                                                                                               July 18 2012


                                           DA 11-0285

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2012 MT 152



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JOHN GORDON BRISCOE,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC 10-324
                        Honorable Karen Townsend, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Jon Ellingson, Attorney at Law, Missoula, Montana

                For Appellee:

                        Steve Bullock, Montana Attorney General; Micheal S. Wellenstein, Assistant
                        Attorney General, Helena, Montana

                        Fred R. Van Valkenburg, Missoula County Attorney, Missoula, Montana


                                                       Submitted on Briefs: April 11, 2012
                                                                  Decided: July 18, 2012




Filed:

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

¶1     John Gordon Briscoe (“Briscoe”) appeals from his conviction for assault with a

weapon in the Fourth Judicial District Court, Missoula County. We conclude Briscoe was

not denied effective assistance of counsel, however, we reverse Briscoe’s sentence and

remand to the District Court to correct his sentence.

                                    BACKGROUND

¶2     On June 28, 2010, Briscoe stabbed Tom Trachy (“Trachy”). Briscoe, a 72 year old

man, had been a client of the Poverello Center, a Missoula, Montana, homeless shelter.

Briscoe was kicked out of the shelter by Trachy on June 25, 2010, for violating the shelter’s

no alcohol policy. On June 28, 2010, an intoxicated Briscoe soiled his pants and went to the

Poverello Center to shower and change his clothing, which was stored in a locker at the

shelter. Trachy was working that day and, according to Briscoe, Trachy would not allow

him to shower or retrieve his clean clothes. A confrontation ensued, culminating in Briscoe

stabbing Trachy in the back, then leaving the Poverello Center. The police were called by

another Poverello Center employee. Trachy’s wound was closed with three stitches at the

hospital.

¶3     At approximately 4:00 p.m., Missoula police officers responded to the reported

stabbing. While walking the block from the police station to the Poverello Center, Officer

Herbert encountered Briscoe and observed him throw something into the bushes. Briscoe

then raised his hands and said “I’m the one you want.” Briscoe made several more

unsolicited incriminating statements to Officer Herbert. He said he did not like the staff at

the Poverello Center and said “I hope the fucking punk dies. The son of a bitch.” He also
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said he knew the police were coming, so he threw the knife in the bushes, and pointed at the

bushes. The police later recovered a knife from the same bushes. Briscoe was arrested and

taken to the police station.

¶4     At the police station, Detective J.C. Denton (“Denton”) was assigned to question

Briscoe. Before questioning Briscoe, Denton administered a breath test. Briscoe’s blood

alcohol concentration was .166. Denton then questioned Briscoe to determine if Briscoe

could knowingly, intelligently, and voluntarily waive his rights. Once Denton obtained what

he believed to be a sufficient Miranda waiver, he proceeded with the interrogation and

Briscoe made numerous incriminating statements, such as: “. . . I walked in and this guy

jumped up in my face so I fucking stuck him[;] . . . I pulled a knife from my belt and I stuck

the son of a bitch[;] . . .[t]he son of a bitch doesn’t deserve to live . . . [a]nd I meant to kill

him . . . I meant to stick him in the fucking heart . . . [p]lain and simple if I’d meant to cut

him a little bit I’d hit him in a[n] arm or something I didn’t mean to I meant to kill the dirty

rotten bastard. . . .” He further said that “the honest truth is if I didn’t kill him I hope I did I

hope I hit him right in the fucking heart.” Briscoe described in detail the knife he used to

stab Trachy, and the manner in which he stabbed Trachy. He also described Trachy as a

“prick” and a “real asshole.”

¶5     Briscoe was subsequently charged with attempted deliberate homicide. After a jury

trial, he was found guilty of the lesser included offense of assault with a weapon. At his

sentencing hearing, Briscoe made the following statement:

       All I can do is ask for the mercy of The Court. I have a place to stay in
       Arizona. The only reason I need to go to Helena is because my billfold and my
       clothing have disappeared in the system. I need to replace those things and get
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           Social Security started again. I realize the seriousness of this thing. I don't
           believe that I can -- I'm older now than any member of my family that has ever
           lived. I would hate to die in prison.

¶6         Briscoe was sentenced to 20 years at Montana State Prison, with no restriction on

parole eligibility. The District Court stated “[t]he reasons for the sentence, it takes into

account the Defendant’s criminal history, the verdict of the jury, and the apparent issues

where the Defendant does not appear to have any remorse for this particular offense.” A

similar finding is in the written judgment.1 These statements were not linked by the District

Court to any evidence in the record.

¶7         Briscoe timely appealed, raising the following issues, which we restate:

¶8         Issue One: Was Briscoe’s counsel ineffective for failing to move to suppress

Briscoe’s post-Miranda statements?

¶9         Issue Two: Is Briscoe’s sentence illegal because it was based in part on lack of

remorse which was not affirmatively linked to information in the record?

                                       STANDARDS OF REVIEW

¶10        We review claims of ineffective assistance of counsel de novo. State v. Gunderson,

2010 MT 166, ¶ 66, 357 Mont. 142, 237 P.3d 74. However, before addressing the merits of

an ineffective assistance of counsel claim, we must first determine whether the record is

sufficient for review. Gunderson, ¶ 70; State v. Robinson, 2009 MT 170, ¶ 29, 350 Mont.

493, 208 P.3d 851. When the record is silent as to why counsel took a particular course of

action, we will not address the claim on direct appeal. Gunderson, ¶ 71; Robinson, ¶ 29.


1
    The oral pronouncement of sentence controls. State v. Duncan, 2008 MT 148, ¶ 51, 343 Mont. 220, 183 P.3d 111.

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Rather, the claim is better raised in a petition for postconviction relief where a sufficient

record can be developed. Gunderson, ¶ 71; Robinson, ¶ 29; State v. Rovin, 2009 MT 16,

¶ 34, 349 Mont. 57, 201 P.3d 780. However, where no plausible reason exists to justify

counsel’s action or inaction, the claim is record-based and appropriate for direct appeal.

State v. Kougl, 2004 MT 243, ¶ 19, 323 Mont. 6, 97 P.3d 1095.

¶11    When an offender is eligible for sentence review, we review a criminal sentence for

legality only. Gunderson, ¶ 37. Because Briscoe was sentenced to more than one year of

actual incarceration, he is eligible for sentence review.        Section 46-18-903, MCA.

Therefore, we review Briscoe’s sentence for legality only. Gunderson, ¶ 38; State v.

McDowell, 2011 MT 75, ¶ 11, 360 Mont. 83, 253 P.3d 812.

                                       DISCUSSION

¶12    Issue One: Was Briscoe’s counsel ineffective for failing to move to suppress

Briscoe’s post-Miranda statements?

¶13    Briscoe argues there was no plausible justification for his counsel’s failure to move to

suppress his statements made while in police custody. Because there was no plausible

justification for counsel’s inaction, Briscoe argues his claim for ineffective assistance of

counsel is suitable for direct appeal. He urges us to reverse his conviction and suppress the

statements.

¶14    The State argues that this claim is not well-suited for direct appeal, but should be

raised in a petition for post-conviction relief. However, should this Court consider the claim,

the State argues that Briscoe suffered no prejudice from his counsel’s failure to move to

suppress his statements, and therefore his claim fails.
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¶15    Before ruling on the merits of an ineffective assistance of counsel claim, we must

determine if direct appeal is the proper forum to bring the claim. Kougl, ¶ 14. If the record

provides the answer, the claim is record based and we will address it on direct appeal.

Kougl, ¶ 14. If the record does not provide the answer, the claim is non-record based and we

will not review the claim on direct appeal. Kougl, ¶ 14. Claims involving “omissions of trial

counsel are often ill-suited for direct appeal.” Robinson, ¶ 29; State v. Russell, 2008 MT

417, ¶ 33, 347 Mont. 301, 198 P.3d 271.

¶16    When reviewing ineffective assistance of counsel claims, we employ the two-part test

set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). State v. Savage,

2011 MT 23, ¶ 22, 359 Mont. 207, 248 P.3d 308. In order for a defendant to prevail on an

ineffective assistance of counsel claim, he or she must demonstrate both (1) that counsel’s

performance was deficient, i.e., it fell below an objective standard of reasonableness, and (2)

that he or she suffered prejudice, i.e., a reasonable probability exists that, but for counsel’s

errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687,

104 S. Ct. at 2064; Savage, ¶ 22; Gunderson, ¶ 67. If the defendant makes an insufficient

showing regarding one prong, the other need not be addressed. Gunderson, ¶ 68. Thus, if it

can be shown from the record on direct appeal that a defendant cannot satisfy either of the

Strickland prongs we will decide the issue accordingly.

¶17    For purposes of review in this case we assume that counsel’s performance was

deficient, thus satisfying the first prong of the Strickland test. We conclude, however, that

Briscoe cannot establish that he was prejudiced by the assumed deficient performance. The

burden is on Briscoe to establish that, but for counsel’s deficient performance, there is a
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reasonable probability that the result of the proceedings would have been different.

Gunderson, ¶ 67. A reasonable probability is a probability sufficient to undermine

confidence in the outcome of the proceeding. Robinson v. State, 2010 MT 108, ¶ 12, 356

Mont. 282, 232 P.3d 403.

¶18    Excluding Briscoe’s in-custody statements, there was overwhelming evidence that

Briscoe stabbed Trachy. Trachy testified it was Briscoe who stabbed him. When officers

responded to the report of a stabbing, they nearly immediately encountered Briscoe, who

raised his hands and told Officer Herbert that he (Briscoe) was “the one you want.” Officer

Herbert saw Briscoe throw an object into the bushes. Briscoe told officers he threw a knife

into the bushes, and indicated which bushes. Officers later recovered a knife from those

bushes. Briscoe also made several unsolicited statements to officers before his arrest,

indicating that he did not like the staff at the Poverello Center and he hoped Trachy died.

¶19    Further, even after hearing the allegedly inadmissible statements Briscoe made while

in custody indicating his intent to kill Trachy, the jury did not convict Briscoe of attempted

deliberate homicide. Briscoe was convicted of the lesser included offense of assault with a

weapon.

¶20    Briscoe has not established a reasonable probability exists that the outcome of the

proceeding would have been different had his counsel filed a motion to suppress his in-

custody statements. We conclude Briscoe did not receive ineffective assistance of counsel.

¶21    Issue Two: Is Briscoe’s sentence illegal because it was based in part on lack of

remorse which was not affirmatively linked to information in the record?


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¶22    Briscoe argues that his sentence is illegal because the District Court did not reference

any part of the record to substantiate its finding that he lacked remorse. The State argues

that, while the District Court “did fail to point to specific evidence in the record which

showed Briscoe’s lack of remorse[,]” there is substantial evidence in the record – namely

Briscoe’s statements to police – to support the District Court’s finding of lack of remorse.



¶23    A district court can sentence a defendant based upon lack of remorse provided there is

affirmative evidence of lack of remorse. State v. Morris, 2010 MT 259, ¶ 22, 358 Mont. 307,

245 P.3d 512. Such affirmative evidence includes: “evidence as to the manner of the

commission of the offense or admissible statements made by a defendant pre-trial, at trial, or

post-trial.” State v. Rennaker, 2007 MT 10, ¶ 51, 335 Mont. 274, 150 P.3d 960. Lack of

remorse may not be inferred from a defendant’s silence or failure to acknowledge his

conviction. State v. Duncan, 2008 MT 148, ¶ 53, 343 Mont. 220, 183 P.3d 111. The district

court “must tie its finding of lack of remorse to actions or statements made by [the

defendant] in its pronouncement of the sentence.” Duncan, ¶ 54 (emphasis in original).

Stated another way, if the district court does not point to affirmative evidence of lack of

remorse in its pronouncement of the sentence, a sentence based on lack of remorse is not

legal. Duncan, ¶¶ 54, 56.

¶24    In the present case, the District Court failed to point to any evidence to support its

finding of lack of remorse, which the State acknowledges. This is undoubtedly error given

our holding in Duncan. In Duncan, the district court sentenced Duncan based in part on his

lack of remorse. There, as here, the district court “did not affirmatively point to any
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evidence in the record to support that finding.” Duncan, ¶ 54. Again, as the State does here,

the State in Duncan argued on appeal “that there is sufficient evidence in the record from

which we [this Court] could infer Duncan’s lack of remorse.” Duncan, ¶ 54. We held

however, that “[e]ven if true, the presence of such evidence in the record would not cure the

error. The District Court must tie its finding of lack of remorse to actions or statements

made by [the defendant] in its pronouncement of the sentence.” Duncan, ¶ 54 (emphasis in

original).

¶25    Given our clear holding in Duncan, Briscoe’s sentence based in part on lack of

remorse is illegal. The District Court did not affirmatively point to any evidence in the

record to support its finding of lack of remorse. When a portion of a sentence is illegal, and

can be corrected on remand, we will remand to the district court to correct the illegal

provision. State v. Olivares-Coster, 2011 MT 196, ¶ 16, 361 Mont. 380, 259 P.3d 760.

Accordingly, we reverse Briscoe’s sentence and remand to the District Court to correct this

illegal provision.



                                      CONCLUSION

¶26    We conclude Briscoe was not denied effective assistance of counsel. We also

conclude that Briscoe’s sentence based in part on lack of remorse is illegal given our holding

in Duncan. We remand to the District Court to correct Briscoe’s sentence.



                                                  /S/ MICHAEL E WHEAT


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We Concur:


/S/ MIKE McGRATH
/S/ BRIAN MORRIS
/S/ PATRICIA COTTER
/S/ BETH BAKER




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