                                                    No. 8 7 - 5 2 6
                    I N THE SUPREME COURT O F T H E STATE O F MONTANA

                                                         1988




S T A T E O F MONTANA,

                          P l a i n t i f f and R e s p o n d e n t ,
          -vs-

E R N I E LEE HOCH,

                          D e f e n d a n t and A p p e l l a n t .




A P P E A L FROM:         D i s t r i c t C o u r t of t h e F i f t e e n t h J u d i c i a l D i s t r i c t ,
                          I n and f o r t h e C o u n t y of R o o s e v e l t ,
                          T h e H o n o r a b l e L e o n a r d L a n g e n , Judge p r e s i d i n s .

COUNSEL O F RECORD:

          For A p p e l l a n t :

                          E r n i e L e e Hoch,       pro se, Spokane, W a s h i n g t o n

          For R e s p o n d e n t :

                          Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
                          G e o r g e Schunk, A s s t . A t t y . G e n e r a l , H e l e n a
                          J a m e s A. M c C a n n , C o u n t y A t t o r n e y , P 7 o l f P o i n t , M o n t a n a
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                                                         Submitted:               September 29,            1988

                                                             Decided:             N o v e m b e r 1, 1 9 8 8




                                                         Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.


      The defendant, Mr. Hoch, was found guilty of sexual
assault by a jury in the District Court of the Fifteenth
Judicial District, Roosevelt County.    He was sentenced to
five years in prison with three years suspended. Mr. Hoch
appeals his conviction and sentence. We affirm. The issues
are :
      1. Did the District Court err in denying the defen-
dant's request for disqualification of the judge?
      2. Was the defendant denied the effective assistance of
counsel?
      In May 1986, Mr. Hoch's 13-year-old sister-in-law came
to live with the Hochs and their two children because her own
home life was unstable. The sister-in-law testified that she
had been sexually abused on one occasion by her natural
father and was undergoing counseling for that abuse while
living with the Hochs. She testified that during a counsel-
ing session, she admitted to the psychologist that she had
also been fondled once by her brother-in-law, Mr. Hoch.
According to her testimony, the incident involved a touching
of one of her breasts while Mr. Hoch was rubbing suntan
1-otion on her back to relieve a sunburn. The sister-in-law
testified that she consented to having Mr. Hoch apply the
lotion, but was "shocked" and "scared" when his hand moved to
her breast. The psychologist testified that the sister-in-
law exhibited many of the symptoms of child abuse ~~ictims,
including severe depression, embarrassment, and an attempted
suicide, indicating that she was unable to cope with the
effects of abuse.
     Upon learning of the incident involving Mr. Hoch, the
psychologist reported to social services, who contacted the
Roosevelt County Attorney's office. The police report of the
county sheriff's office became the basis of an information
charging Mr. Hoch with sexual assault.


     Did the District Court err in denying the defendant's
request for disqualification of the judge?
     Prior to the arraignment hearing, the defendant appeared
in his own behalf and filed with the District Court an "As-
severation and Exception of Accusation."     The asseveration
stated in relevant part:

         That Judge M. James Sorte, is a defendant in a
    deprivation of rights suit commenced by the herein
                                 ...
    accused in February of 1 9 8 7    That by the above
    Asseveration of Fact, Judge M. James Sorte's preju-
    dice and bias is obvious and therefore Judge M.
    James Sorte is hereby recused whether he leaves the
    bench or not and all orders, permissions, and/or
    warrants made, granted, or issued by him, past,
    present, or in the future are null and void.
    During the arraignment proceeding, Mr. Hoch appeared pro
se and objected to Judge Sorte presiding over the matter
because of his bias and prejudice.    Following this hearing
Judqe Sorte addressed Mr. Hoch's concerns as follob~s:

    Although it was not altogether clear to the Court,
    it seemed that Ernie Hoch was asking that this
    Judge be disqualified and although the Defendant is
    not timely in his request to disqualify the Judge,
    the Judge will deem the disqualification as appro--
    priate and will be deemed disqualfied [sic] by
    Ernie Hoch.
    To keep this matter from being delayed, Judge Sorte
    will request the Honorable Leonard H. Langen to
    assume jurisdiction to hear this cause on the 22nd
    day   of June,    1987,  during   the  jury trial
    proceedings.
    After Judge Sorte disqualified himself, Mr.     Hoch at-
tempted to make a peremptory challenge of Judge Langen, but
was refused on the grounds that he had previously exercised
his one peremptory disqualification on Judge Sorte.        Mr. Hoch
then   retained   counsel   and   attempted   to   disqualify    Judge
Langen for cause, which was denied as untimely.
     Mr. Hoch contends that his disqualification of Judqe
Sorte was for cause and that Judge Langen wrongly treated it
as a peremptory challenge so as to preclude the exercise of a
second peremptory challenge against Judge Langen.     Section
3-1-802, MCA (1985), required that in a disqualification for
cause, a timely and sufficient affidavit must be filed,
alleging facts which establish personal bias or prejudice on
the part of the judge.    The statute also required that the
affidavit be accompanied by a certificate of counsel of
record stating that it has been made in good faith. Mr. Hoch
contends that the asseveration qualifies as an affidavit, in
which he states that Judge Sorte "is a defendant in a depri-
vation of rights suit commenced by the herein accused in
February of 1987," and that "by the above Asseveration of
Fact, Judge Sorte's prejudice and bias is obvious        ."     ..
     Judge Langen found that Mr. Hoch had not complied with
the statutory criteria in that no timely or sufficient affi-
davit was filed showing Judge Sorte to be biased or preju-
diced against Mr. Hoch, and concluded Mr. Hoch was attempting
to disqualify Judge Sorte for cause merely by filing a suit
pro se against him.    The District Court further concluded
that we cannot condone efforts on the part of litigants to
render the court impotent by filing suit against each substi-
tute judge and then disqualifying him for cause. We agree
with the District Court that Mr. Hoch failed to show any bias
or prejudice on behalf of Judge Sorte which would disqualify
him for cause. Furthermore, no certificate of good faith was
filed as required by statute. While we recognize Mr. Hoch's
p r o se status, this Court has pre~riouslynoted the importance
of the accompanying certificate when characterizing the
nature of the disqualification in a pro se matter. See State
v. Poncelet (1980), 187 Mont. 528, 540, 610 P.2d 698, 705.
We conclude that Mr. Hoch's disqualification of Judge Sorte
was not for cause.
     It is true that Mr. Hoch did not file a formal perempto-
ry challenge against Judge Sorte in the words and form re-
quired by § 3-1-802, MCA (1985).       However, Judge Langen
determined that the defendant's challenge to Judge Sorte had
the same effect as a peremptory challenge and that Judge
Sorte treated it as such. He then concluded that, "Since the
Defendant exercis d his o ly peremptory disqualification in
                           f
                 Psic n rocus
order to recluse Judge Sorte, he had exhausted the peremptory
challenges allowed by Sec. 3-1-802, and his attempt to dis-
qualify the undersigned Judge by peremptory challenge is
void."   Section 3-1-802, MCA, allowed a defendant only one
substitution of a judge in a criminal case. Judge Langen was
correct in determining that Mr. Hoch's peremptory challenge
against him was of no effect.
                                I1
     Was the defendant denied the effective assistance of
counsel?
     The principles governing a claim of ineffective assis-
tance   of counsel were 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. This Court adopted the two-part
test    from Strickland to resolve these claims in State v.
Boyer    (Mont. 1985), 695 P.2d 829, 42 St.Rep. 247:

         First, the defendant must show that counsel's
    performance was deficient.   This requires showing
    that counsel made errors so serious that counsel
    was not functioning as the "counsel" guaranteed the
    defendant by the Sixth Amendment.      Second, the
    defendant must show the deficient performance
     prejudiced the defense. This requires showing that
     counsel's errors were so serious as to deprive the
     defendant of a fair trial, a trial whose result is
     reliable.
Boyer, 695 P.2d at 831.
     Mr. Hoch first contends that the failure of his attorney
to correct the attempt at disqualification constitutes inef-
fective assistance of counsel.    We do not agree.    We find
that Mr. Hoch's dissatisfaction with the attempts to disqual-
ify Judge Langen is attributable to his own procedural errors
rather than any subsequent attempts of the attorney. By the
time Mr. Hoch retained counsel, the judge had made his deter-
mination. Therefore, no deficient performance on the part of
the attorney has been shown.
     Mr. Hoch also contends that his attorney's comments to
the jury on breast touching during voir dire and closing
argument constitute ineffective assistance of counsel.
Specifically, he objects to the statement made during voir
dire: "The mere fact that Mr. Hoch has touched her breasts
should not be enough to convict him  . . ."
                                          and the statement
made in closing argument:   "In my lifetime, I have touched
the breasts of women other than my wife more then [sic] a
thousand times, in the course of walking down hallways,
riding down or up elevators, and doing things like that."
     Given the nature of the charge and the facts of this
case, it was neither deficient nor prejudicial for defense
counsel to comment in this manner. Counsel was merely empha-
sizing the prosecutor's duty to prove sexual intent on the
part of the defendant.    In this case, the prosecutor must
prove intent to make sexual contact for the purpose of arous-
ing or gratifying the sexual desire of either party, as
opposed to an accidental touching.     We conclude that the
record does not support the defendant's claim of ineffective
assistance of counsel.
     Affirmed.




We Concur:




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