                                                                                              July 21 2015


                                          DA 14-0662
                                                                                         Case Number: DA 14-0662

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2015 MT 206N



BRIAN SPINKS,

              Plaintiff and Appellant,

         v.

STATE OF MONTANA,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Ninth Judicial District,
                        In and For the County of Toole, Cause No. DV-14-03
                        Honorable Robert G. Olson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Brian Spinks (Self-Represented), Deer Lodge, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
                        Attorney General, Helena, Montana

                        Merle Raph, Toole County Attorney, Shelby, Montana



                                                    Submitted on Briefs: June 24, 2015
                                                               Decided: July 21, 2015


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


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

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Brian Spinks appeals from the District Court’s “Order Denying Petition for Post

Conviction Relief,” filed October 2, 2014. We affirm.

¶3     In 2011 the State charged Spinks with violating an order of protection, a felony.

The offense occurred while Spinks was in prison for an earlier offense, and arose from

his providing the name and address of his ex-wife so that other inmates could contact her

by mail. The State sought to have Spinks treated as a persistent felony offender. In

February 2012 a jury in Toole County convicted Spinks of the offense. The District

Court later sentenced Spinks to a prison term of eighteen years. Spinks appealed and this

Court affirmed the conviction in 2013. State v. Spinks, 2013 MT 248N.

¶4     Spinks, appearing pro se, filed the instant petition for postconviction relief in

January 2014. The District Court found thirteen issues expressly or implicitly contained

in Spinks’ materials and considered each separately. The District Court found that each

of Spinks’ grounds for relief was either procedurally barred or insufficiently supported by

law or fact, or both.




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¶5     On appeal Spinks argues that the District Court should have provided him an

opportunity to file an amended petition to raise or refine several additional issues. We

agree with the State that there is no showing that Spinks requested an opportunity to

amend his petition.       The District Court was not required to do so. Section

46-21-105(1)(a), MCA.

¶6     Spinks argues that his rights were violated during the trial when he was forced to

wear restraints.   While the State did not respond to this issue, the District Court

considered it and found that it had been raised at the trial court and should have been

raised on direct appeal. The District Court also found that Spinks’ assertions about the

restraints were “conclusory and unsubstantiated” and were therefore insufficient to

support a claim for postconviction relief. We agree. Spinks has not explained why the

restraints were in place nor, importantly, what restraints were in place during what

portions of the proceedings. The District Court correctly dismissed this claim for relief.

¶7     Spinks contends that his attorneys at both trial and on appeal rendered ineffective

assistance. The District Court examined the claims and determined that those related to

failing to investigate or offer impeachment evidence were part of the direct appeal of

Spinks’ conviction and could not be re-litigated. As to the other claims, the District

Court concluded that many of them involved reasonable tactical decisions and that Spinks

had generally failed to meet the heavy burden of demonstrating that his attorneys’

performances fell outside the range of reasonable conduct. We agree with the District

Court’s assessment of Spinks’ claims and that they were properly dismissed.



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¶8     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, this case presents questions controlled by settled law or by the clear

application of applicable standards of review.

¶9     Affirmed.


                                                 /S/ MIKE McGRATH

We Concur:

/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE




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