                                                                                             09/06/2016


                                          DA 15-0185
                                                                                         Case Number: DA 15-0185

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2016 MT 222N



GREGG ALLEN ZINDELL,

              Plaintiff and Appellant,

         v.

STATE OF MONTANA,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. CDV-14-446
                        Honorable Kenneth R. Neill, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Gregg Allen Zindell (Self-Represented), Shelby, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Tammy K Plubell,
                        Assistant Attorney General, Helena, Montana

                        John W. Parker, Cascade County Attorney, Great Falls, Montana



                                                    Submitted on Briefs: June 22, 2016

                                                               Decided: September 6, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat 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     In January 2012, the State filed an Information charging Zindell with Sexual

Intercourse without Consent. During the pre-trial process, the State offered Zindell three

separate plea agreements:    the first early on when he was represented by a public

defender and the next two while he was represented by private lawyer Carl Jensen.

Zindell rejected all three offers, steadfastly maintaining his innocence. Jensen met with

Zindell regarding each offer that was made, discussing both the terms of the offers and

the likely sentence he would receive if convicted. In 2013, a jury convicted Zindell of

Sexual Intercourse without Consent and he was sentenced to thirty years in the Montana

State Prison, with ten years suspended. We affirm.

¶3     In June 2014, Zindell filed a pro se Petition for Postconviction Relief (PCR) with

the Eighth Judicial District Court, Cascade County, claiming he received ineffective

assistance of counsel (IAC) from Jensen. Zindell claimed that counsel failed to educate

him on the plea agreements offered by the State. Specifically, Zindell asserted that

counsel did not spend the time required to fully explain the terms of the plea offers and

the sentencing consequences of refusing the offers. Zindell claimed he would have


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accepted the State’s plea offer had he received this information. After receipt of Jensen’s

court-ordered affidavit, the District Court held a hearing on the PCR in November 2014.

In January 2015, the District Court denied and dismissed Zindell’s petition, finding that

the record and hearing testimony supported Jensen’s claim that he adequately informed

Zindell of every plea agreement offered by the State and the likely sentence he faced if

convicted at trial. The court further found that, given Jensen’s testimony that Zindell

maintained his innocence during the plea bargaining process, as evidenced by Zindell’s

claims of innocence throughout his trial, conviction, and sentencing, it was unlikely that

Zindell would have accepted any plea agreement offered by the State.

¶4     In February 2016, Zindell filed a pro se brief on appeal to this Court. He argues

that the District Court erred when it denied his petition and he also raises new IAC

claims. The State responds that Zindell’s PCR petition was properly dismissed and

denied because counsel adequately informed Zindell of the terms and consequences of

the plea agreements offered by the State. Moreover, the State asserts that Zindell fails to

prove that counsel’s advice had any prejudicial effect on him. The State also argues that

this Court should not consider Zindell’s new claims on appeal.

¶5     We review a district court’s denial of a PCR petition to determine if the court’s

findings of fact are clearly erroneous and if its conclusions of law are correct. McGarvey

v. State, 2014 MT 189, ¶ 14, 375 Mont. 495, 329 P.3d 576. We review IAC claims

de novo. McGarvey, ¶ 14. A petitioner bears a heavy burden when seeking to reverse a

district court order denying PCR based on IAC. McGarvey, ¶ 14.

¶6     Section 46-21-104, MCA, provides, in relevant part:

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              (1) The petition for postconviction relief must:

                                          .   .   .

              (c) 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.

“A postconviction claim that is not raised in an original or amended original petition

cannot be raised for the first time on appeal.” Sanders v. State, 2004 MT 374, ¶ 14, 325

Mont. 59, 103 P.3d 1053; see § 46-21-105(1)(a), MCA. Thus, we decline to address

those additional IAC claims Zindell raises for the first time on appeal.

¶7     To analyze a criminal defendant’s IAC claims, we apply the two-part test set forth

in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052 (1984). McGarvey, ¶ 24.

Under Strickland, “the defendant must demonstrate (1) that counsel’s performance was

deficient, and (2) that counsel’s deficient performance prejudiced the defendant.”

McGarvey, ¶ 24. Under the first prong of Strickland, the defendant must overcome the

strong presumption that counsel’s conduct falls within professional norms. McGarvey,

¶ 25. We will examine counsel’s acts or omissions based on an objective standard of

reasonableness. McGarvey, ¶ 25. To establish prejudice under Strickland’s second

prong, “the defendant must show that, but for counsel’s errors, a reasonable probability

exists that the result of the proceeding would have been different.” State v. Miner, 2012

MT 20, ¶ 12, 364 Mont. 1, 271 P.3d 56.

¶8     Here, Zindell fails to establish that Jensen’s conduct fell outside reasonable

professional conduct. During plea negotiations, Jensen testified, and Zindell does not

dispute, that he informed Zindell of each offer made to him by the State and discussed

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each offer with him in his office. Jensen also advised Zindell of the potential sentencing

consequences of not accepting the pleas. Specifically, Jensen advised Zindell that, based

on past experience, a likely sentence for a Sexual Intercourse without Consent conviction

was approximately thirty years with fifteen years suspended. Furthermore, based on

Jensen’s testimony and Zindell’s own claims of innocence throughout the trial and

sentencing proceedings, it is unlikely that Zindell would have accepted any plea

agreement offered by the State. Indeed, when Zindell was offered a six-year sentence

with four years suspended, an offer Jensen advised Zindell to consider, Zindell refused

the offer because he believed that he would be acquitted at trial. Thus, Zindell fails to

prove that Jensen’s actions or omissions during plea negotiations would have produced a

different result than the conviction and sentence he received.

¶9     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. The District Court’s interpretation and

application of law were correct and its findings of fact are not clearly erroneous.

¶10    Affirmed.


                                                  /S/ MICHAEL E WHEAT

We Concur:

/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ JIM RICE

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