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                                                                 No. 98-433



                               IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                               1999 MT 53N




DAVID WAYNE GUNDERSON,



Petitioner and Appellant,



v.



STATE OF MONTANA,



Respondent and Respondent.




APPEAL FROM: District Court of the First Judicial District,

In and for the County of Broadwater

The Honorable Dorothy McCarter, Judge presiding.


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COUNSEL OF RECORD:



For Appellant:



David Wayne Gunderson, Florence, Arizona, Pro Se



For Respondent:



Hon. Joseph P. Mazurek, Attorney General,

John Paulson, Ass't Attorney General, Helena, Montana



John T. Flynn, Broadwater County Attorney, Townsend, Montana




                                                                                                Submitted on Briefs: February 4, 1999



                                                                                                                   Decided: March 18, 1999

Filed:




__________________________________________

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Clerk



Justice W. William Leaphart 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. David Wayne Gunderson (Gunderson) was convicted of one count of sexual
intercourse without consent in the First Judicial District Court, Broadwater County,
and was sentenced to a term of imprisonment in the Montana State Prison.
Gunderson's conviction was affirmed on direct appeal by the Montana Supreme
Court in State v. Gunderson (1997), 282 Mont. 183, 936 P.2d 804. The underlying
facts giving rise to his conviction are set out fully in the above-cited opinion, and will
not be repeated here.

¶3. Gunderson filed a petition for post-conviction relief that the District Court
denied. Gunderson appeals from that denial.

¶4. In his direct appeal, Gunderson argued that the District Court erred in not
instructing the jury, sua sponte, that sexual assault was a lesser-included offense of
sexual intercourse without consent. In addressing this contention, this Court noted
that Gunderson's counsel made a calculated decision to decline such an instruction
when the District Court offered it, stating "at this point it is a conscious decision to
not ask for an instruction on the lesser-included [offense.]" Gunderson, 282 Mont. at
187, 936 P.2d at 806.

¶5. Gunderson now argues that his counsel was ineffective for failing to request such
an instruction when given the opportunity by the District Court. However, as the
District Court noted in its decision, we have previously resolved this very issue

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adversely to Gunderson's position in State v. Sheppard (1995), 270 Mont. 122, 890
P.2d 754 (Sheppard II). Sheppard, like Gunderson, was charged with sexual
intercourse without consent. His counsel also chose not to request an instruction on
misdemeanor sexual assault. In his direct appeal to this Court, Sheppard argued that
the trial court should have, sua sponte, given an instruction on a lesser-included
offense even if not so requested by defense counsel. We rejected this minority
position, stating,

We conclude that under our adversarial system of justice, the prosecution and defense
must have the option of foregoing a lesser charge instruction for strategic reasons.
Lawyers, not judges, should try cases. Although the record does not enlighten us, both
prosecution and defense counsel may have made a decision to force the jury to either
convict or acquit of the offense charged without being given the opportunity to take the
middle ground and convict of the lesser charge of misdemeanor sexual assault.


State v. Sheppard (1992), 253 Mont. 118, 124, 832 P.2d 370, 373 (Sheppard I).

¶6. Sheppard then sought post-conviction relief arguing that his counsel was
ineffective for not offering an instruction on the lesser-included offense of
misdemeanor assault. The petition was denied by the district court and, like
Gunderson, Sheppard appealed to this Court. Noting that this Court will not second-
guess trial tactics and strategy when evaluating a defense counsel's performance, see
State v. Coates (1990), 241 Mont. 331, 337, 786 P.2d 1182, 1185, we held that
counsel's decision not to request the instruction was strategic and did not constitute
ineffective counsel. Sheppard II, 270 Mont. at 128-29, 890 P.2d at 754.

¶7. Gunderson, like Sheppard before him, sought post-conviction relief and argued
that his counsel was ineffective for not requesting such an instruction. The District
Court correctly relied upon Sheppard II in rejecting this claim. Gunderson's trial
counsel declined the lesser-included offense instruction in a calculated move to force
the jury into either convicting or acquitting on the charged offense and to deny the
jury the opportunity to take the middle ground and convict of a lesser offense.

¶8. While Gunderson has presented an affidavit from another attorney who testified
that he would have used a different trial strategy than that used by Gunderson's
counsel, that testimony does not render trial counsel's representation ineffective. In

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the seminal case establishing guidelines for evaluating claims of ineffective assistance
of counsel, Strickland v. Washington (1984), 466 U.S. 668, 689, 104 S.Ct. 2052, 2065,
80 L.Ed.2d 674, 695, the United States Supreme Court recognized that there are
countless ways to provide effective assistance of counsel in a given case and that even
the best criminal defense lawyers would not defend a client in the same manner.
Gunderson's bare contention that another attorney would have handled the defense
differently is insufficient to support a finding of ineffectiveness. For the reasons set
forth in Sheppard II, we hold that the District Court correctly denied the petition for
post-conviction relief on the basis of ineffective assistance of counsel.

¶9. Affirmed.

/S/ W. WILLIAM LEAPHART




We concur:


/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER




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