No. 01-891
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 205N
DOUGLAS BOESE,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Douglas Boese, Pro Se, Shelby, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Pamela P. Collins,
Assistant Attorney General, Helena, Montana
Brant Light, Cascade County Attorney, Great Falls, Montana
Submitted on Briefs: May 2, 2002
Decided: September 10, 2002
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent. It shall be filed as a
public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 Appearing pro se, Douglas Boese petitioned the Eighth Judicial
District Court, Cascade County, for postconviction relief from the
judgment entered against him on robbery, theft and forgery
convictions, and requested appointment of counsel and a hearing.
The District Court did not address the latter requests, and denied
the petition for postconviction relief. Boese appeals and we
affirm.
¶3 The issue is whether the District Court erred in denying the
petition for postconviction relief.
¶4 The underlying criminal charges against Boese arose out of a
purse-snatching outside the Sailboat Lounge in Great Falls,
Montana, and the subsequent cashing of a check that had been in the
purse. Boese initially pled guilty, but then withdrew his plea and
was tried before a jury. The jury found him guilty of robbery,
misdemeanor theft and misdemeanor forgery, after which he was
sentenced and his appointed counsel was granted leave to withdraw.
Boese applied pro se for sentence review, and the Sentence Review
2
Division increased his sentence. Almost a year after his
conviction, Boese's trial counsel filed a notice of appeal on
Boese's behalf and the District Court appointed the Appellate
Defender to represent Boese on direct appeal, which this Court
agreed to consider out-of-time.
¶5 The Appellate Defender subsequently moved to be allowed to
withdraw and filed a brief pursuant to Anders v. California (1967),
386 U.S. 738,
87 S.Ct. 1396,
18 L.Ed.2d 493, and § 46-8-103, MCA,
stating that, after reviewing the entire record, he was unable to
find any nonfrivolous issues to raise on appeal. Boese responded
to the Appellate Defender's motion. This Court then independently
examined the record and concluded an appeal would be wholly
frivolous. As a result, we allowed the Appellate Defender to
withdraw and dismissed the appeal.
¶6 In the present action, Boese petitioned the District Court for
postconviction relief on the following grounds: (1) the trial
judge should have recused himself after reading a threatening
letter Boese wrote to his mother; (2) it was reversible error to
require Boese to appear before the jury in shackles and handcuffs;
(3) the State of Montana failed to prove the elements of robbery
beyond reasonable doubt; (4) the method by which the jury was
summoned was constitutional error which falls under the plain error
doctrine; and (5) he was denied effective assistance of counsel
because his court-appointed trial attorney failed to object to the
jury summoning procedure, properly prepare for trial, investigate
or move for a mistrial when a witness violated a motion in limine
3
prohibiting mention of earlier hearings at which Boese had
appeared, and appellate counsel also failed to challenge the manner
in which the jury was summoned. Boese requested appointed counsel
and a hearing.
¶7 The District Court ordered the State to respond to Boese's
petition. Then, in a summary order, the court denied Boese's
petition on grounds that Boese had been afforded the opportunity
for direct appeal and this Court had concluded an appeal would be
wholly frivolous. The court also cited to § 46-21-105(2), MCA,
which provides that issues which were or could have been raised on
direct appeal cannot be raised in a postconviction proceeding.
¶8 We review a trial court's conclusions of law in a denial of a
petition for postconviction relief to determine whether the
conclusions are correct. Dawson v. State, 2000 MT 219, ¶ 18,
301
Mont. 135, ¶ 18,
10 P.3d 49, ¶ 18, cert. denied
532 U.S. 928,
121
S.Ct. 1372,
149 L.Ed.2d 299 (2001). We affirm a correct result,
even if it was reached for a wrong reason. State v. Francis,
2001
MT 233, ¶ 16,
307 Mont. 12, ¶ 16,
36 P.3d 390, ¶ 16.
¶9 On appeal, Boese argues the District Court erred in failing to
appoint counsel, relying on Swearingen v. State,
2001 MT 10,
304
Mont. 97,
18 P.3d 998. The ruling in that case, however, was based
on the district court's setting of a hearing on the petition for
postconviction relief. Swearingen, ¶¶ 6-7. Counsel is appointed
for postconviction proceedings in a non-capital case only if a
hearing is necessary or the interests of justice require. See §
46-21-201(2), MCA. No hearing was held on Boese's petition, and he
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has not established that the interests of justice required
appointment of an attorney to represent him. Thus, while the
District Court should have ruled separately on Boese's request for
counsel, appointment of counsel was not required under these
circumstances. We conclude, therefore, that the District Court
reached the correct result in declining to appoint counsel for
Boese.
¶10 Boese's allegation that the trial judge should have recused
himself after becoming aware, prior to trial, of a threatening
letter Boese had written to his mother was discussed in the
Appellate Defender's Anders brief on appeal and, therefore, is
procedurally barred under § 46-21-105(2), MCA. Moreover, because
it was record-based, the issue of whether the State failed to prove
the elements of robbery beyond a reasonable doubt could have been
raised on direct appeal but was not, and is barred for that reason.
See § 46-21-105(2), MCA. In any event, we independently examined
the record pursuant to Anders during Boese's direct appeal and
concluded there were no nonfrivolous grounds for appeal.
¶11 Boese's claims that he was prejudiced when the jury allegedly
saw him in shackles and handcuffs and that the procedure by which
the jury was summoned amounted to reversible error under State v.
LaMere, 2000 MT 45,
298 Mont. 358,
2 P.3d 204, are procedurally
barred because Boese did not object regarding these matters at
trial and, consequently, did not properly preserve them for appeal.
See State v. Baker (1995),
272 Mont. 273, 281,
901 P.2d 54, 58.
Furthermore, nothing of record supports the assertion that the jury
5
saw Boese in shackles and handcuffs and there is no evidence in the
record regarding the procedure that was used to summon the jury in
this case. The District Court properly dismissed these claims.
¶12 Boese contends he has raised non-record issues about whether
he received ineffective assistance of counsel at trial and on
appeal which are appropriate only for postconviction relief, not
direct appeal. A defendant who alleges he was denied effective
assistance of counsel has the burden of demonstrating both that his
counsel's actions were deficient under an objective standard of
reasonableness established by prevailing professional norms during
the representation and that there was a reasonable probability
that, but for counsel's unprofessional errors, the results of the
proceeding would have been different. State v. Boyer (1985), 215
Mont. 143, 147,
695 P.2d 829, 831, adopting the test from
Strickland v. Washington (1984),
466 U.S. 668,
104 S.Ct. 2052,
80
L.Ed.2d 674.
¶13 Boese claims his trial counsel was ineffective in failing to
object to his alleged shackling and to the method by which the jury
was called, and in failing to call an alibi witness. However, he
did not attach to his petition for postconviction relief records or
affidavits establishing the existence of facts to support his
allegations, as required under § 46-21-104(1)(c), MCA, to support a
claim of ineffective assistance of counsel. As a result, the
District Court properly dismissed these claims notwithstanding that
it should have done so under § 46-21-104(1)(c), MCA.
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¶14 Boese also contends that his trial counsel was ineffective for
failing to move for a mistrial regarding an alleged violation of a
motion in limine, but the record belies the factual predicate on
which this claim of ineffective assistance is premised. The trial
transcript demonstrates counsel moved for a mistrial on such
grounds during the testimony of the witness in question, and the
motion was denied. The claim of ineffective assistance is,
therefore, groundless. The District Court correctly dismissed it.
¶15 Boese also maintains his trial counsel was ineffective in
failing to preserve the jury summoning issue and his appellate
counsel was ineffective in failing to raise it on direct appeal.
We disagree. At the time of Boese's trial, an argument such as
that later raised successfully in LaMere had never prevailed.
Therefore, Boese's trial counsel cannot be said to have rendered
deficient performance for failing to raise the issue. See, e.g.,
Lowry v. Lewis (9th Cir. 1994), 21 F.3d 344, 346 (a lawyer's conduct
must be evaluated for purposes of the Strickland performance
standard as of the time of the conduct, not based on decisions in
later cases). Moreover, Boese's appellate counsel was procedurally
barred from raising this issue because it was not raised at trial
and, in addition, was not record-based. Appellate counsel cannot
be ineffective for failing to raise an issue that would be
procedurally barred. See State v. Hildreth (1994),
267 Mont. 423,
432-33,
884 P.2d 771, 777.
7
¶16 Finally, Boese suggests in his reply brief that, under State
v. Whitehorn, 2002 MT 54,
309 Mont. 63,
50 P.3d 121, "the jury
summoning issue may not even be covered by a procedural bar defense." He does not
support this suggestion with any legal analysis, but appears to intend to raise the plain error
doctrine. We do not consider plain error review when it is raised for the first time in an
appellant's reply brief. See, e.g., State v. Raugust,
2000 MT 146, ¶ 19,
300 Mont. 54, ¶ 19,
3 P.3d 115, ¶ 19 (citations omitted).
¶17 We hold that, while the grounds cited by the District Court
for denying Boese's petition for postconviction relief were not
altogether correct, the District Court reached the correct result.
¶18 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ JIM REGNIER
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JIM RICE
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