. We agree.
Crawford's claims and proffered evidence that his trial
counsel failed to follow through on his discovery requests
regarding a litany of allegations against law enforcement
fail to overcome the strong presumption that his
counsel's actions were within the broad range of
professional assistance. See Whitlow, ¶¶
15, 20; Strickland, 466 U.S. at 688-89, 104 S.Ct. at
2064-65. The Strickland standard is not whether
counsel did everything the defendant wanted, but rather
whether trial "counsel's representation fell below
an objective standard of reasonableness."
Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064.
Because a PCR petition must be based on more than mere
conclusory allegations, and identify all facts supporting the
grounds for relief with attached affidavits, records, or
other evidence establishing the existence of those facts,
§ 46-21-104(1)(c), ...