November 8 2011
DA 11-0128
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 281N
BILLY DODSON,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV-10-1711
Honorable Robert L. Deschamps, III, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Billy Eugene Dodson, (self-represented); Shelby, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Tammy K Plubell,
Assistant Attorney General; Helena, Montana
Submitted on Briefs: October 26, 2011
Decided: November 8, 2011
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules,
this case is decided by memorandum opinion and shall not be cited and does not serve as
precedent. Its case title, 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 Billy Dodson appeals from the order entered by the Fourth Judicial District Court,
Missoula County, dismissing his petition for postconviction relief.
¶3 Dodson was convicted after jury trial of misdemeanor theft, felony deceptive practices,
felony issuance of a bad check, and felony theft by deception for his role in making purchases
with credit cards he had stolen in a series of break-ins of vehicles parked in recreational areas
and his theft of other items of value. He appealed, and this Court affirmed his convictions. State
v. Dodson, 2009 MT 419,
354 Mont. 28,
221 P.3d 687.
¶4 Dodson’s petition for postconviction relief stated six claims, but on appeal he challenges
the dismissal of only one of his claims—that his appellate counsel rendered ineffective assistance
during his appeal to this Court by failing to raise a record-based claim of ineffective assistance of
counsel on the part of his trial counsel.
¶5 Shortly before his jury trial commenced, Dodson’s trial counsel filed a motion seeking
dismissal of a portion of Count II of the Amended Information, which charged felony deceptive
practices by common scheme. The charge included allegations related to one of Dodson’s
victims, Lynn Rinehart, which had been the subject of a charge previously filed against Dodson
in Granite County. The Granite County charge had been dismissed. Dodson’s counsel argued
that permitting the Missoula County charge to proceed on the basis of allegations about
Dodson’s use of Rinehart’s credit card would constitute a violation of the constitutional
2
prohibition against double jeopardy. Because the motion was filed untimely, the District Court
denied the motion.
¶6 On appeal, Dodson’s appellate counsel challenged the District Court’s denial of the
motion. Dodson, ¶¶ 28, 43. We agreed with the State’s position that the motion had properly
been denied because it was untimely filed. Dodson, ¶ 44. However, we further noted that, in
addition to the allegations involving Rinehart, Count II also included allegations involving three
other victims to support the common scheme charge, and we concluded there was
“overwhelming evidence” of Dodson’s guilt without regard to the Rinehart allegations. Dodson,
¶ 45. Consequently, even if Dodson’s appellate counsel had raised the issue of trial counsel’s
ineffectiveness in filing the untimely motion, and this Court had determined to address the issue
on appeal as a record-based ineffectiveness claim, Dodson could not have demonstrated that he
was prejudiced by his trial counsel’s actions. Thus, Dodson could not have prevailed under the
second prong of the Strickland test. See Whitlow v. State, 2008 MT 140, ¶¶ 10-11,
343 Mont. 90,
183 P.3d 861 (explaining the prongs of the test established by Strickland v. Washington,
466
U.S. 668,
104 S. Ct. 2052 (1984), for ineffective assistance of counsel claims).
¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
Internal Operating Rules, which provides for noncitable memorandum opinions. The issues in
this case are legal and are controlled by settled Montana law, which the District Court correctly
interpreted.
¶8 Affirmed.
/S/ JIM RICE
3
We concur:
/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
4
