                                                                                             09/20/2016


                                           DA 15-0271
                                                                                         Case Number: DA 15-0271

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 236N



JIMMIE LEE AKER,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Third Judicial District,
                       In and For the County of Powell, Cause No. DV 13-96
                       Honorable Brad Newman, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Jimmie Lee Aker, Self-Represented, Deer Lodge, Montana

                For Appellee:

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

                       Lewis K. Smith, III, Powell County Attorney, Daniel M. Guzynski, Joel
                       M. Thompson, Special Deputy County Attorneys, Helena, Montana



                                                   Submitted on Briefs: August 3, 2016

                                                              Decided: September 20, 2016


Filed:

                       __________________________________________
                                         Clerk
Justice James Jeremiah Shea 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     Jimmie Lee Aker appeals an order of the Third Judicial District Court, Powell

County, denying his petition for postconviction relief. We address whether the District

Court erred in denying Aker’s petition. We affirm.

¶3     On May 19, 2011, a jury found Aker guilty of Sexual Intercourse Without

Consent.     Aker appealed the judgment, arguing that the prosecutor committed

prosecutorial misconduct and that Aker’s counsel provided ineffective assistance during

the trial. On September 4, 2013, this Court declined to exercise plain error review on

Aker’s prosecutorial misconduct claim and further concluded that Aker’s ineffective

assistance of counsel claim could only be raised in a postconviction relief petition. State

v. Aker, 2013 MT 253, ¶¶ 27, 35-37, 371 Mont. 491, 310 P.3d 506.

¶4     On October 8, 2013, Aker filed a petition for postconviction relief alleging: (1)

ineffective assistance of counsel for failing to object at several stages of trial and failing

to call a physician as a defense expert witness; and (2) prosecutorial misconduct during

closing argument through improper comments regarding witness credibility. On April 8,

2015, the District Court denied Aker’s petition.        The District Court denied Aker’s

ineffective assistance of counsel claims because Aker inadequately pled the issues,


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relying on conclusory and speculative statements, instead of facts supported with

affidavits or citations to the record. The District Court denied Aker’s prosecutorial

misconduct claim because this Court already addressed the issue, on the merits, and

found that none was present.

¶5     “We review a district court’s denial of a petition for postconviction relief to

determine whether its findings of fact are clearly erroneous and whether its legal

conclusions are correct.” Rose v. State, 2013 MT 161, ¶ 15, 370 Mont. 398, 304 P.3d

387.

¶6     Aker’s ineffective assistance of counsel claim is based on thirteen allegations. In

the first eight allegations, Aker contends his trial counsel failed to: (1) call a nurse to

testify that the State’s expert witness was not the first to examine the victim; (2) call over

forty witnesses that Aker identified as allegedly being able to corroborate his location on

the date in question; (3) object to photographs the State introduced to prove his mobility

six months before the pictures were taken; (4) object or bring attention to alleged

discrepancies between the testimony of the victim and her mother, or to present evidence

that the television show the victim said she was watching during the underlying crime did

not air on that date; (5) offer a lesser-included offense instruction; (6) negotiate a plea

agreement; (7) spend sufficient time with Aker preparing for trial; and (8) accurately

represent his trial experience. As a corollary to Aker’s ineffective assistance of counsel

claims, Aker also alleges he was wrongfully accused of violating a restraining order on

four separate occasions.




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¶7     “[W]e have repeatedly held, we will not address issues raised for the first time on

appeal.” Ford v. State, 2005 MT 151, ¶ 12, 327 Mont. 378, 114 P.3d 244 (declining to

address an issue raised for the first time when reviewing the denial of a postconviction

petition). This Court does not “conduct such review where the district court has not been

presented with an opportunity to rule on the issue.” State v. Ferguson, 2005 MT 343,

¶ 65, 330 Mont. 103, 126 P.3d 463. Here, Aker’s first eight ineffective assistance of

counsel allegations and his restraining order claim are made for the first time on appeal.

In accordance with Ford and Ferguson, we therefore decline to address those eight

ineffective assistance of counsel allegations and the restraining order issue.

¶8     In Aker’s ineffective assistance of counsel claims 9 through 13, he alleges his

counsel failed to: (9) object to certain State witnesses’ hearsay statements regarding the

victim’s account of the sexual abuse at issue; (10) object to a State expert witness’s

opinion concerning the victim’s account’s veracity; (11) object to a State witness’s

out-of-court identification of Aker as her abuser; (12) object to the prosecutor’s

comments in closing argument concerning witness credibility and references to Aker’s

“social status”; and (13) call a physician as a defense expert to rebut the State’s expert

testimony. The District Court concluded Aker improperly pled the ineffective assistance

of counsel claims. The Court therefore dismissed the claims when denying Aker’s

petition.

¶9     “To prove an ineffective assistance of counsel claim, the defendant must meet

both prongs of the two-part test established in Strickland v. Washington . . . .” Hardin v.

State, 2006 MT 272, ¶ 18, 334 Mont. 204, 146 P.3d 746 (citing Strickland v. Washington,


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466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). A defendant meets both Strickland

prongs by showing that “his counsel’s performance was deficient and the deficient

performance prejudiced him.” Hardin, ¶ 18 (citation omitted).

¶10    A petition must present more than self-serving, conclusory allegations without any

supporting evidence to meet the Strickland test. State v. Wright, 2001 MT 282, ¶ 31, 307

Mont. 349, 42 P.3d 753. Section 46-21-104(1)(c), MCA, states that the “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.”

¶11    Here, the District Court determined Aker’s petition “relies solely on conclusory

allegations, not fact,” and “does not identify any particular testimony or portion of the

record he deems objectionable.” Nevertheless, the District Court reviewed the merits of

Aker’s ineffective assistance of counsel claims. The District Court concluded, after

considering the defense counsel’s affidavit, that his performance was not deficient and

that Aker did not overcome the “strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.” Whitlow v. State, 2008 MT 140,

¶ 15, 343 Mont. 90, 183 P.3d 861 (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at

2065). The District Court could not fully analyze the second Strickland prong because

Aker’s petition “includes only speculation that the trial outcome might have been

different and, as such, does not satisfy the statutory requirement of demonstrating

prejudice.”




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¶12    Our review of Aker’s petition reveals the document lacks the required elements of

§ 46-21-104(1)(c), MCA. Although the petition asserts facts, they are conclusory and

self-serving, and lack “attached affidavits, records, or other evidence establishing the

existence of those facts.” See § 46-21-104(1)(c), MCA. The District Court did not err

when finding that Aker failed to properly petition for postconviction relief, and the

District Court correctly concluded that such failure necessitated denying Aker’s petition.

¶13    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 findings of fact were

not clearly erroneous and its conclusions of law were correct. We affirm.


                                                 /S/ JAMES JEREMIAH SHEA

We Concur:

/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JIM RICE

Justice Laurie McKinnon, dissenting.

¶14    Consistent with my dissent in State v. Aker, 2013 MT 253, 371 Mont. 491, I would

allow Aker to proceed on his claims of ineffective assistance of counsel regarding

counsel’s failure to object to the admission of hearsay evidence and counsel’s failure to

object to improper closing argument by the State. To the extent we conclude otherwise, I

dissent.

                                                 /S/ LAURIE McKINNON


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