                                           No. 04-539

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 313N

                                             __________________________________________

STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

JORGE L. MARRERO,

              Defendant and Appellant.

                                             __________________________________________

APPEAL FROM:         District Court of the Fourth Judicial District,
                     In and for the County of Missoula, Cause No. DC-98-13335
                     The Honorable Douglas G. Harkin, Judge presiding.



COUNSEL OF RECORD:

              For Appellant:

                     Christopher Daly, Attorney at Law, Missoula, Montana

              For Respondents:

                     Honorable Mike McGrath, Attorney General, Micheal S. Wellenstein,
                     Assistant Attorney General, Helena, Montana

                     Fred Van Valkenburg, Missoula County Attorney; Karen Townsend,
                     Deputy County Attorney, Missoula, Montana
                                         __________________________________________

                                                         Submitted on Briefs: November 9, 2005

                                                                  Decided: December 12, 2005

Filed:



                                             Clerk
Justice Brian Morris delivered the Opinion of the Court.

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

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. Its case title, Supreme Court 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     Appellant Jorge L. Marrero (Marrero) appeals from an Order of the Fourth

Judicial District, Missoula County, revoking his suspended sentence and sentencing him

to fifteen years at the Montana State Prison. We affirm.

¶3     Marrero contends that the District Court abused its discretion by failing to

consider alternatives to incarceration. Marrero relies on our decision in State v. Lee,

2001 MT 176, 306 Mont. 173, 31 P.3d 998, in support of his claim that the District

Court’s failure to consider alternatives to prison violated his due process right. We agree

with the State, however, that the Court considered alternatives and rejected them in light

of the fact that Marrero’s non-incarceration proposal posed “too great a risk given the

level of supervision and the original nature of the offense and what has occurred since.”

Moreover, unlike the facts in Lee, the State was not responsible for Marrero’s failure to

comply with the conditions of his probationary sentence.

¶4     Marrero next contends that his counsel provided ineffective assistance of counsel

in failing to object to the blood alcohol test indicating that he had a blood alcohol

concentration of 0.359 when he arrived at the Fort Harrison VA Hospital. We agree with

the District Court that Marrero’s status as a probationer diminished any privacy interest


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he may have had in such information. We recognize the fact that refraining from

drinking any alcohol remained a condition of Marrero’s original probation and

undermines any claim by Marrero that his counsel should have objected to the State’s

possession of his blood alcohol concentration results.

¶5     Marrero also contends that his counsel provided ineffective assistance of counsel

in failing to seek an interpretor, but Marrero fails to point to any prejudice resulting from

this omission other than the fact that Marrero’s counsel went over the waiver of rights

document at the beginning of a hearing in which Marrero entered a guilty plea. Marrero

further contends that his counsel provided ineffective assistance in not challenging the

failure of the probation officer to present a written statement of Marrero’s alleged

violations within twelve hours of delivering Marrero to the detention center as required

under § 46-23-1012(2), MCA. Finally, Marrero argues his counsel’s failure to request a

bail hearing or to argue for release on his own recognizance constituted ineffective

assistance of counsel.

¶6     As we noted in State v. Grixti, 2005 MT 296, ¶ 27, 329 Mont. 330, ¶ 27, ___ P.3d

___, ¶ 27, this Court does not automatically reach the merits of ineffective assistance of

counsel claims. We deem the matter more appropriate for postconviction relief where the

record is insufficient to determine whether counsel’s performance fell below an

objectively reasonable standard. Grixti, ¶ 27. Although the record in this case does not

reveal why Marrero’s counsel failed to take the various actions that he raises, we deem

further inquiry unnecessary to determine that Marrero’s counsel’s actions did not fall

below an objectively reasonable standard. We have said “the fact that some other lawyer


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. . . would have done differently . . . is not ground for branding an appointed attorney with

the opprobrium of ineffectiveness.” State v. Turner, 2000 MT 270, ¶ 64, 302 Mont. 69, ¶

64, 12 P.3d 934, ¶ 64.

¶7     Marrero’s ineffective assistance of counsel claim fails to meet the first prong of

the standards set forth in Strickland v. Washington (1984), 466 U.S. 668, 687-88, 104

S.Ct. 2052, 2064, 80 L.Ed.2d 674, in that he has failed to establish that his counsel’s

performance fell below an objectively reasonable standard. Therefore, we reject it on the

record established at trial. Affirmed.

¶8     We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of

our 1996 Internal Operating Rules, as amended in 2003, which provides for

memorandum opinions.


                                                  /S/ BRIAN MORRIS


We Concur:


/S/ KARLA M. GRAY
/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




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