ALBERT ERNEST INSUA,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DV-05-11
Honorable John W. Larson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Albert E. Insua, Pro Se, Shelby, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; Jim Wheelis,
Assistant Attorney General, Helena, Montana
George Corn, Ravalli County Attorney; T. Geoffrey Mahar,
Deputy County Attorney, Hamilton, Montana
Submitted on Briefs: October 4, 2006
Decided: November 8, 2006
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be cited
as precedent. Its case title, Supreme Court 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 Albert Ernest Insua appeals from the order of the Twenty-First Judicial District Court,
Ravalli County, denying his petition for postconviction relief. The District Court observed
Insua had appealed from the judgment on his convictions and this Court affirmed in State v.
Insua,
. The District Court reasoned that most of
Insua’s postconviction relief claims were barred under § 46-21-105(2), MCA, and the
doctrine of res judicata because they had been, or could have been, raised on direct appeal.
The court also determined, with respect to Insua’s claim that standby trial counsel was
ineffective in failing to adequately advise him of the ramifications of self-representation, that
the obligation rests with the trial court—not counsel—to determine whether a defendant who
wishes to proceed pro se understands his or her decision and is proceeding voluntarily.
Finally, while concluding Insua’s claims that the prosecution failed to subpoena a doctor or
provide expert testimony and a written report were barred because they could have been
raised on direct appeal, the District Court stated Insua failed to establish any elements of a
Brady violation—as set forth in State v. DuBray,
, ¶ 83—and failed to rebut the State’s assertion that it provided the information to
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the defense before trial.
¶3 On appeal, Insua addresses certain matters, including some ineffective assistance
claims regarding both standby trial and appellate counsel, which we decline to address
because they are raised for the first time on appeal. See DeShields v. State,
(citation omitted). He also generally restates the
claims he raised in his petition for postconviction relief filed in the District Court.
¶4 We have determined to decide this case pursuant to Section I, Paragraph 3(d), of our
1996 Internal Operating Rules, as amended in 2003, which provides for memorandum
opinions. It is manifest on the face of the briefs and the record that Insua’s appeal is without
merit because the issues are clearly controlled by settled Montana law that the District Court
correctly interpreted.
¶5 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
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