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Parks v. State

Supreme Court of Montana

October 8, 2019

TERRY D. PARKS, Petitioner and Appellant,
v.
STATE OF MONTANA, Respondent and Appellee.

          Submitted on Briefs: September 4, 2019

          Appeal From: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV-16-404 Honorable Karen Townsend, Presiding Judge.

         For Appellant:

          Terry D. Parks, Self-represented, Wayland, Michigan

         For Appellee:

          Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana

          Kirsten H. Pabst, Missoula County Attorney, Dan Stusek, Special Deputy Missoula County Attorney, Missoula, Montana

          OPINION

          INGRID GUSTAFSON JUDGE.

         ¶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 Terry D. Parks appeals from the order of the Fourth Judicial District Court, Missoula County, denying his Amended Original Petition for Post Conviction Relief. This is the fourth appeal from Parks to this Court in relation to his 2011 conviction under § 30-10-301(1)(b), MCA.[1] Parks raises seven issues in this appeal: (1) whether the District Court wrongly dismissed his petition for postconviction relief; (2) whether his conviction violated his due process rights because § 30-10-301(1), MCA, is not an absolute liability offense and the District Court failed to give a jury instruction for a "willful" mental state; (3) whether this Court has correctly interpreted the mental state of "willfully" in regard to § 30-10-306(1), MCA; (4) whether the notes at issue in his underlying case met the definition of securities under the statute; (5) whether he was denied effective assistance of counsel; (6) whether cumulative alleged errors in his case require reversal of his conviction; and (7) whether his sentence was illegal.

         ¶3 We review the denial of a petition for postconviction relief to determine whether the court's findings of fact are clearly erroneous and if its conclusions of law are correct. Lacey v. State, 2017 MT 18, ¶ 13, 386 Mont. 204, 389 P.3d 233. Ineffective assistance of counsel claims are mixed questions of law and fact that we review de novo. Lacey, ¶ 13.

         ¶4 Postconviction proceedings are limited proceedings that are governed by the statutory requirements in Title 46, chapter 21, MCA. See Lacey, ¶ 15. Section 46-21-104, MCA, lays out specific requirements for the contents of the petition. A petition for postconviction relief must include a supporting memorandum with appropriate legal arguments, citations, and discussion of authorities. Section 46-21-104(2), MCA. The District Court appropriately dismissed all claims not accompanied by such a memorandum of law (Issue 1).

         ¶5 A petition for postconviction relief may not raise, and a court reviewing such petition may not consider or decide any "grounds for relief that were or could reasonably have been raised on direct appeal." Section 46-21-105(2), MCA. The District Court properly dismissed all claims that were or could reasonably have been raised on direct appeal (Issues 1, 2, 3, 4, 6, 7).

         ¶6 A claim of ineffective assistance of counsel requires that a petitioner show "counsel's performance was deficient" and "the deficient performance prejudiced the" petitioner. Lacey, ¶ 23 (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984)). To demonstrate the representation was deficient, the petitioner "must show that counsel's representation fell below an objective standard of reasonableness." Lacey, ¶ 24 (quoting Whitlow v. State, 2008 MT 140, ¶ 14, 343 Mont. 90, 183 P.3d 861). "There is a strong presumption that the attorney's performance fell within the wide range of reasonable professional assistance." State v. Llamas, 2017 MT 155, ¶ 26, 388 Mont. 53, 402 P.3d 611. "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Lacey, ¶ 28 (emphasis and alteration in original) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. at 2066). Thus, a "petitioner cannot rely on subsequently decided case law to render an attorney's conduct ineffective at the time of trial." Lacey, ¶ 28 (quoting Foston v. State, 2010 MT 281, ¶ 12, 358 Mont. 469, 245 P.3d 1103). The District Court addressed each of the complaints Parks ...


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