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Zlahn v. State

Supreme Court of Montana

October 9, 2018

ROBERT ZLAHN, Petitioner and Appellant,
v.
STATE OF MONTANA, Respondent and Appellee.

          Submitted on Briefs: September 12, 2018

          District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV-15-1570 Honorable Mary Jane Knisely, Presiding Judge

          For Appellant: Robert Zlahn, Self Represented, Deer Lodge, Montana.

          For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana.

          Scott Twito, Yellowstone County Attorney, Billings, Montana.

          OPINION

          James Jeremiah Shea Justice.

         ¶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 Robert Zlahn appeals the Order of the Thirteenth Judicial District Court, Yellowstone County, dismissing his petition for postconviction relief (PCR). We affirm.

         ¶3 On July 24, 2012, Zlahn was convicted of assault with a weapon, criminal endangerment, and tampering with physical evidence, based on his involvement in a shooting in Billings. On March 8, 2013, Zlahn appealed his conviction. On August 19, 2014, we affirmed Zlahn's conviction.[1] On December 3, 2015, Zlahn filed a PCR petition, alleging ineffective assistance of counsel (IAC). On May 10, 2016, the District Court issued an order that dismissed several of Zlahn's claims, but allowed a single claim to proceed based on the allegation that Zlahn's trial counsel failed to call witnesses critical to the defense. The District Court ordered the State to respond. The State responded to Zlahn's claim and attached an affidavit from Zlahn's trial counsel. On June 21, 2016, Zlahn filed a Notice of Appeal before the State filed its response and the District Court could rule on the claim. This Court accepted the appeal. On January 31, 2017, after Zlahn previously obtained several extensions, this Court dismissed Zlahn's appeal for failure to file an opening brief. On August 25, 2017, after the District Court reviewed the State's response, the District Court dismissed Zlahn's PCR petition in its entirety. Zlahn appeals.

         ¶4 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. Wilkes v. State, 2015 MT 243, ¶ 9, 380 Mont. 388, 355 P.3d 755. IAC claims present mixed questions of law and fact that we review de novo. Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d 861. We review discretionary rulings, including rulings on whether to hold an evidentiary hearing, for abuse of discretion. Wilkes, ¶ 9.

         ¶5 A PCR petition must identify all facts that support the claims for relief. Section 46-21-104(1)(c), MCA; Kelly v. State, 2013 MT 21, ¶ 9, 368 Mont. 309, 300 P.3d 120. If the district court determines the petition and the record show the petitioner is not entitled to relief, the district court may dismiss the proceedings without requiring a response or without holding an evidentiary hearing. Section 46-21-201(1)(a), MCA; see Lacey v. State, 2017 MT 18, ¶ 40, 386 Mont. 204, 389 P.3d 233 (citation omitted). Consequently, a petitioner seeking to reverse a district court's denial of a PCR petition "bears a heavy burden." State v. Cobell, 2004 MT 46, ¶ 14, 320 Mont. 122, 86 P.3d 20 (citation omitted).

         ¶6 In assessing IAC claims, we apply the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). See Whitlow, ¶ 10. The first prong of the Strickland test requires the defendant show his counsel's performance was deficient. Strickland, 466 U.S. at 687; Whitlow, ¶ 10. To demonstrate counsel's performance was deficient, the defendant must prove counsel's performance fell below an objective standard of reasonableness. Whitlow, ¶ 14. The second prong of the Strickland test requires the defendant to prove his counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687; Whitlow, ¶ 10. To show prejudice, the defendant alleging IAC must demonstrate a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Stock v. State, 2014 MT 46, ¶ 19, 374 Mont. 80, 318 P.3d 1053 (citations omitted). If a petitioner fails to prevail on one prong, "there is no need to address the other prong." Whitlow, ¶ 11 (citations omitted).

         ¶7 Courts determine deficient performance based on whether a defendant's counsel acted within the broad "range of competence demanded of attorneys in criminal cases." Schaff v. State, 2003 MT 187, ¶ 18, 316 Mont. 453, 73 P.3d 806 (citation omitted). The Court will not speculate, and a silent record fails to rebut, the strong presumption counsel performed effectively. State v. Lewis, 2007 MT 16, ¶ 21, 335 Mont. 331, 151 P.3d 883 (citation omitted). IAC claims require facts, not merely conclusory allegations. Section 46-21-104, MCA; State v. Wright, 2001 MT 282, ¶ 31, 307 Mont. 349, 42 P.3d 753.

         ¶8 Zlahn argues his trial counsel provided ineffective assistance by failing to call Amber Scally (Amber) as an eyewitness, the wife of another eyewitness Keelan Scally (Keelan). Zlahn argues Amber's testimony would have contradicted other accounts because she called 911 and gave the description. Zlahn also argues his trial counsel failed to find and use an alibi witness named "Derek," and that counsel instructed him not to mention Derek was lost as a witness during ...


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