                                          No. 01-742

                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2003 MT 75N


STATE OF MONTANA,

         Plaintiff and Respondent,

         v.

TONY LEE MONTOYA,

         Defendant and Appellant.



APPEAL FROM:           District Court of the Twelfth Judicial District,
                       In and for the County of Hill, Cause No. DC-97-052,
                       The Honorable John Warner, Judge presiding.


COUNSEL OF RECORD:

                For Appellant:

                       Kristina Guest, Assistant Appellate Defender, Helena, Montana

                For Respondent:

                       Hon. Mike McGrath, Attorney General; Micheal S. Wellenstein,
                       Assistant Attorney General, Helena, Montana

                       David Rice, Hill County Attorney, Havre, Montana


                                                   Submitted on Briefs: November 26, 2002

                                                               Decided: April 10, 2003
Filed:


                       __________________________________________
                                         Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent but shall be filed as

a public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number, and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2     Tony Lee Montoya was convicted of felony burglary in the District Court for the

Twelfth Judicial District in Hill County. Montoya was sentenced to four years in prison for

the burglary conviction and a concurrent five-year sentence for being a persistent felony

offender. Montoya filed a petition for post-conviction relief, contending that his counsel was

ineffective. The District Court denied Montoya's motion, and Montoya appeals. We affirm

the judgment of the District Court.

¶3     The issue on appeal is whether Montoya's counsel provided effective assistance of

counsel during Montoya's sentencing hearing.

                   FACTUAL AND PROCEDURAL BACKGROUND

¶4     On or about March 23, 1997, Montoya, Jim Booker, and Jamie St. Dennis, were

traveling together in separate vehicles when St. Dennis drove by and spotted an apparently

abandoned farmhouse. She pulled over, returned to the farmhouse, and Montoya followed.

At the farmhouse property, the three walked around the property and entered the farmhouse

and nearby storage structures. They then packed personal property from the farmhouse and

nearby structures into boxes, and moved the boxes for later transport from the property. In


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addition, all three carried some of the boxes to St. Dennis' vehicle, and Montoya placed at

least one item in his own truck.

¶5     While the three were at the farmhouse, Donny Boyce, a local resident, drove by the

farmhouse property, noticed the two parked vehicles and became suspicious. Boyce called

the property owner, Anthony Reum, and reported the vehicles. Reum and his two adult sons

drove over to the property where they saw the vehicles and recorded their license plates.

After seeing the Reums, Montoya and Booker walked towards Montoya's vehicle, spoke

with the Reums briefly, and promptly left without incident. Shortly thereafter, the Reums

witnessed St. Dennis return to her vehicle from another area of the Reum property and leave

without conversation or incident. After the three had gone, the Reums checked the

farmhouse and storage structures and discovered that personal property was missing and that

their remaining personal property had been disturbed. The Reums contacted the police and

reported the license plate numbers they had recorded. Montoya was later arrested.

¶6     On May 29, 1997, the State charged Montoya with one count of felony burglary and

one count of attempted felony theft. On February 27, 1998, the charge of attempted felony

theft was amended to a charge of misdemeanor theft. The State also filed notice of its

intention to classify Montoya as a "persistent felony offender," as provided in §§ 46-18-501

to -502, MCA, based on his prior 1984 conviction of felony burglary, for which Montoya

was still on probation.

¶7     Prior to trial, Montoya accepted the State's offer of limited immunity for his testimony

against Jamie St. Dennis. The agreement provided that "[t]he State will not use these


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statements against Anthony Lee Montoya in any prosecution for criminal charges." Montoya

testified at St. Dennis' trial. At his own trial, Montoya did not testify, and on August 27,

1998, a jury convicted him of the burglary charge and acquitted him of the theft charge.

¶8     After the verdict, the District Court held a sentencing hearing to determine Montoya's

sentence for the burglary conviction and to consider whether Montoya was a persistent

felony offender. During the hearing, the State presented his prior conviction to support a

finding that Montoya was a persistent felony offender. The State also discussed evidence

from Montoya's trial and his prior testimony in the St. Dennis trial to demonstrate that

Montoya did not qualify for an exception to the persistent felony offender classification

provided by § 46-18-222, MCA. The State argued:

       Additionally, 46-18-222 does not apply. That only applies if an accomplice
       has a role that is only minor in the crime. The defendant's role was not minor.
       He drove his own vehicle out to the Reum's ranch. He packed up different
       items, he moved boxes out, and that's evident from the physical evidence that
       was presented at trial as well as all of the testimony, including the defendant's
       own testimony during the St. Dennis trial; and it's clear that based on that, that
       they were all equally responsible for their own actions. [Emphasis added.]

Montoya's counsel did not object to the State's presentation of Montoya's testimony in the

St. Dennis trial, despite the prior immunity agreement. When the State had finished its

argument, Montoya's counsel presented Montoya's testimony to buttress a finding that

Montoya did qualify for the exception provided by § 46-18-222(4), MCA:

       With regard to 46-18-222, sub 4, there are three elements that Tony has got to
       show to this Court adequately; the first is that he was an accomplice. Clearly
       two other people were convicted, so I think that he meets that threshold. Next
       is the conduct constituting the offense was principally the conduct of another.




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             Basically, from what one can glean from Tony's testimony was that this
      conduct was principally the conduct of another. Insofar as Jamie St. Dennis
      is concerned, Tony acted at the behest of Jamie St. Dennis and that's what his
      testimony indicates.
             Third, the defendant's participation was relatively minor. It doesn't say
      the defendant's participation was minor; it says that the defendant's
      participation was relatively minor. Here Jamie St. Dennis was found with the
      goods. Tony and Booker were found at the property but with no goods, not
      leaving with any goods. There were no goods in the vehicle, and in fact Tony
      was acquitted of the theft count . . . . [Emphasis added.]

¶9    After the parties presented their evidence and argument, the District Court concluded

that Montoya was a persistent felony offender and did not qualify for an exception to that

classification as provided in § 46-18-222(4), MCA. The District Court stated:

      Under the circumstances, I would find under subsection 4 of section 222 that
      you are an accomplice, but I cannot find that this was principally the conduct
      of another. While Ms. St. Dennis might be found to be probably the instigator
      of this incident and perhaps she went out and opened the place earlier and
      even scattered things around, I don't know exactly because I wasn't there, you
      decided with Mr. Booker and Ms. St. Dennis to go out there and to take this
      stuff. You did package it up, whether with Ms. St. Dennis or with Mr. Booker
      or together or whatever and you moved it out into the garage, in preparation
      so that you could back up to the garage and get it and you were actually
      removing the stuff. It was thought out to some degree. This was not
      principally the conduct of another, and I cannot find under the statute that this
      was relatively minor conduct.
              You were out there participating, as well as the rest of them, in the
      burglary and going in there taking the stuff. You participated as much as the
      others. Again, it may have been at the instigation of Ms. St. Dennis who kind
      of found the opportunity to commit the crime is apparently what it is, but your
      participation was not relatively minor; therefore, I further find that the
      exceptions under Section 46-18-222 do not apply.

¶10   The District Court entered its judgment on November 3, 1998, and concluded that

Montoya was a persistent felony offender. The District Court stated:

      Defendant was an accomplice. However, his participation was not minor and
      the offense was not principally the conduct of another. Defendant participated

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       in this Burglary which from all the evidence was planned. Defendant's own
       testimony indicates that he participated in packing items and moving them to
       the garage for easy loading into his and his co-defendant's vehicles. [Emphasis
       added.]

The District Court sentenced Montoya to four years in prison for the burglary conviction and

a concurrent five-year sentence for being a persistent felony offender.

¶11    Montoya appealed the District Court's determination that he was a persistent felony

offender, and we affirmed the District Court's judgment and sentence in State v. Montoya,

1999 MT 180, 295 Mont. 288, 983 P.2d 937.

¶12    Montoya then filed this petition for post-conviction relief, in which he contended that

his counsel provided ineffective assistance by failing to object to the State's introduction of

his testimony in the St. Dennis trial during the sentencing hearing. The District Court denied

Montoya's petition.

                                STANDARD OF REVIEW

¶13    This Court reviews a district court's denial of post-conviction relief to determine

whether its findings of fact are clearly erroneous and whether its conclusions of law are

correct. Soraich v. State, 2002 MT 187, ¶ 13, 311 Mont. 90, ¶ 13, 53 P.3d 878, ¶ 13; State

v. Turner, 2000 MT 270, ¶ 47, 302 Mont. 69, ¶ 47, 12 P.3d 934, ¶ 47. We review a district

court's decision to hold or not hold an evidentiary hearing for an abuse of discretion.

Soraich, ¶ 13.

¶14    Where claims of ineffective assistance of counsel are raised in a request for post-

conviction relief we review a district court's decision de novo, as it raises mixed questions




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of law and fact. Soraich, ¶ 13; Turner, ¶ 47; Strickland v. Washington (1984), 466 U.S. 668,

698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674.

                                        DISCUSSION

¶15    Did Montoya's counsel provide effective assistance of counsel during Montoya's

sentencing hearing?

¶16    The District Court concluded that Montoya's counsel was effective. It stated that the

trial record provided ample evidence to show that Montoya's participation in the crime was

not "minor," concluded that Montoya's own testimony was not particularly inculpatory and

that it was probably "his best argument" to show that his participation was "minor." The

District Court added that Montoya's counsel was "highly effective" by getting the trial court

to apply the sentences concurrently, rather than consecutively. Lastly, the District Court

concluded that reference to Montoya's testimony in the written judgment was a "minor point"

and was not "fatal to the sentence," and found no grounds for post-conviction relief.

¶17    Montoya contends that the record reveals that his participation in the crime was minor

and that his counsel's failure to object to the State's presentation of his testimony from the

St. Dennis trial prejudiced him and contributed to his sentence as a persistent felony

offender. Montoya additionally contends that the record provides no justifiable explanation

for his counsel's failure to object to the State's reference to his testimony in the St. Dennis

trial despite his immunity agreement. Montoya contends that, at least, his claims should be

remanded to the District Court for an evidentiary hearing to determine why his counsel failed

to object to the State's use of his testimony in the St. Dennis trial.


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¶18    The State contends that Montoya's counsel was not ineffective in his representation

and reiterates the points stated by the District Court in its denial of Montoya's petition for

post-conviction relief. The State concludes that it does not follow that Montoya's counsel

was ineffective just because he was unsuccessful in his best attempt to prove that § 46-18-

222(4), MCA, applied to Montoya's situation.

¶19    When evaluating a defendant's claim of ineffective assistance of counsel, this Court

applies the two-part test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674; State v. Hagen, 2002 MT 190, ¶ 17, 311 Mont. 117, ¶ 17, 53

P.3d 885, ¶ 17. The first part of the Strickland test requires that the defendant prove that "his

counsel's performance was deficient, which entails 'showing that counsel made errors so

serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the

Sixth Amendment.'" Hagen, ¶ 17 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064).

We will determine whether the defendant's performance was deficient by applying the

"reasonably effective assistance" test, where we consider whether the defendant's counsel

performed "within the range of competence demanded of attorneys in criminal cases."

Hagen, ¶ 17 (citing State v. Leavens (1986), 222 Mont. 473, 475, 723 P.2d 236, 237). "The

defendant must overcome a strong presumption that counsel's defense strategies and trial

tactics fall within a wide range of reasonable and sound professional decisions." State v.

Harris, 2001 MT 231, ¶ 18, 306 Mont. 525, ¶ 18, 36 P.3d 372, ¶ 18 (citing Strickland, 466

U.S. at 688-89, 104 S.Ct. at 2064-65). If the defendant fails to prove this element of the

Strickland test, the defendant's claim of ineffective assistance counsel cannot succeed.


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Strickland, 466 U.S. at 697, 104 S.Ct. at 2069; Hagen, ¶ 19. In that event, we need not

address the second part of the Strickland test, which addresses whether counsel's alleged

errors prejudiced the defendant. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; see also

Hagen, ¶ 18.

¶20    To satisfy the first part of the Strickland test, Montoya suggests that his counsel's

failure to object to the State's presentation of his testimony in the St. Dennis trial was

deficient because it violated the terms of his limited immunity agreement and his right to be

free from self-incrimination guaranteed by the Fifth and Fourteenth Amendments of the U.S.

Constitution, and Art. II, Section 25, of the Montana Constitution.

¶21    We have previously stated:

       When a tactical or strategic reason for defense counsel's alleged deficient
       performance is apparent in the record on appeal or proffered by counsel in
       post-conviction proceedings, the court must evaluate whether this reason is
       "reasonable" before indulging the strong presumption demanded by Strickland
       that a tactical or strategic act falls within the wide range of reasonable and
       sound professional assistance. When a challenged act or omission reflects an
       unreasonable defense strategy, stems from neglect or ignorance, or results
       from a misunderstanding of the law, counsel's deficient performance meets the
       first prong of the Strickland test.

Harris, ¶ 22 (citations omitted).

¶22    At the time of the omission complained of by Montoya, the parties were arguing two

issues before the District Court: (1), whether Montoya was a "persistent felony offender,"

as defined in § 46-18-501, MCA; and (2), whether Montoya qualified for an exception to the

mandatory sentence for persistent felony offenders pursuant to § 46-18-222, MCA. This

Court previously determined that Montoya was a "persistent felony offender," see Montoya,


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¶ 27, and Montoya's petition does not allege that that issue was ineffectively argued at the

sentencing hearing. He alleges that his counsel was ineffective by the manner in which he

chose to prove that Montoya qualified for an exception to the mandatory sentences given to

persistent felony offenders.

¶23    Section 46-18-222(4), MCA, provides that mandatory minimum sentences for

persistent felony offenders do not apply where "the offender was an accomplice, the conduct

constituting the offense was principally the conduct of another, and the offender's

participation was relatively minor . . . ." Exceptions to the mandatory sentences, as provided

by § 46-18-222, MCA, must be proven by a preponderance of the evidence. Section 46-18-

223(3), MCA.

¶24    In this context we conclude that the strategy of Montoya's counsel was not

unreasonable. While Montoya's testimony in the St. Dennis trial was inculpatory, it also

served the additional purpose of showing that his conduct was "minor" and that the conduct

constituting the crime was "principally the conduct of another," as required by § 46-18-

222(4), MCA. Montoya's testimony provided details that suggested that St. Dennis was the

principal actor in this burglary, such as: (1), that St. Dennis was the lead driver on the way

out to the farmhouse; (2), that Montoya was just looking around the house at "garbage" while

St. Dennis was putting "items that caught her interest" into boxes; (3), that Montoya moved

trunks with Reum's property inside "at Jamie's request;" (4), that Montoya was walking

around taking pictures of the property (which corroborated his defense that he was on the




                                             10
property to take photographs for a school photography project); and (5), that Montoya saw

St. Dennis take boxes and trunks to her car while he took only a wheel.

¶25    Under these circumstances, we conclude that Montoya's counsel was not ineffective

when he failed to object to the use of Montoya's prior testimony. Although unsuccessful,

Montoya's counsel's conduct was a reasonable effort to avoid a sentence for being a

persistent felony offender. We conclude that the legal representation provided by Montoya's

counsel fit within the range of competent legal representation required of defense attorneys.



¶26    Since Montoya has failed to rebut the presumption that he was competently

represented, as required in the first part of the Strickland test, we need not further consider

the second part of the Strickland test which considers whether he was prejudiced by his

counsel's performance.

¶27    For the foregoing reasons, the judgment of the District Court is affirmed.


                                                   /S/ TERRY N. TRIEWEILER

We Concur:

/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ W. WILLIAM LEAPHART




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