                                                                                              04/03/2018


                                           DA 16-0693
                                                                                          Case Number: DA 16-0693

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           2018 MT 79N



FRANCO LEO TORRES,

               Petitioner and Appellant,

         v.

STATE OF MONTANA,

               Respondent and Appellee.


APPEAL FROM:           District Court of the Thirteenth Judicial District,
                       In and For the County of Yellowstone, Cause No. DV 16-0192
                       Honorable Gregory R. Todd, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Franco Leo Torres, self-represented, Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant
                       Attorney General, Helena, Montana

                       Scott D. Twito, Yellowstone County Attorney, Billings, Montana



                                                   Submitted on Briefs: November 29, 2017

                                                               Decided: April 3, 2018


Filed:

                       __________________________________________
                                         Clerk
Justice Dirk Sandefur delivered the Opinion of the Court.

¶1        Pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, we decide this

case by memorandum opinion, which shall not be cited and does not serve as precedent.

In the opinion of the Court, the case presents a question controlled by settled law or by the

clear application of applicable standards of review. The 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        Franco Leo Torres (Torres) appeals the judgment of the Montana Thirteenth Judicial

District     Court dismissing his petition for          postconviction relief pursuant       to

§ 46-21-201(1)(a), MCA, for failure to state a legally and factually sufficient claim. We

affirm.

¶3        On February 17, 2015, Torres was convicted upon jury trial of the offense of

Partner/Family Member Assault (PFMA), a felony in violation of § 45-5-209, MCA.

Torres and the State subsequently entered into a written post-trial agreement pursuant to

§ 46-12-211(1)(b), MCA, designating Torres a persistent felony offender (PFO) and

committing him to a five-year placement in the Department of Corrections Boot Camp

program. In return for the State’s binding sentencing recommendation, Torres agreed to

waive his rights to appeal and to challenge the validity of prior criminal convictions as

predicates for his felony PFMA conviction and PFO designation. The District Court

ultimately sentenced Torres in accordance with the parties’ agreement. Torres did not

appeal.
                                                2
¶4     On February 8, 2016, Torres filed a pro se petition for postconviction relief pursuant

to Title 46, chapter 21, MCA. As grounds for the petition, Torres asserted numerous

ineffective assistance of counsel (IAC) claims and alleged that an eleven-month post-trial

sentencing delay violated his right to due process of law under the United States and

Montana constitutions.1 On May 3, 2016, the District Court ordered the State to respond

to the various IAC-related claims upon obtaining the responses of Torres’ counsel pursuant

to In re Gillham, 216 Mont. 279, 704 P.2d 1019 (1985). On June 29, 2016, the District

Court denied and dismissed the due process and jurisdictional claims on the merits. In a

July 7, 2016 motion for leave to amend his petition, Torres additionally claimed that the

court lacked jurisdiction to proceed to conviction absent an initial grand jury indictment or

probable cause determination upon a noticed preliminary hearing. Upon consideration of

the State’s supported response, the court dismissed Torres’ IAC claims pursuant to § 46-21-

201(1)(a), MCA, for failure to state a legally and factually sufficient claim. Torres timely

appeals.

¶5     We review a district court denial of a petition for postconviction relief to determine

whether applicable findings of fact are clearly erroneous and whether applicable

conclusions of law are correct. Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90, 183

P.3d 861. However, ineffective assistance claims present mixed questions of fact and law




1
  In a written order issued on June 29, 2016, the District Court ruled that the six postconviction
claims separately set forth in Torres’ pro se petition substantively boiled down to the referenced
due process claim and numerous non-record-based IAC claims.
                                                  3
which we review de novo. Whitlow, ¶ 9. We review a district court decision to dismiss a

postconviction petition without a hearing pursuant to § 46-21-201(1)(a), MCA, for an

abuse of discretion. State v. Hanson, 1999 MT 226, ¶ 9, 296 Mont. 82, 988 P.2d 299 (citing

State v. Sullivan, 285 Mont. 235, 239, 948 P.2d 215, 218 (1997)).

¶6     Torres first asserts that the District Court erroneously denied him the opportunity to

amend his petition pursuant to § 46-21-105, MCA. The record reflects that Torres moved

for leave to amend his petition to add a postconviction claim that the District Court lacked

jurisdiction to proceed to conviction absent an initial grand jury indictment or probable

cause determination on a noticed preliminary hearing. Though the District Court did not

formally grant or deny leave to amend the petition, the record demonstrates that Torres’

motion set forth substantive legal analysis on the issue and that the court in turn squarely

addressed the claim on the merits. In essence, the court implicitly granted the motion by

treating the substantive legal analysis therein as an amended postconviction claim and

addressing it on the merits. To the extent that Torres further asserts that the District Court

erroneously decided the issue on the merits, we conclude that the court correctly ruled that

the State properly charged Torres by ex parte probable cause affidavit and court-endorsed

Information pursuant to § 46-11-101, MCA, without statutory or constitutional requirement

for a grand jury indictment or preliminary hearing.

¶7     Torres next asserts that the District Court erroneously denied him a hearing on his

IAC-related claims. Whether to hold an evidentiary hearing on a postconviction petition

is a discretionary matter, required only in “unique circumstances” such as where necessary
                                              4
to develop and review non-record facts likely to be material to an asserted claim. Heath v.

State, 2009 MT 7, ¶¶ 21-27, 348 Mont. 361, 202 P.3d 118; see also State v. Cobell, 2004

MT 46, ¶ 12, 320 Mont. 122, 86 P.3d 20; § 46-21-201(1)(a) and (5), MCA. However, a

postconviction hearing may “not serve as a broad discovery device” with which to embark

upon “a ‘fishing expedition’ in an attempt to establish” grounds for postconviction relief.

Heath, ¶ 27. Torres has failed to demonstrate on appeal that a hearing was necessary to

develop additional non-record facts or as a means to resolve genuine issues of material fact

within the record following the State’s supported response.

¶8     The District Court rejected Torres’ assertion that an eleven-month post-trial

sentencing delay violated his right to due process of law. Our review of the record indicates

that the District Court engaged in a particularized due process analysis in accordance with

State v. Betterman, 2015 MT 39, ¶¶ 26-32, 378 Mont. 182, 342 P.3d 971 (focusing on the

reasons for the post-trial sentencing delay and the extent of resulting prejudice under the

totality of the circumstances). The District Court essentially concluded that Torres failed

to make a non-speculative showing that the delay unreasonably prejudiced him and, to the

extent that the claim was IAC-related and not subsumed in his non-record IAC claims, the

record did not support Torres’ assertion that the delay resulted from the deficient

performance of counsel. Our review of the record indicates that the District Court correctly

analyzed Torres’ due process claim under governing law to reach a factually and legally

supported conclusion. Torres has failed to show otherwise on appeal.


                                             5
¶9     Finally, Torres asserts numerous other IAC and IAC-related claims.                  A

postconviction petitioner has the burden of showing by a preponderance of the evidence

that the facts of record warrant the requested relief. Heath, ¶ 16; Ellenburg v. Chase, 2004

MT 66, ¶ 12, 320 Mont. 315, 87 P.3d 473; Cobell, ¶ 12. The performance of counsel is

constitutionally ineffective only if (1) deficient and (2) the deficient performance resulted

in actual prejudice to the defendant’s right to a fair trial. Ariegwe v. State, 2012 MT 166,

¶ 15, 365 Mont. 505, 285 P.3d 424; Heath, ¶ 17; Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 2064 (1984).          An IAC claimant has the heavy burden of

demonstrating that counsel’s performance was ineffective under both prongs of the

Strickland analysis. Sartain v. State, 2012 MT 164, ¶¶ 9, 11, 365 Mont. 483, 285 P.3d 407;

Whitlow, ¶¶ 10-14. The reviewing court may consider the Strickland prongs in either order

and need not consider both if one is dispositive of an IAC claim. Bomar v. State, 2012 MT

163, ¶ 8, 365 Mont. 474, 285 P.3d 396; Miller v. State, 2012 MT 131, ¶ 13, 365 Mont. 264,

280 P.3d 272; Cobell, ¶ 15.

¶10    Under the first Strickland prong, counsel’s performance is presumptively reasonable

and sufficient within the “broad range of reasonable professional conduct” and “sound trial

strategy.” Whitlow, ¶ 21. See also Worthan v. State, 2010 MT 98, ¶ 10, 356 Mont. 206,

232 P.3d 380 (judicial review of counsel’s performance “must be highly deferential”).

Counsel’s performance is constitutionally deficient only if it falls “below an objective

standard of reasonableness” under the totality of the circumstances and “prevailing

professional norms.” Ariegwe, ¶ 16. The Sixth Amendment and Article II, Section 24,
                                             6
only guarantee a reasonably competent lawyer and assistance of counsel, not “perfect

advocacy judged with the benefit of hindsight.” Bomar, ¶ 19 (citing Whitlow, ¶ 32);

Yarborough v. Gentry, 540 U.S. 1, 8, 124 S. Ct. 1, 6 (2003). Under the second Strickland

prong, a deficient performance results in actual prejudice only if it is reasonably probable

under the totality of the circumstances that the outcome would have been different but for

the deficient performance. Ariegwe, ¶ 16; Heath, ¶ 17. In this context, a “reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Cobell,

¶ 14.

¶11     Whether viewed individually or cumulatively, Torres’ IAC claims are essentially

no more than assertions as to various actions or inactions by counsel coupled with

unsupported assertions that the actions or inactions were deficient and prejudicial. Torres’

IAC claims are completely devoid of any supported showing that the cited actions and

inactions fell below an objective standard of reasonableness under the totality of the

circumstances and prevailing professional norms. The asserted IAC claims are similarly

devoid of any supported, non-speculative showing of a reasonable probability that the

outcome would have been different had counsel performed as Torres asserts they should

have. Our review of the record indicates that the District Court correctly ruled that Torres

failed to make an affirmative factual and legal showing sufficient to overcome the

presumption that he received constitutionally effective counsel under the totality of the

circumstances.


                                             7
¶12    Upon review of a postconviction petition in light of the State’s response and the

court record, a district court may dismiss the petition for failure to state a legally or

factually sufficient claim under § 46-21-201(1)(a), MCA. Torres has failed to show on

appeal that the District Court dismissed his petition based on a clearly erroneous finding

of material fact, an erroneous conclusion of law, or abuse of discretion. We hold that the

District Court correctly denied and dismissed Torres’ petition for postconviction relief.

¶13    We decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating

Rules, which provides for memorandum opinions. This appeal presents no constitutional

issues, no issues of first impression, and does not establish new precedent or modify

existing precedent.

¶14    Affirmed.


                                                 /S/ DIRK M. SANDEFUR


We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE




                                             8
