12/27/2016
DA 15-0730
Case Number: DA 15-0730
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 337N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
GARRETT LEE WHITEGRASS,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. DDC-14-184
Honorable Dirk M. Sandefur, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Carl B. Jensen, Attorney at Law, Great Falls, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana
John W. Parker, Cascade County Attorney, Great Falls, Montana
Submitted on Briefs: November 30, 2016
Decided: December 27, 2016
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), 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 In December 2014 a jury convicted Garrett Whitegrass of felony sexual
intercourse without consent. Whitegrass appeals and we affirm. The issue on appeal is
whether Whitegrass’s attorney provided effective assistance of counsel.
¶3 The victim reported to the emergency room for treatment in April 2014. The
evidence showed that she had been violently assaulted, suffering a concussion, severe
trauma to her face including broken bones, black eyes and severe bruising, bite marks on
her body and severe vaginal injuries. Whitegrass admitted to having intercourse with the
victim, but claimed that he either blacked out and did not remember inflicting any
injuries, or that someone else was responsible. The District Court continued the trial date
twice at the request of the defense to allow for evidence analysis and witness interviews.
¶4 A week prior to trial the State obtained a recording of a May 2014 phone
conversation between Whitegrass and his parents. The State provided the defense a copy
of the recording on Wednesday of the week before trial. While Whitegrass remembered
talking to his parents, he believed that he had not said anything incriminating and so was
not concerned that the State had the recording. On the recording Whitegrass stated,
2
among other things, that the victim was “slutty” and that she “probably wanted it.” At
trial the defense objected to the recording on the basis that its probative value was
outweighed by its prejudicial effect, but the District Court admitted the evidence.
Whitegrass testified that the point of the conversation with his mother was that he only
wanted the victim to “tell the truth.”
¶5 Defense counsel met with Whitegrass at or near the time the State produced the
recording to discuss the State’s plea offer of ten years with five suspended. Whitegrass
rejected the offer and countered with eight years with five suspended, which the State
rejected.
¶6 As the case proceeded to trial the District Court considered the admissibility of a
spent condom found in the yard of Whitegrass’s residence. DNA analysis indicated that
the semen came from Whitegrass’s brother. The District Court concluded that evidence
of the condom was not admissible under the Rape Shield statute. On the second day of
trial the defense announced that it had discovered Whitegrass’s cell phone the previous
night and made it available to the State. The District Court later admitted some of the
text messages that were generated between Whitegrass and the victim both prior to and
after the rape. Those messages implied that the victim agreed to meet Whitegrass; that
she was bringing drugs for him (Klonopin); and that the two planned to have sex. The
content of these messages caused the State to recall the victim, who recanted parts of her
testimony from the day before in which she denied that she had given drugs to
Whitegrass.
3
¶7 After the jury convicted Whitegrass the District Court granted a defense motion to
appoint new counsel for post-trial proceedings. Whitegrass’s new attorney filed a
“Motion to Enforce Plea Offer” requesting that the State be required to re-offer its
rejected plea deal of ten years with five suspended. The District Court conducted an
evidentiary hearing. The parties apparently agreed that the hearing would not focus on
whether Whitegrass’s trial counsel provided effective assistance.
¶8 Trial counsel testified that on December 3 he received the recording of the phone
conversation between Whitegrass and his parents, and that it contained incriminating
statements. Counsel testified that he believed the biggest hurdle for the defense was the
severity of the victim’s injuries, but that there was a chance of “prevailing” by
impeaching her account of the events. He said that he probably recommended that
Whitegrass take the State’s plea offer but was not sure. Whitegrass testified that he knew
about the recorded conversation before he rejected the State’s plea offer, but that his
construction of the situation was that the conversation was “all the State had on me”; that
they “didn’t have DNA on me”; and that the State’s case was “weak.”
¶9 At the conclusion of the testimony the District Court determined that Whitegrass
had not demonstrated that he was denied the opportunity to make a knowing and
voluntary plea decision. Rather, Whitegrass made a deliberate choice to not learn more
about the evidence (principally the recording) because of his own belief that he would not
have said anything that damaged his defense. The District Court noted that Whitegrass
never claimed that his attorney failed to discuss the recording with him and never denied
4
that he had the opportunity, if he chose, to examine the contents of the recording. The
District Court sentenced Whitegrass to a lengthy prison term.
¶10 Whitegrass appeals his conviction, but he does not appeal denial of his motion to
enforce the State’s rejected plea offer. Rather, he contends that his attorney was
ineffective. He contends that in the face of the “late” production of the recording, the
DNA evidence from the condom, and the contents of his cell phone, his attorney should
have requested a continuance of the trial in an effort to re-engage the State in plea
negotiations.
¶11 This Court evaluates claims of ineffective assistance of counsel under the test
established in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052 (1984). Whitlow
v. State,
2008 MT 140, ¶ 10,
343 Mont. 90,
183 P.3d 861. First, the defendant must show
that his attorney’s performance was deficient by demonstrating that it fell below an
objective standard of reasonableness. Whitlow, ¶ 14. There is a strong presumption that
the attorney’s performance fell within the wide range of reasonable professional
assistance, Whitlow, ¶ 15, because there are “countless ways to provide reasonable
assistance in any given case.” Strickland,
466 U.S. at 689,
104 S. Ct. at 2065.
¶12 Second, the defendant must show that his attorney’s deficient performance
prejudiced the defense. Whitlow, ¶ 10. This requires a showing of a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland,
466 U.S. at 694,
104 S. Ct. at 2068.
¶13 The record as a whole, including the post-trial hearing regarding the plea
negotiations, sufficiently demonstrates that Whitegrass’s attorney was not ineffective in
5
failing to request a continuance in order to ask the State to re-engage in plea negotiations.
Whitegrass’s arguments to the contrary are largely speculative. Whitegrass speculates
that the District Court would have stopped the trial to allow the defense to ask the State
about a plea agreement. He speculates that the State would agree to plea negotiations
after its case had gotten stronger. He speculates that the State would have made a plea
offer that Whitegrass would have accepted, after he had already rejected an offer of ten
years with five suspended.
¶14 In addition, the evidence of the condom found in the yard was not likely to be
admitted because of the Rape Shield law.1 Furthermore, the text messages on
Whitegrass’s cell phone were actually favorable to the defense (indicating that the victim
had agreed to meet and have sex and to bring drugs).
¶15 Whitegrass has only speculated that a continuance would be granted during trial
and that it would result in a new plea offer that he would have accepted. This is
insufficient to demonstrate ineffective assistance of counsel. We conclude that
Whitegrass has failed to demonstrate that trial counsel’s performance fell outside the
“wide range of reasonable professional assistance” recognized by the law.
¶16 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, this case presents a question controlled by settled law or by the clear
application of applicable standards of review.
1
The Montana Rape Shield Law generally precludes, in prosecutions of sexual offenses,
the admission of evidence concerning the sexual conduct of the victim except evidence of past
conduct with the defendant. Section 45-5-511(2), MCA.
6
¶17 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ LAURIE McKINNON
7
