                                                                                            January 6 2015


                                           DA 12-0783
                                                                                           Case Number: DA 12-0783

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2015 MT 1


STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

CHRISTOPHER DONALD GREENE,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC-2011-415
                        Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender, Kristen L. Larson, Assistant
                        Appellate Defender; Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
                        Assistant Attorney General; Helena, Montana

                        Fred Van Valkenburg, Missoula County Attorney, Jason Marks, Deputy
                        County Attorney; Missoula, Montana



                                                    Submitted on Briefs: December 3, 2014
                                                               Decided: January 6, 2015


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1     Christopher Greene appeals from the judgment and sentence of the Montana Fourth

Judicial District Court, Missoula County, sentencing him to 100 years in the Montana State

Prison, with 60 years suspended, for failure to give notice of change of address by a sexual

offender. We affirm in part, reverse in part, and remand.

                                             ISSUES
¶2     We review the following issues:

       1. Did Greene receive ineffective assistance of counsel due to his attorney’s failure to

challenge a prospective juror for cause?

       2. Did the District Court abuse its discretion by providing the jury with a portion of

the trial transcript during deliberation?

       3. Did the District Court err by imposing an illegal sentence?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶3     In 1994, Greene was convicted of felony sexual assault. He was committed to the

Department of Corrections and the Department of Health and Human Services for 20 years,

and he was required to register as a sexual offender upon his release. Greene was not

assigned a sexual offender tier level designation at this time.

¶4     On July 8, 2011, following his discharge from prison, Greene checked into the

Ponderosa Lodge in Missoula. On July 9, 2011, he registered with Missoula County and

reported the Ponderosa Lodge as his address. At that time he also signed a form regarding

rules for updating his registered address.




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¶5     On September 6, 2011, Detective Arianna Adams of the Missoula Police Department

attempted to contact Greene. She visited the Ponderosa Lodge, but she learned that Greene

had checked out of the Lodge on July 15, 2011. Since Greene had not updated his registered

address, a warrant was issued for his arrest.

¶6     On September 8, 2011, Randy Martinez, a Deputy United States Marshal, learned of

the warrant and contacted a probation officer familiar with Greene. The probation officer

told Martinez of a possible address for Greene. Investigating this address, Martinez found

and arrested Greene.

¶7     The State charged Greene with failure to give notice of change of address in

September 2011, and the case eventually proceeded to trial before a jury. During voir dire,

Greene’s counsel told the jury pool about Greene’s constitutional right not to testify. She

then asked the jurors whether they could “judge the case on the evidence that’s presented . . .

and not make any assumptions based on whether or not Mr. Greene chooses to testify.”

Responding to the question, Juror Belanger stated, “I’d have a hard time if he can’t explain

himself or testify himself and I’d have a -- I’d have a hard time making a decision.”

Belanger then confirmed that he thought “something to hide is the only explanation to not

wanting to get up on the stand and testify.” Counsel did not question Belanger further.

Ultimately, Greene’s counsel passed the jury panel for cause, and then exercised her

peremptory challenges. One of these challenges was used to remove Belanger.

¶8     At trial, the State questioned Adams; Martinez; Kristi Sangrey, who maintained

Missoula’s records for the sex offender registry; and Christopher Birdeau, an employee of

the Budget Inn (formerly the Ponderosa Lodge). Adams testified about her efforts to locate
                                                3
Greene in September 2011. Martinez testified about his efforts to locate and arrest Greene.

Sangrey testified to Greene’s registered address. Birdeau, who was not employed by the

Ponderosa Lodge during the dates in question, checked the Ponderosa Lodge’s business’

records and testified that he found no record of Greene staying there after July 2011. While

Greene’s counsel cross-examined several of the State’s witnesses, she did not cross-examine

Adams or present any testimony or evidence on Greene’s behalf.

¶9     Before the jury retired for deliberations, the District Court Judge instructed them to

submit to him any questions they might have. The Judge stated that while he might not be

allowed to answer the questions, he would consider any that were submitted. During

deliberations, the jury sent a note to the court, which asked: “Did Detective actually go to the

room at the Ponderosa or just check at [the] office[?]” In response, the District Court

prepared a partial transcript of Adams’ trial testimony. It read:

       Q. (By [the STATE]) How did you go about trying to locate [Greene]?
       A. (DETECTIVE ADRIANNA ADAMS) I checked the state registry and
       found he was listed as living at the Ponderosa Lodge, 800 East Broadway,
       number 124.
       Q. Did you go there?
       A. I did.
       Q. Were you able to locate Mr. Greene there?
       A. I was not.
       Q. Did you -- were you able to learn if he was still staying there?
       A. I did.
       Q. What did you learn?
       A. I learned that he had checked in on July 8th, and he had left on July 15th.
       Q. Now at that point, did you know his whereabouts?
       A. I did not at that point.


The District Court also prepared a cover to the transcript that stated: “In response to your

question concerning Detective Adams’ contact with the Ponderosa Lodge, the Court is
                                               4
attaching the relevant portion of the transcript.” Greene objected to providing the jury with

the prepared transcript, while the State did not. The District Court overruled Greene’s

objection and gave the jury the cover sheet and partial transcript. The jury subsequently

returned a guilty verdict.

¶10    Following an October 19, 2012 sentencing hearing, the District Court pronounced an

oral sentence. It sentenced Greene to 100 years in Montana State Prison, suspending 60 of

those years and restricting parole eligibility for 40. It also waived the applicable fines, fees,

and public defender fee and designated Greene a tier three sexual offender. On November 7,

2012, the District Court entered a written judgment. It departed from the sentence

pronounced in October and ordered Greene to pay fines and fees totaling $980. Greene

appeals.

                                STANDARDS OF REVIEW

¶11     Claims of ineffective assistance of counsel are mixed questions of law and fact.

Therefore, our review is de novo. State v. Herrman, 2003 MT 149, ¶ 18, 316 Mont. 198,

70 P.3d 738.

¶12    The decision to provide requested information to a jury is one of discretion. Section

46-16-503(2), MCA; State v. Evans, 261 Mont. 508, 511, 862 P.2d 417, 418 (1993).

Accordingly, we review such a decision for abuse of discretion. State v. Crawford, 2002 MT

117, ¶ 15, 310 Mont. 18, 48 P.3d 706.

¶13    We review a criminal sentence longer than one year for legality. State v. Holt,

2011 MT 42, ¶ 7, 359 Mont. 308, 249 P.3d 470.



                                               5
                                       DISCUSSION

¶14    1. Did Greene receive ineffective assistance of counsel due to his attorney’s failure to

challenge a prospective juror for cause?

¶15    Greene argues that his counsel should have further questioned or challenged juror

Belanger for cause, rather than use a peremptory challenge to dismiss him. Greene contends

that this omission constituted ineffective assistance of counsel.

¶16    The United States and Montana Constitutions guarantee criminal defendants the right

to effective counsel. U.S. Const. amend VI; Mont. Const. art. II, § 24; State v. Racz,

2007 MT 244, ¶ 22, 339 Mont. 218, 168 P.3d 685. We apply the two-pronged test of

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984) to ineffective assistance of

counsel claims. State v. Chafee, 2014 MT 226, ¶ 19, 376 Mont. 267, 332 P.3d 240. Under

Strickland, a defendant must prove (1) that counsel’s performance was deficient, and (2) that

counsel’s deficient performance prejudiced the defense. Racz, ¶ 22.

¶17    These are fact-dependent considerations that usually can only be reviewed by

reference to a developed record. Accordingly, as a threshold matter when considering

ineffective assistance of counsel claims, we must determine whether a direct appeal or a

postconviction relief hearing is the more appropriate forum for the claim. State v. Kougl,

2004 MT 243, ¶ 14, 323 Mont. 6, 97 P.3d 1095. If we can discern from the record the reason

for counsel’s allegedly deficient act or omission, we can properly address the claim on direct

appeal. If, on the other hand, the record does not disclose the reason, the defendant must

raise the claim in a petition for postconviction relief. Kougl, ¶ 14. Postconviction relief



                                              6
allows the parties to develop a record and explore the reasons for counsel’s act or omission.

See Racz, ¶ 23.

¶18    We have recognized a narrow exception to this rule when there is “no plausible

justification” for counsel’s act or omission. In such cases, the record need not disclose

counsel’s reasons for the act or omission, and we will review the claim on direct appeal.

Kougl, ¶ 15. Greene concedes that the record in this case is silent as to why his attorney

failed to challenge Belanger for cause or further question him. He argues, however, that

there was no plausible justification for counsel’s failure to do so.

¶19    Greene asserts that counsel “had nothing to lose by following up with Belanger,” and

he claims that removing Belanger for cause rather than with a peremptory challenge was

“clearly to [Greene]’s advantage.” This conclusion, however, is not supported by the record,

and it is at odds with this Court’s precedent. In Herrman, we were unpersuaded by the same

argument that Greene makes here. Herrman, ¶ 31 (addressing Herrman’s argument that

“there is no tactic that would justify defense counsel removing a potential juror peremptorily

where that same person likely could have been successfully challenged ‘for cause.’”). As we

did in that case, we again recognize that “peremptory challenges involve a very different

dynamic than challenges for cause.” Herrman, ¶ 31. Considerations of timing and the

reasons for removal, for example, are often different in peremptory challenges than in

challenges for cause. Herrman, ¶ 31. Thus, we hold, as we did in Herrman, that without the

benefit of a postconviction relief proceeding, we cannot conclude that there was no plausible

justification for defense counsel to remove a potential juror peremptorily where the same



                                              7
person might have been successfully challenged for cause. Herrman, ¶ 32. Accordingly, we

dismiss Greene’s ineffective assistance of counsel claim without prejudice.

¶20    2. Did the District Court abuse its discretion by providing the jury with a portion of

the trial transcript during deliberation?

¶21    Greene argues that the District Court abused its discretion by providing the

deliberating jurors with the cover sheet and partial transcript of Adams’ testimony. He

claims that it placed undue emphasis on Adams’ testimony compared with the other

testimony and evidence presented at trial.

¶22    At common law, a trial court is not permitted to submit testimonial materials to the

jury for their unsupervised review during deliberation. State v. Harris, 247 Mont. 405, 416,

808 P.2d 453, 459 (1991). This rule has been modified by the Legislature, however. Section

46-16-503(2), MCA, permits a court to refresh a jury’s recollection of trial testimony under

certain circumstances. Harris, 247 Mont. at 417, 808 P.2d at 459. Specifically, it states:

       After the jury has retired for deliberation, if there is any disagreement among
       the jurors as to the testimony or if the jurors desire to be informed on any
       point of law arising in the cause, they shall notify the officer appointed to
       keep them together, who shall then notify the court. The information
       requested may be given, in the discretion of the court, after consultation with
       the parties.

Section 46-16-503(2), MCA. We have decided that this statute does not completely displace

the common law rule. Instead, the common law rule continues to prevent jury review of

testimony in most cases, while in limited circumstances § 46-16-503(2), MCA, permits

district courts, at their discretion, to supply information in response to jury requests. Evans,

261 Mont. at 512, 862 P.2d at 419; Harris, 247 Mont. at 417-18, 808 P.2d at 460.

                                               8
¶23    We have considered what kinds of materials may be submitted to the jury and in what

instances in several cases. In Harris, for example, the jury asked to review during

deliberations all of the testimony made by the alleged victim. The district court, over the

defendant’s objection, responded to the request by returning the jury to the courtroom and

reading the victim’s testimony in its entirety. Deciding that the district court abused the

discretion afforded to it by § 46-16-503(2), MCA, we reversed its decision. Harris, 247

Mont. at 416-17, 808 P.2d at 459-60. We quoted with approval a Wyoming Supreme Court

decision that applied a similar statute. Harris, 247 Mont. at 417, 808 P.2d at 460; Evans,

261 Mont. at 512, 862 P.2d at 419. The language that we considered to be relevant included:

       [The statute] does not permit trial courts to repeat large amounts of testimony
       just because the jury makes [a request to do so]. On the contrary, it requires
       that the court discover the exact nature of the jury’s difficulty, isolate the
       precise testimony which can solve it, and weigh the probative value of the
       testimony against the danger of undue emphasis. If, after this careful exercise
       of discretion, the court decides to repeat some testimony for the jury, it can do
       so in open court . . . or under other strictly controlled procedures of which the
       parties have been notified. . . . The more testimony the court repeats, the
       greater danger of undue emphasis. Even with the best of procedures, it would
       not be proper under the statute for the court to reread a transcript . . . just
       because the jury wants to review all of the testimonial matter . . . . Undue
       emphasis and delay would be too likely.

Harris, 247 Mont. at 417, 808 P.2d at 460 (quoting Chambers v. State, 726 P.2d 1269, 1276

(Wyo. 1986). We also specified that the kind of request contemplated by § 46-16-503(2),

MCA, “includes an inquiry concerning a witness’s testimony as to the width of a street, the

height of an object, distance, time or some other limited request, but not the entire testimony

of the witness.” Harris, 247 Mont. at 417, 808 P.2d at 460.




                                              9
¶24    We subsequently applied Harris in our decision in Evans. In that case, we affirmed

the district court’s refusal to comply with a request to hear the direct and cross-examination

testimony of a particular witness in response to a particular question. Evans, 261 Mont. at

510, 513, 862 P.2d at 418, 420. We noted that the touchstone for a district court in

exercising its discretion under § 46-16-503(2), MCA, is whether complying with the jury’s

request would unduly emphasize the testimony of certain witnesses, relative to the probative

value of that testimony. See Evans, 261 Mont. at 512-13, 862 P.2d at 419-20. Since the

request in Evans was not a request that “relate[d] to the evidence of a single witness,” and

instead was a request “to rehear testimony on a critical point of proof for which several

witnesses provided testimony,” we decided that the requested testimony “could have placed

undue emphasis on the answers given by [the witness] which related to a critical element of

the State’s case.” Evans, 261 Mont. at 513, 862 P.2d at 420. Accordingly, we decided that

the court did not abuse its discretion by refusing to permit the jury’s review of the testimony.

¶25    Here, the District Court did exactly what we determined in Harris and Evans was

required in reviewing a jury’s request for information. The court “discover[ed] the exact

nature of the jury’s difficulty” and “isolate[d] the particular testimony which c[ould] solve

the difficulty.” Evans, 261 Mont. at 512, 862 P.2d at 419; accord Harris, 247 Mont. at 417,

808 P.2d at 460. It then supplied that particular testimony, which was limited to the portion

of Adams’ testimony that addressed the jury’s question. Unlike the testimony in Harris, the

District Court did not include all of Adams’ testimony or even a significant portion. And,

unlike in both Harris and Evans, the testimony was limited to the evidence of a single

witness, was to a point that only Adams testified on, and was not on a critical point of proof.
                                              10
For these reasons, there was only a small risk of unduly emphasizing Adams’ testimony,

relative to the probative value of the testimony provided.

¶26    Greene, however, argues that our decision in Harris limits courts to responding to jury

inquiries only when the inquiry concerns details like “the width of a street, the height of an

object, distance, [or] time.” See Harris, 247 Mont. at 417, 808 P.2d at 460. Yet, while the

jury’s request in this case for information about whether Adams “actually [went] to the

room . . . or just check[ed] at [the] office” is for information arguably different than a width,

height, or distance, it is the type of “some other limited request” that we contemplated as

being allowed in Harris. Harris, 247 Mont. at 417, 808 P.2d 460. The testimony provided

to the jury in this case was on a specific and limited matter.

¶27    For the foregoing reasons, we hold that the danger of undue emphasis was outweighed

by the probative value of the testimony provided to the jury. Evans, 261 Mont. at 512,

862 P.2d at 419; Harris, 247 Mont at 417, 808 P.2d at 460. For this reason, the District

Court did not abuse its discretion by allowing the jury to review the portion of Adams’

testimony that it supplied.

¶28    3. Did the District Court err by imposing an illegal sentence?

¶29    Greene argues that the District Court erred when it pronounced an oral sentence

waiving “fines, fees, and surcharges and the public defender fee” and then ordered Greene to

pay fees and fines totaling $980 in its written judgment. We have held that the “oral

pronouncement of a criminal sentence in the presence of the defendant is the ‘legally

effective sentence and valid, final judgment.’” State v. Johnson, 2000 MT 290, ¶ 15,

302 Mont. 265, 14 P.3d 480 (quoting State v. Lane, 1998 MT 76, ¶ 40, 228 Mont. 286,
                                               11
957 P.2d 9). The State concedes that the written judgment unlawfully increased Greene’s

sentence and that we should reverse the written judgment. We agree, and we remand for the

purpose of correcting the written judgment.

¶30    Greene also argues that failure to give notice of change of address is not a sexual

offense and that for this reason the District Court exceeded its authority by imposing a sexual

offender tier level designation as part of Greene’s sentence. We have held that if an offense

is not designated a sexual offense in § 46-23-502(9), MCA, then there is no statutory

authority that permits a sentence for the offense to include a sexual offender tier level

designation. State v. Holt, 2011 MT 42, ¶ 21, 359 Mont. 308, 249 P.3d 470. The State

concedes that failure to give notice of change of address is not a sexual offense under

§ 46-23-502(9), MCA, and that the District Court erred by imposing a sex offender tier level

designation. We agree with the parties and remand to the District Court for the purpose of

striking the sex offender tier level designation.

                                      CONCLUSION

¶31    For the foregoing reasons, we dismiss Greene’s ineffective assistance of counsel

claim, affirm the District Court’s decision to provide a portion of Adams’ testimony to the

jury for their review, and remand to the District Court for the purpose of correcting its

written judgment and striking the sex offender tier level designation. We affirm in part,

reverse in part, and remand.


                                                    /S/ MICHAEL E WHEAT

We Concur:


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/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA




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