01/24/2023
DA 22-0056
Case Number: DA 22-0056
IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 15N
BRANDON BAGNELL,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DV-21-228
Honorable James A. Manley, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Brandon Bagnell, Self-Represented, Shelby, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Brad Fjeldheim, Assistant
Attorney General, Helena, Montana
James Allen Lapotka, Lake County Attorney, Brendan McQuillan,
Deputy County Attorney, Polson, Montana
Submitted on Briefs: December 21, 2022
Decided: January 24, 2023
Filed:
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__________________________________________
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 Brandon Bagnell (Bagnell) appeals from Twentieth Judicial District Court order
denying his petition for postconviction relief (PCR). We affirm.
¶3 After the State presented evidence of hundreds of (frequently violent and sexually
explicit) letters Bagnell had sent to L.L. from prison, Bagnell was found guilty of stalking
at an October 2, 2015 trial and sentenced as a persistent felony offender to twenty years’
imprisonment, with no time suspended. See State v. Bagnell, No. DA 18-0160, 2020 MT
234N, ¶¶ 2-5,
2020 Mont. LEXIS 2317. On appeal, we concluded that an erroneous jury
instruction was not sufficiently prejudicial to entitle Bagnell to a new trial on plain error
review or to demonstrate ineffective assistance of counsel (IAC) for failure to object to the
instruction. Bagnell, ¶ 2.
¶4 Bagnell filed a pro se PCR petition. The District Court dismissed the petition
without a hearing, determining that the record conclusively showed that Bagnell was not
entitled to relief. The District Court summarily concluded that Bagnell’s IAC claim was
already addressed on direct appeal and that Bagnell failed to show that the persistent felony
offender sentence was imposed in violation of state or federal law.1 Bagnell appeals.
¶5 We review a district court’s denial of a petition for postconviction relief to
determine whether the court’s findings of fact are clearly erroneous and whether
conclusions of law are correct. Heath v. State,
2009 MT 7, ¶ 13,
348 Mont. 361,
202 P.3d
118. We review discretionary rulings in PCR proceedings, including rulings related to
whether to hold an evidentiary hearing, for an abuse of discretion. Heath, ¶ 13. Whether
a defendant received ineffective assistance of counsel is a mixed question of law and fact
we review de novo. Heath, ¶ 13.
¶6 A PCR petitioner must show, by a preponderance of the evidence, that the facts
justify the relief. State v. Cobell,
2004 MT 46, ¶ 12,
320 Mont. 122,
86 P.3d 20. A petition
for postconviction relief must “identify all facts supporting the grounds for relief set forth
in the petition and have attached affidavits, records, or other evidence establishing the
existence of those facts.” Section 46-21-104(1)(c), MCA. A court may dismiss a PCR
petition that does not satisfy this procedural threshold without holding an evidentiary
hearing. Herman v. State,
2006 MT 7, ¶ 15,
330 Mont. 267,
127 P.3d 422. Moreover, a
district court also may dismiss a petition for postconviction relief without ordering a
1
In the initial Order dismissing Bagnell’s petition, the District Court also concluded that Bagnell’s
petition was not timely. After Bagnell subsequently filed a notice arguing that his claim was not
time-barred, the District Court issued an order agreeing that Bagnell’s petition was not time-barred
and that the court’s “procedural basis for dismissal was in error.” The court concluded, however,
that “the substantive grounds for dismissal remain.”
response if the petition, files, and records “conclusively show that the petitioner is not
entitled to relief.” Section 46-21-201(1)(a), MCA.
¶7 In assessing claims of inadequate assistance of counsel, the reviewing court must
apply the two-prong test from Strickland v. Washington,
466 U.S. 668,
104 S. Ct. 2052
(1984). Dawson v. State,
2000 MT 219, ¶ 20,
301 Mont. 135,
10 P.3d 49. Under the
Strickland standard, a defendant must establish that counsel’s performance was deficient
and that the deficient performance prejudiced the defense and deprived the defendant of a
fair trial. Strickland,
466 U.S. at 687,
104 S. Ct. at 2064; Dawson, ¶ 20. Courts determine
deficient performance based on whether a defendant’s counsel acted within the broad range
of competence demanded of attorneys in criminal cases. State v. Santoro,
2019 MT 192,
¶ 15,
397 Mont. 19,
446 P.3d 1141. A strong presumption exists that counsel’s conduct
falls within the wide range of reasonable professional conduct. Santoro, ¶ 15. With regard
to prejudice, the defendant must demonstrate that a reasonable probability exists that, “but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Dawson, ¶ 20; Strickland,
466 U.S. at 694,
104 S. Ct. at 2068.
¶8 Bagnell contends that the District Court erred in denying his IAC claims in his PCR
petition on the basis of concluding that they had already been addressed on appeal. Bagnell
points out that his direct appeal IAC claim was record-based, addressing only his trial
counsel’s failure to object to an allegedly erroneous jury instruction. See Bagnell, ¶ 13. In
this PCR petition, Bagnell asserts errors by his multiple counsel2 throughout the case
unrelated to trial counsel’s failure to object to the jury instruction, and he argues on appeal
that some of his IAC claims were not record-based and are appropriate for review at the
PCR stage.
¶9 We agree. However, we will affirm a district court that reaches the right result, even
if for the wrong reason. State v. Marcial,
2013 MT 242, ¶ 20,
371 Mont. 348,
308 P.3d 69.
¶10 Bagnell first contends that his counsel was ineffective in failing to timely interview
two potential witnesses and obtain a recorded jail phone call. Bagnell claims that such
evidence would have demonstrated: (1) that L.L. had been threatening Bagnell and his
family; (2) that during a third-party phone call with the witness, another inmate, L.L. had
consented to receive calls from Bagnell; and (3) regarding various aspects of L.L.’s
character. To succeed on an IAC claim premised on a failure to investigate, Bagnell must
show that the information would have been admissible and effective. Hamilton v. State,
2010 MT 25, ¶ 16,
355 Mont. 133,
266 P.3d 588. With regard to the first item, threats by
the victim is not a defense to the felony stalking statute and would not have been admissible
as they are irrelevant.3 See § 45-5-220(1), MCA (2015) (criminalizing “purposely or
knowingly caus[ing] another person substantial emotional distress or reasonable
2
Throughout the course of his criminal proceeding at the trial court level, Bagnell was represented
by three different attorneys, two of whom requested to withdraw due to Bagnell’s actions. The
District Court took judicial notice of three previous Lake County causes where Bagnell had made
complaints against counsel similar to those he leveled against his counsel before the trial court in
this case.
3
Nevertheless, Bagnell’s trial counsel did cross-examine L.L. on whether she had threatened to
drown Bagnell’s children, to which L.L. responded that she did not recall, but that she “[p]robably
told [Bagnell] I was going to drown him too.”
apprehension of bodily injury or death by repeatedly . . . harassing, threatening, or
intimidating the stalked person,” in person or by remote methods); M. R. Evid. 402
(irrelevant evidence inadmissible). With regard to the second, even if consent were to be
admissible as relevant, trial counsel presented far more compelling material on the same
matter: evidence that L.L. directly answered phone calls she knew to be from Bagnell and
spoke with him. Thus, evidence that L.L. had consented to communication from Bagnell
through a third party would have been merely duplicative of and far less compelling than
the evidence that defense counsel did present. Counsel was not ineffective and Bagnell
was not prejudiced by this failure in any event.
¶11 Third, Bagnell argues that witness testimony would have established that L.L. was
addicted to methamphetamine and was routinely violent and dishonest. Methamphetamine
use and violence are irrelevant to the charge of stalking under § 45-5-220(1), MCA (2015).
While a witness’s character for truthfulness may be attacked through opinion or reputation
evidence admissible under M. R. Evid. 608, Bagnell failed to attach a sufficient affidavit,
record, or evidence to his PCR petition specifically demonstrating that effective and
admissible witness testimony was available to attack L.L.’s credibility.
See § 46-21-104(1)(c), MCA (PCR petition must “have attached affidavits, records, or
other evidence establishing the existence of those facts”); Ellenburg v. Chase,
2004 MT
66, ¶ 16,
320 Mont. 315,
87 P.3d 473 (“a petition for postconviction relief must be based
on more than mere conclusory allegations”); Kelly v. State,
2013 MT 21, ¶ 10,
368 Mont.
309,
300 P.3d 120 (mere “self-serving statement” by defendant insufficient).
¶12 In any event, defense counsel succeeded in undermining L.L.’s credibility through
much more compelling means. On cross-examination, defense counsel challenged L.L.’s
assertion that she had not opened all but a couple of the offending letters received from
Bagnell that she gave to authorities by asking her whether she was “aware that Officer
Simpson told us that all of the letters were opened when he got them” More importantly,
L.L. denied accepting more than one call from Bagnell while he was incarcerated and
responded “Hell, no” when asked if she ever let Bagnell talk to her granddaughter over the
phone. Defense counsel then played recordings of two phone calls initiated by Bagnell
from a detention center that were knowingly answered and engaged in by L.L., at least one
of which had L.L.’s granddaughter on the line. L.L., despite officially still being under
subpoena, left the courtroom during the playing of these recordings and could not
subsequently be located to be recalled to the witness stand. Defense counsel contended at
length during closing argument that L.L. left and failed to return because “she was caught
in a lie” made on the witness stand. Any generic reputation or opinion testimony regarding
L.L.’s truthfulness would have done far less to undermine L.L.’s credibility than what
defense counsel managed to elucidate at trial. Thus, trial counsel’s failure to present
evidence Bagnell alleges to exist undermining L.L.’s character for truthfulness was not
prejudicial to Bagnell. See Hamilton, ¶ 16 (affirming denial of PCR petition because,
although the defendant had provided defense counsel “with information that he
subjectively believed would impeach the credibility of the victim and her mother, [the]
petition fails to show that the information would have been admissible and effective”).
¶13 Bagnell also argues that the attorney who represented him at sentencing failed to
have two pieces of incorrect information removed from the presentence investigation
(PSI).4 First, he points to the section of his PSI quoting an excerpt from a Board of Pardons
and Parole report indicating that Bagnell had absconded from probation on three occasions.
Bagnell notes that the Department of Corrections subsequently corrected its records after
concluding that during one of these time periods, Bagnell had not absconded, but, rather,
was incarcerated in another state during that time. Second, Bagnell points to language
describing his prior assault upon his ex-wife, contending that the PSI should have also
included his claim that his ex-wife had attempted to stab him during the incident. Bagnell
raised neither of these items in his PCR petition below, and we therefore decline to review
them on appeal. Sanders v. State,
2004 MT 374, ¶ 14,
325 Mont. 59,
103 P.3d 1053
(“A postconviction claim that is not raised in an original or amended original petition
cannot be raised for the first time on appeal.”).
¶14 Notably, notwithstanding Bagnell’s two remaining objections described above,
defense counsel successfully advocated on behalf of a number of Bagnell’s other concerns
at the PSI stage, successfully moving for a second PSI and psychological report pursuant
to Bagnell’s request and then filing a notice of objections identifying Bagnell’s continued
concerns. The District Court accepted many of these objections, striking various items
from the PSI. Bagnell has not shown that defense counsel’s conduct during the sentencing
4
Bagnell asserts that the erroneous information in the PSI affected the content of the subsequent
psychological evaluation, which informed his decision to refuse to allow the psychological
evaluation to be used at sentencing.
stage fell below an objective standard of reasonableness measured under prevailing
professional norms. See Whitlow v. State,
2008 MT 140, ¶ 20,
343 Mont. 90,
183 P.3d
861.
¶15 Bagnell next raises two due process arguments. First, Bagnell argues that the
prosecuting County Attorney had a conflict of interest because he represented Bagnell in a
prior criminal case while working with the Office of the Public Defender. Bagnell presents
no new evidence to support this allegation, which was made and addressed during trial
court proceedings,5 and could have been raised on direct appeal. “When a petitioner has
been afforded the opportunity for a direct appeal of the petitioner’s conviction, grounds for
relief that were or could reasonably have been raised on direct appeal may not be raised,
considered, or decided in a [PCR] proceeding.” Section 46-21-105(2), MCA. We therefore
do not address the claim further. See Hardin v. State,
2006 MT 272, ¶ 16,
334 Mont. 204,
146 P.3d 746 (overruled in part on other grounds in Gardipee v. Salmonsen,
2021 MT 115,
¶ 10,
404 Mont. 144,
486 P.3d 689); State v. Hanson,
1999 MT 226, ¶ 14,
296 Mont. 82,
988 P.2d 299.
¶16 Bagnell argues that the court denied him due process when it denied his new
counsel’s motion for a continuance of trial. The only potentially new evidence Bagnell
brings to light here is that trial counsel moved for a continuance after prior counsel, David
Mattingley (Mattingley), withdrew following Mattingley’s in camera disclosure to the
5
The prosecutor responded that, while it was possible that he might have made an appearance at
a bail hearing on behalf of Bagnell or been a managing attorney during a period of time in which
Bagnell was being represented on another matter, he had no memory of Bagnell and therefore
possessed no confidential information related to Bagnell.
court that the public defender’s office had received a letter from Bagnell threatening
Mattingley. Bagnell essentially argues that the District Court denied Bagnell’s subsequent
motion for a continuance as a sanction for Bagnell’s alleged threat, despite the fact that
Bagnell was never charged with, convicted of, or given due process with respect to, the
threat allegation. Bagnell provides no evidence to support this assertion6 and moreover,
did not raise it in his PCR petition before the District Court. Bagnell could have argued
that the district court abused its discretion in denying his motion for a continuance on direct
appeal, and is therefore barred from doing so now. See § 46-21-105(2), MCA; Hardin,
¶ 16; Hanson, ¶ 14.
¶17 Bagnell’s “Motion to Subpoena Jail Phone Record,” “Motion to Appoint Counsel,”
and motion to “Compel Deposition of [Jail Phone Call Participant]”—included in his
Opening Brief on appeal—are denied as irrelevant based on the rulings herein.
¶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. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶19 Affirmed.
/s/ MIKE McGRATH
We Concur:
6
The concise court order denying Bagnell’s motion makes no mention of an alleged threat by
Bagnell, instead rejecting Bagnell’s assertion that newly-discovered information required more
time to prepare for trial and noting that “Mr. Bagnell has a pattern of causing delay and causing
change of attorneys.”
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ INGRID GUSTAFSON
