                                                                                           November 8 2011
                                           DA 11-0128

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2011 MT 281N



BILLY DODSON,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DV-10-1711
                       Honorable Robert L. Deschamps, III, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Billy Eugene Dodson, (self-represented); Shelby, Montana

                For Appellee:

                       Steve Bullock, Montana Attorney General; Tammy K Plubell,
                       Assistant Attorney General; Helena, Montana



                                                   Submitted on Briefs: October 26, 2011

                                                              Decided: November 8, 2011


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice 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     Billy Dodson appeals from the order entered by the Fourth Judicial District Court,

Missoula County, dismissing his petition for postconviction relief.

¶3     Dodson was convicted after jury trial of misdemeanor theft, felony deceptive practices,

felony issuance of a bad check, and felony theft by deception for his role in making purchases

with credit cards he had stolen in a series of break-ins of vehicles parked in recreational areas

and his theft of other items of value. He appealed, and this Court affirmed his convictions. State

v. Dodson, 2009 MT 419, 354 Mont. 28, 221 P.3d 687.

¶4     Dodson’s petition for postconviction relief stated six claims, but on appeal he challenges

the dismissal of only one of his claims—that his appellate counsel rendered ineffective assistance

during his appeal to this Court by failing to raise a record-based claim of ineffective assistance of

counsel on the part of his trial counsel.

¶5     Shortly before his jury trial commenced, Dodson’s trial counsel filed a motion seeking

dismissal of a portion of Count II of the Amended Information, which charged felony deceptive

practices by common scheme. The charge included allegations related to one of Dodson’s

victims, Lynn Rinehart, which had been the subject of a charge previously filed against Dodson

in Granite County. The Granite County charge had been dismissed. Dodson’s counsel argued

that permitting the Missoula County charge to proceed on the basis of allegations about

Dodson’s use of Rinehart’s credit card would constitute a violation of the constitutional

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prohibition against double jeopardy. Because the motion was filed untimely, the District Court

denied the motion.

¶6     On appeal, Dodson’s appellate counsel challenged the District Court’s denial of the

motion. Dodson, ¶¶ 28, 43. We agreed with the State’s position that the motion had properly

been denied because it was untimely filed. Dodson, ¶ 44. However, we further noted that, in

addition to the allegations involving Rinehart, Count II also included allegations involving three

other victims to support the common scheme charge, and we concluded there was

“overwhelming evidence” of Dodson’s guilt without regard to the Rinehart allegations. Dodson,

¶ 45. Consequently, even if Dodson’s appellate counsel had raised the issue of trial counsel’s

ineffectiveness in filing the untimely motion, and this Court had determined to address the issue

on appeal as a record-based ineffectiveness claim, Dodson could not have demonstrated that he

was prejudiced by his trial counsel’s actions. Thus, Dodson could not have prevailed under the

second prong of the Strickland test. See Whitlow v. State, 2008 MT 140, ¶¶ 10-11, 343 Mont. 90,

183 P.3d 861 (explaining the prongs of the test established by Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2052 (1984), for ineffective assistance of counsel claims).

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

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

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

interpreted.

¶8     Affirmed.



                                                             /S/ JIM RICE



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We concur:


/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS




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