                                             No. 02-226

                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                            2002 MT 271N


WILLIAM JOSEPH OSTERLOTH,

                Petitioner and Appellant,

         v.

STATE OF MONTANA,

                Respondent and Respondent.




APPEAL FROM:           District Court of the First Judicial District,
                       In and for the County of Lewis and Clark,
                       The Honorable Jeffrey M. Sherlock, Judge presiding.



COUNSEL OF RECORD:

                For Appellant:

                       Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena, Montana

                For Respondent:

                       Mike McGrath, Montana Attorney General, Pamela P. Collins, Assistant
                Montana Attorney, Helena, Montana; Leo Gallagher, Lewis and Clark
         County Attorney, Carolyn Clemens, Deputy Lewis and Clark County
         Attorney, Helena, Montana



                                                           Submitted on Briefs: November 7, 2002

                                                                   Decided: December 3, 2002
Filed:



                       __________________________________________
                                         Clerk
Justice James C. Nelson delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent but shall be filed as a

public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2     William Joseph Osterloth (Osterloth) appeals from the District Court’s January 14, 2002

order denying his petition for postconviction relief. We affirm.

                                        BACKGROUND

¶3     On July 10, 1997, the State charged Osterloth by Information with one count of felony sexual

assault under §§ 45-5-502(1), (3) and (5), MCA, based on allegations that he sexually molested two

of his nephews. Osterloth subsequently pled guilty and was ultimately sentenced to 30 years

imprisonment at the Montana State Prison (MSP) with 25 years suspended on conditions. He was

ordered ineligible for parole until completion of both phases of the MSP’s sex offender treatment

program.

¶4     Osterloth appealed and we addressed four issues on direct appeal:

        1. Did the District Court abuse its discretion in denying Osterloth’s motion to withdraw his
guilty plea?

       2. Was Osterloth denied his Sixth Amendment right to effective assistance of counsel in the
presentation of his motion to withdraw?

       3. Did the District Court err in sentencing Osterloth without a psychosexual evaluation
prepared by a qualified evaluator and in continuing his sentence to allow him an opportunity to
succeed in a community-based sex offender treatment program?

       4. Did the District Court err in sentencing Osterloth by failing to comply with statutory


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requirements?

State v. Osterloth, 2000 MT 129, ¶¶ 2-6, 299 Mont. 517, ¶¶ 2-6, 1 P.3d 946, ¶¶ 2-6.

¶5     We affirmed Osterloth’s conviction and remanded for entry of a modified written

judgment setting forth the reasons for the sentence as stated in the District Court’s oral

judgment. Osterloth, ¶ 41.

¶6     On January 11, 2001, Osterloth filed his petition for postconviction relief claiming that he

received ineffective assistance of counsel. A hearing was held on July 25, 2001, at which the State

presented the testimony of Jeremy Gersovitz (Gersovitz), Osterloth’s attorney during the original

District Court proceedings. Based on testimony, affidavits and briefs filed by the parties, the trial

court entered findings of fact and conclusions of law denying Osterloth’s postconviction relief

petition. Osterloth timely appealed.

¶7     The sole issue on appeal is whether Osterloth’s postconviction relief petition alleging

ineffective assistance of counsel was properly denied by the District Court.

                                    STANDARD OF REVIEW

¶8     We review a district court’s denial of a petition for postconviction relief which alleges

ineffective assistance of counsel to determine whether the district court’s findings of fact are clearly

erroneous and whether its conclusions of law are correct. State v. Cady, 2000 MT 353, ¶ 11, 303

Mont. 258, ¶ 11, 15 P.3d 479, ¶ 11.

¶9     Moreover, we will affirm the District Court's ruling if that court reaches the correct result,

even if for the wrong reasons. State v. Francis, 2001 MT 233, ¶ 16, 307 Mont. 12, ¶ 16, 36 P.3d

390, ¶ 16.

¶10    In this case, the District Court addressed the merits of Osterloth's claims. As will be evident

from our discussion, with one exception we conclude that Osterloth's claims are either waived or are

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procedurally barred. Accordingly, we affirm the trial court on the waived and barred claims based

on the latter standard of review. We also affirm the trial court on the properly preserved claim

discussed at ¶¶ 17-20.

                                           DISCUSSION

¶11    Osterloth claims on appeal that his counsel was ineffective for failing to fully inform him of

the consequences of his options and his rights concerning the advisability of a plea. This particular

issue was not alleged in the postconviction petition filed in the District Court. Failure to raise a

claim before the district court precludes the issue being considered on appeal. Dawson v. State,

2000 MT 219, ¶ 170, 301 Mont. 135, ¶ 170, 10 P.3d 49, ¶ 170, cert. denied, 532 U.S. 928 (2001).

Accordingly, we decline to consider this claim on the merits since it is being raised for the first time

on appeal.

¶12    Osterloth also claims that his trial counsel was ineffective for several other reasons. He

claims: (1) that counsel advised him that there was a plea bargain and he found out there was no plea

bargain at the change-of-plea hearing; (2) that counsel failed to inform him that he would not receive

a suspended sentence unless he was accepted into a community-based treatment program and he

learned that fact at the change-of-plea hearing; and (3) that counsel failed to advise him that by

pleading guilty he was waiving his right to appeal the order denying his motion to suppress his

confession and his right to argue to a jury the circumstances of his alleged confession.

¶13    The State argues, and we agree, that all of the foregoing claims could have been raised on

direct appeal. Because these claims could have been raised but were not, they are procedurally

barred by reason of § 46-21-105(2), MCA, which provides:

       When a petitioner has been afforded the opportunity for a direct appeal of the
       petitioner’s conviction, grounds for relief that were or could reasonably have been
       raised on direct appeal may not be raised, considered, or decided in a proceeding


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        brought under this chapter. Ineffectiveness or incompetence of counsel in
        proceedings on an original or an amended original petition under this part may not be
        raised in a second or subsequent petition under this part.

The foregoing claims being, thus, procedurally barred, we decline to address the merits of

Osterloth’s arguments.

¶14     Osterloth next claims that his trial counsel was ineffective by failing to inform him that

acceptance into a community-based treatment program would depend upon his presentence

investigation and a psychosexual evaluation. However, as the State points out, this claim was

effectively decided on direct appeal.

¶15     In our discussion of Issue 2 in Osterloth we reviewed his earlier contention that he was

denied effective assistance of counsel. Osterloth asserted his lawyer was ineffective for failing to

premise the motion to withdraw his guilty plea on his having entered the guilty plea with the hope of

avoiding the mandatory minimum sentence for sexual assault by being admitted to a community-

based sexual offender treatment program in lieu of incarceration. Osterloth, ¶ 31. We determined

that the District Court had properly advised Osterloth at the change-of-plea hearing and that

Osterloth’s plea was not involuntary even if entered to avoid greater punishment. Accordingly, we

concluded that Osterloth’s counsel’s performance was not deficient in failing to raise the issue in

Osterloth’s motion to withdraw. Osterloth, ¶ 32. In so doing, we held that Osterloth was not denied

his Sixth Amendment right to effective assistance of counsel in the presentation of his motion to

withdraw.

¶16     Because Osterloth's present claim was already effectively decided on direct appeal it may not

be reconsidered in postconviction proceedings, again, because of the procedural bar of § 46-21-

105(2), MCA, referred to above. Accordingly, this claim being procedurally barred we decline to

address it further.


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¶17    Finally, Osterloth claims that his counsel was ineffective because Gersovitz failed to tell him

that in order to remain in community-based treatment he would have to admit the allegations against

him. At the evidentiary hearing before Judge Sherlock, Gersovitz testified that he had advised

Osterloth and that they discussed at length the fact that in order to remain in community-based

treatment, Osterloth would have to admit all of the allegations made against him. Counsel further

testified that he believed that Osterloth understood what was going on in his case, but that he did not

like the fact that he could stay in treatment only if he admitted what he did to the boys.

¶18    Based on this testimony, the District Court found that Osterloth was well informed of the

possible sentencing consequences of his guilty plea. Moreover, at the sentencing hearing Osterloth

specifically stated that he understood that the court was not bound by the recommendations of a

presentence investigation and sexual offender evaluation and that conceivably the court could

sentence him to prison for the rest of his life and could deny parole.

¶19    We have reviewed the District Court’s January 14, 2002 order on petition for postconviction

relief and the record in this case. We are satisfied that the court’s findings of fact are supported by

substantial evidence in the record and are not clearly erroneous and that the court’s conclusions of

law are correct. Osterloth’s claim is unsupported by the record and the evidentiary hearing.

¶20    In considering ineffective assistance of counsel claims we apply the two-prong test set forth

by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674. Dawson, ¶ 20. In order to establish an ineffective assistance of counsel

claim the defendant bears the burden of proving that: (1) the performance of defendant’s counsel

was deficient; and (2) counsel’s deficient performance was prejudicial. See State v. Whitlow, 2001

MT 208, ¶ 17, 306 Mont. 339, ¶ 17, 33 P.3d 877, ¶ 17 (citation omitted). In the case at bar,

Osterloth has failed in his burden to establish that his trial counsel’s performance was deficient.


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Accordingly, we do not reach the prejudice prong of the Strickland test.

¶21    The District Court is affirmed.

                                                    /S/ JAMES C. NELSON


We Concur:

/S/ KARLA M. GRAY




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/S/ PATRICIA COTTER
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER




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