Submitted on Briefs: October 9, 2019
FROM: District Court of the Fifth Judicial District, In and
For the County of Jefferson, Cause No. DV 2017-15 Honorable
Luke Berger, Presiding Judge.
Appellant: Greg Beebe, Beebe & Flowers Law Firm, Helena,
Appellee: Timothy C. Fox, Montana Attorney General, Mardell
Ployhar, Assistant Attorney General, Helena, Montana Steven
C. Haddon, Jefferson County Attorney, Boulder, Montana
Timothy Cheetham, Sr. (Cheetham) appeals the order of the
Fifth Judicial District Court, Jefferson County, denying his
petition for postconviction relief. We affirm.
AND FACTUAL BACKGROUND
In August 2014, a jury found Cheetham guilty of one count of
Sexual Intercourse Without Consent (SIWC), a felony offense
in violation of § 45-5-503, MCA; one count of Sexual
Assault, a felony offense in violation of § 45-5-502,
MCA; and one count of Sexual Abuse of Children, a felony
offense in violation of § 45-5-625, MCA. The charges
arose from Cheetham's sexual abuse of five-year-old N.S.,
the granddaughter of his then-wife. Cheetham was represented
at trial by assistant public defender Steven Scott (Scott).
On Scott's advice, Cheetham did not testify at trial.
After trial but prior to sentencing, Cheetham saw a reference
in a Child Protective Services report to a medical report
prepared following a forensic examination performed on N.S.
by Dr. Jessie Salisbury of the Community Health Center in
Butte, Montana (Salisbury Report). Cheetham brought this
reference to Scott's attention. The Salisbury Report had
not been disclosed to the defense and, prior to sentencing,
Scott filed a motion to dismiss the charges against Cheetham
for negligent destruction of evidence, arguing the State
failed to preserve and disclose a potentially exculpatory
medical report. The Salisbury Report stated that a
"copious amount" of N.S.'s hymen was intact,
but also stated this observation did "not negate the
possibility of a penetration injury." When it was
demonstrated that the State did not have a copy of the
Report, and Scott subsequently obtained one, he withdrew his
Following sentencing, Cheetham appealed his conviction,
asserting the District Court abused its discretion by failing
to conduct adequate inquiry into his request for substitute
counsel, and that he was denied effective assistance of
counsel by Scott's handling of the Salisbury Report.
State v. Cheetham, 2016 MT 151, ¶ 1, 384 Mont.
1, 373 P.3d 45. This Court determined the District Court had
not erred regarding Cheetham's request for substitute
counsel. Cheetham, ¶ 28. We further determined
that, although several reasons for Scott's approach to
handling the Salisbury Report were reflected on the record,
the effectiveness claim could not be resolved without further
development of a record in a postconviction proceeding about
Scott's tactical decisions. Cheetham, ¶ 36.
Cheetham filed a petition for postconviction relief, alleging
Scott had rendered ineffective assistance of counsel by
failing to investigate and utilize statements in the
Salisbury Report, including that, after the alleged assault,
N.S.'s hymen was intact and "normal," and by
coercing Cheetham into choosing not to testify. The District
Court held a hearing on Cheetham's petition and heard
testimony from Cheetham, his expert witness Dr. Theodore N.
Hariton, Scott, defense investigator Christine Munsey, and
Dr. Salisbury. Dr. Hariton testified that a pre-pubescent
girl's hymen would have shown signs of scarring had it
been penetrated by an adult male penis, as alleged in the
SIWC count. Dr. Salisbury testified that, while N.S.'s
exam results could be considered "normal," she had
observed a narrowing of the hymen that was "suspicious
of a previous injury," and could not rule out a
penetration injury. The District Court determined Cheetham
had received effective assistance of counsel because Scott
acted reasonably in his handling of the Salisbury Report, and
in advising Cheetham against testifying.
Cheetham appeals. Additional facts are referenced herein.
"We review a district court's denial of a petition
for postconviction relief to determine whether that
court's findings are clearly erroneous and whether its
conclusions of law are correct." Mascarena v.
State, 2019 MT 78, ¶ 4, 395 Mont. 245, 438 P.3d
323. Ineffective assistance of counsel claims present mixed
questions of law and fact that we review de novo. State
v. Hatfield, 2018 MT 229, ¶ 18, 392 Mont. 509, 426
P.3d 569. "A petitioner seeking to reverse a court's
denial of a ...