                                                                                           July 1 2014


                                           DA 13-0598

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2014 MT 172N



KAL KENFIELD,

              Plaintiff and Appellant,

         v.

STATE OF MONTANA,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Twelfth Judicial District,
                        In and For the County of Liberty, Cause No. DV 12-12
                        Honorable Jon A. Oldenburg, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Scott A. Albers, Attorney at Law, Great Falls, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant
                        Attorney General, Helena, Montana

                        Hugh B. Brown, Liberty County Attorney, Chester, Montana



                                                     Submitted on Briefs: June 18, 2014
                                                                Decided: July 1, 2014


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), 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     Kal Kenfield (Kenfield) was convicted by jury of one count of felony Attempted

Deliberate Homicide, three counts of felony Criminal Mischief, and six counts of

misdemeanor Criminal Mischief. Following his conviction, he moved for postconviction

relief, alleging that he was provided ineffective assistance of counsel (IAC) by Bradley

Aklestad (Aklestad). The District Court held a hearing and entered detailed findings of fact

and conclusions of law denying the IAC claim; we affirmed. State v. Kenfield, 2011 MT

150N, ___ Mont. ___ , 264 P.3d 519 (Kenfield I). Kenfield filed a second petition for

postconviction relief, which he later amended, founded particularly on a disciplinary action

against Aklestad that resulted in Aklestad’s suspension from the practice of law. He also

requested a second evidentiary hearing. The District Court dismissed the amended petition,

and denied Kenfield’s request for a hearing. Kenfield appeals. We affirm.

¶3     This Court reviews a district court’s denial of postconviction relief to determine if the

court’s findings of fact are clearly erroneous, and if its conclusions of law are correct. Stock

v. State, 2014 MT 46, ¶ 9, 374 Mont. 80, 318 P.3d 1053. IAC claims present mixed

questions of law and fact which are subject to de novo review. Stock, ¶ 9. Whether to hold a

hearing in a postconviction relief proceeding is within the district court’s discretion.

Section 46-21-201(5), MCA.


                                               2
¶4     Section 46-21-105(2), MCA, provides that “[i]neffectiveness or incompetence of

counsel in proceedings on an original or an amended original petition under this part may not

be raised in a second or subsequent petition under this part.” The District Court concluded

that, because Kenfield was raising IAC claims in his second amended motion when he had

already alleged IAC in his original motion, the statute governed and his motion should be

denied. We agree that § 46-21-105(2), MCA, precludes Kenfield’s claim because he already

raised IAC in his original motion. We also note, as did the District Court, that Kenfield

could have discovered that Aklestad was being sanctioned by the Commission on Practice

when he filed his original motion. Further, the fact that Aklestad was sanctioned for his

failure to appear in the disciplinary proceedings against him does not signal he was

ineffective in representing Kenfield—indeed, we previously affirmed the District Court’s

determination that Aklestad’s representation fell within a reasonable range of professional

assistance. See Kenfield I.

¶5     The issue in this case is legal and is controlled by settled Montana law, which the

District Court correctly interpreted. The District Court thoroughly and correctly addressed

this matter.

¶6     Affirmed.


                                                  /S/ MICHAEL E WHEAT


We Concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ JIM RICE



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