                                          No. 04-167

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 151


EUGENE FORD,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Respondent.



APPEAL FROM:         District Court of the Eighth Judicial District,
                     In and for the County of Cascade, Cause No. ADC 99-102
                     The Honorable Thomas M. McKittrick, Judge presiding.



COUNSEL OF RECORD:

              For Appellant:

                     Antonia P. Marra, Bell & Marra, Great Falls, Montana

              For Respondent:

                     Honorable Mike McGrath, Montana Attorney General, Mark W. Mattioli,
                     Assistant Attorney General, Helena, Montana; Brant S. Light, Cascade
                     County Attorney, Great Falls, Montana



                                                        Submitted on Briefs: February 2, 2005

                                                                      Decided: June 14, 2005
Filed:



                     __________________________________________
                                       Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1     Eugene Ford (Ford) appeals the ruling of the Eighth Judicial District Court, Cascade

County, denying his petition for postconviction relief. We affirm. The issue on appeal is

whether the District Court properly denied Ford’s petition without holding an evidentiary

hearing.

                  FACTUAL AND PROCEDURAL BACKGROUND

¶2     On March 26, 1999, the State filed an information charging Ford with the offense of

deliberate homicide in relation to the death of his roommate, Michael Paul (Paul). Paul was

so severely beaten that his dentures were lodged deep in his throat and had to be removed

with forceps. On November 12, 1999, a unanimous jury found Ford guilty. He was then

sentenced to the Montana State Prison for life and was declared ineligible for parole.

¶3     This Court affirmed Ford’s conviction in State v. Ford, 2001 MT 230, 306 Mont. 517,

39 P.3d 108. Thereafter, Ford filed a pro se petition for postconviction relief, along with a

supporting memorandum which was written by his postconviction counsel. Concurrently,

Ford’s counsel moved for leave to withdraw as counsel of record, stating that she could find

no non-frivolous issue to support Ford’s petition for postconviction relief.

¶4     In his petition, Ford claimed that he had received ineffective assistance of counsel

during his trial. In support of this claim, Ford identified a variety of alleged deficiencies in

his trial counsel’s performance. Upon these contentions, Ford requested an evidentiary

hearing and asked the District Court to grant him a new trial and appoint new counsel. The

District Court denied Ford’s petition in its entirety, and Ford filed a notice of appeal.

                                               2
¶5     This Court permitted Ford’s postconviction counsel to withdraw as counsel of record,

and remanded the matter to the District Court for the limited purpose of appointing new

counsel. The District Court appointed appellate counsel for Ford, and this appeal followed.

Ford now argues that the District Court erred when it denied his petition for postconviction

relief without conducting an evidentiary hearing. In support of this argument, Ford asserts

that an evidentiary hearing is necessary to ascertain the extent of his counsel’s deficient

performance and the resulting prejudice, as that can not be determined from the record alone.

Upon these contentions, Ford asks this Court to reverse the District Court and order that an

evidentiary hearing be held.

                                STANDARD OF REVIEW

¶6     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 whether its conclusions of law

are correct. State v. Harris, 2001 MT 231, ¶ 9, 306 Mont. 525, ¶ 9, 36 P.3d 372, ¶ 9. The

decision to hold an evidentiary hearing in a postconviction relief proceeding is discretionary

and is reviewed for abuse of discretion. Harris, ¶ 9.

                                       DISCUSSION

¶7     The right to effective assistance of counsel is guaranteed by the Sixth Amendment to

the United States Constitution, and by Article II, Section 24 of the Montana Constitution.

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

ineffective assistance of counsel claims in postconviction proceedings, Montana courts apply

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

                                              3
Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. State v. Boucher, 1999

MT 102, ¶ 18, 294 Mont. 296, ¶ 18, 980 P.2d 1058, ¶ 18. Under that test, the petitioner must

show that counsel’s performance was deficient and that the deficient performance prejudiced

the defense. Boucher, ¶ 18. Where a claim of ineffective assistance is predicated on a

failure to object at trial, the petitioner must show that the objection would have been proper

and would have been sustained. State v. Jenkins, 2001 MT 79, ¶ 11, 305 Mont. 95, ¶ 11, 23

P.3d 201, ¶ 11. A petitioner claiming ineffective assistance of counsel must ground his or

her proof on facts within the record and not on conclusory allegations. Davis v. State, 2004

MT 112, ¶ 20, 321 Mont. 118, ¶ 20, 88 P.3d 1285, ¶ 20.

¶8     Section 46-21-104(1)(c), MCA, requires that a petition for postconviction relief

“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.” Mere

allegations do not constitute the “evidence” contemplated by this statute, and unsupported

allegations are not sufficient to entitle a petitioner to an evidentiary hearing. State v. Finley,

2002 MT 288, ¶ 9, 312 Mont. 493, ¶ 9, 59 P.3d 1132, ¶ 9. Further, we have held that this

statute requires that a claim of ineffective assistance of counsel must be grounded on facts

in the record and not merely on conclusory allegations. Finley, ¶ 9.

1.     Failure to timely object to the State’s use of peremptory challenges.

¶9     During the jury selection process preceding Ford’s trial, the prosecutor used each of

the State’s six peremptory challenges to exclude women from the jury panel. The final jury,

comprised of eight men, four women and one women alternate, was then sworn, and the

                                                4
venire was dismissed with the thanks of the court. Subsequently, Ford’s counsel moved for

a new jury pool, claiming the State had violated Ford’s right to a jury of his peers when it

removed the six women. The prosecutor denied any discriminatory intent and provided

gender neutral explanations for five of the six peremptory challenges before the District

Court overruled Ford’s objection.

¶10    Following his conviction, Ford appealed to this Court arguing that the State had

improperly used its peremptory challenges and had thereby violated his equal protection

rights. Ford, ¶ 2. In advancing this argument, Ford relied on J.E.B. v. Alabama (1994), 511

U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89, which established the prohibition against gender

discrimination in jury selection. Ford, ¶ 20. We concluded that Ford’s objection to the

State’s use of its peremptory challenges was untimely because it was not raised until after

the jury was impaneled and sworn and the venire was dismissed. Ford, ¶ 28. Thus, we

deemed the objection waived, declined to address the merits of Ford’s claim, and affirmed

the District Court. Ford, ¶¶ 28-29.

¶11    In his petition for postconviction relief, Ford claimed that his trial counsel had

rendered ineffective assistance when he failed to raise a timely objection to the State’s use

of its peremptory challenges. Ford based this claim on his allegation that the prosecutor had

discriminated based on gender in exercising peremptory challenges. Further, Ford claimed

that he was prejudiced by his counsel’s failure because it prevented him from making a valid

argument on appeal. The District Court concluded that the basis for Ford’s claim was clearly

contained within the trial record and could have been raised on direct appeal. Hence, the

                                             5
court concluded that Ford’s claim was procedurally barred under § 46-21-105(2), MCA, and

refused to grant relief.

¶12    On appeal, Ford concedes that this claim could have been raised on direct appeal.

However, Ford argues that he should not be precluded from raising this claim in

postconviction proceedings because the failure to raise the claim on direct appeal was a result

of his appellate counsel’s ineffective assistance. We will not address this argument because

it was not raised in Ford’s petition for postconviction relief. As we have repeatedly held, we

will not address issues raised for the first time on appeal. Griffin v. State, 2003 MT 267,

¶ 15, 317 Mont. 457, ¶ 15, 77 P.3d 545, ¶ 15.

¶13    Additionally, Ford argues that his petition should not have been denied because “the

district court had, at its fingertips, a showing of ineffective assistance of counsel . . . .” In

support of this contention, Ford asserts that this Court’s resolution of his direct appeal

established that his trial counsel rendered deficient performance. Ford has misconstrued our

decision. While we did determine that Ford’s trial counsel had objected in an untimely

fashion to the State’s use of its peremptory challenges, we explicitly declined to address the

merits of that objection. Ford, ¶ 28. As such, our resolution of Ford’s direct appeal does not

establish that his trial counsel rendered deficient performance.

¶14    Section 46-21-105(2), MCA, provides that when a petitioner has been afforded the

opportunity for a direct appeal of his or her conviction, grounds for relief that were or could

reasonably have been raised on direct appeal may not be raised, considered, or decided in

postconviction proceedings. We have consistently applied this statutory bar in order to

                                               6
prevent the abuse of postconviction relief by criminal defendants who would substitute those

proceedings for direct appeal. Basto v. State, 2004 MT 257, ¶ 15, 323 Mont. 80, ¶ 15, 97

P.3d 1113, ¶ 15. In doing so, we have stated that “where ineffective assistance of counsel

claims are based on facts of record in the underlying case, they must be raised in the direct

appeal and, conversely, where the allegations of ineffective assistance of counsel cannot be

documented from the record in the underlying case, those claims must be raised by petition

for post-conviction relief.” State v. White, 2001 MT 149, ¶ 12, 306 Mont. 58, ¶ 12, 30 P.3d

340, ¶ 12. The underlying principle of this rule is that a silent record cannot rebut the strong

presumption, under this Court’s Strickland-based analysis, that counsel’s conduct falls within

the wide range of reasonable professional assistance. White, ¶ 13.

¶15    Generally, the trial court record must adequately document why counsel acted in a

particular manner in order for this Court to review a claim of ineffective assistance and

determine whether counsel’s action falls below the reasonable standard for professional

conduct. State v. Jefferson, 2003 MT 90, ¶ 49, 315 Mont. 146, ¶ 49, 69 P.3d 641, ¶ 49.

However, where trial counsel’s challenged conduct can not be considered a trial strategy or

tactical decision, it is appropriate for review on direct appeal even if the record does not

disclose the reason for such conduct. Jefferson, ¶ 50.

¶16    For example, in Jefferson we reviewed a claim of ineffective assistance on direct

appeal even though the record did not disclose the reasons for trial counsel’s challenged

conduct. Jefferson, ¶ 50. The defendant, Jefferson, entered a not guilty plea to the charge

of attempted deliberate homicide. Jefferson, ¶ 10. Subsequently, he entered into a plea

                                               7
agreement whereby he agreed to plead guilty to one count of felony assault, and the State

agreed to drop the charge of attempted deliberate homicide. Jefferson, ¶ 12. Jefferson later

withdrew his guilty plea on the felony assault charge and proceeded to trial on the charge of

attempted deliberate homicide. Jefferson, ¶¶ 13-14. At trial, defense counsel admitted in

both his opening statement and closing argument that Jefferson was guilty of felony assault.

Jefferson, ¶¶ 45-46. Jefferson appealed to this Court claiming, inter alia, that he had

received ineffective assistance of counsel. Jefferson, ¶ 41. We determined that counsel’s

remarks had the effect of entering a plea for Jefferson without his consent. Jefferson, ¶ 50.

Further, we held that because there was no plausible justification for counsel’s conduct under

the circumstances, the admission of guilt could not be considered a trial strategy or tactical

decision. Jefferson, ¶ 50. As such, we deemed Jefferson’s ineffective assistance claim

appropriate for review on direct appeal, even though the record did not document why

counsel had made the admission. Jefferson, ¶ 50.

¶17    Here, trial counsel’s failure to raise a timely objection to what he perceived as

discriminatory use of the State’s peremptory challenges, can not be considered a trial strategy

or tactical decision. Ford explicitly concedes this in his appellate brief. Of course, we make

no determination here regarding the merits of such an objection. However, to the extent that

such an objection would have been meritorious, the failure to raise it in a timely fashion

could only prejudice Ford. Because there can be no plausible justification for such a failure,

there is no need to hold an evidentiary hearing to determine the reason for counsel’s

omission. As such, we could have reviewed the merits of Ford’s claim on direct appeal even

                                              8
though the trial record does not document why counsel failed to object earlier. Such review

could have been conducted, as it was in Jefferson, without consideration of factual matters

outside the trial record. Consequently, we hold that under § 46-21-105(2), MCA, Ford was

procedurally barred from bringing this claim in postconviction relief proceedings because

he could reasonably have done so on direct appeal. Thus, we conclude that the District

Court correctly denied relief on this claim.

2.        Failure to move to suppress Ford’s statements.

¶18       In his petition for postconviction relief, Ford alleged that the responding law

enforcement officers elicited statements from him before issuing a Miranda warning.

Pursuant to this allegation, Ford claimed that his trial counsel rendered ineffective assistance

when he failed to move to suppress these statements. Ford also claimed that his trial counsel

rendered ineffective assistance when he failed to interview a civilian witness, who

accompanied one of the officers as a ride-along on the night of the incident, regarding this

alleged improper questioning.

¶19       One of the responding officers testified that at the scene of the crime Ford was

repeatedly and spontaneously exclaiming that he had killed Paul, at one point stating “I killed

him. I broke his neck. I killed him.” In addressing Ford’s allegation, the District Court

stated:

                 The evidence presented at trial was that the officers did not question
          Ford, while at the scene of the crime, and that any statements made by Ford
          to either Officer Ramsay or Officer Sorenson were not in response to
          questioning by the officers.


                                               9
Further, the District Court concluded that, in these circumstances, the officers were not

required to advise Ford of his Miranda rights. Finally, the District Court found that Ford

offered no evidence to establish that his counsel was ineffective for not filing a motion to

suppress these statements. Accordingly, the District Court refused to grant relief on this

claim.

¶20      On appeal, Ford presents several contentions that were not raised in his petition for

postconviction relief. Ford contends that: (1) some of the officers who claimed to be present

when certain alleged statements were made, were not present; (2) law enforcement officers

threatened and coerced Ford in the course of his statements; (3) Ford’s taped statement was

made under circumstances which would allow for suppression; and (4) if there were

witnesses who observed the officers coercing Ford into making statements, the District Court

could determine that trial counsel was ineffective in failing to speak with these witnesses.

We have repeatedly held that we will not address issues raised for the first time on appeal.

Griffin, ¶ 15. Thus, because none of these contentions were raised previously, we will not

address them here.

¶21      Ford also suggests that many problems could have resulted from trial counsel’s failure

to interview the civilian, who was accompanying the responding officers, regarding the

alleged improper questioning. However, he does not make any argument or point to any

evidence which would indicate that any such problems occurred in his trial. We conclude

that the District Court properly denied relief on this claim, as it is without merit. The claim

is grounded on nothing more than Ford’s allegation that law enforcement officers elicited

                                               10
statements from him before issuing a Miranda warning. As such, Ford has failed to comply

with § 46-21-104(1)(c), MCA, which requires that postconviction claims be grounded on

facts in the record. Finley, ¶ 9.

3.     Failure to move to suppress witness testimony.

¶22    In his petition for postconviction relief, Ford alleged that law enforcement officers had

coerced statements from his neighbors and “threatened them with evidence to link them to

the crime.” Upon this allegation, Ford claimed that his counsel was ineffective when he

failed to move to suppress the testimony of these neighbors regarding the incident. Ford also

argued that his counsel was ineffective when he failed to interview these witnesses regarding

this alleged coercion. The District Court found, upon the testimony and cross-examination

of these individuals, that there was no indication they had been coerced by law enforcement

officers. Further, the court found that Ford had produced no evidence to support his

allegation. Accordingly, the court refused to grant relief on this claim.

¶23    On appeal, Ford suggests that many problems could have resulted from trial counsel’s

failure to interview the neighbors regarding this alleged coercion. However, Ford does not

make any argument or point to any evidence which would indicate that any such problems

occurred in his trial. We conclude that the District Court properly denied relief on this

claim, as it is without merit. The claim is grounded on nothing more than Ford’s allegation

that law enforcement officers coerced statements from his neighbors. As such, Ford has

failed to comply with § 46-21-104(1)(c), MCA, which requires that postconviction claims

be grounded on facts in the record. Finley, ¶ 9.

                                              11
4.     Failure to move to suppress illegally obtained blood evidence.

¶24    In his petition for postconviction relief, Ford alleged that detectives collected a blood

sample from his hands before obtaining a search warrant. Upon this allegation, Ford claimed

that his counsel provided ineffective assistance when he failed to file a motion to suppress

such evidence. In denying relief on this claim, the District Court noted that the State did not

admit any blood evidence at trial, and thus Ford’s trial counsel had no reason to file a motion

to suppress such evidence. On appeal, Ford claims that he is entitled to an evidentiary

hearing on this issue, but fails to present any argument in support of this claim. We conclude

that the District Court properly denied relief on this claim, as it is grounded on an allegation

that is directly refuted by the trial record.       Thus, Ford has failed to comply with

§ 46-21-104(1)(c), MCA, which requires that postconviction claims be grounded on facts in

the record. Finley, ¶ 9.

5.     Instigation of negative publicity.

¶25    In his petition for postconviction relief, Ford claimed that his counsel was “ineffective

in his handling of the media.” This claim stems from the fact that one of Paul’s relatives

visited Ford during his incarceration at the Cascade County Detention Center, causing a

disruption and cursing at Ford. Ford’s counsel issued a news release regarding the incident.

Consequently, the Great Falls Tribune ran a story containing counsel’s accusation that law

enforcement officials had violated Ford’s constitutional rights by allowing the incident to

occur. Hence, Ford argued that his counsel instigated negative media coverage which

reduced his chances of obtaining an impartial jury. Ford claimed that he was prejudiced by

                                              12
his counsel’s conduct because of the impossibility of proving the extent to which the media

coverage turned the community against Ford.

¶26    The District Court concluded that the issue of pre-trial publicity was adequately dealt

with during voir dire, as all of the jurors indicated that they were unaware of the media

coverage at issue. Further, the District Court found that Ford had not supported his

allegation of prejudice with any evidence. Accordingly, the District Court refused to grant

relief on this claim. On appeal, Ford asserts that he is entitled to an evidentiary hearing on

this issue, but fails to present any argument in support of this claim. Further, Ford has

presented no evidence to support his allegation of prejudice. Finally, Ford has cited no

authority in support of the claim that his counsel’s complaint to the media amounts to

ineffective assistance.    Section 46-21-104(2), MCA, requires that a petition for

postconviction relief be supported by legal authority. Thus, we conclude that the District

Court properly denied relief on this claim.

¶27    Incidentally, we observe that Ford has misrepresented the trial record in advancing

this claim on appeal. In an apparent attempt to fault his trial counsel’s efforts, Ford asserts

that after the publicity occurred, his trial counsel did not make a motion to change venue.

However, the trial record demonstrates that Ford’s counsel did in fact make a motion to




                                              13
change venue. The District Court apparently denied this motion,1 and Ford did not raise the

issue on direct appeal or in postconviction proceedings.

6.     Failure to present evidence of negligent rescue efforts.

¶28    In his petition for postconviction relief, Ford alleged that the responding law

enforcement officers negligently failed to ensure that Paul’s airway was clear before

initiating CPR, and thus failed to detect the dentures lodged in his throat. Further, Ford

alleged that the responding emergency medical technicians (EMTs) improperly moved Paul

before sufficiently stabilizing his neck, even though they knew he had neck injuries. Upon

these allegations, Ford claimed that Paul might have survived if the officers and EMTs had

adequately performed their duties. Additionally, Ford alleged that the State covered up the

negligence of the officers and EMTs by forging medical records.

¶29    Pursuant to these allegations, Ford claimed that his counsel was ineffective when he

failed to present evidence that Paul’s death was caused by negligent rescue efforts of law

enforcement officers and EMTs. This failure, Ford argued, denied him a “potentially

meritorious” defense that could have achieved an acquittal. The District Court found that

the trial record contained no factual support for Ford’s allegations. Further, the District

Court found that Ford offered no evidence to support his claim that counsel should have




       1
          The record on appeal, which does not include a trial transcript, does not document the
District Court’s denial of Ford’s motion for change of venue. Presumably, the motion was
formally denied at some point during the proceedings without a written ruling, as venue was never
changed in this case.

                                               14
presented such a defense. Accordingly, the District Court refused to grant relief on this

claim.

¶30      On appeal, Ford advances the following arguments: (1) the medical reports indicate

that Paul had injuries that were possibly caused by the EMTs; (2) there could be no trial

strategy which would allow counsel to ignore the possibility that the death was caused by

someone other than Ford; (3) the failure to hire experts and seek opinions to prove that the

death was caused by another person could be considered ineffective assistance of counsel;

(4) without holding a hearing, the District Court had no way to determine whether trial

counsel sufficiently investigated the negligent rescue efforts; (5) a hearing is necessary to

determine whether trial counsel hired a medical expert to determine what role the rescue

efforts played in Paul’s death; (6) a hearing is necessary to determine whether a medical

expert would testify that the emergency medical procedures caused Paul’s death; and (7) if

trial counsel did not investigate the use of expert medical witnesses, Ford should be allowed

to have a medical expert opine at a hearing regarding the negligent rescue efforts. These

arguments avail nothing because they are based on mere allegations which are unsupported

by the record. We conclude that the District Court properly denied relief on this claim, as

Ford has failed to comply with § 46-21-104(1)(c), MCA, which requires that postconviction

claims be grounded on facts in the record. Finley, ¶ 9.

7.       Failure to adequately cross-examine a witness.

¶31      In his petition for postconviction relief, Ford alleged that the testimony of Gene

Boland (Boland) contained discrepancies. In support of this allegation, Ford claimed Boland

                                             15
testified that: (1) he observed Ford sitting at the kitchen table after the incident, drinking

from a whisky bottle and a can of beer; (2) he observed the color of Paul’s face after the

incident; and (3) he made both these observations from the front door of Ford’s apartment.

Upon these assertions, Ford argued that Boland could not have made these observations from

the front door because of the layout of the apartment. Ford also alleged that Boland’s

testimony was inconsistent with the blood found on Ford’s hands. In support of this

allegation Ford claimed that photos taken after his arrest showed blood on his hands, but the

State Crime Lab did not find any blood on the whisky bottle and beer can that Boland

claimed Ford was drinking from.

¶32    Based on these allegations, Ford claimed that his trial counsel provided ineffective

assistance when he failed to adequately cross-examine Boland regarding the discrepancies

in his testimony. Further, Ford claimed he was prejudiced by this failure because such

cross-examination would have undermined Boland’s testimony. The District Court found,

based on both the direct and cross-examination of Boland and the evidence at trial, that the

discrepancies alleged by Ford did not exist. The District Court also found that the photos

of Ford’s hands did not show any blood. Accordingly, the District Court refused to grant

relief on this claim.

¶33    On appeal, Ford claims that if trial counsel had properly cross-examined Boland, the

entirety of his testimony would have been called into question. We conclude that the District

Court properly denied relief on this claim, as it is grounded on nothing more than allegations

which are not supported by the record.         As such, Ford has failed to comply with

                                             16
§ 46-21-104(1)(c), MCA, which requires that postconviction claims be grounded on facts in

the record. Finley, ¶ 9.

8.       Failure to object to the introduction of evidence.

¶34      In his petition for postconviction relief, Ford claimed that his trial counsel was

ineffective when he failed to object to the introduction of three pieces of evidence at trial;

a whisky bottle and a beer can from Ford’s apartment, and Paul’s dentures. Further, Ford

claimed that his trial counsel should have objected to testimony regarding this evidence. In

support of this claim, Ford asserted that the chain of custody for these items was severed

when the original evidence tags were misplace and new tags were created. The District

Court found that the State did not place any of these items into evidence, and thus Ford’s

counsel had no need to object. Accordingly, the District Court refused to grant relief on this

claim.

¶35      On appeal, Ford abandons all of the foregoing contentions. As such, we have no

occasion to review the District Court’s decision on this issue. Ford’s appellate brief does,

however, claim that an evidentiary hearing is necessary to demonstrate the prejudice Ford

suffered after his trial counsel failed to object when the prosecution displayed evidence to

the jury, but did not submit that evidence to the court or the jury. This argument is without

merit because Ford has not specified which evidence he is referring to. Furthermore, we

could not consider this argument even if Ford had identified any particular evidence, because

no such argument was raised in his petition for postconviction relief. As we have repeatedly

held, we will not address issues raised for the first time on appeal. Griffin, ¶ 15.

                                             17
                                      CONCLUSION

¶36    Based on the applicable postconviction statutes, we conclude that the District Court

properly denied Ford’s petition for postconviction relief without holding an evidentiary

hearing.

¶37    Affirmed.


                                                   /S/ JAMES C. NELSON
We Concur:

/S/ KARLA M. GRAY
/S/ JIM RICE
/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART
Justice Patricia O. Cotter concurs.

¶38    In State v. Ford, we recognized that the question of when a Batson challenge must be

made in order to be timely, was one of first impression for this Court. Ford, ¶ 22. This

being so, it is hardly surprising that Ford failed in his first appeal to argue that his trial

counsel was ineffective for failing to timely assert his Batson challenge. I therefore disagree

with the Court’s decision to deny Ford’s present ineffective assistance claim because he

failed to raise it in his direct appeal. See ¶¶14, 17 above. However, the ultimate result

reached by the Court is nonetheless the correct one.

¶39    The very factor that in my judgment militates against application of the procedural bar

--that this was a case of first impression--also militates against the success on the merits of

Ford’s ineffective assistance of counsel claim. Were we to reach the merits of that claim,

we would be forced to conclude that Ford’s counsel could not be considered ineffective

                                              20
under our Strickland jurisprudence for failing to timely object to the jury array because the

issue before the Court was one of first impression. As we have said, the defendant must

prove that counsel’s performance was deficient or fell below the wide range of reasonably

acceptable conduct. Davis, ¶ 20. It cannot be sensibly argued that an attorney who is the

first in this State to appeal from the denial of a Batson challenge--who, in other words, had

no guidance from statute or case law on the timing of such a challenge--rendered the type of

deficient performance required for a Strickland claim to be sustained. So, while I disagree

with the application of the procedural bar here, I would conclude nonetheless that, as a

matter of law, Ford’s ineffective assistance claim could not survive on its merits.

¶40    Therefore, I concur.


                                                         /S/ PATRICIA O. COTTER




                                             21
