                                                                                          January 13 2015


                                           DA 13-0841
                                                                                          Case Number: DA 13-0841

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2015 MT 12N



RICHARD PHELPS EDWARDS,

              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 Stillwater, Cause No. DV 12-22
                        Honorable Blair Jones, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Matthew J. Wald, Wald Law Office, PLLC, Hardin, Montana

                        Lisa J. Bazant, Attorney at Law, Billings, Montana

                 For Appellee:

                        Timothy C. Fox, Montana Attorney General, Brenda K. Elias, Assistant
                        Attorney General, Helena, Montana

                        D. Ole Olson, Special Deputy County Attorney, Helena, Montana

                        Nancy Rohde, Chief Deputy Stillwater County Attorney,
                        Columbus, Montana


                                                     Submitted on Briefs: November 19, 2014
                                                                Decided: January 13, 2015


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     Richard Phelps Edwards (Edwards) appeals from the order of the District Court

denying his petition for postconviction relief. Edwards argues that the District Court

abused its discretion when it denied his petition for postconviction relief without a

hearing. We affirm.

¶3     In March 2010, a jury in Stillwater County, Montana, convicted Edwards of

deliberate homicide and tampering with evidence for the 2002 murder of Daniel Lavigne.

Edwards’ ex-wife, Sherry Edwards, testified at the trial that she witnessed Edwards shoot

Lavigne. At the beginning of Sherry’s cross-examination, defense counsel stated that she

would be “kind of winging it, because I wasn’t expecting to actually talk to you until

tomorrow.” Defense counsel also stated, “I’m sorry, I’m not as fast or quite as prepared

as I had anticipated being.”      Sherry Edwards was later called in the defense’s

case-in-chief and questioned by a different member of the defense team. Edwards asserts

on appeal that his defense counsel was ineffective due to conflicts, lack of preparation,

and failure to confront Sherry Edwards.




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¶4     Edwards appealed the judgment and sentence, both of which were affirmed by this

Court. The extensive history of this case can be found at State v. Edwards, 2011 MT

210, 361 Mont. 478, 260 P.3d 396 (Edwards I). This Court concluded that Edwards had

not been denied effective assistance of counsel, holding that he was not prejudiced by the

two statements. Edwards I, ¶ 27.

¶5     In March 2012, Edwards filed a petition for postconviction relief and requested an

evidentiary hearing. After Edwards was appointed counsel, he amended his original

petition. The District Court declined to grant a hearing and denied the petition based on

the briefs and affidavits on file. Edwards appeals.

¶6     A petitioner seeking to reverse a court’s denial of a petition for postconviction

relief bears a heavy burden. State v. Cobell, 2004 MT 46, ¶ 14, 320 Mont. 122, 86 P.3d

20 (citations omitted). This Court reviews a district court’s denial of a petition for

post-conviction relief to determine whether the court’s findings of fact are clearly

erroneous and whether its conclusions of law are correct. Beach v. State, 2009 MT 398,

¶ 14, 353 Mont. 411, 220 P.3d 667 (citations omitted). “We review discretionary rulings

in post-conviction relief proceedings, including rulings related to whether to hold an

evidentiary hearing, for an abuse of discretion.” Beach, ¶ 14 (citations omitted). To

prevail on a claim of ineffective assistance of counsel, “the defendant must show that

counsel’s performance was deficient” and that “the deficient performance prejudiced the

defense.” Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861 (quoting

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)).



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¶7     The District Court denied the petition on the basis that this Court had already

decided the issue of ineffective assistance of counsel as to the examination of Sherry

Edwards. Edwards contends on appeal that the affidavits of his trial counsel show a level

of “disfunction” [sic] that was not previously evident from the record that was available

to the Court at that time. Edwards was afforded the opportunity for a direct appeal and

raised the issue of effective assistance of counsel in his appeal to this Court. As such,

he is barred from raising the same issue in a petition for postconviction relief. Section

46-21-105(2), MCA; Hagen v. State, 1999 MT 8, ¶ 13, 293 Mont. 60, 973 P.2d 233.

We will not re-litigate an issue that has already been fully and finally litigated.

¶8     While Edwards maintains that he has raised new, non-record based issues, we

disagree. The affidavits add no new facts demonstrating that Edwards was prejudiced

by his trial counsel. As we stated in Edwards I, despite statements by defense counsel

that she was unprepared, the defense obtained concessions by Sherry that she had lied

to the police and made prior inconsistent statements. Edwards I, ¶ 25. The affidavits

offered in Edwards’ post-conviction relief petition do not change our prior holding

that he was not prejudiced.

¶9     Edwards further asserts that had the District Court granted a hearing, his

investigator, Mr. Ewalt, would have discussed facts outside the record related to the

timeline and his defense team’s inadequate investigation of that timeline. At trial, several

witnesses discussed points of time of the relevant day’s events. The transcript clearly

indicates that both parties argued the timeline in closing statements.                In the


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postconviction order the District Court noted, “The jury heard, and rejected, the argument

that there was no opportunity for Edwards to kill Lavigne.” The District Court found that

the timeline presented in the Ewalt affidavit did not constitute new evidence, but “merely

recycles the same evidence presented at trial.” A district court may decline to conduct a

hearing if it finds that the allegations in the petition would not entitle a petitioner to relief.

Cobell, ¶ 12. Edwards has not shown how the hearing would clarify the issue or provide

additional facts other than those already set out in Ewalt’s affidavit. It was not an abuse

of discretion to deny Edwards’ petition without a hearing.

¶10    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 District

Court’s findings of fact are supported by substantial evidence and the legal issues are

controlled by settled Montana law, which the District Court correctly interpreted.

¶11    Affirmed.

                                                    /S/ MIKE McGRATH

We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE




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