                                                                                             May 21 2013


                                           DA 12-0390

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 137N



LOUIS DeROSIER,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DV-11-1037
                       Honorable Robert L. Deschamps, III, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Colin M. Stephens, Briana E. Schwandt, Smith & Stephens, P.C.,
                       Missoula, Montana

                For Appellee:

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

                       Fred Van Valkenburg, Missoula County Attorney, Patricia Bower, Deputy
                       County Attorney, Missoula, Montana



                                                   Submitted on Briefs: April 10, 2013

                                                              Decided: May 21, 2013


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

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

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

does not serve as precedent. It shall be filed as a public document with the Clerk of the

Supreme Court and its case title, Supreme Court 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     Louis DeRosier was convicted of felony DUI in 2010. Here, he petitioned the

Fourth Judicial District Court, Missoula County, for postconviction relief on grounds that

he received ineffective assistance of counsel at his trial. We affirm the District Court’s

decision dismissing DeRosier’s petition for postconviction relief.

¶3     DeRosier raises three issues on appeal. He contends he was denied effective

assistance in that his trial counsel failed to move to suppress his pre- and post-Miranda

statements to police. He also contends he received ineffective assistance in that his trial

attorney failed to object to the admission of those statements or to the prosecutor’s

reference to them at trial, and failed to object to comments the prosecutor made during

closing argument about DeRosier’s credibility.

¶4     Claims of ineffective assistance of counsel are reviewed under the two-part test

articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). To prevail

on a claim of ineffective assistance, a defendant must demonstrate that (1) counsel’s

performance was deficient, and (2) counsel’s deficient performance prejudiced the

defendant. State v. Whitlow, 2001 MT 208, ¶ 17, 306 Mont. 339, 33 P.3d 877. If the
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defendant fails to make a sufficient showing on one prong of the Strickland test, then

there is no need to address the other prong. Bomar v. State, 2012 MT 163, ¶ 8, 365 Mont.

474, 285 P.3d 396. Ineffective assistance claims present mixed questions of law and fact

that we review de novo. Rogers v. State, 2011 MT 105, ¶ 12, 360 Mont. 334, 253 P.3d

889.

¶5     As to the first two issues on appeal, the District Court ruled that DeRosier had not

satisfied the prejudice prong of the Strickland test. The inquiry under this prong of the

test focuses on whether counsel’s allegedly deficient performance renders the trial result

unreliable or the proceeding fundamentally unfair. State v. Jefferson, 2003 MT 90, ¶ 53,

315 Mont. 146, 69 P.3d 641. In this case, the District Court observed that the State had

presented strong evidence that DeRosier was impaired, other than the evidence relating to

his statements to police.    The arresting officer testified that he observed DeRosier

speeding 15 miles per hour over the limit, and that DeRosier smelled of alcohol, his

movements were unsteady, and his eyes were bloodshot and glassy. The officer also

testified that DeRosier exhibited four out of six alcohol impairment signs on the

horizontal gaze nystagmus test, and performed poorly on field sobriety maneuvers. The

jury viewed a video of DeRosier’s processing at the jail, which showed him holding the

wall repeatedly, and throwing his arms out and weaving while attempting the walk and

turn. Also, DeRosier testified at trial that he had consumed four “twisted ice teas” before

his arrest. Because DeRosier claims he would not have testified at his trial if a motion to

suppress had been filed and granted, we have not considered his testimony in relation to

these issues. We conclude that, even disregarding DeRosier’s trial testimony, DeRosier
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has failed to establish a reasonable probability that, but for counsel’s failure to move to

suppress or object to the admission of DeRosier’s pre- and post-Miranda statements, the

result of the proceeding would have been different. Therefore, further analysis of the first

two issues on appeal is unnecessary.

¶6     The third issue in this appeal, regarding prosecutorial misconduct, should have

been raised in the trial court and on direct appeal of DeRosier’s conviction, but it was not.

Nor was it raised in the postconviction proceeding in the District Court. As a result, this

claim is barred under § 46-21-105(2) and (3), MCA, and also has been waived—see State

v. Gouras, 2004 MT 329, ¶ 26, 324 Mont. 130, 102 P.3d 27.

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

our Internal Operating Rules, which provides for noncitable memorandum opinions.

Upon de novo review, we conclude that DeRosier has not established that he was denied

effective assistance of counsel. The decision of the District Court is affirmed.


                                                  /S/ BETH BAKER


We concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON




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