January 8 2008
DA 07-0175
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 6N
TRAVIS A. McLEES,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV 03-372
Honorable Holly Brown, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender; Joslyn M. Hunt,
Assistant Appellate Defender, Helena, Montana
For Appellee:
Honorable Mike McGrath, Attorney General; Sheri K. Sprigg,
Assistant Attorney General, Helena, Montana
Marty Lambert, County Attorney, Bozeman, Montana
Submitted on Briefs: December 12, 2007
Decided: January 8, 2008
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and 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 Travis McLees (McLees) appeals from the District Court’s denial of his amended
petition for post-conviction relief alleging ineffective assistance of counsel in the
Eighteenth Judicial District, Gallatin County. We affirm.
¶3 On December 6, 2001, the Gallatin County Attorney’s Office (State) charged
McLees with seven felony counts: aggravated burglary (later amended to burglary),
aggravated kidnapping, sexual assault, criminal endangerment, aggravated burglary,
assault with a weapon, and attempted burglary. McLees eventually pled guilty to six of
the charges, and the District Court convicted him of the seventh charge following a bench
trial.
¶4 The State asked that the District Court impose consecutive sentences on McLees
and sentence him to a 320-year prison sentence. Defense counsel urged the District
Court to adopt the recommendation from the Pre-Sentence Investigation report (PSI
report): a sixty-year sentence, with ten years suspended. The PSI report detailed
McLees’s extensive criminal history, including ten traffic convictions and several felony
convictions. The PSI report further noted that the sentence and judgment relating to the
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felonies were vacated following our decision in State v. McLees, 2000 MT 6,
298 Mont.
15,
994 P.2d 683. At sentencing, defense counsel informed the District Court that it was
sentencing McLees for crimes that were his first felony convictions. Before pronouncing
sentence, the District Court stated:
The Court finds before it a 25-year-old man who has pled guilty—or
been found guilty of seven separate felony offenses involving serious
crimes. He has a significant pre-existing record. And for the crimes that
have been committed in this particular matter, the Court finds that Mr.
McLees is a danger to society and he deserves an extended sentence at the
Montana State Prison to punish him for his offenses and to protect society.
The District Court imposed concurrent sentences on McLees for a total of sixty years at
Montana State Prison, with a ten-year enhancement for use of a weapon.
¶5 In a petition for post-conviction relief, McLees challenged the weapons
enhancement and asserted an ineffective assistance of counsel claim. McLees claimed
that his counsel provided ineffective assistance when counsel failed to reiterate to the
court or mention in his sentence recommendation that the court was sentencing McLees
for his first felony. The District Court granted McLees’s petition regarding the weapons
enhancement and denied his petition on the ineffective assistance of counsel claim. The
District Court determined that McLees’s ineffective assistance claim was record-based,
and thus, his claim was procedurally barred from a post-conviction proceeding. The
District Court further concluded that, even if a post-conviction proceeding were
appropriate, McLees had failed to establish his counsel’s ineffective assistance under the
test set forth in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052 (1984).
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¶6 We review a district court’s denial of a petition for post-conviction relief to
determine whether its findings of fact are clearly erroneous and its conclusions of law are
correct. The party seeking to reverse a denial of post-conviction relief bears a heavy
burden. Garrett v. State, 2005 MT 197, ¶ 10,
328 Mont. 165, ¶ 10,
119 P.3d 55, ¶ 10.
Ineffective assistance of counsel claims constitute mixed questions of law and fact that
we review de novo. State v. Racz,
2007 MT 244, ¶ 13,
339 Mont. 218, ¶ 13,
168 P.3d
685, ¶ 13. To establish ineffective assistance of counsel, a defendant must satisfy the
two-pronged Strickland test: (1) the defendant must prove that counsel’s performance
was deficient, and (2) the defendant must prove that counsel’s deficient performance
prejudiced the defense. Racz, ¶ 22.
¶7 Section 46-21-105, MCA, provides that a petitioner may not seek post-conviction
relief on grounds “that were or could reasonably have been raised on direct appeal.” We
will address a claim on direct appeal if we can discern from the record the reasons that
counsel performed or failed to perform as alleged. Racz, ¶ 23. If we cannot discern
counsel’s reasons, then the petitioner must raise the claim in a post-conviction
proceeding. Racz, ¶ 23.
¶8 The District Court determined that the record contained all the evidence relating to
the ineffective assistance claim and that no reference to non-record materials was
required; thus, the District Court ruled that McLees was procedurally barred from raising
his ineffective assistance of counsel claim. On appeal, McLees argues that his claim is
not record-based simply because his counsel “is on record as having said that it was
McLees’ first felony and just because the judge is on record as having referenced
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McLees’ significant pre-existing record.” McLees argues that his claim is appropriate for
a post-conviction proceeding because:
We still do not know why [defense counsel] failed to clarify for the judge,
at the time the judge referenced that McLees had a significant pre-existing
record, the fact that it was, again, McLees’ first felony, and some of the
other offenses included careless driving and speeding. We also still do not
know why [defense counsel] failed to reiterate this fact when making his
sentencing recommendations.
(Emphasis added.)
¶9 We agree with McLees that a post-conviction proceeding generally is appropriate
when the record fails to reveal counsel’s reasons for a particular action or inaction. A
post-conviction proceeding likely would be appropriate in this case if McLees’s trial
counsel had failed to inform the District Court that it was sentencing McLees for his first
felony. In this case, however, the District Court had every reason to know that it was
sentencing McLees for his first felony: defense counsel informed the District Court that
McLees was being sentenced for his first felony, and the PSI report also indicated that
McLees was being sentenced for his first felony. In essence, McLees does not argue that
his attorney was ineffective for failing to inform the District Court that this was his first
felony, but that his attorney was ineffective for failing to do it again. McLees argues that
the record fails to illuminate the reasons that his attorney neglected to clarify or reiterate
McLees’s felony conviction status. We disagree. A plain, record-based answer exists to
the question of why counsel did not further edify the District Court: McLees’s trial
counsel had just notified the District Court that it was sentencing McLees for his first
felony mere minutes before the District Court imposed sentence. No requirement exists
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that counsel continuously repeat his or her point to a court; on the contrary, unless
waived, “[a] point once saved is saved for all purposes.” State v. District Court, 76
Mont. 222, 236,
246 P. 250, 255 (1926).
¶10 McLees also repeatedly mentions the District Court’s reference to his “significant
pre-existing record” as an event that should have triggered his counsel’s immediate
admonition to the court that this was his first felony. McLees does possess a significant
pre-existing record, and we reject McLees’s inference that his prior convictions do not
amount to a “significant pre-existing record” simply because they are not felony
convictions. We further note the District Court’s clear statement that McLees’s crimes
“in this particular matter” warranted an extended sentence, not his prior convictions.
¶11 We conclude that McLees’s ineffective assistance of counsel claim is record-based
and that his petition for post-conviction relief was procedurally barred by § 46-21-105(2),
MCA. Moreover, to the extent that McLees could raise an ineffective assistance claim on
direct appeal, our review of the record indicates that McLees fails to meet the first prong
of the Strickland test; as discussed above, his counsel’s performance was not deficient.
¶12 It is appropriate to decide this case pursuant to our Order of February 11, 2003,
amending Section 1.3 of our 1996 Internal Operating Rules and providing for
memorandum opinions. It is manifest on the face of the briefs and the record before us
that the appeal is without merit because the findings of fact are supported by substantial
evidence, the legal issues are clearly controlled by settled Montana law which the District
Court correctly interpreted, and there was clearly no abuse of discretion by the District
Court.
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¶13 We affirm.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ JIM RICE
/S/ BRIAN MORRIS
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