                                          No. 05-329

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2006 MT 283



KEVIN WOEPPEL,

              Petitioner and Appellant,

         v.

CITY OF BILLINGS,

              Respondent and Respondent.




APPEAL FROM:         The District Court of the Thirteenth Judicial District,
                     In and For the County of Yellowstone, Cause No. DV 04-0709,
                     Honorable Ingrid G. Gustafson, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Jack E. Sands, Attorney at Law, Billings, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Jennifer M. Anders,
                     Assistant Attorney General, Helena, Montana

                     Stacy R. Tenney, Deputy City Attorney, Billings, Montana



                                                   Submitted on Briefs: June 28, 2006

                                                               Decided: November 1, 2006

Filed:


                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     Kevin Woeppel appeals from an order of the Thirteenth Judicial District Court,

Yellowstone County, denying his motion for postconviction relief. We reverse and

remand.

¶2     The sole issue on appeal is whether the District Court erred when it denied

Woeppel’s petition for postconviction relief.

                                    BACKGROUND

¶3     Woeppel was charged in the City of Billings Municipal Court of partner or family

member assault, pursuant to § 45-5-206(a), MCA, for allegedly assaulting his wife.

Woeppel was tried without a jury and found guilty of the assault. Woeppel’s wife did not

testify at trial. The guilty verdict was based primarily on testimony of the investigating

police officer and some photographs of the victim’s neck.

¶4     The day after his conviction, Woeppel’s trial attorney filed a notice of appeal in

the Montana Thirteenth Judicial District Court. After the notice of appeal was filed,

Woeppel obtained new counsel, Jeffrey Michael, to handle his appeal. When Michael did

not file a brief in support of Woeppel’s appeal by December 11, 2003, the City of

Billings (City) filed a motion to dismiss. The District Court did not dismiss the appeal

and instead set forth a briefing schedule. Woeppel was given until December 26, 2003,

to file his initial brief. When this deadline came and went and Michael still did not file a

brief, the City filed another motion to dismiss, which the court granted. The case was

remanded to Municipal Court for re-sentencing.



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¶5     When the Municipal Court ordered Woeppel to appear for re-sentencing, Michael

filed a motion to continue because he was going to be out of town. The court granted the

motion and rescheduled the hearing. On the date of the rescheduled hearing, Michael

filed another motion to continue on the grounds he intended to file a writ of mandamus or

petition for postconviction relief. The court granted this motion and again rescheduled

the hearing. A few days before the rescheduled hearing, Michael filed another motion to

continue, again stating his intent to file a writ of mandamus or petition for postconviction

relief, as well as stating he would be unavailable. On the date of the rescheduled hearing,

Michael filed a motion to withdraw on the grounds that new charges were pending

against Woeppel and he believed he had a conflict of interest. Woeppel appeared in court

by himself and the court re-imposed his sentence.

¶6     Woeppel hired another attorney who filed a petition for postconviction relief in the

Montana Thirteenth Judicial District Court on the basis that he was denied effective

assistance of counsel when his attorney failed to file a brief or pursue his appeal, and that

he was denied his right to confront witnesses in the underlying case when his conviction

was primarily based on hearsay testimony from the police officer. The City argued the

petition should be denied because even if Michael had filed the appellate brief, there was

no merit to Woeppel’s confrontation clause argument, thus the error was not prejudicial.

In arguing the confrontation clause issue, the City relied on the recent decisions of

Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), and State v. Cameron,

2005 MT 32, 326 Mont. 51, 106 P.3d 1189. Before Woeppel had a chance to reply, the

District Court, relying on the City’s legal analysis, summarily denied Woeppel’s petition

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for postconviction relief.     We note that the postconviction petition was handled by

Honorable Ingrid Gustafson, a different judge than handled the appeal from Municipal

Court (Honorable Russell C. Fagg). Further, Judge Gustafson denied the petition for

postconviction relief prior to our decision in State v. Mizenko, 2006 MT 11, 330 Mont.

299, 127 P.3d 458, and the United States Supreme Court decision in Davis v.

Washington, ___ U.S. ___, 126 S. Ct. 2266 (2006). Woeppel appeals.

                                STANDARD OF REVIEW

¶7        The standard of review of a trial court’s denial of a petition for postconviction

relief is whether the court’s findings of fact are clearly erroneous and whether its

conclusions of law are correct. Hope v. State, 2003 MT 191, ¶ 13, 316 Mont. 497, ¶ 13,

74 P.3d 1039, ¶ 13. Claims of ineffective assistance of counsel are mixed questions of

law and fact and are therefore reviewed de novo. Garrett v. State, 2005 MT 197, ¶ 9, 328

Mont. 165, ¶ 9, 119 P.3d 55, ¶ 9.

                                       DISCUSSION

¶8        Did the District Court err when it denied Woeppel’s petition for postconviction

relief?

¶9        Woeppel argues that he should be granted postconviction relief in the form of a

new trial or reinstatement of his initial appeal on the basis that he received ineffective

assistance of counsel when his attorney failed to file an initial appeal brief causing his

appeal to be dismissed. Criminal defendants have a constitutionally protected right to

reasonably effective legal assistance. Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052 (1984); U.S. Const. Amend. 6; Mont. Const. art. II, § 24. Pursuant to Strickland, a

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defendant claiming ineffective assistance of counsel must show (1) that counsel’s

representation is deficient, and (2) that counsel’s deficient performance prejudiced the

defendant. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

¶10    The United States Supreme Court has applied this test to defendants claiming

ineffective assistance of counsel for their attorney’s failure to file a notice of appeal. Roe

v. Flores-Ortega, 528 U.S. 470, 476-77, 120 S. Ct. 1029, 1034 (2000). In Roe, the

Supreme Court stated that a lawyer who fails to file a notice of appeal contrary to the

defendant’s request acts in a professionally unreasonable manner, thus meeting the first

prong of the Strickland test. Roe, 528 U.S. at 477, 120 S. Ct. at 1035 (citing Rodriquez v.

United States, 395 U.S. 327, 89 S. Ct. 1715 (1969)). In these circumstances, to show

prejudice under the second prong of the Strickland test, a defendant must show that there

is a reasonable probability that, but for counsel’s deficient performance, the defendant

would have appealed. A defendant can demonstrate that he or she would have appealed

by presenting evidence that the defendant expressed a desire to appeal, or that there were

nonfrivolous grounds for appeal. If a defendant objectively indicated intent to appeal, he

or she is not required to demonstrate the merits of the underlying claim and is entitled to

a new appeal. Roe, 528 U.S. at 484-86, 120 S. Ct. at 1038-39.

¶11    This Court has adopted the Roe standards, which provide that (1) failure to

preserve a defendant’s right to appeal when he has requested notice be filed is error; and

(2) when, but for counsel’s deficient performance, defendant would have appealed, such

error is prejudicial. State v. Rogers, 2001 MT 165, ¶ 24, 306 Mont. 130, ¶ 24, 32 P.3d

724, ¶ 24. In Rogers, the Court noted that the defendant requested his attorney to file a

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notice of appeal, which the attorney repeatedly refused. Further, at least one of the

appeal issues had merit. Rogers, ¶ 27.

¶12   This Court followed Roe and Rogers in State v. Adams, 2002 MT 202, ¶ 17, 311

Mont. 202, ¶ 17, 54 P.3d 50, ¶ 17. In Adams, the defendant filed an affidavit stating he

asked his attorney to appeal his conviction, which his attorney failed to do. Adams also

contended that a letter from his attorney and a court order contained conflicting

information that led him to believe that his opportunity to file a notice of appeal had

passed.   The Court concluded there was sufficient evidence that, but for counsel’s

deficient performance, Adams would have filed an appeal. Adams, ¶ 18.

¶13   Similarly, in State v. Tweed, 2002 MT 286, 312 Mont. 482, 59 P.3d 1105, the

defendant’s assertion that he requested his attorney to file an appeal was not disputed.

Tweed, ¶ 16. This Court concluded that his counsel’s error in failing to preserve Tweed’s

right to appeal was prejudicial per se. Tweed, ¶ 21.

¶14   In this case, a notice of appeal was filed, but the appeal was dismissed when

Woeppel’s attorney failed to perfect the appeal by filing a brief. The City concedes that

this was error on Michael’s part. Therefore, Woeppel meets the first requirement that his

counsel’s performance was deficient. However, the City argues that Woeppel was not

prejudiced by his attorney’s error because he had no grounds for appeal. As noted above,

demonstrating that nonfrivolous grounds for appeal exist is one way to show that, but for

counsel’s deficient performance, the defendant would have appealed. Another way to

show the defendant would have appealed is to demonstrate that the defendant objectively

indicated his intent to appeal. Woeppel objectively indicated his intent to appeal in this

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case as is evidenced by the fact that his trial attorney filed a notice of appeal. It was only

because of his appellate attorney’s failure to file the brief that the appeal was dismissed.

Because Michael’s deficient performance prejudiced Woeppel, we do not need to discuss

the merits of the underlying appeal.

¶15    Accordingly, we reverse the District Court’s denial of postconviction relief and

remand this case to the District Court for appellate review of any claims that Woeppel

could have made on direct appeal had his counsel filed an appeal brief—including, but

not limited to, his claim that, since his conviction was based primarily on hearsay

testimony, he was denied his right to confront witnesses.


                                                  /S/ W. WILLIAM LEAPHART

We concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ PATRICIA COTTER




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