                                           No. 01-891

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2002 MT 205N


DOUGLAS BOESE,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Respondent.



APPEAL FROM:         District Court of the Eighth Judicial District,
                     In and for the County of Cascade,
                     The Honorable Thomas McKittrick, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Douglas Boese, Pro Se, Shelby, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Pamela P. Collins,
                     Assistant Attorney General, Helena, Montana

                     Brant Light, Cascade County Attorney, Great Falls, Montana


                                                  Submitted on Briefs: May 2, 2002

                                                            Decided: September 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     Appearing pro se, Douglas Boese petitioned the Eighth Judicial

District Court, Cascade County, for postconviction relief from the

judgment      entered      against      him    on    robbery,      theft     and    forgery

convictions, and requested appointment of counsel and a hearing.

The District Court did not address the latter requests, and denied

the petition for postconviction relief.                        Boese appeals and we

affirm.

¶3     The issue is whether the District Court erred in denying the

petition for postconviction relief.

¶4     The underlying criminal charges against Boese arose out of a

purse-snatching         outside      the    Sailboat       Lounge     in    Great     Falls,

Montana, and the subsequent cashing of a check that had been in the

purse.     Boese initially pled guilty, but then withdrew his plea and

was tried before a jury.               The jury found him guilty of robbery,

misdemeanor theft and misdemeanor forgery, after which he was

sentenced and his appointed counsel was granted leave to withdraw.

 Boese applied pro se for sentence review, and the Sentence Review


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Division   increased       his    sentence.     Almost   a   year    after   his

conviction, Boese's trial counsel filed a notice of appeal on

Boese's behalf and the District Court appointed the Appellate

Defender to represent Boese on direct appeal, which this Court

agreed to consider out-of-time.

¶5   The Appellate Defender subsequently moved to be allowed to

withdraw and filed a brief pursuant to Anders v. California (1967),

386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, and § 46-8-103, MCA,

stating that, after reviewing the entire record, he was unable to

find any nonfrivolous issues to raise on appeal.              Boese responded

to the Appellate Defender's motion.            This Court then independently

examined   the    record    and    concluded   an   appeal   would   be   wholly

frivolous.       As a result, we allowed the Appellate Defender to

withdraw and dismissed the appeal.
¶6   In the present action, Boese petitioned the District Court for

postconviction relief on the following grounds:                (1) the trial

judge should have recused himself after reading a threatening

letter Boese wrote to his mother; (2) it was reversible error to

require Boese to appear before the jury in shackles and handcuffs;

(3) the State of Montana failed to prove the elements of robbery

beyond reasonable doubt; (4) the method by which the jury was

summoned was constitutional error which falls under the plain error

doctrine; and (5) he was denied effective assistance of counsel

because his court-appointed trial attorney failed to object to the

jury summoning procedure, properly prepare for trial, investigate

or move for a mistrial when a witness violated a motion in limine


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prohibiting       mention   of    earlier    hearings    at   which   Boese   had

appeared, and appellate counsel also failed to challenge the manner

in which the jury was summoned.          Boese requested appointed counsel

and a hearing.

¶7   The District Court ordered the State to respond to Boese's

petition.     Then, in a summary order, the court denied Boese's

petition on grounds that Boese had been afforded the opportunity

for direct appeal and this Court had concluded an appeal would be

wholly frivolous.       The court also cited to § 46-21-105(2), MCA,

which provides that issues which were or could have been raised on

direct appeal cannot be raised in a postconviction proceeding.
¶8   We review a trial court's conclusions of law in a denial of a

petition    for    postconviction      relief   to   determine    whether     the

conclusions are correct.           Dawson v. State, 2000 MT 219, ¶ 18, 301

Mont. 135, ¶ 18, 10 P.3d 49, ¶ 18, cert. denied 532 U.S. 928, 121

S.Ct. 1372, 149 L.Ed.2d 299 (2001).             We affirm a correct result,

even if it was reached for a wrong reason.              State v. Francis, 2001

MT 233, ¶ 16, 307 Mont. 12, ¶ 16, 36 P.3d 390, ¶ 16.

¶9   On appeal, Boese argues the District Court erred in failing to

appoint counsel, relying on Swearingen v. State, 2001 MT 10, 304

Mont. 97, 18 P.3d 998.       The ruling in that case, however, was based

on the district court's setting of a hearing on the petition for

postconviction relief.           Swearingen, ¶¶ 6-7.     Counsel is appointed

for postconviction proceedings in a non-capital case only if a

hearing is necessary or the interests of justice require.                 See §

46-21-201(2), MCA.      No hearing was held on Boese's petition, and he


                                         4
has   not   established   that    the       interests   of   justice   required

appointment of an attorney to represent him.                  Thus, while the

District Court should have ruled separately on Boese's request for

counsel, appointment of counsel was not required under these

circumstances.    We conclude, therefore, that the District Court

reached the correct result in declining to appoint counsel for

Boese.

¶10   Boese's allegation that the trial judge should have recused

himself after becoming aware, prior to trial, of a threatening

letter Boese had written to his mother was discussed in the

Appellate Defender's Anders brief on appeal and, therefore, is

procedurally barred under § 46-21-105(2), MCA.               Moreover, because

it was record-based, the issue of whether the State failed to prove

the elements of robbery beyond a reasonable doubt could have been

raised on direct appeal but was not, and is barred for that reason.

 See § 46-21-105(2), MCA.        In any event, we independently examined

the record pursuant to Anders during Boese's direct appeal and

concluded there were no nonfrivolous grounds for appeal.
¶11   Boese's claims that he was prejudiced when the jury allegedly

saw him in shackles and handcuffs and that the procedure by which

the jury was summoned amounted to reversible error under State v.

LaMere, 2000 MT 45, 298 Mont. 358, 2 P.3d 204, are procedurally

barred because Boese did not object regarding these matters at

trial and, consequently, did not properly preserve them for appeal.

 See State v. Baker (1995), 272 Mont. 273, 281, 901 P.2d 54, 58.

Furthermore, nothing of record supports the assertion that the jury


                                        5
saw Boese in shackles and handcuffs and there is no evidence in the

record regarding the procedure that was used to summon the jury in

this case.     The District Court properly dismissed these claims.

¶12   Boese contends he has raised non-record issues about whether

he received ineffective assistance of counsel at trial and on

appeal which are appropriate only for postconviction relief, not

direct appeal.     A defendant who alleges he was denied effective

assistance of counsel has the burden of demonstrating both that his

counsel's actions were deficient under an objective standard of

reasonableness established by prevailing professional norms during

the representation and that there was a reasonable probability

that, but for counsel's unprofessional errors, the results of the

proceeding would have been different.            State v. Boyer (1985), 215

Mont.   143,   147,   695   P.2d   829,   831,    adopting   the    test   from

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674.
¶13   Boese claims his trial counsel was ineffective in failing to

object to his alleged shackling and to the method by which the jury

was called, and in failing to call an alibi witness.               However, he

did not attach to his petition for postconviction relief records or

affidavits establishing the existence of facts to support his

allegations, as required under § 46-21-104(1)(c), MCA, to support a

claim of ineffective assistance of counsel.              As a result, the

District Court properly dismissed these claims notwithstanding that

it should have done so under § 46-21-104(1)(c), MCA.




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¶14    Boese also contends that his trial counsel was ineffective for

failing to move for a mistrial regarding an alleged violation of a

motion in limine, but the record belies the factual predicate on

which this claim of ineffective assistance is premised.                   The trial

transcript demonstrates counsel moved for a mistrial on such

grounds during the testimony of the witness in question, and the

motion   was   denied.     The   claim       of   ineffective     assistance      is,

therefore, groundless.      The District Court correctly dismissed it.


¶15    Boese also maintains his trial counsel was ineffective in

failing to preserve the jury summoning issue and his appellate

counsel was ineffective in failing to raise it on direct appeal.

We disagree.     At the time of Boese's trial, an argument such as

that later raised successfully in LaMere had never prevailed.

Therefore, Boese's trial counsel cannot be said to have rendered

deficient performance for failing to raise the issue.                    See, e.g.,

Lowry v. Lewis (9th Cir. 1994), 21 F.3d 344, 346 (a lawyer's conduct

must be evaluated for purposes of the Strickland performance

standard as of the time of the conduct, not based on decisions in

later cases).    Moreover, Boese's appellate counsel was procedurally

barred from raising this issue because it was not raised at trial

and, in addition, was not record-based.              Appellate counsel cannot

be    ineffective   for   failing   to       raise   an   issue   that    would    be

procedurally barred.      See State v. Hildreth (1994), 267 Mont. 423,

432-33, 884 P.2d 771, 777.




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¶16    Finally, Boese suggests in his reply brief that, under State

v. Whitehorn, 2002 MT 54, 309 Mont. 63, 50 P.3d 121, "the jury

summoning issue may not even be covered by a procedural bar defense." He does not

support this suggestion with any legal analysis, but appears to intend to raise the plain error

doctrine. We do not consider plain error review when it is raised for the first time in an

appellant's reply brief. See, e.g., State v. Raugust, 2000 MT 146, ¶ 19, 300 Mont. 54, ¶ 19,

3 P.3d 115, ¶ 19 (citations omitted).

¶17    We hold that, while the grounds cited by the District Court

for denying Boese's petition for postconviction relief were not

altogether correct, the District Court reached the correct result.



¶18    Affirmed.


                                                   /S/ KARLA M. GRAY


We concur:

/S/   JIM REGNIER
/S/   PATRICIA COTTER
/S/   JAMES C. NELSON
/S/   JIM RICE




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