                                                                                           April 2 2014


                                          DA 13-0304

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2014 MT 92N



LARRY B. DANIELS,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Twenty-Second Judicial District,
                       In and For the County of Carbon, Cause No. DV 13-13
                       Honorable Blair Jones, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Larry B. Daniels, self-represented; Deer Lodge, Montana

                For Appellee:

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

                       Daniel M. Guzynski, Assistant Attorney General, Special Deputy County
                       Attorney for Carbon County; Helena, Montana

                       Alex Nixon, Carbon County Attorney; Red Lodge, Montana

                                                    Submitted on Briefs: March 12, 2014
                                                               Decided: April 2, 2014


Filed:

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

¶1     Pursuant to Section I, Paragraph 3(d), 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     In January 2010 a jury in Carbon County, Montana, convicted Larry Daniels of

deliberate homicide in the shooting death of his adult son. Daniels appealed the conviction

to this Court. He contended on appeal that the District Court erred in its rulings on the

admissibility of proposed character evidence regarding the victim, and in refusing Daniels’

offered instructions regarding the justifiable use of force in defense of an occupied structure.

This Court considered these arguments in detail, determined that the District Court

committed no error, and affirmed the conviction. State v. Daniels, 2011 MT 278, 362 Mont.

426, 265 P.3d 623.

¶3     In early 2012, shortly after this Court’s decision on direct appeal, Daniels filed a

petition for postconviction relief. On March 4, 2013, the District Court entered its “Order

Denying Petition for Postconviction Relief.” The District Court determined that Daniels was

not entitled to relief, dismissed the petition without requiring a response from the State, and

declined to appoint counsel. Daniels appeals.

¶4     Daniels’ petition raises essentially the same contentions he raised on direct appeal, but

posits them in the context of alleged ineffective assistance of counsel. Daniels contends that

his trial counsel was ineffective for failing to explain to him the significance of the

foundation evidence required to introduce evidence of the victim’s prior violent tendencies.

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Daniels contends that if he had testified differently the evidence of the victim’s prior acts of

violence would have been admitted. A claim of ineffective assistance can prevail only if the

petitioner shows that counsel’s performance was deficient and that the deficient performance

prejudiced the defense. Rukes v State, 2013 MT 56, ¶ 9, 369 Mont. 215, 297 P.3d 1195.

¶5     At trial the District Court considered the parties’ positions on evidence of the victim’s

past. The District Court made it clear that Daniels could introduce evidence of past violence

by the victim as long as there was evidence that Daniels knew about the violence and was

motivated by that knowledge to act as he did. Daniels, ¶¶ 17-22. This is consistent with

Montana law. State v. Montgomery, 2005 MT 120, ¶ 20, 327 Mont. 138, 112 P.3d 1014.

Daniels testified, however, that his motivation on the night of the shooting was the

confrontation he just had with his son minutes before the event.

¶6     The District Court considered these contentions on postconviction relief. The District

Court noted Daniels’ trial testimony and determined that Daniels’ argument was essentially a

complaint that he had not been given the opportunity to manipulate his testimony about his

motivation on the night of the shooting. The District Court determined that Daniels chose to

testify as he did at trial and that he did not provide any evidence or argument that he could

have honestly testified that the victim’s past acts were a motivating force when he shot his

son. The District Court concluded that Daniels had not overcome the strong presumption

that trial counsel’s conduct fell within the wide range of reasonable professional assistance.

Whitlow v. State, 2008 MT 140, ¶ 15, 343 Mont. 90, 183 P.3d 861. The District Court

determined that Daniels had failed to show that his attorney was ineffective for failing to



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provide him with the opportunity to alter his testimony to allow the admission of the

evidence of past violence.

¶7     The District Court determined that Daniels’ remaining claims were or could

reasonably have been raised on direct appeal. Claims that were or could have been raised on

direct appeal are barred and may not be raised in a petition for postconviction relief.

Section 46-21-105(2), MCA; Rukes, ¶ 11.

¶8     Finally, the District Court determined that Daniels was not entitled to appointment of

counsel, citing Office of Public Defender v. District Court, 2011 MT 97, ¶ 9, 360 Mont. 284,

255 P.3d 107. The District Court correctly determined that appointment of counsel under

§ 46-21-201, MCA, was not warranted because the petition for postconviction relief

demonstrated that Daniels was not entitled to relief.

¶9     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

Internal Operating Rules, which provides for memorandum opinions. The issues in this case

are legal and are controlled by settled Montana law which the District Court correctly

applied.

¶10    Affirmed.

                                                 /S/ MIKE McGRATH
We Concur:

/S/ JIM RICE
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT




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