                                                                                             May 19 2015


                                           DA 14-0347
                                                                                        Case Number: DA 14-0347

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2015 MT 135N



BENNY STEWART,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Second Judicial District,
                       In and For the County of Butte-Silver Bow, Cause No. DV-13-404
                       Honorable Brad Newman, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Benny Roe Stewart (self-represented); Glendive, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
                       Attorney General; Helena, Montana

                       Eileen Joyce, Butte-Silver Bow County Attorney; Butte, Montana



                                                   Submitted on Briefs: March 4, 2015
                                                              Decided: May 19, 2015


Filed:

                       __________________________________________
                                         Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

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

Rules, this case is decided by unpublished opinion and shall not be cited and does not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     Stewart appeals the denial of his petition for postconviction relief by the Second

Judicial District Court, Silver Bow County. We affirmed Stewart’s conviction for incest,

a felony, in State v. Stewart, 2012 MT 317, 367 Mont. 503, 291 P.3d 1187. We denied

Stewart’s writ of habeas corpus in Stewart v. Green, No. OP 13-0660,

2013 Mont. LEXIS 520, 2013 WL 6912009 (Mont. Oct. 22, 2013). We denied Stewart’s

Petition for Writ of Supervisory Control, Mandamus, or Any Appropriate Remedy in

Stewart v. Newman, 375 Mont. 552, 2014 Mont. LEXIS 375 (2014). Here, we affirm the

District Court’s denial of Stewart’s petition for postconviction relief.

¶3     On December 27, 2013, Stewart filed a petition for postconviction relief and a

request for counsel in the District Court. The District Court did not require a response

from the State or an evidentiary hearing to determine Stewart’s petition, pursuant to

§ 46-21-201(1)(a), MCA (no response or hearing is required if “the files and records of

the case conclusively show that the petitioner is not entitled to relief”). On April 23,

2014, the District Court denied Stewart’s petition for postconviction relief and his request

for counsel.    On May 4, 2014, Stewart filed a notice of appeal and a motion for



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appointment of counsel with this Court. We denied Stewart’s request for counsel in this

appeal. Order, Jun. 17, 2014, No. DA 14-0347.

¶4      “We review a district court’s denial of a petition for postconviction relief to

determine whether the district court’s findings of fact are clearly erroneous and whether

its conclusions of law are correct.” State v. Osborne, 2005 MT 264, ¶ 8, 329 Mont. 95,

124 P.3d 1085.

¶5      Stewart contends that he should have been granted the right to amend his petition

for postconviction relief in the District Court, especially given his status as a pro se

litigant.   Stewart insists that he had many arguments he intended to raise with the

assistance of counsel. A postconviction relief petitioner has a right to amend his petition

under § 46-21-105(1)(a), MCA; however, the original or amended petition must

“identify all facts supporting the grounds for relief set forth in the petition and have

attached affidavits, records, or other evidence establishing the existence of those facts,”

§ 46-21-104(1)(c), MCA. Stewart’s claim that the District Court should have informed

him of his petition’s deficiencies is without merit. “Unlike civil complaints, the

postconviction statutes are demanding in their pleading requirements.” Ellenburg v.

Chase, 2004 MT 66, ¶ 12, 320 Mont. 315, 87 P.3d 473. Furthermore, courts do not have

an obligation to develop a litigant’s arguments.       See, e.g., In re Estate of Bayers,

1999 MT 154, ¶ 19, 295 Mont. 89, 983 P.2d 339 (“[I]t is not this Court’s obligation to

conduct legal research on appellant’s behalf, to guess as to his precise position, or to

develop legal analysis that may lend support to his position.”).



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¶6     Stewart asserts that he was “forced” to proceed pro se, and the District Court erred

by denying his numerous requests for counsel. However, Stewart does not have a right to

appointment of counsel in these proceedings. “[I]ndigent petitioners for postconviction

relief do not have a constitutional right to appointed counsel.        Instead, the right to

appointed counsel in a postconviction proceeding is statutory.” Office of the State Pub.

Defender v. Mont. Eighteenth Judicial Dist. Court, 2011 MT 97, ¶ 3, 360 Mont. 284,

255 P.3d 107 (citation omitted). Under § 46-21-201(2), MCA, “If the death sentence has

not been imposed and a hearing is required or if the interests of justice require, the court

shall order the office of state public defender . . . to assign counsel for a petitioner who

qualifies.”

¶7     “[U]nder § 46-21-201, MCA, Montana district courts may not appoint [the Office

of the Public Defender] in a postconviction proceeding until after the court has received a

response to the petition and determined that a hearing will be held or the interests of

justice otherwise require the appointment of counsel.” Office of the State Pub. Defender,

¶ 9. In this case, Stewart was not given the death sentence, the District Court decided

under § 46-21-201(1)(a), MCA, that Stewart’s petition conclusively showed he was not

entitled to relief, and no response from the State or a hearing was required. Therefore,

Stewart was not entitled to appointment of counsel in the District Court. Stewart is also

not entitled to counsel on appeal. Order, Jun. 17. 2014, No. DA 14-0347.

¶8     Stewart alleges ineffective assistance by both his trial counsel and his appellate

counsel in his underlying criminal conviction for incest. Stewart faults his counsel at trial

and on appeal for failing to object to the term “gratifying” as applied to the statute
                                             4
defining incest, § 45-5-507, MCA, and counsel’s failure to challenge the definition of

“regularly resides” as it applies to our Sexual or Violent Offender Registration Act

(SVORA), §§ 46-23-501, et seq., MCA.

¶9     Ineffective assistance of counsel claims present mixed questions of law and fact

that we review de novo.           Sartain v. State, 2012 MT 164, ¶ 9, 365 Mont. 483,

285 P.3d 407. “When evaluating a claim of ineffective assistance of trial counsel, we use

the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,

80 L. Ed 2d 674 (1984).” Sartain, ¶ 11. “Under the first prong of the Strickland test, ‘the

defendant must show that counsel’s representation fell below an objective standard of

reasonableness.’” Sartain, ¶ 11 (quoting Strickland, 466 U.S. at 688, 104 S. Ct. at 2064).

Under the second prong, the defendant must show that he was prejudiced by the defense.

Sartain, ¶ 11. “Because a defendant must prove both prongs, an insufficient showing

under one prong eliminates the need to address the other.”         Sartain, ¶ 11.    When

evaluating claims of ineffective assistance of appellate counsel, we also look to the

Strickland test. Sartain, ¶ 36.

¶10    The statute defining incest, § 45-5-507, MCA, adopts the definition of “sexual

intercourse” found in § 45-2-101(68), MCA, which “means penetration . . . by another

person to knowingly or purposely . . . arouse or gratify the sexual response or desire of

either party.” The term “regularly resides” is part of the definition of “residence,” as

applied to SVORA under § 46-23-502(7)(a), MCA (“‘Residence’ means the location at

which a person regularly resides, regardless of the number of days or nights spent at that



                                             5
location, that can be located by a street address, including a house, apartment building,

motel, hotel, or recreational or other vehicle.”).

¶11    “Words used in the statutes of Montana are to be construed according to the

context in which they are found, and according to their normal usage, unless they have

acquired some peculiar or technical meaning.” Baitis v. Dep’t of Revenue, 2004 MT 17,

¶ 25, 319 Mont. 292, 83 P.3d 1278 (citing § 1-2-106, MCA).               Our Criminal Code

specifically states that “[a]ll its provisions are to be construed according to the fair import

of their terms with a view to effect its object and to promote justice.”

Section 45-1-102(2), MCA.

¶12    The District Court held that the terms “gratify” and “regularly resides” were both

self-explanatory, and that counsel’s failure at trial and on appeal to object to those terms

was not ineffective. We agree. Neither the term “gratify” nor the term “regularly

resides” have acquired some particular or technical meaning. The fact that Stewart’s trial

and appellate counsel did not object to the use of these terms does not constitute

ineffective assistance of counsel. Stewart fails to meet the first prong of the Strickland

test, and his claim for ineffective assistance of counsel must fail.

¶13    Stewart makes a vague claim that the prosecution did not have sufficient evidence

to convict him due to a lack of definition for the term “gratify.” Stewart argues that

without a definition, the prosecution could not prove it as an element of the crime of

incest under § 45-5-507, MCA. We find this argument unpersuasive. “We review a

jury’s verdict to determine whether sufficient evidence exists to support the verdict, not

whether the evidence could have supported a different result.” State v. Field, 2005 MT
                                               6
181, ¶ 15, 328 Mont. 26, 116 P.3d 813. A jury convicted Stewart, and sufficient evidence

was presented at trial to support the verdict.          State v. Stewart, 2012 MT 317,

367 Mont. 503, 291 P.3d 1187 (evidence presented at trial included the victim’s

testimony, testimony of the victim’s brother, photographs found on Stewart’s computer,

and recorded phone conversations between Stewart and the victim).             Furthermore,

Stewart presents no new evidence to challenge his conviction and support his petition

pursuant to § 46-21-102(2), MCA.

¶14    Stewart claims that his sentence was illegal because he is a “non-violent” offender.

We review de novo whether a district court had statutory authority to impose the

sentence, whether the sentence falls within the applicable sentencing parameters, and

whether the court adhered to mandates of the applicable sentencing statutes. State v.

Johnson, 2011 MT 116, ¶ 12, 360 Mont. 443, 254 P.3d 578. Stewart is considered a

violent offender for sentencing purposes under § 46-18-104(2)(a)(iii)(C), MCA. Stewart

was convicted of incest in violation of § 45-5-507, MCA. His sentence of 50 years at

Montana State Prison with 20 years suspended is well within the statutory parameters for

the conviction of incest under § 45-5-507(5), MCA, because his victim was under 12 and

he was over 18 when the crime began. Stewart’s sentence is legal.

¶15    Stewart raises a number of other issues for the first time on appeal. Stewart’s

challenges to the District Court’s jurisdiction, allegations of various procedural errors,

and unsupported constitutional claims were not raised in his petition to the District Court.

“[W]e will not address issues raised for the first time on appeal,” State v. Reim, 2014 MT

108, ¶ 28, 374 Mont. 487, 323 P.3d 880, and our Court will not conduct legal research to
                                             7
support a party’s argument, M. R. App. P. 12(1)(f); State v. Cybulski, 2009 MT 70, ¶ 13,

349 Mont. 429, 204 P.3d 7. Stewart also raises alternative legal arguments in his reply

brief, which we do not consider under M. R. App. P. 12(3) (“The reply brief must be

confined to new matter raised in the brief of the appellee.”); Unified Indus., Inc. v.

Easley, 1998 MT 145, ¶ 28, 289 Mont. 255, 961 P.2d 100 (a party may not raise an issue

for the first time in a reply brief).

¶16    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for unpublished opinions. In the opinion of

the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review. The District Court’s interpretation and

application of the law were correct.

¶17    Affirmed.

                                               /S/ JAMES JEREMIAH SHEA


We Concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JIM RICE




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