06/23/2020
Case Number: DA 19-0066
DA 19-0066
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 165N
MICHELLE C. GABLE,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. CDV-2016-836
Honorable Kathy Seeley, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Penelope S. Strong, Attorney at Law, Billings, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
Assistant Attorney General, Helena, Montana
Leo Gallagher, Lewis and Clark County Attorney, Melissa Brock,
Deputy County Attorney, Helena, Montana
Submitted on Briefs: April 8, 2020
Decided: June 23, 2020
Filed:
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__________________________________________
Clerk
Justice Laurie McKinnon 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 Appellant Michelle C. Gable (Gable) appeals a November 27, 2018 order from the
First Judicial District Court, Lewis and Clark County, denying her petition for
postconviction relief without permitting additional discovery or an evidentiary hearing.
Specifically, Gable appeals the District Court’s finding that her defense attorneys’
behavior prior to her conviction did not constitute ineffective assistance of counsel (IAC).
Gable also appeals the District Court’s failure to rule on her request for a modified
Gillham order. We affirm.
¶3 On October 13, 2011, Gable shot and killed both her estranged husband,
Joseph Gable, and Sunday Bennet. Randi Hood (Hood) and J. Thomas Bartleson
(Bartleson) were appointed as Gable’s trial attorneys. Both are veteran trial attorneys
with extensive experience among them. Upon assuming her defense, Gable’s attorneys
filed notice of the affirmative defense of justifiable use of force (JUOF). Gable
proceeded with this JUOF defense at trial. Her jury trial was held from
January 7-16, 2013. The jury found Gable guilty on two counts of deliberate homicide.
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On March 1, 2013, Gable was sentenced to two consecutive 100-year sentences, plus
restitution.
¶4 Following sentencing, Gable filed an unsuccessful appeal of issues related to her
restitution payments. On July 14, 2015, this Court affirmed the restitution ordered by the
District Court in State v. Gable, 2015 MT 200,
380 Mont. 101,
354 P.3d 566. One of the
issues raised in the 2015 appeal challenged the accuracy of the calculated costs of
court-appointed counsel due to the Office of the Public Defender’s (OPD) failure to
itemize hours and expenses. This Court did not consider that issue in 2015 and ruled that
the matter was not preserved for appeal due to Gable’s failure to sufficiently object to the
matter during her sentencing hearing.
¶5 On October 11, 2016, Gable filed a verified petition for postconviction relief with
the District Court, along with an affidavit in support. Gable asserted four counts of IAC
against Hood and Bartleson for actions taken pretrial, during trial, and at sentencing,
along with an assertion of cumulative error. The four counts alleged in Gable’s petition
can be further divided into seven individual IAC subclaims: (1) that Hood and Bartleson
failed to effectively investigate and properly advise her on the viability of the JUOF
defense used at trial; (2) that her attorneys failed to effectively advise her pretrial about
the availability of the lesser included offense of mitigated deliberate homicide under
§ 45-5-103, MCA; (3) that her trial attorneys’ decision to present a JUOF defense at trial
constituted a “serious strategic error”; (4) that her attorneys’ acted unreasonably by
failing to present the alternative defense of mitigated deliberate homicide at trial; (5) that
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her counsel failed to object to the lack of itemized costs of court-appointed counsel at
sentencing, thereby failing to preserve this argument for her 2015 appeal; (6) that her
attorneys failed “to object to the inclusion of damaging confidential psychological
evaluations” in her sentencing determination; and (7) that each of the aforementioned
subclaims “constitute[d] cumulative error in this case.”
¶6 On June 28, 2017, the District Court granted the State’s motion for a standard
Gillham order, permitting Hood and Bartleson to respond to Gable’s IAC allegations.
Although Gable did not object to the motion requesting a Gillham order, on
June 30, 2017, Gable filed a motion requesting that the District Court modify the order to
prohibit the State from communicating with Hood and Bartleson about their
representation of Gable, “unless that communication is expressly consented [to] by
Mrs. Gable or unless this Court enters an order permitting that communications take
place in a court-supervised proceeding, such as a deposition or a hearing.” The
District Court did not rule on Gable’s requested modification. Hood and Bartleson filed
affidavits on November 30, 2017, and January 16, 2018, respectively, which directly
contested the aforementioned IAC claims in Gable’s petition.
¶7 On November 27, 2018, the District Court dismissed Gable’s petition. The
District Court refused to address the merits of her cumulative error claim as Gable’s
petition merely stated the existence of this claim without providing “any legal or factual
authority or support.” In addressing the merits of the remaining six IAC claims, the
District Court found Hood and Bartleson’s affidavits to be credible while noting that the
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trial record contradicted much of Gable’s affidavit. As a result, the District Court
dismissed each of Gable’s remaining IAC claims as a matter of law and held that her
petition failed to state a claim for relief.
¶8 On January 28, 2019, Gable filed an appeal of the District Court’s denial of her
petition. Gable’s brief before this Court alleges that the District Court erred in
its: (1) dismissal of her IAC claims without further discovery or an evidentiary hearing;
and (2) failure to rule on her request for a modified Gillham order. Regarding her IAC
allegations, Gable argues on appeal that “[a]ny credibility conflicts between her
recollection and that of her former counsel merit[s] either further discovery or an
evidentiary hearing,” which she was denied by the District Court.
¶9 The specific IAC allegations raised in Gable’s appeal do not directly correspond to
the seven prior IAC claims raised in Gable’s District Court petition for postconviction
relief. Gable’s appeal was vague in its articulation of which specific District Court
IAC rulings she wished to dispute. Nevertheless, an exhaustive review of the record
reveals four separate IAC claims raised by Gable in her appeal.
¶10 First, Gable contends on appeal that she was not properly advised by her counsel
about the lesser included offense of mitigated deliberate homicide as an alternative to her
JUOF claim, and that the District Court erred in holding this action did not constitute
IAC. Second, Gable challenges the District Court’s holding that her attorneys’ failure to
object to the non-itemized list of costs utilized by the District Court in awarding
restitution did not constitute IAC. Next, Gable’s appeal alleges that her counsel
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imprudently failed to file a motion at sentencing to continue the sentencing hearing,
prejudicing her eventual sentencing result. Lastly, Gable contends that her counsel
improperly failed to object to the inclusion of damaging evidence illegitimately sourced
from her diary, which revealed key information about how Gable obtained the murder
weapons and subsequently prejudiced Gable at trial. Notably, the latter two issues were
not raised or developed by Gable in her petition for postconviction relief before the
District Court.
¶11 Under § 46-21-105(1)(a), MCA, “All grounds for relief claimed by a
[postconviction relief] petitioner under § 46-21-101 must be raised in the original or
amended original petition.” Accordingly, in appeals of postconviction proceedings, this
Court will address only those claims substantively argued on appeal which were also
submitted to the District Court. See State v. Akers, 2017 MT 311, ¶ 10,
389 Mont. 531,
408 P.3d 142 (“[A]n appellate court does not address issues raised for the first time on
appeal.”); see also Herman v. State,
2006 MT 7, ¶ 22,
330 Mont. 267,
127 P.3d 422
(“We do not consider unsupported arguments . . . on appeal”). Of the four IAC
arguments identified in Gable’s appeal, her contentions that her attorneys failed to file a
motion to continue her sentencing hearing and failed to object to the use of information
sourced from her diary were not substantively argued or addressed in her petition before
the District Court. As a result, this Court will only address the merits of Gable’s other
two IAC claims.
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¶12 This Court reviews discretionary rulings in postconviction proceedings, including
rulings on whether to hold an evidentiary hearing, for an abuse of discretion.
Sartain v. State, 2012 MT 164, ¶ 43,
365 Mont. 483,
285 P.3d 407. IAC claims,
however, are mixed questions of law and fact which this Court reviews de novo.
State v. Turner,
2000 MT 270, ¶ 47,
302 Mont. 69,
12 P.3d 934; Herman, ¶ 18. When
considering IAC claims on direct appeal of postconviction proceedings, Montana applies
the two-pronged Strickland test as set forth by the United States Supreme Court.
Strickland v. Washington,
466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984);
see also State v. Kougl,
2004 MT 243, ¶ 11,
323 Mont. 6,
97 P.3d 1095
(applying Strickland’s two-pronged test to IAC allegations in a petition for
postconviction relief). Under Strickland, a client must first demonstrate that her
counsel’s actions were “deficient or fell below an objective standard of reasonableness.”
Kougl, ¶ 11 (citations omitted). This first prong carries a strong presumption in favor of
the State, as counsel is allowed wide latitude in deciding what tactics she should, and
should not, employ in defending her client. See State v. Jefferson,
2003 MT 90, ¶ 48,
315 Mont. 146,
69 P.3d 641. Under the second prong of Strickland, a client must
“establish prejudice by demonstrating that there was a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different.” Kougl, ¶ 11
(citations omitted).
¶13 In the first of Gable’s two reviewable IAC arguments, Gable alleges her attorneys
failed to adequately explain to her the availability of mitigated deliberate homicide as an
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alternative to the JUOF defense used at trial. Gable argues that this constituted an
unreasonable action which unfairly prejudiced her, as Gable would have been assured a
much more lenient sentencing outcome had she instead been convicted of mitigated
deliberate homicide. However, the District Court noted that Gable’s statements in her
petition supporting this theory constituted only “bald assertions,” directly contradicted by
Gable’s previous statements from the trial record in which she adamantly asserted that
her desired defense was JUOF. On the other hand, Hood and Bartleson were very clear
in their affidavits that they did in fact discuss the lesser included offense of mitigated
deliberate homicide with Gable, and that Gable was not interested in pursuing this
defense. The District Court also noted Gable’s handwritten rejection of a plea offer of
mitigated deliberate homicide on December 4, 2012. Gable’s appeal fails to effectively
combat these key facts from the record. In light of this evidence, Hood and Bartleson
clearly communicated with Gable about mitigated deliberate homicide, and their decision
to defer to Gable’s strong desire to assert a JUOF defense was reasonable. Thus, Gable’s
allegation fails to meet the first prong of the Strickland test, and the District Court was
not in err by finding no IAC in this regard.
¶14 Gable’s second reviewable claim alleges that her attorneys’ failure to object to a
total, non-itemized amount of costs for her defense amounts to IAC. Gable claims that
this action was objectively unreasonable and prejudicial because, had her attorneys
objected to this issue at sentencing, it would have properly been preserved for her 2015
appeal. However, the District Court noted that Hood’s affidavit explained that the
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defense costs provided by the OPD at the sentencing hearing were lower than the actual
costs for her time. Thus, the District Court correctly ruled that Hood’s decision not to
object to the failure to itemize hours and expenses at sentencing was neither unreasonable
nor prejudicial to Gable under a Strickland analysis, as this was a perfectly reasonable
move that saved her client money, rather than prejudicing Gable in any way.
¶15 Thus, neither of Gable’s reviewable claims on appeal about the deficiencies in her
trial representation are supported by the evidence before this Court, and both claims were
correctly dismissed on the merits by the District Court. For these same reasons, the
District Court did not abuse its discretion by declining to order an evidentiary hearing or
to permit additional discovery allowing Gable to supplement her spurious allegations.
¶16 Last, Gable argues that the District Court abused its discretion by failing to rule on
her motion for a modified Gillham order, in which Gable sought to prohibit the State
from communicating with Hood and Bartleson regarding their representation of Gable
without Gable’s prior consent or without the prior authorization of the District Court in a
court-supervised proceeding. Specifically, Gable asserts that ABA Formal
Opinion 10-456 (Opinion 10-456) provides a basis for her modification request.
ABA Standing Comm. On Ethics & Prof’l Responsibility, Formal Op. 10-456 (2010).
¶17 However, as the State noted in its brief, Gable misconstrues the applicability of
Opinion 10-456, which prohibits ex parte, voluntary disclosure of privileged
attorney-client information without the client’s consent “outside court-supervised
proceedings” or “prior to a court-supervised response by way of testimony or otherwise.”
9
Opinion 10-456, at 4-5. Under Montana’s Gillham procedure, where a petitioner seeks
postconviction relief on IAC grounds, the court issues an order preserving the responding
attorney from charges of discipline or malpractice for revealing potentially confidential
information about the petitioner, their former client. The responding attorney is thereby
free to supply the State with affidavits discussing client representation in response to the
postconviction relief sought. In re Gillham, 216 Mont. 279,
704 P.2d 1019 (1985). Thus,
disclosures of client information permitted by Gillham occur entirely within the
court-supervised confines of the postconviction proceeding brought by the petitioner.
Moreover, Hood and Bartleson’s ability to reasonably disclose confidential client
information in response “to allegations in any proceeding concerning the lawyer’s
representation of the client” is expressly permitted by Rule 1.6(b)(5) of both the Montana
and ABA Rules of Professional Conduct. M. R. Pro. Cond. 1.6(b)(5); see also ABA
Model Rules of Prof’l Conduct 1.6(b)(5). Thus, the District Court did not err by refusing
to modify a Gillham procedure to which Hood and Bartleson were entitled.
¶18 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. This appeal
presents no constitutional issues, no issues of first impression, and does not establish new
precedent or modify existing precedent.
¶19 Affirmed.
/S/ LAURIE McKINNON
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We concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ JIM RICE
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