                                                                                                12/05/2017


                                           DA 17-0155
                                                                                          Case Number: DA 17-0155

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2017 MT 303N



CITY OF MISSOULA,

              Plaintiff and Appellee,

         v.

STEPHEN LEUCHTMAN,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC-16-512
                        Honorable Robert L. Deschamps, III, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Stephen Leuchtman, Self-Represented, Hamilton, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                        Attorney General, Helena, Montana

                        Jim Nugent, Missoula City Attorney, Carrie Garber, Senior Deputy City
                        Attorney, Missoula, Montana



                                                    Submitted on Briefs: November 1, 2017

                                                                Decided: December 5, 2017


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


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

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

serve as precedent. Its 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     Stephen Leuchtman (Leuchtman) appeals from a Fourth Judicial District Court’s

order upholding a jury verdict that found Leuchtman guilty of Violation of an Order of

Protection. We affirm.

¶3     In 2015, Angela Miller (Miller) obtained an Order of Protection against

Leuchtman. The order directed Leuchtman to stay 1,500 feet away from Miller’s “place

of employment located at 350 Ryman Street, Missoula, Montana.” On January 27, 2016,

Miller reported that Leuchtman was in violation of the order. From her vehicle, Miller

saw and photographed Leuchtman after he drove past the entrance to 350 Ryman.

Leuchtman had been visiting his attorney’s office nearby and later testified that he drove

past Miller’s place of employment to avoid driving behind Miller who was leaving work

for the day.

¶4     On February 10, 2016, Leuchtman pled not guilty to the offense of Violation of an

Order of Protection. Trial was ultimately set for September 8, 2016, with a final pretrial

hearing set on August 30, 2016. Leuchtman was released on conditions prohibiting him

from being “within 1,500 feet of or hav[ing] any contact including contact in person, by


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phone, by internet, by card or letter or messages sent through a third person with Angela

Miller.” After several violations of the Internet condition of his release and subsequent

court modifications, the Municipal Court prohibited Leuchtman from possessing a phone

with a data plan or from possessing any device that had access to the Internet.

¶5     On August 25, 2016, Leuchtman filed a motion to dismiss for lack of speedy trial.

On September 7, 2016, Leuchtman raised a defense which he described as “the choice of

two evils” defense and proposed a jury instruction. The Missoula Municipal Court

denied the motion and declined to use the instruction. The jury determined he was guilty

of Violation of an Order of Protection. Leuchtman appealed to the Fourth Judicial

District Court, alleging the Municipal Court erred in denying his motion to dismiss for

lack of speedy trial and for refusing his proposed jury instruction regarding “the choice of

evils defense.”1 The District Court rejected both arguments and affirmed Leuchtman’s

conviction. Leuchtman has not appealed the rulings on these issues.

¶6     Leuchtman appeals to this Court, arguing that (1) the Municipal Court’s bond

revocation imposed unreasonable conditions that prejudiced his ability to assist in his

own defense; (2) the conditions of Leuchtman’s release violated his right to access the

courts; (3) Leuchtman’s counsel was ineffective for failing to move to dismiss his charge

on the ground that it was unconstitutional because he had a right to access his attorneys

and the courts; and (4) Leuchtman’s counsel was ineffective for failing to preserve a

choice of two evils defense and obtain a jury instruction on that defense.

       1
         The District Court ruled that the rejected instruction was statutorily addressed by the
compulsion defense in § 45-2-212, MCA, and the facts of this case do not support a compulsion
defense.
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¶7    We generally do not address issues raised for the first time on appeal. State v.

Longfellow, 2008 MT 343, ¶ 19, 346 Mont. 286, 194 P.3d 694. Leuchtman raises two

issues for the first time on appeal before this Court. We will not consider Leuchtman’s

claims regarding bond revocation and conditions of release because they were not raised

in the District Court. However, we will consider Leuchtman’s ineffective assistance of

counsel claim.

¶8    Ineffective assistance of counsel claims are mixed questions of law and fact,

which we review de novo. State v. Lucero, 2004 MT 248, ¶ 12, 323 Mont. 42, 97 P.3d

1106. This Court has adopted a two-part test for ineffective assistance of counsel claims,

which was established by the United States Supreme Court in Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052 (1984). Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont.

90, 183 P.3d 861. A defendant bears the burden to “prove (1) that counsel’s performance

was deficient, and (2) that counsel’s deficient performance prejudiced the defense.”

Whitlow, ¶ 10. Both prongs of this test must be satisfied. Whitlow, ¶ 11.

¶9    Leuchtman raises an ineffective assistance of counsel claim, alleging his counsel

was ineffective for failing to move to dismiss his charge on the ground that it was

unconstitutional because he had a right to access his attorneys and the courts. Leuchtman

also alleges his counsel was ineffective for failing to preserve a choice of two evils

defense and obtain a jury instruction on that defense. However, Leuchtman has not

demonstrated that his defense was prejudiced.       The record reflects that Leuchtman

continued to access his attorney and the courts throughout his case. The choice of two

evils defense was inapplicable because compulsion was not supported by the facts of this

                                            4
case. The District Court did not err when it rejected the jury instruction because the

proposed instruction was not supported by valid legal argument. State v. Arlington, 265

Mont. 127, 139, 875 P.2d 307, 314 (1994). Leuchtman cannot establish that he was

prejudiced by his counsel’s representation.

¶10    Therefore, Leuchtman’s claims regarding bond revocation and conditions of relief

are procedurally barred as they are raised for the first time on appeal to this Court. We

also hold that Leuchtman has failed to establish that his counsel was ineffective.

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

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

¶12    Affirmed.


                                                  /S/ MIKE McGRATH


We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR




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