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
Appellant: Robert Zlahn, Self Represented, Deer Lodge,
Appellee: Timothy C. Fox, Montana Attorney General, C. Mark
Fowler, Assistant Attorney General, Helena, Montana.
Twito, Yellowstone County Attorney, Billings, 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
Robert Zlahn appeals the Order of the Thirteenth Judicial
District Court, Yellowstone County, dismissing his petition
for postconviction relief (PCR). We affirm.
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. 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.
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.
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).
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).
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
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 ...