                                                                                          April 5 2016


                                          DA 15-0374
                                                                                       Case Number: DA 15-0374

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 85N



NATHAN GERALD KING,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Eighth Judicial District,
                       In and For the County of Cascade, Cause No. DDV114-144(B)
                       Honorable Julie Macek, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Nathan Gerald King (Self-Represented), Shelby, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
                       Assistant Attorney General, Helena, Montana

                       John Parker, Cascade County Attorney, Susan Weber, Deputy County
                       Attorney, Great Falls, Montana



                                                  Submitted on Briefs: March 9, 2016

                                                             Decided: April 5, 2016


Filed:

                       __________________________________________
                                         Clerk
Justice Patricia Cotter 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     Nathan Gerald King (King) was convicted of felony deliberate homicide and

felony aggravated assault on September 23, 2011. King appealed his conviction to this

Court, and we affirmed. State v. King, 2013 MT 139, 370 Mont. 277, 304 P.3d 1. King

then filed a timely petition for postconviction relief (PCR) in the District Court, asserting

two grounds for relief. First, King argued ineffective assistance of trial counsel based on

his attorney’s failure to designate which portions of the victim’s mental health records

(which were submitted in their entirety to the District Court for in camera inspection)

should be admitted into evidence at trial. Second, King asserted that he is entitled to

relief because he has discovered new evidence in the form of new memories of the

incident that led to his convictions. The District Court denied King’s PCR petition. King

appeals the denial of his PCR petition. We affirm.

¶3     King raises four issues in his brief on appeal. As explained below, three of the

issues are not properly before us because he raises them for the first time on appeal. The

fourth issue, King’s ineffective assistance of counsel claim, is properly before us because




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it was raised in his PCR petition. The newly discovered evidence claim that King also

raised in his PCR petition has been abandoned on appeal.

¶4     King argues for the first time on appeal that Montana’s justifiable use of force

statutes are unfairly vague; that this Court should reconsider its previous denial of his

petition for supervisory control, see King v. Mont. Eighth Judicial Dist. Court, 2015

Mont. LEXIS 509 (September 1, 2015) (OP 15-0505); and that King received ineffective

assistance of counsel because his attorney did not seek a writ of supervisory control

before trial. However, “[a] postconviction claim that is not raised in an original or

amended original petition cannot be raised for the first time on appeal.” Sanders v. State,

2004 MT 374, ¶ 14, 325 Mont. 59, 103 P.3d 1053 (citing State v. Garner, 2001 MT 222,

¶ 45, 306 Mont. 462, 36 P.3d 346; § 46-21-105(1)(a), MCA). We therefore decline to

address these three arguments. We also decline to address the newly discovered evidence

argument King raised in his original petition but did not address on appeal. See, e.g.,

Ford v. State, 2005 MT 151, ¶ 35, 327 Mont. 378, 114 P.3d 244 (finding that “we have

no occasion to review the District Court’s decision” when the appellant abandoned

certain contentions on appeal); Skinner v. Allstate Ins. Co., 2005 MT 323, ¶ 9, 329 Mont.

511, 127 P.3d 359 (noting that a party did not brief certain issues on appeal and “[t]hose

issues, therefore, have been abandoned on appeal, and we do not address them”).

¶5     King’s fourth and final claim—that his attorney’s failure to highlight selected

portions of the victim’s mental health records constituted ineffective assistance of

counsel because it prevented those portions from being admitted into evidence—is



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properly before this Court because it was raised in his original PCR petition. The District

Court denied the petition because it found that “the evidence [King] is complaining had

no chance of being presented to the jury was in fact presented through both physical

evidence and [the attorney’s] statements,” and that

       the failure of [King’s attorney] to highlight or flag portions of [the victim’s]
       mental health records is not the reason the records were not admitted. The
       admission of the mental health records [was] prohibited because, under the
       theory of the defense presented at trial, the introduction of the records was
       not permissible under the Montana Rules of Evidence.

¶6     In order to establish that his counsel was constitutionally deficient, King must

show “that counsel’s performance was deficient and that the deficient performance

prejudiced the defense.” Baca v. State, 2008 MT 371, ¶ 16, 346 Mont. 474, 197 P.3d 948

(citing Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861). In order to

show prejudice, King must “demonstrate a reasonable probability that, but for counsel’s

deficient performance, the result of the proceeding would have been different.” Baca,

¶ 17 (citing State v. Hagen, 2002 MT 190, ¶ 18, 311 Mont. 117, 53 P.3d 885). King must

prove by a preponderance of the evidence that he is entitled to relief. Ellenburg v. Chase,

2004 MT 66, ¶ 12, 320 Mont. 315, 87 P.3d 473 (citing State v. Peck, 263 Mont. 1, 3-4,

865 P.2d 304, 305 (1993)).

¶7     King has not shown by a preponderance of the evidence that his attorney’s

performance was deficient or that he was prejudiced by an alleged deficiency. Even

though King’s attorney did not mark specific portions of the victim’s mental health

records for review by the District Court, it is evident from the District Court’s lengthy



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order addressing the admissibility of the records that the Court conducted a thorough

review of those records. The District Court ultimately decided that the records were

inadmissible, but this ruling was based upon an analysis of Montana Rules of Evidence

404(a), 404(c), and 405, and not upon King’s attorney’s failure to mark which portions of

the record he wished to admit.       Moreover, although the records themselves were

inadmissible, King’s attorney still was able to present some of the contents of those

records to the jury. In his opening statement, King’s attorney represented to the jury that

the victim had been suicidal on the day of his death. Then during the defendant’s case in

chief, King’s attorney played for the jury a taped statement in which King tells law

enforcement that the victim was emotional and suicidal and that he had attempted suicide

in the past. Thus, evidence regarding the victim’s mental health was in fact presented to

the jury, and King was not prejudiced by his attorney’s failure to mark portions of the

victim’s mental health records for review by the District Court. King did not receive

ineffective assistance of counsel.

¶8     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. The District Court did not err in denying

King’s PCR petition.

¶9     Affirmed.

                                                 /S/ PATRICIA COTTER



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We Concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
/S/ JIM RICE




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