                                          No. 00-718

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2002 MT 329


JAMES WATSON,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Respondent.



APPEAL FROM:         District Court of the Thirteenth Judicial District,
                     In and for the County of Yellowstone,
                     Honorable Susan P. Watters, Judge Presiding


COUNSEL OF RECORD:

              For Appellant:

                     James Watson, Pro Se, Deer Lodge, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Stephen C.
                     Bullock, Assistant Attorney General, Helena, Montana

                     Dennis Paxinos, County Attorney; Mark A. English,
                     Deputy County Attorney, Billings, Montana



                                                    Submitted on Briefs: September 5, 2002

                                                                 Decided: December 20, 2002

Filed:

                     __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1    James Watson (Watson) appeals from an order entered by the

Thirteenth Judicial District Court, Yellowstone County, denying his

petition for postconviction relief.                We reverse and remand for an

evidentiary hearing.

¶2    We    address      the   following     issue     on   appeal:    Whether    the

District Court erred in determining that Watson’s ineffective

assistance of counsel claim was record-based and should have been

raised on direct appeal.
                        FACTUAL AND PROCEDURAL BACKGROUND

¶3    Watson was charged by information on June 12, 1995, with the

crimes of aggravated kidnapping under § 45-5-303(1), MCA, and

felony robbery under § 45-5-401(1)(b), MCA.                   The charges stemmed

from a March 25, 1995, incident in which Watson and two other

individuals, beat, robbed and kidnapped a pizza delivery man at

knife-point.           Watson entered a guilty plea to both charges on

September 1, 1995.         On September 29, 1995, a sentencing hearing was

held.      Dr. Lowell Stratton, the psychiatrist who examined Watson,

testified as to Watson’s mental condition.

¶4    On October 13, 1995, the District Court entered its judgment.

 Watson was sentenced to the Department of Corrections for ten

years for the charge of aggravated kidnapping, with an additional

three years for the use of a weapon.                   On the charge of robbery,

Watson was sentenced to ten years, with an additional two years for

the   use    of    a    weapon.       The   sentences       were   ordered   to   run

consecutively.          Watson did not appeal.


                                            2
¶5     On May 24, 2000, Watson filed a petition for postconviction

relief.     The District Court entered its Order denying Watson’s

petition for postconviction relief on August 9, 2000.              Watson now

appeals.
                              STANDARD OF REVIEW

¶6     The standard of review of a district court’s denial of a

petition for postconviction relief is whether the district court’s

findings of fact are clearly erroneous and whether its conclusions

of law are correct.         State v. Charlo, 2000 MT 192, ¶ 7, 300 Mont.

435,    ¶   7,   4   P.3d    1201,     ¶   7.     Discretionary   rulings   in

postconviction relief proceedings, including rulings related to

whether to hold an evidentiary hearing, are reviewed for an abuse

of discretion.       State v. Hanson, 1999 MT 226, ¶ 9, 296 Mont. 82, ¶

9, 988 P.2d 299, ¶ 9.
                                     DISCUSSION

¶7     Did the District Court err in determining that Watson’s claim

concerning his mental condition was record-based and should have

been raised on direct appeal?

¶8     Watson claims he received ineffective assistance of counsel

when his attorney failed to question whether Watson suffered from a

mental disease or defect rendering him unable to conform his

behavior to the requirements of the law.              Watson argues that if

this issue had been developed at the sentencing hearing, he would

have been sentenced to the Department of Public Health and Human

Services, pursuant to § 46-14-312, MCA, rather than the Department

of Corrections.



                                           3
¶9     In considering ineffective assistance of counsel claims in

postconviction proceedings this Court has adopted 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.

State v. Wright, 2001 MT 282, ¶ 11, 307 Mont. 349, ¶ 11, 42 P.3d

753, ¶ 11.       The two-prong test requires, first, that the defendant

bears    the     burden   of   showing      that    counsel’s   performance   was

deficient or fell below an objective standard of reasonableness.

Wright, ¶ 11.          The defendant must overcome a strong presumption

that counsel’s defense strategies and trial tactics fall within a

wide     range    of    reasonable    and       sound   professional   decisions.

Strickland, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693;

State v. Harris, 2001 MT 231, ¶ 18, 306 Mont. 525, ¶ 18, 36 P.3d

372, ¶ 18.       The second prong of the test requires the defendant to

show that the deficient performance of counsel prejudiced the

defense.         Wright, ¶ 11.       The defendant must demonstrate the

existence of a reasonable probability that the result of the

proceeding would have been different absent counsel’s errors; a

reasonable probability is a probability sufficient to undermine

confidence in the outcome.           Harris, ¶ 19.
¶10    Before reaching the merits of an ineffective assistance of

counsel claim in a postconviction relief proceeding it is necessary

to determine whether such a claim is properly before the Court or

whether the claim is procedurally barred.                  Wright, ¶ 12 (citing

Hagen v. State, 1999 MT 8, ¶ 11, 293 Mont. 60, ¶ 11, 973 P.2d 233,

¶ 11).    Section 46-21-105(2), MCA, provides that grounds for relief



                                            4
which reasonably could have been raised on direct appeal may not be

raised thereafter in a petition for postconviction relief.                   This

Court has stated,

      [W]here ineffective assistance of counsel claims are
      based on facts of record in the underlying case, they
      must be raised in the direct appeal; conversely, where
      the allegations of ineffective assistance of counsel
      cannot be documented from the record in the underlying
      case, those claims must be raised by petition for
      postconviction relief.

Wright, ¶ 12 (quoting Hagen, ¶ 12).

¶11   This Court applies the statutory bar “in order to prevent the

abuse of postconviction relief by criminal defendants who would

substitute those proceedings for direct appeal and in order to

preserve the integrity of the trial and direct appeal.”                 State v.

Hanson, 1999 MT 226, ¶ 14, 296 Mont. 82, ¶ 14, 988 P.2d 299, ¶ 14.
¶12   The   State   argued   and   the       District   Court    concluded   that

Watson’s ineffective assistance of counsel claim was record-based

and should have been raised on direct appeal.                   According to the

State, the record in this case contains the transcript of the

sentencing hearing, during which Dr. Stratton testified, as well as

Dr. Stratton’s report, which was introduced as an exhibit at the

sentencing hearing.      In his report, Dr. Stratton concluded that

Watson had the capacity to appreciate the criminality of his

actions and to assist in his own defense.

¶13   In Harris, this Court reviewed its recent application of § 46-

21-105(2), MCA, to determine whether certain claims of ineffective

assistance of counsel should be raised on direct appeal or in a

postconviction petition.       Harris, ¶ 21 (citing State v. Whitlow,



                                         5
2001 MT 208, 306 Mont. 339, 33 P.3d 877;   State v. St. Johns, 2001

MT 1, 304 Mont. 47, 15 P.3d 970).      To resolve the question, we

outlined a two-step process in Harris.     First, the trial record

must adequately document a challenged act or omission of defense

counsel for a defendant to raise an ineffective assistance claim on

direct appeal.   Harris, ¶ 21.   Second, in addition to documenting

the error, the record available to this Court on appeal must afford

sufficient understanding of the reasons for counsel’s act or

omission to answer the threshold question of whether the alleged

error expresses a trial strategy or tactical decision.    Harris, ¶

21.   If the record does not supply the reason for counsel’s act or

omission, the claim must be raised by petition for postconviction

relief.   Harris, ¶ 21.
¶14   We set forth the following explanation for deciphering the

record and determining the appropriate forum for adjudicating

ineffective assistance of counsel claims in Harris:

      Though not easily distilled into a formula, the
      definitive question that distinguishes and decides which
      actions are record and which are nonrecord, is why? In
      other words, if counsel fails to object to the admission
      of evidence, or fails to offer an opening statement, does
      the record fully explain why counsel took the particular
      course of action? If not, then the matter is best-suited
      for post-conviction proceedings which permit a further
      inquiry into whether the particular representation was
      ineffective. Only when the record will fully explain why
      counsel took, or failed to take, action in providing a
      defense for the accused may this Court review the matter
      on direct appeal.

Harris, ¶ 21.

¶15   Recently in Soraich v. State, 2002 MT 187, 311 Mont. 90, ___

P.3d ___, we held that the district court abused its discretion in



                                  6
summarily dismissing Soraich’s petition for postconviction relief.

Soraich’s ineffective assistance of counsel claim was based on his

counsel’s failure to call an investigator as a witness after

counsel had promised the jury during opening statement that the

investigator would show the State’s main witness was lying.                  The

district court concluded that Soraich should have raised his claim

on direct appeal, thus denying his petition for postconviction

relief.    However, this Court determined the record did not contain

any information about why defense counsel had promised the jury

that the investigator’s testimony would prove Soraich’s defense,

but then failed to call the investigator as a witness.              Soraich, ¶

24.    “As was the case in Harris, we do not know whether the alleged

errors in this case reflect a coherent trial strategy or whether

they   were   reasonable   and    deserve   deference    and   we   refuse   to

speculate.”     Soraich, ¶ 24.       Without being able to answer why

defense counsel failed to call the investigator as a witness, we

determined an evidentiary hearing was necessary to answer that

question and remanded to the district court.
¶16    In this matter, the record on appeal establishes that Watson’s

counsel did not question whether Watson suffered from a mental

disease or defect during the sentencing hearing.                However, the

record does not reveal whether counsel’s inaction was a reasonable

tactical decision or a mistake.       Because the record is void of any

evidence as to why defense counsel              did not question Watson’s

mental    condition,   Watson     could   not   have    properly    raised   an

ineffective    assistance    of    counsel      claim   on   direct   appeal.



                                      7
Consequently, Watson’s claim of ineffective assistance of counsel

is not barred by § 46-21-105(2), MCA, but is a question which must

be resolved in a postconviction relief proceeding.

¶17   We hold that the District Court abused its discretion in

summarily denying Watson’s petition for postconviction relief; and

therefore, we reverse and remand to the District Court for an

evidentiary hearing consistent with this opinion.



                                        /S/ JIM RICE




                                8
We concur:


/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER




                          9
Justice Terry N. Trieweiler specially concurs.

¶18   I concur with the majority's conclusion that Watson could not

have properly raised his ineffective assistance of counsel claim on

direct appeal because his counsel's reasons for the conduct he

complains of are not apparent from the record.            I disagree with

Justice Cotter that Dr. Lowell A. Stratton's written report is

sufficiently specific to explain counsel's alleged omission.

¶19   I also disagree, however, with much of the language in the

majority Opinion.    Although I realize the idea did not originate

with this Opinion, I disagree with the suggestion that in all

instances, we must know counsel's reason for acting or failing to

act before we are able to decide on direct appeal whether effective

assistance   of   counsel   was   provided   to   a   criminal   defendant.

Specifically, I disagree with the language in ¶ 13 of the majority

Opinion which states that, "if the record does not supply the

reason for counsel's act or omission, the claim must be raised by

petition for postconviction relief.        Harris, ¶ 21."
¶20   There are some acts or omissions of counsel for which there is

no acceptable tactical explanation and which must be decided on

direct appeal lest those who have been the victims of ineffective

assistance of counsel waste away in prison while proceeding at a

snail's pace through the tortuous criminal process only to have the

critical issue decided in a proceeding in which they have no right

to the assistance of counsel.            The sweeping language of the

majority Opinion suggests that very few ineffective assistance of

counsel claims can be raised on direct appeal.          I disagree.



                                    10
¶21    There are many acts or omissions of counsel for which there is

no    satisfactory   explanation      and    for   which   the    answer     to   the

question "why?" is irrelevant.          One example is a failure of counsel

to challenge jurors for cause who demonstrate clear bias during

voir dire examination or meet some other statutory ground for

disqualification.      See State v. Chastain (1997), 285 Mont. 61, 947

P.2d 57.       A more extreme example would be counsel's failure to

challenge a juror for cause and then use a peremptory challenge to

excuse that same juror.         By doing so, counsel would be denying his

or her client the same number of peremptory challenges provided to

the State.        We have held that a greater number of peremptory

challenges for the State is presumptively prejudicial.                 See State

v. Williams (1993), 262 Mont. 530, 866 P.2d 1009, rev'd in part on

other grounds; State v. Good, 2002 MT 59, 309 Mont. 113, 43 P.3d

948; and King v. Special Resource Management (1993), 256 Mont. 367,

371-74, 846 P.2d 1038, 1040-42.              Furthermore, there can be no

tactical       justification    for     using      a   defendant's     peremptory

challenges to excuse jurors who could have been excused for cause.
¶22    Other    examples   of   where    this      Court   has,   in   the    past,

considered claims of ineffective assistance of counsel on direct

appeal without regard to "why" counsel acted or failed to act are

given in State v. White, 2001 MT 149, 306 Mont. 58, 30 P.3d 340.

State v. White preceded and formed the partial basis for State v.

Harris, 2001 MT 231, 306 Mont. 525, 36 P.3d 372, on which the

majority now relies.       In State v. White, we observed that:

       Generally, an alleged failure to object to the
       introduction of evidence, or to object to the testimony


                                        11
      of a witness, or object to prosecutorial misconduct at
      trial has been deemed record-based, and therefore
      appropriate for direct appeal. See Hagen, ¶ 20 (citing
      cases and stating that "[t]he absence of an objection by
      counsel–that is, a failure to object–is a fact easily
      documented by reviewing the record . . ."). See also
      State v. Raugust, 2000 MT 146, ¶ 41, 300 Mont. 54, ¶ 41,
      3 P.3d 115, ¶ 41; State v. Hanson (1997), 283 Mont. 316,
      327-29, 940 P.2d 1166, 1173-74.

State v. White, ¶ 15.

      Along these same lines, counsel's own conduct at trial in
      presenting the defendant's case–such as improperly
      eliciting damaging testimony from a witness, or rendering
      an improper opening statement or closing argument–may be
      pointed to as a record-based instance of ineffective
      representation. . . . [Citations omitted.]
State v. White, ¶ 17.

      As indicated above, the failure to raise an objection,
      generally, has been deemed record-based, and therefore
      appropriate for direct appeal.      See Hagen, ¶ 20.
      However, decisions regarding the timing and number of
      objections lie within counsel's tactical discretion.
      Brown, 228 Mont. at 212, 741 P.2d at 430.

State v. White, ¶ 24.

¶23   There are any number of serious acts or omissions for which

there is no legitimate explanation by defense counsel.   Failing to

object to state criticism of a defendant's choice to remain silent;

failing to object to a prejudicial jury instruction which is

incorrect as a matter of law; failing to object to incriminating

evidence which has been suppressed by the trial court; and failure

to object to improper, inflammatory and prejudicial comments of the

prosecution are all examples of ineffective assistance of counsel

for which the answer to "why" is irrelevant.

¶24   The language of the majority Opinion which mirrors and expands

on language in previous majority opinions is overly broad and will



                                 12
eventually have serious consequences for some individual sitting in

prison awaiting an opportunity to demonstrate that he or she does

not belong there because that person was denied his or her Sixth

Amendment   right   to    effective        assistance   of   counsel.     The

opportunity to present that claim will be delayed and when it is

ultimately presented, it will inevitably be by pro se application

for   postconviction     relief   which      is   a   completely   inadequate

substitute for representation by trained and informed counsel on

appeal.
¶25   For these reasons, while I concur with the result of the

majority Opinion in this case, I disagree with the overly and

unnecessarily broad statements made therein.



                                   /S/ TERRY N. TRIEWEILER




                                      13
Justice Patricia O. Cotter dissents.

¶26    Watson argues that the record does not establish why his

counsel failed to inquire of Dr. Stratton whether Watson could

conform his behavior to the requirements of the law (¶ 8), and that

because the “why” cannot be determined from the record, the matter

must be resolved on postconviction proceedings.                  The Court agrees

with him.        While I agree with the Court’s recitation of the law in

this regard, I dissent, as I did in Soraich, from the Court’s

conclusion that the “why” cannot be determined from the record.

¶27    Dr. Stratton’s report was made a part of the record.                As the

District    Court    pointed    out   in   its    Order    and   Memorandum,   Dr.

Stratton’s report specifically states that Watson                 “. . .   has the

capacity to understand and meet the requirements of the law.”                   In

the face of such a categorical conclusion, it is impossible for me

to    conclude    that   the   record   does     not    adequately   explain   why

Watson’s counsel did not ask the doctor whether Watson could

conform his behavior to the requirements of the law.                 The answer is

obvious: Because the doctor clearly said in his report that Watson

could conform his conduct to the law’s requirements.                    Why fault

counsel for failing to ask a question that has already been

answered?    A remand to make the inquiry is simply senseless.
¶28    The District Court concluded that this issue, being record-

based, should have been raised on direct appeal, and further

concluded that defense counsel was not ineffective in any event for

failing to raise a frivolous argument.            I agree on both grounds and

would affirm the District Court.

                                             /S/ PATRICIA COTTER

Chief Justice Karla M. Gray joins in the foregoing dissent.

                                                       /S/ KARLA M. GRAY

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