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                                                               No. 01-317

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             2001 MT 263N



                                                     ANDREW C. MENSING,

                                                      Petitioner and Appellant,

                                                                      v..

                                                      STATE OF MONTANA,

                                                   Respondent and Respondent.

                           APPEAL FROM: District Court of the Second Judicial District,

                                              In and for the County of Silver Bow,

                                    The Honorable John W. Whelan, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                                   Andrew C. Mensing, Pro Se, Deer Lodge, Montana

                                                            For Respondent:

                              Hon. Mike McGrath, Attorney General; Pamela P. Collins,

                                       Assistant Attorney General, Helena, Montana

                                   Robert M. McCarthy, Silver Bow County Attorney,

                                                             Butte, Montana



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                                           Submitted on Briefs: November 15, 2001
                                               Decided: December 13, 2001

                                                                    Filed:

                                    __________________________________________

                                                                     Clerk



Chief Justice Gray 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. It 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 Andrew C. Mensing, appearing pro se, appeals from the order of the Second Judicial
District Court, Silver Bow County, dismissing his petition for postconviction relief. We
affirm.

¶3 The sole issue on appeal is whether the District Court erred in dismissing Mensing's
postconviction relief petition, which was based on ineffective assistance of trial and
appellate counsel.

                                                          BACKGROUND

¶4 The State of Montana charged Mensing with committing the offense of sexual
intercourse without consent by allegedly having nonconsensual sexual intercourse with the
victim on the evening of June 5, 1997, near the Speculator Mine in Butte, Montana. He
was represented during the proceedings by appointed counsel Deirdre Caughlan and
Michael Clague, and he testified during his jury trial that the sexual intercourse was
consensual. The jury convicted Mensing, and the trial court subsequently sentenced him
and entered judgment.

¶5 Mensing appealed to this Court and was represented on appeal by William F. Hooks,
the Montana Appellate Defender. State v. Mensing, 1999 MT 303, 297 Mont. 172, 991

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P.2d 950. The only issue raised in that appeal was whether the trial court had committed
reversible error in admitting testimony from law enforcement officers regarding prior
inconsistent statements made by the victim. Mensing, ¶ 2. We concluded the trial court
had abused its discretion in admitting the testimony, but that the error did not prejudice
Mensing. As a result, the court's error was harmless and we affirmed. Mensing, ¶¶ 17, 21-
22.

¶6 Thereafter, Mensing timely filed a petition for postconviction relief in the District
Court based on ineffective assistance of trial counsel Caughlan and appellate counsel
Hooks. No hearing was held on Mensing's petition and the District Court dismissed it by
order on April 16, 2001. This appeal follows.

                                                             DISCUSSION

¶7 Did the District Court err in dismissing Mensing's petition for postconviction relief,
which was based on ineffective assistance of trial and appellate counsel?

¶8 We review the conclusions of law in a district court's denial or dismissal of a petition
for postconviction relief to determine whether the conclusions are correct. See Dawson v.
State, 2000 MT 219, ¶ 18, 301 Mont. 135, ¶ 18, 10 P.3d 49, ¶ 18 (citation omitted).

¶9 Mensing asserts trial counsel rendered ineffective assistance by failing to interview and
call at trial defense witnesses to whom the victim allegedly admitted that the sexual
intercourse with Mensing was consensual. He also asserts trial counsel failed to present
allegedly exculpatory photographs showing an absence of bruises on the victim's thighs.
Mensing contends appellate counsel was ineffective by failing to raise ineffective
assistance of trial counsel as an issue on appeal.

¶10 In considering ineffective assistance of counsel claims on both direct appeal and in
postconviction proceedings such as this one, we apply the two-part test established in
Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. The
petitioner must establish that counsel's performance was deficient and that the deficient
performance prejudiced his defense and deprived him of a fair trial. Dawson, ¶ 20 (citation
omitted).

¶11 The underlying question in the deficient performance prong is "whether counsel acted
within the range of competence demanded of attorneys in criminal cases." State v.


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Niederklopfer, 2000 MT 187, ¶ 19, 300 Mont. 397, ¶ 19, 6 P.3d 448, ¶ 19 (citation
omitted). Counsel is entitled to a presumption that the challenged actions might be sound
trial strategy, and counsel's trial tactics and strategic decisions cannot be the basis for an
ineffective assistance determination. Niederklopfer, ¶ 19 (citation omitted).

¶12 The prejudice prong requires a demonstration that "there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would have been
different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. "A
reasonable probability is a probability sufficient to undermine confidence in the outcome."
Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

Allegations regarding trial counsel

¶13 Mensing first alleges that trial counsel failed to interview and call at trial defense
witnesses who would have testified that the victim told them the sexual intercourse with
him was consensual. Mensing did not provide an affidavit with his petition for
postconviction relief which either identified these witnesses or stated how many of them
there were; nor did he attach to his petition affidavits from any of these alleged witnesses.
Section 46-21-104(1)(c), MCA, requires a postconviction petition to "identify all facts
supporting the grounds for relief set forth . . . and have attached affidavits, records, or
other evidence establishing the existence of those facts." Mensing totally failed to meet
this statutory requirement with regard to the alleged defense witnesses and, as a result, the
District Court did not err in dismissing that portion of Mensing's petition for failure to
state a claim upon which relief could be granted under § 46-21-101, MCA.

¶14 Mensing also contends that trial counsel failed to introduce allegedly exculpatory
photographs of the victim's thighs which would have shown an absence of bruises, thereby
contradicting the State's evidence--via testimony by the doctor who examined her at the
hospital--that she had multiple scratches to her upper chest and shoulders, bruises on both
of her inner thighs, and inflammation in the vaginal area, all of which were inconsistent
with consensual sex. Mensing does not identify these photographs, which is sufficient to
dismiss this portion of his petition under § 46-21-104(1)(c), MCA, as well.

¶15 Moreover, the only photographs mentioned in the record on appeal were those
apparently taken by an employee of the Butte-Silver Bow law enforcement agency the day
after the events in question; the State did not introduce the photographs at trial. It is clear,
however, that Mensing's trial counsel knew of the existence of the allegedly exculpatory


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photographs. Indeed, counsel referenced the photographs in her closing argument to the
jury, regarding her view that there had been a "fairly cursory and sloppy hospital
exam . . . . We heard that there were some pictures, but apparently they must not have
showed much because we certainly didn't see them here today or at any time during the
trial." Thus, instead of introducing the photographs, which may or may not have shown
bruises on the victim's thighs, trial counsel argued the photographs must not have
supported the State's case.

¶16 Counsel is presumed to have rendered adequate assistance. Strickland, 466 U.S. at
689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694; see Niederklopfer, ¶ 19. On this record, it
appears trial counsel made a tactical decision regarding the photographs which was within
the range of competence demanded of criminal defense attorneys.

¶17 Even assuming arguendo, however, that counsel's performance was deficient in this
regard, Mensing establishes no prejudice as defined in Strickland. Here, the victim's
testimony detailed the events surrounding the sexual intercourse without consent, the
location of the events near the Speculator Mine, and her escape. The doctor's testimony
fully supported the probability that nonconsensual intercourse had occurred. The victim's
boyfriend testified she told him very shortly after the events--in a "pretty distraught" state,
with dirt on her clothes--that Mensing had raped her "front and back," the location where
the rape occurred and how she had escaped. Another witness who saw the victim in the
same time frame testified to her statements that Mensing had raped her and where the
event took place. Furthermore, while Mensing initially denied to law enforcement that he
had any sexual contact with the victim on the night in question and stated he had driven
her to the Cabaret Lounge, law enforcement personnel compared tire tracks near the mine
to the tread on Mensing's tires and testified at trial they were consistent. Contrary to his
earlier statements, Mensing testified at trial that he had sexual intercourse with the victim
on the night in question, near the Speculator Mine, but that the sex was consensual.

¶18 Briefly stated, the evidence against Mensing was overwhelming. On this record, there
is no reasonable probability that, but for any deficient performance by trial counsel with
regard to the photographs, the result of the trial would have been different; that is, there is
not a probability sufficient to undermine confidence in the outcome of Mensing's trial. See
Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

¶19 For these reasons, we hold the District Court did not err in dismissing Mensing's
petition for postconviction relief with regard to his ineffective assistance claims against


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trial counsel.

Allegation regarding appellate counsel

¶20 The Strickland test also applies to claims of ineffective assistance of appellate counsel
with minor modifications. The prejudice prong can be met in this regard only by
establishing a reasonable probability that the petitioner would have prevailed on appeal.
See Dawson, ¶¶ 147, 155 (citation omitted).

¶21 Mensing contends his appellate counsel rendered ineffective assistance on appeal by
failing to raise an issue of ineffective assistance of trial counsel. His contention requires
only brief discussion.

¶22 With regard to the claim relating to trial counsel's failure to interview or present
defense witnesses who would have contradicted the victim's story and supported his own
trial testimony, Mensing presented no affidavits supporting the claim with his
postconviction petition. As a result, we cannot ascertain that appellate counsel knew or
should have known of it. More importantly, the claim is not based on the record. The
record does not disclose the existence of such witnesses and, if they existed, the record
does not indicate why trial counsel did not interview them or present their testimony at
trial. Where allegations of ineffective assistance of counsel cannot be documented from
the record, they must be raised by petition for postconviction relief rather than on appeal.
State v. White, 2001 MT 149, ¶ 12, 306 Mont. 58, ¶ 12, 30 P.3d 340, ¶ 12 (citations
omitted).

¶23 With regard to Mensing's ineffective assistance claim against trial counsel regarding
the photographs, we concluded above that he failed to establish ineffective assistance. As
a result, Mensing cannot establish a reasonable probability that, but for appellate counsel's
failure to raise the issue, he would have prevailed on appeal.

¶24 We conclude, therefore, that appellate counsel did not render ineffective assistance to
Mensing by failing to raise ineffective assistance of trial counsel on direct appeal. As a
result, we hold the District Court did not err in failing to conclude otherwise.

¶25 Affirmed.

                                                      /S/ KARLA M. GRAY


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                                                              We concur:

                                                   /S/ JAMES C. NELSON

                                                   /S/ PATRICIA COTTER

                                              /S/ W. WILLIAM LEAPHART

                                                            /S/ JIM RICE




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