                                                                                       November 26 2013


                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         DA 11-0498
                                      _________________

STATE OF MONTANA,

            Plaintiff and Appellee,

      v.                                                           ORDER

JEREMY STEVEN MACGREGOR,

            Defendant and Appellant.
                                      _________________

       On October 15, 2013, we issued an Opinion in the above-entitled action affirming
the decision of the First Judicial District Court.
       Appellant Jeremy Steven MacGregor (MacGregor) filed a Petition for Rehearing
with this Court on November 8, 2013. While we denied the Petition for Rehearing, we
determined to make minor changes to this Court’s Opinion. The changes to the Opinion
set forth below are reflected in the attached Amended Opinion. Accordingly,
       IT IS ORDERED that paragraphs 24 and 50 of the Opinion in this matter are
AMENDED as follows. Strikeouts are deleted and underlined language is added:
       ¶24 MacGregor complains that his attorney failed to form a strategy or
       contact him while he was at the Montana State Hospital. But these
       complaints concerned his attorney’s activity after he had been designated
       “standby counsel.” Standby counsel does not constitute counsel for Sixth
       Amendment purposes. Halley v. State, 2008 MT 193, ¶ 22, 344 Mont. 37,
       186 P.3d 859 (quoting United States v. Taylor, 933 F.2d 307, 313 (5th Cir.
       1991). Because standby counsel does not fulfill the Sixth Amendment right
       to effective counsel, MacGregor cannot claim that standby counsel’s action
       or inaction violated his right to effective assistance. At the time the trial
       court ordered the competency evaluation, MacGregor already had requested
       to represent himself. The court deferred decision on MacGregor’s request
       until the evaluation was completed. MacGregor later complained that
       “representation was forced upon him during the state’s mental evaluation,”
       while simultaneously criticizing Scott for failing to contact MacGregor
       while he was hospitalized. Given the District Court’s familiarity with
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      MacGregor’s requests and its decision to postpone ruling on MacGregor’s
      motion to represent himself, it did not err in failing to conduct additional
      inquiry into his complaint.

      ¶50 MacGregor contends that the incorrect instruction prevented the jury
      from considering mitigated deliberate homicide as a charge, and this
      constitutes a miscarriage of justice. MacGregor alleges mitigation because
      he was intoxicated on marijuana and alcohol; he was upset about an
      incident where his dog knocked over his child; his child had been
      diagnosed with a minor ailment; he had fired someone recently; he had quit
      cigarettes, marijuana, and alcohol (although not that day); he had worked
      60-hour work weeks; he had cut his hand; and his wife forgot their
      anniversary. But mitigating factors arise from some sort of direct
      provocation, not simply the buildup of stress and anger. Hans v. State, 283
      Mont. 379, 399, 942 P.2d 674, 686 (1997). We have previously ruled that
      extreme intoxication does not constitute a mitigating factor, nor do the
      stresses that accompany living in hard times. State v. Goulet, 283 Mont.
      38, 42, 938 P.2d 1330, 1333 (1997) (showing of intoxication or anger
      insufficient to support mitigation); State v. Martin, 2001 MT 83, ¶¶ 33-34,
      305 Mont. 123, 23 P.3d 216 (unemployment, homelessness, pregnant
      girlfriend do not support mitigation). MacGregor presented no evidence
      demonstrating provocation of his anger other than the challenges that
      naturally accompany sobriety, fatherhood, and marriage. Nor did any of
      MacGregor’s witnesses corroborate his involuntary intoxication defense.

      IT IS FURTHER ORDERED that this Court’s October 15, 2013 Opinion in this
matter is amended as set forth above. An Amended Opinion is issued herewith.
      The Clerk is directed to provide copies of this Order to all counsel of record.
      DATED this _____ day of November, 2013.



                                                _________________________________
                                                           Chief Justice




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