                                           No. 05-376

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2006 MT 226N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

JOEL BRYANT RUFF,

              Defendant and Appellant.


APPEAL FROM:         District Court of the Ninth Judicial District,
                     In and For the County of Toole, Cause No. DC 04-021
                     Honorable Marc G. Buyske, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Meghan Lulf Sutton, Attorney at Law, Great Falls, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; John Paulson,
                     Assistant Attorney General, Helena, Montana

                     Merle Raph, Toole County Attorney, Shelby, Montana



                                                   Submitted on Briefs: September 7, 2006

                                                              Decided: September 12, 2006


Filed:

                     __________________________________________
                                       Clerk
Chief Justice Gray delivered the Opinion of the Court.



¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following 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     Joel Bryant Ruff appeals from the order entered by the Ninth Judicial District Court,

Toole County, denying his motion to withdraw his guilty plea. We affirm.

¶3     In April of 2004, the State of Montana charged Ruff by information with the felony

offenses of operation of an unlawful clandestine laboratory and criminal possession of

dangerous drugs. The State charged Matthew James Brix with related offenses on the same

day. According to the State’s affidavit in support of its motion for leave to file an

information against Ruff, law enforcement officers discovered items and materials consistent

with the production of methamphetamine in a trailer which they searched pursuant to a

warrant. An officer subsequently testified that at the time of the search, he did not know who

resided at the trailer, but the State’s affidavit states certain items were found in Ruff’s

bedroom. At the time the charges against Ruff and Brix were filed, a case captioned State v.

Anyan, our cause number 02-639, involving the “knock and announce” rule in the execution

of search warrants, was pending in this Court after submission in September of 2003.

¶4     Brix moved to suppress the evidence in his case, arguing officers had violated his

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privacy rights by executing the warrant on the trailer without knocking first. Ruff’s counsel

indicated in an omnibus form that he would file a suppression motion by a date certain;

however, he later requested and obtained a continuance of the due date for the motion,

advising the District Court that he might not file a suppression motion depending on the

outcome of Brix’s motion. The District Court held a hearing on Brix’s motion in July of

2004. A Toole County deputy sheriff testified that officers executed the search warrant for

the trailer by announcing their presence and identity as they entered. He also provided the

reasons they decided to execute the warrant without knocking first. The District Court

denied Brix’s motion, and Ruff’s counsel later indicated he would not file a suppression

motion.

¶5     Ruff and the State ultimately executed a plea agreement. Ruff agreed to plead guilty

to the felony offense of operation of an unlawful clandestine laboratory and, in exchange, the

State agreed to recommend that Ruff be committed to the Department of Corrections for five

years, with three years suspended, and to move for dismissal of the felony charge of criminal

possession of dangerous drugs. The District Court accepted Ruff’s guilty plea at a change of

plea hearing on December 9, and scheduled sentencing for January 13, 2005. After Ruff’s

change of plea hearing and before his scheduled sentencing hearing, we decided State v.

Anyan, 2004 MT 395, 325 Mont. 245, 104 P.3d 511.

¶6     In the meantime, Brix and the State also entered into a plea agreement, Brix changed

his plea and the District Court accepted it. The court scheduled Brix’s sentencing hearing for

January 13, 2005, the same date as Ruff’s. At the time set for Brix’s sentencing hearing, the

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State advised the District Court that Brix had moved to withdraw his guilty plea, and

requested time to respond. The District Court set a briefing schedule and advised Ruff’s

counsel—who was present—that, if Ruff wished to make a similar motion, the same briefing

schedule would apply.

¶7     Ruff moved to withdraw his guilty plea on January 21, 2005, stating “[t]his Motion

adopts and joins in the arguments set forth in the companion case now pending before this

Court, State v. Brix, DC 04-21.” The motion also states

       [w]hile Ruff did not file a motion to suppress alongside Brix or join in his
       motion, the interests of justice would be served by allowing him to withdraw
       his plea of guilty and file a motion to suppress. Defense counsel believed prior
       to Anyan that the law would have found exigent circumstances that did not
       require a knock and announce. Furthermore, defense counsel intentionally
       waited until this Court decided the Brix motion to suppress to negotiate a plea
       agreement and change the plea[.]

The State filed a brief in opposition to Ruff’s motion, stating that “[d]uring negotiations, the

Defendant had knowledge of the pending Anyan decision and he entered into a plea

agreement with that knowledge.” The State also argued that the District Court’s reasoning in

denying Brix’s motion was consistent with Anyan.

¶8     The District Court denied Ruff’s motion to withdraw his guilty plea. It reasoned that a

plea agreement is a contract subject to contract law standards and Ruff’s allegedly

“mistaken” prediction of a future legal decision was not a basis for withdrawing his plea.

The court stated that “[d]efendant was aware of the pending Anyan case and the issues

involved when he made the strategic decisions not to file a motion to suppress and to enter

into a plea agreement with the State.” Later, after a sentencing hearing, the District Court

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sentenced Ruff in accordance with the plea agreement and entered judgment.

¶9     On appeal, Ruff first asserts his guilty plea was involuntary. While Ruff concedes

defense counsel knew of Anyan, he contends the record does not indicate whether Ruff knew

of Anyan at the time he pled guilty. Ruff notes the District Court did not tell him about

Anyan at the change of plea hearing and observes that, at sentencing, he stated he was “not

aware of the technicalities of the case.” On these grounds, he argues the District Court

abused its discretion in denying his motion to withdraw his guilty plea.

¶10    Ruff cites to no authority in support of his argument that a guilty plea is involuntary or

otherwise invalid if either defense counsel or the trial court fails to advise the defendant of

the potential legal ramifications of a separate case pending in an appellate court. Nor does he

advance authority challenging the “contract law” basis of the District Court’s denial of his

motion to withdraw his guilty plea. Rule 23(a)(4), M.R.App.P., requires an appellant to

advance authorities in support of positions taken. Absent such authority, an appellant cannot

carry the burden of establishing error. State v. Bailey, 2004 MT 87, ¶ 26, 320 Mont. 501, ¶

26, 87 P.3d 1032, ¶ 26 (citation omitted). Therefore, Ruff has not established error in the

court’s denial of his motion to withdraw his guilty plea.

¶11    Ruff also asserts his counsel was ineffective. In reviewing ineffective assistance of

counsel claims, we apply the Strickland test, which requires the defendant to establish that

(1) counsel’s performance was deficient or fell below an objective level of reasonableness;

and (2) counsel’s deficient performance prejudiced the defendant in that, but for counsel’s

errors, a reasonable probability exists that the result of the proceeding would have been

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different. State v. Kougl, 2004 MT 243, ¶ 11, 323 Mont. 6, ¶ 11, 97 P.3d 1095, ¶ 11

(citations omitted). Regarding the “deficient performance” prong, the defendant bears the

burden to show that counsel’s performance fell below an objective standard of

reasonableness. Generally, counsel’s trial tactics and strategic decisions cannot be the basis

for a determination of ineffective assistance of counsel. Moreover, in light of the “strong

presumption” that counsel acted within the wide range of reasonable professional assistance,

this Court avoids the distorting effects of hindsight by focusing on counsel’s perspective at

the time of the alleged action or omission. See State v. Grixti, 2005 MT 296, ¶ 25, 329 Mont.

330, ¶ 25, 124 P.3d 177, ¶ 25 (citations omitted).

¶12    Ordinarily, this Court analyzes whether an ineffective assistance of counsel claim is

properly before us on direct appeal, or more appropriately raised in postconviction

proceedings, by determining whether the claim is based on the record. See State v.

Gallagher, 2005 MT 336, ¶ 23, 330 Mont. 65, ¶ 23, 125 P.3d 1141, ¶ 23 (citation omitted).

At times, however, we deem it unnecessary to conduct further inquiry regarding nonrecord-

based claims in postconviction proceedings in order to determine whether the appellant has

established that counsel’s actions fell below an objectively reasonable standard. See, e.g.,

Grixti, ¶ 28. Here, we determine such further inquiry is unnecessary and address Ruff’s

arguments in turn.

¶13    Ruff’s main assertion is that defense counsel performed deficiently in failing to

preserve the “knock and announce” issue for appeal in two ways. First, he contends counsel

failed to file or join in a suppression motion in District Court. He also argues counsel failed

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to reserve the right to appeal regarding the “knock and announce” issue in his plea

agreement. He asserts counsel’s allegedly deficient performance prejudiced him because he

is now precluded from raising the “knock and announce” issue on appeal. In relation to this

assertion regarding the “prejudice” prong of Strickland, he argues extensively about alleged

factual similarities between his case and Anyan in an apparent attempt to demonstrate a

reasonable probability that he would prevail on appeal if he could raise the “knock and

announce” issue.

¶14    With respect to the “deficient performance” prong of Strickland, however, Ruff’s

argument is sparse. He asserts only that defense counsel “should have been aware that

omission [to join in Brix’s motion, to negotiate a reservation of rights in his plea agreement,

and the like] would result in Ruff being extremely prejudiced should Anyan go Ruff’s way.”

He also cites to State v. Kennedy, 2004 MT 53, ¶ 28, 320 Mont. 161, ¶ 28, 85 P.3d 1279, ¶ 28

(citation omitted), for the well-settled principle that, if an objection concerning a

constitutional matter is not made in the trial court, it generally will not be heard on appeal. In

his conclusion, he states counsel was ineffective in failing to preserve the “knock and

announce” issue, and counsel’s alleged inaction fell below reasonable standards of the legal

profession and prejudiced him.

¶15    Ruff advances no authority for the proposition that defense counsel performs

deficiently by failing to file a suppression motion after the trial court has denied a similar

motion in a companion case while yet another case involving the issue remains pending on

appeal.    Nor has he provided authority to support his assertion that, under such

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circumstances, counsel performs deficiently by failing to reserve the right to appeal a

particular issue in a plea agreement—assuming the prosecutor and the District Court would

have consented to such a reservation. Ruff’s citation to Kennedy for the rule regarding issues

raised for the first time on appeal simply does not speak to the question of whether counsel’s

alleged omissions fell below an objective standard of reasonableness. As stated above, an

appellant cannot meet his burden of establishing error if he does not advance relevant

authority, as required by Rule 23(a)(4), M.R.App.P. See Bailey, ¶ 26. Ruff has not

established that counsel’s decision not to file a suppression motion or alleged failure to

reserve the right to appeal in the plea agreement, viewed without the distorting effects of

hindsight, fell below an objective standard of reasonableness or constituted deficient

performance.

¶16    Ruff also asserts—in an argument heading only—that counsel performed deficiently

by failing to inform him of Anyan. In addition, Ruff contends that, before advising him with

respect to pleading guilty, defense counsel should have ascertained the outcome of Anyan,

either by waiting until it was decided or by moving for a continuance. He has provided no

authority to support his assertions that such alleged omissions constitute deficient

performance. Thus, he has not met his burden under Strickland.

¶17       We hold the District Court did not abuse its discretion in denying Ruff’s motion to

withdraw his guilty plea and Ruff has not established his ineffective assistance of counsel

claims.



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¶18   Affirmed.


                          /S/ KARLA M. GRAY


We concur:


/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ JIM RICE




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