            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      2008 MT 77N


CORY MINEZ,

          Petitioner and Appellant,

     v.                                              DA 06-0822

STATE OF MONTANA,

          Respondent and Appellee.

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CORY MINEZ,

          Petitioner and Appellant,

     v.                                              DA 07-0073

STATE OF MONTANA,

          Respondent and Appellee.




APPEAL FROM:       District Court of the Twentieth Judicial District,
                   In and For the County of Lake, Cause Nos. DC-00-30, DC-00-113
                   Honorable C.B. McNeil, Presiding Judge

COUNSEL OF RECORD:

            For Appellant:

                   Jim Wheelis, Chief Appellate Defender; Meghan Lulf Sutton
                   Assistant Appellant Defender, Helena, Montana

            For Appellee:

                   Hon. Mike McGrath, Attorney General; C. Mark Fowler, Assistant
                   Attorney General, Helena, Montana
         Mitch Young, Lake County Attorney, Polson, Montana




                                    Submitted on Briefs: November 27, 2007

                                              Decided: March 4, 2008


Filed:



         __________________________________________
                           Clerk




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Chief Justice Karla M. Gray delivered the Opinion of the Court.


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

Operating Rules, as amended in 2003, the following memorandum 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     Cory Minez (Minez) appeals from the order entered by the Twentieth Judicial District

Court, Lake County, denying his petitions for postconviction relief relating to two separate

underlying criminal proceedings. We affirm.

¶3     The issue on appeal is whether the District Court erred in denying Minez’s petitions

for postconviction relief.

¶4     On December 17, 2001, the District Court entered judgment in its Cause No. DC-00-

30 on Minez’s convictions and sentences for the offenses of felony criminal production or

manufacture of dangerous drugs, felony criminal possession of dangerous drugs and

misdemeanor criminal possession of drug paraphernalia. On February 20, 2002, the District

Court entered judgment in its Cause No. DC-00-113 on Minez’s convictions and sentences

for the felony offenses of criminal production or manufacture of dangerous drugs and use or

possession of property subject to criminal forfeiture. Minez appealed separately from each

judgment and we affirmed in both cases. See State v. Minez, 2004 MT 115, 321 Mont. 148,

89 P.3d 966; State v. Minez, 2003 MT 344, 318 Mont. 478, 82 P.3d 1.


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¶5     Minez subsequently filed petitions for postconviction relief collaterally challenging

his convictions in each proceeding. His petition filed in Cause No. DC-00-30 alleged his

trial counsel rendered ineffective assistance by failing to support his pretrial motion to

suppress evidence with affidavits or other evidence; failing to request a hearing on the

suppression motion; failing to challenge the sufficiency of the return on a search warrant as

an additional basis for the motion to suppress; and failing to pursue his motion to dismiss the

Information on double jeopardy grounds. Minez’s petition in Cause No. DC-00-113 alleged

his trial counsel rendered ineffective assistance of counsel by failing to adequately advise

Minez regarding a plea agreement offered by the State; failing to pursue further plea

negotiations with the State; failing to adequately advise Minez of the ramifications of the

State’s filing of a notice to seek persistent felony offender designation upon conviction; and

failing to object to the State’s persistent felony offender notice.

¶6     The District Court held a combined evidentiary hearing on both postconviction relief

petitions at which Minez and his trial counsel testified. Following the hearing, the court

entered its findings of fact, conclusions of law and an order denying Minez’s petitions. With

regard to the ineffective assistance of counsel claims relating to Cause No. DC-00-30, the

District Court concluded Minez’s claims were barred by § 46-21-105, MCA, because they

could have been raised on direct appeal and, further, that Minez failed to establish either

deficient performance or prejudice regarding those claims. The District Court similarly

determined that Minez failed to establish either deficient performance or prejudice regarding

the claims relating to Cause No. DC-00-113. Minez appeals. Following the filing of his

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notices of appeal, Minez moved this Court to consolidate the cases for purposes of appeal

and we granted the motion.

¶7     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 its conclusions of law correct.

Adgerson v. State, 2007 MT 336, ¶ 7, 340 Mont. 242, ¶ 7, 174 P.3d 475, ¶ 7. We analyze

postconviction claims of ineffective assistance of counsel by applying a two-prong test which

requires a petitioner to establish that his counsel’s performance was deficient and the

deficient performance prejudiced the defense. Adgerson, ¶ 17. “A petitioner bears a heavy

burden in seeking to reverse a district court’s denial of postconviction relief based on a claim

of ineffective assistance of counsel.” Adgerson, ¶ 17.

¶8     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

1996 Internal Operating Rules, as amended in 2003, which provides for memorandum

opinions. It is manifest on the face of the briefs and the record that the appeal is without

merit because there is clearly sufficient evidence to support the District Court’s findings of

fact and the issues are clearly controlled by settled Montana law which the District Court

correctly interpreted.

¶9     Affirmed.


                                                   /S/ KARLA M. GRAY



We concur:



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/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER




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