                                                                                              06/23/2020



                                                                                          Case Number: DA 19-0066

                                            DA 19-0066

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           2020 MT 165N


MICHELLE C. GABLE,

               Petitioner and Appellant,

         v.

STATE OF MONTANA,

               Respondent and Appellee.

APPEAL FROM:           District Court of the First Judicial District,
                       In and For the County of Lewis and Clark, Cause No. CDV-2016-836
                       Honorable Kathy Seeley, Presiding Judge

COUNSEL OF RECORD:

                For Appellant:

                       Penelope S. Strong, Attorney at Law, Billings, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
                       Assistant Attorney General, Helena, Montana

                       Leo Gallagher, Lewis and Clark County Attorney, Melissa Brock,
                       Deputy County Attorney, Helena, Montana


                                                    Submitted on Briefs: April 8, 2020

                                                               Decided: June 23, 2020


Filed:
                                 sr---6ma•—•f
                       __________________________________________
                                         Clerk
Justice Laurie McKinnon 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     Appellant Michelle C. Gable (Gable) appeals a November 27, 2018 order from the

First Judicial District Court, Lewis and Clark County, denying her petition for

postconviction relief without permitting additional discovery or an evidentiary hearing.

Specifically, Gable appeals the District Court’s finding that her defense attorneys’

behavior prior to her conviction did not constitute ineffective assistance of counsel (IAC).

Gable also appeals the District Court’s failure to rule on her request for a modified

Gillham order. We affirm.

¶3     On October 13, 2011, Gable shot and killed both her estranged husband,

Joseph Gable, and Sunday Bennet.        Randi Hood (Hood) and J. Thomas Bartleson

(Bartleson) were appointed as Gable’s trial attorneys. Both are veteran trial attorneys

with extensive experience among them. Upon assuming her defense, Gable’s attorneys

filed notice of the affirmative defense of justifiable use of force (JUOF).          Gable

proceeded with this JUOF defense at trial.              Her jury trial was held from

January 7-16, 2013. The jury found Gable guilty on two counts of deliberate homicide.




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On March 1, 2013, Gable was sentenced to two consecutive 100-year sentences, plus

restitution.

¶4     Following sentencing, Gable filed an unsuccessful appeal of issues related to her

restitution payments. On July 14, 2015, this Court affirmed the restitution ordered by the

District Court in State v. Gable, 2015 MT 200, 380 Mont. 101, 354 P.3d 566. One of the

issues raised in the 2015 appeal challenged the accuracy of the calculated costs of

court-appointed counsel due to the Office of the Public Defender’s (OPD) failure to

itemize hours and expenses. This Court did not consider that issue in 2015 and ruled that

the matter was not preserved for appeal due to Gable’s failure to sufficiently object to the

matter during her sentencing hearing.

¶5     On October 11, 2016, Gable filed a verified petition for postconviction relief with

the District Court, along with an affidavit in support. Gable asserted four counts of IAC

against Hood and Bartleson for actions taken pretrial, during trial, and at sentencing,

along with an assertion of cumulative error. The four counts alleged in Gable’s petition

can be further divided into seven individual IAC subclaims: (1) that Hood and Bartleson

failed to effectively investigate and properly advise her on the viability of the JUOF

defense used at trial; (2) that her attorneys failed to effectively advise her pretrial about

the availability of the lesser included offense of mitigated deliberate homicide under

§ 45-5-103, MCA; (3) that her trial attorneys’ decision to present a JUOF defense at trial

constituted a “serious strategic error”; (4) that her attorneys’ acted unreasonably by

failing to present the alternative defense of mitigated deliberate homicide at trial; (5) that

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her counsel failed to object to the lack of itemized costs of court-appointed counsel at

sentencing, thereby failing to preserve this argument for her 2015 appeal; (6) that her

attorneys failed “to object to the inclusion of damaging confidential psychological

evaluations” in her sentencing determination; and (7) that each of the aforementioned

subclaims “constitute[d] cumulative error in this case.”

¶6     On June 28, 2017, the District Court granted the State’s motion for a standard

Gillham order, permitting Hood and Bartleson to respond to Gable’s IAC allegations.

Although Gable did not object to the motion requesting a Gillham order, on

June 30, 2017, Gable filed a motion requesting that the District Court modify the order to

prohibit the State from communicating with Hood and Bartleson about their

representation of Gable, “unless that communication is expressly consented [to] by

Mrs. Gable or unless this Court enters an order permitting that communications take

place in a court-supervised proceeding, such as a deposition or a hearing.”           The

District Court did not rule on Gable’s requested modification. Hood and Bartleson filed

affidavits on November 30, 2017, and January 16, 2018, respectively, which directly

contested the aforementioned IAC claims in Gable’s petition.

¶7     On November 27, 2018, the District Court dismissed Gable’s petition.           The

District Court refused to address the merits of her cumulative error claim as Gable’s

petition merely stated the existence of this claim without providing “any legal or factual

authority or support.” In addressing the merits of the remaining six IAC claims, the

District Court found Hood and Bartleson’s affidavits to be credible while noting that the

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trial record contradicted much of Gable’s affidavit.          As a result, the District Court

dismissed each of Gable’s remaining IAC claims as a matter of law and held that her

petition failed to state a claim for relief.

¶8     On January 28, 2019, Gable filed an appeal of the District Court’s denial of her

petition. Gable’s brief before this Court alleges that the District Court erred in

its: (1) dismissal of her IAC claims without further discovery or an evidentiary hearing;

and (2) failure to rule on her request for a modified Gillham order. Regarding her IAC

allegations, Gable argues on appeal that “[a]ny credibility conflicts between her

recollection and that of her former counsel merit[s] either further discovery or an

evidentiary hearing,” which she was denied by the District Court.

¶9     The specific IAC allegations raised in Gable’s appeal do not directly correspond to

the seven prior IAC claims raised in Gable’s District Court petition for postconviction

relief. Gable’s appeal was vague in its articulation of which specific District Court

IAC rulings she wished to dispute. Nevertheless, an exhaustive review of the record

reveals four separate IAC claims raised by Gable in her appeal.

¶10    First, Gable contends on appeal that she was not properly advised by her counsel

about the lesser included offense of mitigated deliberate homicide as an alternative to her

JUOF claim, and that the District Court erred in holding this action did not constitute

IAC. Second, Gable challenges the District Court’s holding that her attorneys’ failure to

object to the non-itemized list of costs utilized by the District Court in awarding

restitution did not constitute IAC.            Next, Gable’s appeal alleges that her counsel

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imprudently failed to file a motion at sentencing to continue the sentencing hearing,

prejudicing her eventual sentencing result.     Lastly, Gable contends that her counsel

improperly failed to object to the inclusion of damaging evidence illegitimately sourced

from her diary, which revealed key information about how Gable obtained the murder

weapons and subsequently prejudiced Gable at trial. Notably, the latter two issues were

not raised or developed by Gable in her petition for postconviction relief before the

District Court.

¶11    Under § 46-21-105(1)(a), MCA, “All grounds for relief claimed by a

[postconviction relief] petitioner under § 46-21-101 must be raised in the original or

amended original petition.” Accordingly, in appeals of postconviction proceedings, this

Court will address only those claims substantively argued on appeal which were also

submitted to the District Court. See State v. Akers, 2017 MT 311, ¶ 10, 389 Mont. 531,

408 P.3d 142 (“[A]n appellate court does not address issues raised for the first time on

appeal.”); see also Herman v. State, 2006 MT 7, ¶ 22, 330 Mont. 267, 127 P.3d 422

(“We do not consider unsupported arguments . . . on appeal”).           Of the four IAC

arguments identified in Gable’s appeal, her contentions that her attorneys failed to file a

motion to continue her sentencing hearing and failed to object to the use of information

sourced from her diary were not substantively argued or addressed in her petition before

the District Court. As a result, this Court will only address the merits of Gable’s other

two IAC claims.




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¶12    This Court reviews discretionary rulings in postconviction proceedings, including

rulings on whether to hold an evidentiary hearing, for an abuse of discretion.

Sartain v. State, 2012 MT 164, ¶ 43, 365 Mont. 483, 285 P.3d 407.             IAC claims,

however, are mixed questions of law and fact which this Court reviews de novo.

State v. Turner, 2000 MT 270, ¶ 47, 302 Mont. 69, 12 P.3d 934; Herman, ¶ 18. When

considering IAC claims on direct appeal of postconviction proceedings, Montana applies

the two-pronged Strickland test as set forth by the United States Supreme Court.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984);

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

(applying Strickland’s two-pronged test to IAC allegations in a petition for

postconviction relief).   Under Strickland, a client must first demonstrate that her

counsel’s actions were “deficient or fell below an objective standard of reasonableness.”

Kougl, ¶ 11 (citations omitted). This first prong carries a strong presumption in favor of

the State, as counsel is allowed wide latitude in deciding what tactics she should, and

should not, employ in defending her client. See State v. Jefferson, 2003 MT 90, ¶ 48,

315 Mont. 146, 69 P.3d 641. Under the second prong of Strickland, a client must

“establish prejudice by demonstrating that there was a reasonable probability that, but for

counsel’s errors, the result of the proceeding would have been different.” Kougl, ¶ 11

(citations omitted).

¶13    In the first of Gable’s two reviewable IAC arguments, Gable alleges her attorneys

failed to adequately explain to her the availability of mitigated deliberate homicide as an

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alternative to the JUOF defense used at trial. Gable argues that this constituted an

unreasonable action which unfairly prejudiced her, as Gable would have been assured a

much more lenient sentencing outcome had she instead been convicted of mitigated

deliberate homicide. However, the District Court noted that Gable’s statements in her

petition supporting this theory constituted only “bald assertions,” directly contradicted by

Gable’s previous statements from the trial record in which she adamantly asserted that

her desired defense was JUOF. On the other hand, Hood and Bartleson were very clear

in their affidavits that they did in fact discuss the lesser included offense of mitigated

deliberate homicide with Gable, and that Gable was not interested in pursuing this

defense. The District Court also noted Gable’s handwritten rejection of a plea offer of

mitigated deliberate homicide on December 4, 2012. Gable’s appeal fails to effectively

combat these key facts from the record. In light of this evidence, Hood and Bartleson

clearly communicated with Gable about mitigated deliberate homicide, and their decision

to defer to Gable’s strong desire to assert a JUOF defense was reasonable. Thus, Gable’s

allegation fails to meet the first prong of the Strickland test, and the District Court was

not in err by finding no IAC in this regard.

¶14    Gable’s second reviewable claim alleges that her attorneys’ failure to object to a

total, non-itemized amount of costs for her defense amounts to IAC. Gable claims that

this action was objectively unreasonable and prejudicial because, had her attorneys

objected to this issue at sentencing, it would have properly been preserved for her 2015

appeal.   However, the District Court noted that Hood’s affidavit explained that the

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defense costs provided by the OPD at the sentencing hearing were lower than the actual

costs for her time. Thus, the District Court correctly ruled that Hood’s decision not to

object to the failure to itemize hours and expenses at sentencing was neither unreasonable

nor prejudicial to Gable under a Strickland analysis, as this was a perfectly reasonable

move that saved her client money, rather than prejudicing Gable in any way.

¶15    Thus, neither of Gable’s reviewable claims on appeal about the deficiencies in her

trial representation are supported by the evidence before this Court, and both claims were

correctly dismissed on the merits by the District Court. For these same reasons, the

District Court did not abuse its discretion by declining to order an evidentiary hearing or

to permit additional discovery allowing Gable to supplement her spurious allegations.

¶16    Last, Gable argues that the District Court abused its discretion by failing to rule on

her motion for a modified Gillham order, in which Gable sought to prohibit the State

from communicating with Hood and Bartleson regarding their representation of Gable

without Gable’s prior consent or without the prior authorization of the District Court in a

court-supervised   proceeding.     Specifically,   Gable    asserts   that   ABA     Formal

Opinion 10-456 (Opinion 10-456) provides a basis for her modification request.

ABA Standing Comm. On Ethics & Prof’l Responsibility, Formal Op. 10-456 (2010).

¶17    However, as the State noted in its brief, Gable misconstrues the applicability of

Opinion 10-456, which prohibits ex parte, voluntary disclosure of privileged

attorney-client information without the client’s consent “outside court-supervised

proceedings” or “prior to a court-supervised response by way of testimony or otherwise.”

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Opinion 10-456, at 4-5. Under Montana’s Gillham procedure, where a petitioner seeks

postconviction relief on IAC grounds, the court issues an order preserving the responding

attorney from charges of discipline or malpractice for revealing potentially confidential

information about the petitioner, their former client. The responding attorney is thereby

free to supply the State with affidavits discussing client representation in response to the

postconviction relief sought. In re Gillham, 216 Mont. 279, 704 P.2d 1019 (1985). Thus,

disclosures of client information permitted by Gillham occur entirely within the

court-supervised confines of the postconviction proceeding brought by the petitioner.

Moreover, Hood and Bartleson’s ability to reasonably disclose confidential client

information in response “to allegations in any proceeding concerning the lawyer’s

representation of the client” is expressly permitted by Rule 1.6(b)(5) of both the Montana

and ABA Rules of Professional Conduct. M. R. Pro. Cond. 1.6(b)(5); see also ABA

Model Rules of Prof’l Conduct 1.6(b)(5). Thus, the District Court did not err by refusing

to modify a Gillham procedure to which Hood and Bartleson were entitled.

¶18    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. This appeal

presents no constitutional issues, no issues of first impression, and does not establish new

precedent or modify existing precedent.

¶19    Affirmed.


                                                 /S/ LAURIE McKINNON


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We concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ JIM RICE




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