                                           No. 01-353

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2002 MT 99N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

DARLA JEAN HAKALA,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Second Judicial District,
                     In and for the County of Silver Bow,
                     The Honorable Kurt Krueger, Judge presiding.


COUNSEL OF RECORD:

              For Appellant :

                     Patrick D. McGee, Francis P. McGee, Attorneys at Law
                     Butte, Montana


              For Respondent:

                     Hon. Mike McGrath, Attorney General; Carol E. Schmidt,
                     Assistant Attorney General, Helena, Montana

                     Robert McCarthy, Silver Bow County Attorney; Samm Cox,
                     Deputy County Attorney, Butte, Montana


                                               Submitted on Briefs: March 7, 2002

                                                          Decided: May 10, 2002
Filed:


                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray 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. It 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     A jury in the Second Judicial District Court, Silver Bow

County, found Darla Jean Hakala guilty of burglary.                           She appeals

from the resulting judgment against her.                     We affirm.

¶3     On appeal, Hakala argues she was not afforded effective

assistance of counsel, was denied a fair trial, and should have

been granted a mistrial.

¶4     Hakala's claims of ineffective assistance of counsel are based

on    her     counsel's       alleged       failures       to     object      to    various

"indiscretions and innuendos" by the State of Montana (State) and

the District Court at trial.                   The record is silent as to the
reasons trial counsel failed to raise the objections Hakala now

advances.      A silent record cannot rebut the strong presumption that

counsel's      conduct      falls     within      the   acceptable       wide      range    of

reasonable professional assistance.                 State v. White, 2001 MT 149, ¶

13, 306 Mont. 58, ¶ 13, 30 P.3d 340, ¶ 13 (citation omitted).

Where the record does not illuminate the basis for the challenged

acts or omissions of defense counsel, objections to those acts or

omissions must be raised in a petition for postconviction relief.


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Hagen v. State, 1999 MT 8, ¶¶ 12, 15, 293 Mont. 60, ¶¶ 12, 15, 973

P.2d 233, ¶¶ 12, 15.        Therefore, we decline to consider Hakala's

ineffective assistance of counsel claims in the context of this

appeal.

¶5   Hakala also contends her conviction should be reversed under a

"revised" common law plain error doctrine on grounds she was denied

a fair trial.    This claim is based on the same "indiscretions and

innuendos" by the State and the District Court which form the basis

for Hakala's ineffective assistance of counsel claims.
¶6   We have stated our standard of review for plain error as

follows:

     [T]his Court may discretionarily review claimed errors
     that implicate a criminal defendant's fundamental
     constitutional rights, even if no contemporaneous
     objection is made and notwithstanding the inapplicability
     of the § 46-20-701(2), MCA, criteria, where failing to
     review the claimed error at issue may result in a
     manifest miscarriage of justice, may leave unsettled the
     question of the fundamental fairness of the trial or
     proceedings, or may compromise the integrity of the
     judicial process.

State v. Finley (1996), 276 Mont. 126, 137, 915 P.2d 208, 215,

rev'd on other grounds, State v. Gallagher, 2001 MT 39, 304 Mont.

215, 19 P.3d 817.     We decline to adopt Hakala's differently-worded

standard at this time.       Further, we have reviewed the record and

conclude     Hakala   has    not       established   error      justifying   our

discretionary plain error review.

¶7   Hakala's    motion     for    a   mistrial   was   based    on   witnesses'

unsolicited comments that the victim had been burglarized on other

occasions.    In a non-responsive answer to questioning by defense

counsel, the burglary victim stated this was the third time he had


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been burglarized.        In addition, the officer who investigated the

burglary stated--in response to defense counsel's questioning--that

there was another suspect, but that was in "another burglary that

occurred at [the victim's] house."           After the State pointed out no

one had indicated or testified that Hakala was responsible for the

other burglaries, the court denied defense counsel's motion for a

mistrial, noting also that the information had been elicited during

defense counsel's questioning.

¶8    When reviewing a denial of a motion for mistrial, this Court

determines whether the district court abused its discretion.              State

v. Scarborough, 2000 MT 301, ¶ 81, 302 Mont. 350, ¶ 81, 14 P.3d

1202, ¶ 81 (citations omitted).             A mistrial is appropriate where

there is a reasonable possibility that inadmissible evidence might

have contributed to the conviction.            Scarborough, ¶ 81 (citation

omitted).     Because the unsolicited testimony about the other

burglaries    of   the   victim's   home     did   not   suggest   that   those

burglaries were connected to Hakala in any way, we conclude there

is    no   reasonable     possibility       that   the   evidence,   even    if

inadmissible, might have contributed to Hakala's conviction.
¶9    Affirmed.


                                                         /S/ KARLA M. GRAY

We concur:

/S/   JAMES C. NELSON
/S/   JIM REGNIER
/S/   W. WILLIAM LEAPHART
/S/   JIM RICE




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