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Cheetham v. State

Supreme Court of Montana

December 17, 2019

TIMOTHY CHEETHAM, SR., Petitioner and Appellant,
STATE OF MONTANA, Respondent and Appellee.

          Submitted on Briefs: October 9, 2019

          APPEAL 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.

          For Appellant: Greg Beebe, Beebe & Flowers Law Firm, Helena, Montana.

          For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana Steven C. Haddon, Jefferson County Attorney, Boulder, Montana


          Jim Rice, Justice.

         ¶1 Timothy Cheetham, Sr. (Cheetham) appeals the order of the Fifth Judicial District Court, Jefferson County, denying his petition for postconviction relief. We affirm.


         ¶2 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.

         ¶3 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 motion.

         ¶4 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.

         ¶5 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.[1] 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.

         ¶6 Cheetham appeals. Additional facts are referenced herein.


         ¶7 "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 ...

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