                                                                                           December 15 2015


                                          DA 15-0111
                                                                                           Case Number: DA 15-0111

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2015 MT 343



DOUGLAS JOSEPH CHYATTE,

               Plaintiff and Appellant,

         v.

STATE OF MONTANA,

               Defendant and Appellee.


APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DV-14-1099
                       Honorable Robert L. Deschamps, III, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Douglas Joseph Chyatte, self-represented; Deer Lodge, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
                       Assistant Attorney General; Helena, Montana

                       Kirsten H. Pabst, Missoula County Attorney, Jason Marks, Deputy County
                       Attorney; Missoula, Montana



                                                   Submitted on Briefs: October 28, 2015
                                                              Decided: December 15, 2015


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.



¶1     Douglas Joseph Chyatte (Chyatte) appeals from the denial of his petition for

postconviction relief by the Fourth Judicial District Court, Missoula County. We affirm

in part, reverse in part, and remand for further proceedings.

¶2     We address the following issues on appeal:

      1. Did the District Court err by holding that Chyatte’s trial-related claims were
procedurally barred?

      2. Did the District Court err by denying Chyatte’s ineffective assistance of
counsel claims?

¶3     Chyatte also raises procedural issues that are subsumed within the resolution of the

above-stated issues.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶4     On September 26, 2011, Chyatte was charged with the felony offense of Assault

With a Weapon for a stabbing that occurred at the Wilma Theater in Missoula. On

November 1, 2011, more than a month prior to the omnibus hearing, the State filed notice

of its intent to seek increased punishment under § 46-13-108, MCA, the persistent felony

offender (PFO) statute.

¶5     Trial was set for August 15, 2012. On June 14, 2012, Chyatte’s counsel filed a

motion to dismiss the Information, arguing that the charge was not supported by probable

cause because the victim had identified another person as the assailant during a

photographic lineup.      The District Court denied the motion, concluding there was

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probable cause to support the charge and noting the victim’s misidentification was a fact

to be weighed by the jury at trial.

¶6     Shortly after trial began, Chyatte moved for, and was granted, a mistrial. Trial

was rescheduled for late August. Chyatte then requested to represent himself and a

hearing was conducted on that issue. The District Court concluded that Chyatte was

competent and able to represent himself, and granted his request. Chyatte’s counsel was

relegated to standby status.

¶7     Chyatte filed two pretrial motions. First, Chyatte filed a motion to dismiss the

Information, arguing the police reports had been altered. Second, Chyatte filed a motion

in limine to exclude DNA evidence because the State Crime Lab witness had been added

late and he did not have an opportunity to interview the witness. The District Court held

a hearing on the motions and denied them both, although it granted Chyatte an

opportunity to interview the crime lab witness.

¶8     Following a two-day jury trial, Chyatte was found guilty. Chyatte subsequently

obtained counsel for sentencing and appeal. Chyatte’s new counsel challenged Chyatte’s

competency to represent himself, and the District Court continued the sentencing hearing

to allow Chyatte to be evaluated by Dr. William Stratford. At sentencing, the District

Court received testimony from both Dr. Stratford and Chyatte concerning Chyatte’s

competency to represent himself. The District Court held that Chyatte had knowingly

and intelligently waived his right to counsel and was competent to represent himself. The




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District Court then designated Chyatte a persistent felony offender and imposed a 20-year

prison sentence with 10 years suspended.

¶9     Chyatte challenged his conviction on appeal, arguing the District Court erred by

denying his motion in limine and his motion to excuse a prospective juror for cause, and

by determining that his waiver of counsel was made knowingly and intelligently. We

affirmed the District Court on all issues raised. State v. Chyatte, 2014 MT 125N, 375

Mont. 552, 346 P.3d 1133.

¶10    On October 20, 2014, Chyatte filed a petition for postconviction relief, raising four

trial-related rulings and several ineffective assistance of counsel issues. Chyatte claimed

he introduced evidence that he was diagnosed with lupus as a mitigating factor for

sentencing, but that the District Court disregarded his diagnosis based on the false

testimony of a Missoula County Detention Center nurse. Chyatte claimed he was denied

his right to a fair trial when police reports were altered or destroyed. Chyatte claimed the

District Court erred by permitting an expert from the state crime lab to testify regarding

DNA evidence without first determining whether the evidence was relevant, trustworthy,

and scientifically valid. Chyatte claimed he received an unfair trial because the District

Court prevented him from questioning officers about a second knife found at the scene

and from introducing a picture of the knife into evidence.          Lastly, Chyatte made

ineffective assistance of counsel claims against his original counsel: that Chyatte rejected

a favorable plea agreement due to his counsel’s alleged advice that Chyatte could not be

convicted of assault with a weapon because of the victim misidentification, and that PFO

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status could not be imposed because the State had failed to complete the PFO designation

on the omnibus memorandum; and that his counsel was ineffective because counsel

received a 30-day suspension from the practice of law, which ended a month before his

first trial.

¶11     The District Court dismissed the petition without ordering a response from the

State or conducting a hearing. The District Court concluded that Chyatte’s trial-related

claims were procedurally barred because they could have been brought on direct appeal,

and held that the ineffective assistance of counsel claims were without merit because,

even if Chyatte’s counsel had given incorrect advice, Chyatte could not establish any

prejudice from such advice. Chyatte appeals.

                                STANDARD OF REVIEW

¶12     A district court may dismiss a petition for postconviction relief as a matter of law,

and we review a court’s conclusions of law for correctness. Herman v. State, 2006 MT 7,

¶ 13, 330 Mont. 267, 127 P.3d 422. An ineffective assistance of counsel claim presents

mixed questions of law and fact which this Court reviews de novo. Sartain v. State, 2012

MT 164, ¶ 9, 365 Mont. 483, 285 P.3d 407.            “We review discretionary rulings in

post-conviction relief proceedings, including rulings related to whether to hold an

evidentiary hearing, for an abuse of discretion.” Wilkes v. State, 2015 MT 243, ¶ 9, 380

Mont. 388, 355 P.3d 755.




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                                      DISCUSSION

¶13 1. Did the District Court err by holding that Chyatte’s trial-related claims were
procedurally barred?

¶14    Montana’s postconviction scheme contains a procedural bar of claims that “could

reasonably have been raised” on direct appeal. Section 46-21-105(2), MCA. We have

construed the term “could reasonably have been raised” to include issues which could

have been, but were not, properly preserved for appeal during trial. State v. Baker, 272

Mont. 273, 281, 901 P.2d 54, 58 (1995). Thus, errors evident on the trial record are

generally not grounds for postconviction relief because they could have been preserved,

and then raised on appeal. See State v. Herrman, 2003 MT 149, ¶¶ 24-34, 316 Mont.

198, 70 P.3d 738.

¶15    Each of Chyatte’s first four claims are based upon asserted error that was evident

on the trial record, and therefore could and should have been raised on appeal. The

alleged error in failing to consider Chyatte’s asserted lupus diagnosis in sentencing was a

clear matter of record. Pre-trial, Chyatte first raised the issue as a claim that he was not

receiving proper medical treatment at the Missoula County Detention Center.            The

District Court agreed to take up the issue, scheduling a hearing and permitting Chyatte to

be tested, only to have Chyatte refuse to submit to a blood test. Then, Chyatte raised the

issue a second time during the sentencing phase as a mitigation factor, which the District

Court then rejected. Still, Chyatte did not raise the issue on appeal. Similarly, the

District Court held an evidentiary hearing regarding Chyatte’s claims that police reports

had been altered, but Chyatte did not raise the issue on appeal. Chyatte’s claim regarding
                                         6
the admission of DNA evidence was addressed twice on the record, but on his direct

appeal he challenged only the District Court’s ruling permitting the crime lab witness to

testify, not any failure to require adequate foundation for introduction of the DNA

evidence. Lastly, the alleged evidentiary errors concerning the second knife found at the

Wilma Theatre were clearly evident on the trial record, and similarly could have been

preserved and raised on appeal, but were not. The District Court correctly determined

that these claims were procedurally barred under § 46-21-105(2), MCA.

¶16 2. Did the District Court err by denying Chyatte’s ineffective assistance of
counsel claims?

¶17    Chyatte argues he received ineffective assistance of counsel when his counsel,

prior to being discharged by Chyatte, advised him that he could not be convicted of

assault with a weapon because of the victim misidentification and, further, that a PFO

status could not be imposed because the State failed to complete the PFO designation on

the omnibus memorandum, leading him to reject a more favorable plea agreement.

Chyatte also argues he received ineffective assistance of counsel due to a 30-day

suspension imposed on his counsel, which ended a month before the first trial. The State

argues that Chyatte has failed to establish that he was denied effective assistance by his

counsel’s 30-day suspension, but takes the position that the record is insufficient to

determine the claim regarding the plea bargaining process, and that this claim should be

remanded to the district court to allow the parties to develop a factual record.

¶18    “A district court may dismiss a petition for postconviction relief without ordering

a response if the petition, files and records ‘conclusively show that the petitioner is not
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entitled to relief.’” Herman, ¶ 15 (quoting § 46-21-201(1)(a), MCA). We apply the

two-prong Strickland test when assessing claims of ineffective assistance of trial counsel.

Sartain, ¶ 11 (citing Strickland v. Washington, 466 U.S. 668 (1984)). Under Strickland’s

first prong, “the defendant must show that counsel’s representation fell below an

objective standard of reasonableness.” Sartain, ¶ 11 (citing Whitlow v. State, 2008 MT

140, ¶ 14, 343 Mont. 90, 183 P.3d 861).          Under Strickland’s second prong, “the

defendant must show that counsel’s performance prejudiced the defense.” Sartain, ¶ 11

(citing Whitlow, ¶ 10). “Because a defendant must prove both prongs, an insufficient

showing under one prong eliminates the need to address the other.” Sartain, ¶ 11 (citing

Whitlow, ¶ 11). Faulty advice to reject a plea agreement can be grounds for an ineffective

assistance of counsel claim. Lafler v. Cooper, 132 S. Ct. 1376 (2012).

¶19    Chyatte argues that he rejected the plea agreement because his attorney incorrectly

advised him that he could not be convicted because of the victim’s misidentification

during the police lineup, and because his attorney incorrectly advised him that he could

not be sentenced as a persistent felony offender because the State had not properly

provided notice in the omnibus order. As the District Court stated, the error of the advice

concerning the misidentification would have been manifest when, on August 2, 2012, the

District Court denied Chyatte’s motion to dismiss on that ground two weeks before the

first trial commenced “and five days before the August 7, 2012 final pretrial conference

whereat Chyatte could still have accepted the state’s plea offer.” The District Court

issued a written order denying the motion and also commented that this was an issue that

                                         8
Chyatte could raise at trial, which he did. Despite any incorrect legal advice received on

the issue, Chyatte became well aware of the correct nature of the issue as the trial process

proceeded, both to the first trial, when he was represented by counsel, and the second,

when he represented himself, thus refuting any claim that Chyatte based his rejection of

any plea agreement thereon. Therefore, we affirm the dismissal of Chyatte’s ineffective

assistance claim to the extent it is based on the alleged incorrect advice concerning the

victim’s misidentification.

¶20    We have determined that we cannot resolve Chyatte’s claim to the extent it is

based on alleged improper advice he received concerning the PFO designation. While

the precise nature of this claim is not clear,1 neither the record nor the District Court’s

order is sufficient to review for correctness the District Court’s general conclusions that

“there is no concession or proof that Chyatte’s pre-trial attorneys provided ineffective

assistance” and that Chyatte “could not have been misled about the effectiveness of the

notice of his status as a persistent felony offender.” A response from the State or a

hearing should provide the record necessary to resolve this issue, and we agree with the

State’s concession to this extent.

¶21    Chyatte also argues that he was prejudiced by his counsel’s 30-day suspension

from the practice of law. We conclude that the 30-day suspension did not prejudice
1
 Chyatte’s claims here were not consistently made to the District Court. His affidavit states that
his attorney, Clinton Kammerer, “inform[ed] Chyatte that he cannot be convicted of assault with
a weapon because the alleged victim positively identified an individual who is not Chyatte as his
assailant. . . . Kammerer advis[ed] Chyatte to reject a plea offer of 10 years to run concurrent to
the previously imposed 5 year sentence because of this faulty assessment.” (Emphasis added.)
In other places, Chyatte claimed he rejected the plea agreement because of the faulty advice he
received regarding his eligibility for sentencing as a persistent felony offender, or at times, both.
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Chyatte’s defense because 1) the suspension ended a month before Chyatte’s first trial,

2) the first trial ended in a mistrial, further negating any prejudice the 30-day suspension

may have caused, and 3) Chyatte was convicted after a second trial, at which point he

was representing himself.

¶22      The District Court correctly dismissed a portion of Chyatte’s petition for

postconviction relief and therefore did not abuse its discretion by failing to order a

response from the State, ordering his counsel to respond, or hold a hearing because the

petition, files and records conclusively show that Chyatte is not entitled to relief. The

majority of his claims are procedurally barred by § 46-21-105(2), MCA, and most of his

ineffective assistance of counsel claims lack merit because they fail to meet the

prejudicial requirement of Strickland’s second prong.2 Chyatte’s ineffective assistance of

counsel claim regarding the PFO designation is the sole issue remanded to the District

Court.

¶23      Affirmed in part, reversed in part, and remanded.


                                                    /S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT


2
 The State has filed a motion to strike Exhibits 1, 2, and 3 of Chyatte’s reply brief because the
exhibits were not part of the trial record. We grant the State’s motion and the aforementioned
exhibits are hereby stricken.
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