                                           No. 02-223

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2002 MT 320N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

FRANKLIN McLAUGHLIN,

              Defendant and Appellant.




APPEAL FROM:         District Court of the Eighteenth Judicial District,
                     In and for the County of Gallatin,
                     The Honorable Mike Salvagni, Judge presiding.



COUNSEL OF RECORD:

              For Appellant:

                     Franklin McLaughlin, CCA/CCC, Shelby, Montana (pro se)

              For Respondent:

                    Mike McGrath, Montana Attorney General, Micheal S. Wellenstein, Assistant
                    Montana Attorney General, Helena, Montana; Marty Lambert, Gallatin
              County Attorney, Gary Balaz, Deputy Gallatin County Attorney, Bozeman,
              Montana



                                                          Submitted on Briefs: October 17, 2002

                                                                      Decided: December 19, 2002
Filed:



                     __________________________________________
                                       Clerk
Justice Patricia O. Cotter 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 but 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     In July of 1996, Franklin McLaughlin (McLaughlin), who was fifteen at the time, pled

guilty in the Eighteenth Judicial District Court to the offense of aggravated assault, and was

committed to the Department of Corrections (DOC) for a term of twenty-five years. In 1997,

the Sentence Review Division amended McLaughlin's sentence to a twenty-year commitment

to DOC. On July 17, 2001, McLaughlin filed a motion with the District Court requesting a

sentence review hearing pursuant to § 41-5-2510, MCA. Following a hearing, the District

Court concluded that McLaughlin had not undergone substantial rehabilitation and

accordingly, declined to reduce his sentence. McLaughlin appeals pro se from this order.

¶3     McLaughlin filed a Notice of Appeal on February 28, 2002, and filed an Opening

Brief on May 16, 2002. Over two months after filing his Opening Brief, McLaughlin filed a

Motion for Appointment of Counsel on July 31, 2002. In an Order dated August 13, 2002,

we took McLaughlin's motion under advisement, pending receipt and review of the State's

response. The State filed its Respondent's Brief on September 24, 2002. McLaughlin then

filed a Reply Brief on October 4, 2002, and on the same day, he again filed a Motion for


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Appointment of Counsel, which was identical to his first motion. In both motions,

McLaughlin alleged that the legal resources available to him at his place of confinement were

inadequate.

¶4     McLaughlin presents the following issues on appeal:

       1. Whether the District Court effectively changed McLaughlin's original sentence
from a DOC commitment to a commitment to the Montana State Prison (MSP) in its order
declining to reduce McLaughlin's sentence;

      2. Whether the District Court violated McLaughlin's right to due process when it
reviewed his sentence; and

       3. Whether McLaughlin's counsel was ineffective.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶5     On May 31, 1996, McLaughlin was charged as an adult with attempted deliberate

homicide. McLaughlin pled guilty to the lesser offense of aggravated assault and waived

preparation of a presentence report. On July 19, 1996, the District Court sentenced

McLaughlin to DOC for a period of twenty-five years (twenty years for the offense of

aggravated assault and five years for the use of a weapon). McLaughlin applied for sentence

review, and in 1997 the Sentence Review Division amended his sentence to a twenty-year

commitment to DOC, but upheld all other conditions of the original sentence.

¶6     In August of 1996, DOC initially placed McLaughlin at Pine Hills School, where he

remained until he escaped a year later. After escaping, McLaughlin broke into a garage and

stole a car and was later charged with and convicted of burglary and theft. After being

sentenced for those offenses, McLaughlin was transferred to MSP in Deer Lodge, where he


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stayed from January of 1998 to February, 2000. Upon leaving Deer Lodge, McLaughlin was

transferred to several correctional facilities in Montana, including regional facilities in

Glendive, Great Falls, and Shelby.

¶7     While at these facilities, McLaughlin continued to have disciplinary problems, and

was written up at Deer Lodge and Glendive, and suspended from his job in the kitchen at the

Shelby facility following an altercation with a guard.           However, McLaughlin also

participated in programs offered at the correctional facilities, obtaining his GED in 1999,

completing anger management at Glendive, and briefly attending a Moral Reconation

Therapy (MRT) group at the Shelby facility.

¶8     On July 17, 2001, approximately six weeks before he turned twenty-one, McLaughlin,

with the aid of counsel, filed a motion with the District Court requesting a sentence review

hearing pursuant to § 41-5-2510, MCA (1999). The court appointed a public defender to

represent McLaughlin, and upon motion from McLaughlin, the District Court ordered a

psychological evaluation of McLaughlin, which was conducted by Dr. Frank Seitz (Seitz), a

clinical psychologist. The State did not object to either the motion for sentence review or the

request for psychological evaluation. On February 6, 2002, the District Court conducted a

sentence review hearing, receiving testimony from Seitz, McLaughlin, McLaughlin's mother,

and a minister from the Prison Ministries of Montana.

¶9     After hearing testimony, the District Court took judicial notice of the Findings of Fact,

Conclusions of Law and Order issued in 1996 in the proceeding transferring McLaughlin

from Juvenile Court to Adult District Court. The District Court stated that based upon rule

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violations, present psychological testing, and McLaughlin's own admissions that he does not

believe he is rehabilitated, it simply could not conclude that McLaughlin met the statutory

threshold of substantial rehabilitation by a preponderance of the evidence. On February 8,

2002, the District Court entered the written order declining to reduce McLaughlin's sentence.

                               STANDARD OF REVIEW

¶10    When this Court reviews a district court's conclusions of law regarding the application

of a statute, our standard of review is "whether the tribunal's interpretation of the law is

correct." State v. Peplow, 2001 MT 253, ¶ 17, 307 Mont. 172, ¶ 17, 36 P.3d 922, ¶ 17

(citing State v. Henning (1993), 258 Mont. 488, 490-91, 853 P.2d 1223, 1225; and State v.

Miller (1996), 278 Mont. 231, 233, 924 P.2d 690, 691). Our review of questions of

constitutional law is plenary. State v. Smith, 2000 MT 57, ¶ 13, 299 Mont. 6, ¶ 13, 997 P.2d

768, ¶ 13 (citing State v. Anderson, 1998 MT 258, ¶ 6, 291 Mont. 242, ¶ 6, 967 P.2d 413, ¶

6).

                                      DISCUSSION

                                           Issue 1

¶11 Did the District Court effectively change McLaughlin's original sentence from a
DOC commitment to a commitment to MSP in its order declining to reduce
McLaughlin's sentence?

¶12    In the original sentence imposed by the District Court in July of 1996, McLaughlin

was committed to DOC for a period of twenty-five years. The Sentence Review Division

subsequently amended the length of McLaughlin's sentence to twenty-years, but continued

his commitment to DOC. However, in the District Court's February 8, 2002 order, declining

                                              5
to reduce McLaughlin's sentence, the District Court erroneously found that McLaughlin was

originally committed for a period of twenty-five years to MSP, not DOC. McLaughlin

argues that this alteration imposes a harsher sentence on him.

¶13    It is clear that the District Court's February 2002 order simply upholds the previous

orders, notwithstanding its erroneous recitation of McLaughlin's original sentence as a

commitment to MSP. At the close of the hearing, when announcing its rationale for the

decision, the court stated, "by virtue of the court concluding that there's not substantial

rehabilitation, the sentence that is in place will continue in place." Moreover, in its February

8, 2002 order, the District Court concluded that "[t]he sentence ordered by the Sentence

Review Division on March 4, 1997 shall remain in full force and effect." We conclude the

District Court did not effectively impose a harsher sentence on McLaughlin when it

mistakenly noted that McLaughlin was originally sentenced to MSP.

                                            Issue 2

¶14 Did the District Court violate McLaughlin's right to due process when it
reviewed his sentence?

¶15    McLaughlin argues the District Court violated his due process rights when it allegedly

failed to follow statutorily required criteria for sentencing youths, namely §§ 41-5-2503 and -

2510, MCA (1999). These statutes require that a district court order DOC to file status

reports with the court concerning dispositions of criminally convicted youths, and also set out

criteria for addressing sentence review hearings until the youth is twenty-one. McLaughlin




                                               6
contends the absence of status reports also denied him the opportunity to provide examples of

his rehabilitation, and thus violated his right to due process.

¶16    Under § 41-5-2503(1)(c), MCA (1999), when sentencing a youth adjudicated in

district court pursuant to § 41-5-206, MCA, the court shall, among other things, "order

[DOC] to submit a status report to the court, county attorney, defense attorney, and juvenile

probation officer every 6 months until the youth attains the age of 21." These reports "must

include a recommendation from [DOC] regarding the disposition of the criminally convicted

youth." Section 41-5-2503(1)(c), MCA (1999). In addition, a district court is required to

"review the criminally convicted youth's sentence pursuant to 41-5-2510 before the youth

reaches the age of 21 if a hearing has not been requested under 41-5-2510." Section 41-5-

2503(2), MCA (1999). Pursuant to § 41-5-2510(4), MCA (1999), before a court may amend

a youth's sentence, it must determine whether the youth "has been substantially rehabilitated

based upon a preponderance of the evidence."

¶17    Significantly, §§ 41-5-2503 and -2510, MCA, were part of an act passed by the 1999

Legislature entitled the "Criminally Convicted Youth Act," which became effective October

1, 1999. See, Title 41, Chapter 5, Part 25, MCA, Compiler's Comments. McLaughlin,

however, was convicted and sentenced for an offense he committed in 1995. We have

consistently held that the applicable sentencing statute is that statute in effect at the time

crimes were committed. See, State v. Frazier, 2001 MT 210, ¶ 13, 306 Mont. 358, ¶ 13, 34

P.3d 96, ¶ 13 (district court did not have authority under §§ 46-18-203(7)(a)(iii) and 46-23-

1013(2), MCA (1999), to alter length and nature of sentences upon revocation when those

                                               7
provisions were not in effect at the time the underlying offenses were committed). See also,

State v. Moorman (1996), 279 Mont. 330, 339, 928 P.2d 145, 150. Therefore, McLaughlin

was not entitled to the benefit of the 1999 sentence review Act (the 1999 Act).

¶18    Under the laws in place at the time of his offense, McLaughlin was able to and in fact

did seek amendment of his sentence, as evidenced by his successful application for sentence

review which reduced his commitment to DOC from twenty-five years to twenty years. See

§ 46-18-901, et seq., MCA (1995) (allowing appellate review of legal sentence). See also, §

41-5-531, MCA (1995) (extending the same remedies available to adults in criminal

proceedings to youths proceeded against under the Youth Court Act).

¶19    When McLaughlin applied for review of his sentence under the 1999 Act, the State

failed to file a response or object to his request, and the District Court proceeded to conduct a

sentence review hearing pursuant to § 41-5-2510, MCA (1999). Thus, McLaughlin in effect

received the benefit of several provisions of the 1999 Act. However, because compliance

with the 1999 Act was not required, we must conclude that the District Court did not infringe

on McLaughlin's due process rights by not ordering or reviewing status reports pursuant to §§

41-5-2503 and -2510, MCA (1999).

¶20    McLaughlin also asserts on appeal that the District Court denied him due process of

law when it did not acknowledge that the self-improvement programs he had failed to

complete were no longer offered by DOC, and that DOC did not offer any programs for

treatment of his antisocial personality disorder. McLaughlin argues he should not be faulted

for the shortcomings of DOC.

                                               8
¶21    We conclude that the argument concerning the availability and quality of programs

offered by DOC is not properly before us. On appeal here is the District Court's conclusion

that McLaughlin failed to establish that he had been substantially rehabilitated. McLaughlin

applied to the District Court for sentence review pursuant to § 41-5-2510, MCA (1999); he

did not seek review of DOC's programs or rehabilitative efforts. We therefore decline to

consider this argument.

¶22    Though the law did not require it to do so, the District Court gave McLaughlin the

benefit of many of the provisions of the 1999 Act, and carefully considered the evidence

presented to it. We therefore conclude that McLaughlin's due process rights were not

violated by the District Court when it conducted a sentence review hearing pursuant to § 41-

5-2510, MCA (1999).

                                            Issue 3

¶23    Was McLaughlin's counsel ineffective?

¶24    In considering ineffective assistance of counsel claims on direct appeal and in

postconviction proceedings, we apply the two-pronged test set forth by the United States

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

L.Ed.2d 674. See, State v. Hagen, 2002 MT 190, ¶ 17, 311 Mont. 117, ¶ 17, 53 P.3d 885, ¶

17. See also, Dawson v. State, 2000 MT 219, ¶ 20, 301 Mont. 135, ¶ 20, 10 P.3d 49, ¶ 20

(petitioner seeking to reverse a district court's denial of a petition for postconviction relief

based on a claim of ineffective assistance of counsel bears a heavy burden). Strickland's

two-part test requires that the defendant show that his counsel's performance was deficient

                                               9
and that the deficient performance prejudiced the defense and deprived the defendant of a fair

trial. Dawson, ¶ 20 (citing Strickland, 466 U.S. at 687).

¶25    Under Strickland, a defendant alleging ineffective assistance of counsel must

demonstrate that "there is a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.

"A reasonable probability is a probability sufficient to undermine confidence in the

outcome." Strickland, 466 U.S. at 694. Moreover, "a claim of ineffective assistance of

counsel must be grounded in facts found in the record, not on 'mere conclusory allegations.'"

Hagen, ¶ 19 (citation omitted).

¶26    Part of McLaughlin's assertion that his appointed counsel was ineffective is grounded

in his argument that §§ 41-5-2503 and -2510, MCA (1999), were not followed. However, as

discussed above, these sections were not effective until well after McLaughlin was

sentenced. Therefore, we cannot fault his appointed counsel for not objecting to the absence

of status reports mandated by the 1999 Act. Moreover, McLaughlin fails to demonstrate how

he was prejudiced by a lack of status reports, particularly considering all the documents and

testimony that were reviewed by the District Court. See, Hagen, ¶ 19 (claim of ineffective

assistance of counsel cannot be grounded on mere conclusory allegations).

¶27    McLaughlin also argues his appointed counsel failed to interview the program

facilitators within DOC, and thus could not present the argument that the opportunities for

rehabilitation provided by DOC were somehow inferior. Again, McLaughlin fails to provide

anything more than conclusory statements of how his counsel's failure to pursue this line of

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argument prejudiced him. See, Hagen, ¶ 19. Moreover, as noted above, the issue before the

District Court was whether McLaughlin had been substantially rehabilitated--an issue

carefully considered by the District Court--not whether the programs at DOC were sufficient

in quality and availability to rehabilitate McLaughlin.

¶28    Given the effective date of the statutes at issue and the limited purpose of

McLaughlin's application for sentence review pursuant to § 41-5-2510, MCA (1999), we

conclude that McLaughlin's conclusory arguments fail to demonstrate his counsel's

performance was deficient under Strickland.

¶29    Finally, we address McLaughlin’s request that counsel be appointed for him in this

proceeding. We note that McLaughlin's initial application for a sentence review hearing

pursuant to § 41-5-2510, MCA (1999), was filed on his behalf by counsel. This counselor

filed a Notice of Limited Appearance to represent McLaughlin for the narrow purpose of

filing a timely application for sentence review. He also filed a memorandum in support of

the application, which included a motion for appointment of either himself or a public

defender. The District Court granted the motion and appointed a public defender to represent

McLaughlin at the sentence review hearing.

¶30    As we have acknowledged repeatedly in other cases, and in our Order entered in this

matter on August 13, 2002, the right to counsel arises at every critical stage of the

proceedings against a criminal defendant. Ranta v. State, 1998 MT 95, ¶ 17, 288 Mont. 391,

¶ 17, 958 P.2d 670, ¶ 17. Here, McLaughlin argues that this stage of the proceedings--an



                                             11
appeal from an order denying a change of sentence--is a critical stage, thus entitling him to

counsel.

¶31    We initially reserved the question of whether counsel should be appointed for

McLaughlin because the request came late in the proceedings, nearly five months after

McLaughlin filed his pro se Notice of Appeal, and more than two months after he filed his

Opening Brief on appeal. Now, and for the reasons set forth above, we conclude that counsel

need not have been appointed for McLaughlin here, and deny his late request for such

appointment. We do so for a very basic reason--even if counsel had been appointed here, he

or she would have been of no assistance to McLaughlin in presenting his substantive issue on

appeal.

¶32    As already noted, McLaughlin’s appeal arises from the District Court’s failure to

follow the requirements of §§ 41-5-2503, and -2510, MCA (1999), which are the statutes

under which McLaughlin sought and obtained a sentence review hearing in the District

Court. However, this statute simply does not apply to McLaughlin’s circumstances in light

of the fact that it was enacted three years after he was sentenced. No attorney could change

this circumstance or convince us to disregard it. We therefore conclude that under these

facts, it is not necessary for counsel to be appointed to represent McLaughlin in these

proceedings.

¶33    Accordingly, we affirm the District Court's decision not to reduce McLaughlin's

sentence.

                                                         /S/ PATRICIA COTTER

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We Concur:


/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ JIM REGNIER




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