                                                                                      December 20 2013


                                         DA 13-0198

                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2013 MT 376



LIONEL SCOTT ELLISON,

              Petitioner and Appellant

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Thirteenth Judicial District,
                       In and For the County of Yellowstone, Cause No. DV 11-306
                       Honorable Mary Jane Knisely, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Elizabeth J. Honaker, Honaker Law Firm; Billings, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
                       Assistant Attorney General; Helena, Montana

                       Scott Twito, Yellowstone County Attorney, Julie Mees, Deputy County
                       Attorney; Billings, Montana



                                                   Submitted on Briefs: November 13, 2013
                                                              Decided: December 20, 2013


Filed:

                       __________________________________________
                                         Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1        Lionel Ellison pleaded no contest to arson, a felony. He subsequently obtained

new counsel and moved to withdraw his no contest plea. The District Court denied his

motion to withdraw, which this Court affirmed. State v. Ellison, 2009 MT 408N, 354

Mont. 393 (table), 222 P.3d 645 (table). Ellison then petitioned for postconviction relief,

alleging ineffective assistance of counsel, and that the District Court misinterpreted the

arson statute. The District Court denied Ellison’s petition, and he now appeals. We

affirm.

                                      BACKGROUND

¶2        On October 23, 2007, Ellison was charged with arson in violation of

§ 45-6-103(1)(a), MCA (2005), after a vehicle belonging to Dee Ames sustained fire

damage.1 On April 1, 2008, Ellison appeared with counsel Jeffrey Michael (“Michael”)

and entered a no contest plea to the arson charge. Ellison also filed an acknowledgement

of waiver of rights, which indicated that the State would recommend a five-year

suspended sentence pursuant to a plea agreement, but that Ellison could argue for a lesser

or deferred sentence.

¶3        During the offer of proof at the change of plea hearing, the prosecutor stated that

Ellison damaged a vehicle, and that the value of the vehicle exceeded $1,000. Prior to

the hearing, Ellison had obtained an appraisal of the vehicle, which identified its market

value as $500. Michael, however, determined that the value of the vehicle was irrelevant

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          Ellison’s offense was committed on May 19, 2007, and thus the 2005 Montana Code
Annotated applies. State v. Stoner, 2012 MT 162, ¶ 12, 365 Mont. 465, 285 P.3d 402 (we apply
the law in effect at the time the crime was committed).
                                               2
to the arson charge based upon his interpretation of the statute, and therefore did not

object to the prosecutor’s offer of proof.

¶4     The prosecutor also proffered that had the State gone to trial it would have

presented a surveillance video that showed an individual at the trunk of Ames’ parked

vehicle shortly before the fire started. The proffer continued that while it was difficult to

make out the identity of the individual seen on the video, the video was completely

inconsistent with Ellison’s version of events.      In an affidavit Michael later gave in

response to Ellison’s petition for postconviction relief, Michael swore that he had

reviewed the surveillance video and made the video available to Ellison prior to the

hearing.   Michael advised Ellison that the surveillance video was inconsistent with

Ellison’s story and that the State had enough evidence to find Ellison guilty beyond a

reasonable doubt at trial. Michael also explained to Ellison that the State had evidence

that Ellison offered to pay a potential witness to tell the same story as Ellison about the

fire, and that entering a plea to the arson charge would ensure that the State would not

charge him with witness tampering. Michael thus determined that the negotiated plea

agreement was in Ellison’s best interest, and advised him to enter a no contest plea.

¶5     After the change of plea hearing, Ellison substituted Michael with attorney Herbert

“Chuck” Watson (“Watson”). Watson then filed a motion to withdraw Ellison’s no

contest plea, arguing that Ellison did not enter it knowingly and voluntarily. The District

Court denied Ellison’s motion, finding that Ellison had been aware of the consequences

of his decision to enter a no contest plea, and that it was not improperly induced. On

May 26, 2009, Ellison was sentenced to five years with all time suspended. Ellison next

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appealed the denial of his motion to withdraw his no contest plea to this Court and raised

the singular issue of whether Ellison’s plea was knowingly and voluntarily entered.2 On

November 25, 2009, we affirmed the District Court’s ruling.

¶6     In February of 2011 Ellison filed a petition for postconviction relief, followed by

an amended petition, arguing that the arson statute only applied to property valued at over

$1,000, and since the vehicle at issue was worth less than that, there was no factual basis

for his no contest plea. His petition outlined three grounds for relief: 1) the District Court

erred by accepting a plea on an insufficient factual basis; 2) Michael provided ineffective

assistance of counsel by allowing Ellison to enter a plea for a charge that had an

insufficient factual basis; and 3) Watson provided ineffective assistance of counsel for

failing to raise the issue of the sufficiency of the factual basis of the arson charge on

direct appeal. In an affidavit supporting his petition, Ellison swore that Michael never

saw the surveillance video, and that Michael did not make the video available for Ellison

to view.

¶7     In its response, the State contended that Ellison’s claims were invalid and

procedurally barred. It attached affidavits of attorneys Michael and Watson to refute the

ineffective assistance of counsel allegations. On March 15, 2013, the District Court

denied Ellison’s petition on the merits, concluding that pursuant to the plain language of



       2
         Ellison’s grounds for arguing that his no contest plea was not knowingly and voluntarily
entered were as follows: there was new exculpatory evidence, the State had lost potentially
exculpatory evidence, his plea was induced by a threat to charge him and his mother with
witness tampering, and his plea was induced by the misrepresentation that he could receive a
deferred sentence.
                                               4
the statute, the value of a vehicle is irrelevant to the charge of arson. The District Court

summarized its reasoning for denying the petition:

       Petitioner has failed to demonstrate to this Court that he is entitled to
       Postconviction Relief. Petitioner entered a knowing and voluntary plea, as
       determined previously by this District Court as well as the Supreme Court
       of Montana, waiving all right to challenge nonjurisdictional defects.
       Regardless, this Court has examined the merits of Petitioner’s claim, and
       found that Petitioner’s assertion that the State’s offer of proof was
       insufficient is without merit. Petitioner erroneously interprets the arson
       statute, arguing that the State was required to demonstrate that the vehicle
       was valued in excess of $1,000. The plain meaning of the statute proves
       otherwise. As such, Petitioner cannot demonstrate that the offer of proof
       was insufficient, nor that his representation was ineffective.

Ellison now appeals the District Court’s denial of his petition for postconviction relief.

                               STANDARD OF REVIEW

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

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

conclusions of law are correct. Camarillo v. State, 2005 MT 29, ¶ 8, 326 Mont. 35, 107

P.3d 1265. Ineffective assistance of counsel claims present mixed questions of law and

fact that are reviewed de novo. Miller v. State, 2012 MT 131, ¶ 9, 365 Mont. 264, 280

P.3d 272.

                                      DISCUSSION

¶9     Ellison argues on appeal that the District Court erred in its interpretation of the

arson statute, and in finding that Ellison’s defense counsel did not provide ineffective

assistance. Two different attorneys have represented Ellison relative to the arson charge:

trial counsel Michael, and appellate counsel Watson. Ellison alleges that both provided



                                              5
ineffective assistance of counsel. For reasons discussed below, we do not find either of

Ellison’s arguments convincing.

¶10      Whether the District Court Erred in its Interpretation of the Arson Statute

¶11     The Court’s first step in interpreting a statute is to look at its plain language. State

v. Letasky, 2007 MT 51, ¶ 11, 336 Mont. 178, 152 P.3d 1288. “In the construction of a

statute, the office of the judge is simply to ascertain and declare what is in terms or in

substance contained therein, not to insert what has been omitted or to omit what has been

inserted.” Section 1-2-101, MCA. If legislative intent can be determined by the plain

meaning of the words, the Court may go no further in applying any other meaning or

interpretation. State v. Booth, 2012 MT 40, ¶ 11, 364 Mont. 190, 727 P.3d 89 (citing

State v. Stiffarm, 2011 MT 9, ¶ 12, 359 Mont. 116, 250 P.3d 300).

¶12     Section 45-6-103(1)(a), MCA, states that a person commits the offense of arson

when,

        by means of fire or explosives, the person knowingly or purposely . . .
        damages or destroys a structure, vehicle, personal property (other than a
        vehicle) that exceeds $1,000 in value, crop, pasture, forest, or other real
        property that is property of another without consent. [Paragraph break
        omitted.]

Ellison argues that the District Court erred in concluding that the arson statute clearly and

unambiguously states that the $1,000 threshold only applies to personal property. He

proposes that “$1,000” modifies all preceding categories of property listed in the statute,

including vehicles, and since the fire-damaged vehicle was worth less than $1,000, there

was an insufficient factual basis for which to enter a no contest plea to arson.



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¶13    In considering § 45-6-103(1)(a), MCA, in its entirety, the plain language clearly

states that the $1,000 threshold applies only to the category of “personal property,” which

does not include vehicles. As the District Court correctly noted, “vehicles are clearly not

included in the category of personal property, plainly evidenced by the phrase ‘other than

a vehicle.’” Ellison’s interpretation of the statute, which he concedes is not supported by

case law, is based on a partial reading of the statute which omits all the categories of

property that follow “personal property.”3 Such an interpretation violates our precedent

establishing that “statutes must be read and considered in their entirety and the legislative

intent may not be gained from the wording of any particular section or sentence, but only

from a consideration of the whole.” State v. Heath, 2004 MT 126, ¶ 27, 321 Mont. 280,

90 P.3d 426 (citing Home Bldg. & Loan Ass’n of Helena v. Fulton, 141 Mont. 113, 115,

375 P.2d 312, 313 (1962)). Ellison’s interpretation of the statute also violates § 1-2-101,

MCA, because it does not rely on the plain language of the statute, and instead relies on

the omission of the remaining categories of property. See State v. Cooksey, 2012 MT

226, ¶ 74, 366 Mont. 346, 286 P.3d 1174; State v. Gould, 273 Mont. 207, 219-20, 902

P.2d 532, 540-41; In re R.L.S., 1999 MT 34, ¶ 12, 293 Mont. 288, 977 P.2d 967; State v.

Incashola, 1998 MT 184, ¶ 13, 289 Mont. 399, 961 P.2d 745; Schuff v. A.T. Kelmens &

Sons, 2000 MT 357, ¶¶ 115-126, 303 Mont. 274, 16 P.3d 1002. The statute is clear on its

face, and therefore we may go no further in applying any other meaning or interpretation.

       3
           Ellison’s statutory analysis is premised on only the following portion of
§ 45-6-103(1)(a), MCA, the remainder of which he presumably omits to make his argument
appear tenable: “A person commits the offense of arson when, by means of fire or explosives, the
person knowingly or purposely: damages or destroys a structure, vehicle, personal property
(other than a vehicle) that exceeds $1,000 in value, . . . without consent.”
                                               7
As such, the District Court did not err in determining that the threshold of $1,000 for

property crimes does not apply to vehicles.

¶14     Whether the District Court Erred in Finding that Ellison’s Attorneys were not
        Ineffective

¶15    The right to effective assistance of counsel is guaranteed by both the United States

and the Montana Constitutions. U.S. Const. amend. VI; Mont. Const. art. II, § 24. A two

part test determines when counsel is ineffective. First, a defendant must show that

counsel’s performance was deficient. Counsel is deficient when his or her conduct falls

below an objectively reasonable standard measured under prevailing professional norms

and in light of the surrounding circumstances. Whitlow v. State, 2008 MT 140, ¶ 20, 343

Mont. 90, 183 P.3d 861.       Second, the defendant must also show that the deficient

performance prejudiced the defense. Prejudice occurs when counsel’s errors were so

serious that they deprived the defendant of a fair trial. Wilson v. State, 1999 MT 271,

¶ 12, 296 Mont. 465, 989 P.2d 813 (citing Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2205, 2064 (1984)). In the context of a guilty plea, a petitioner establishes

prejudice by showing that there is a reasonable probability that, but for counsel’s errors,

he or she would not have pleaded guilty and would have insisted on going to trial. State

v. Henderson, 2004 MT 173, ¶ 9, 322 Mont. 69, 93 P.3d 1231. A defendant must satisfy

both parts of this test in order to prevail on an ineffective assistance of counsel claim.

Thus, if an insufficient showing is made regarding one part of the test, there is no need to

address the other part. Whitlow, ¶ 11 .




                                              8
¶16    Ellison bases his ineffective assistance of counsel claims on Michael’s and

Watson’s failure to advance at trial and on appeal, respectively, Ellison’s interpretation of

“value” in the arson statute. Additionally, Ellison argues that Michael did not review the

surveillance video or obtain an expert analysis prior to the change of plea hearing, and

that Watson did not raise the issue of the surveillance video on appeal.

¶17    Value of the Vehicle

¶18    Ellison maintains that both Michael and Watson were ineffective for not

addressing the factual sufficiency of Ellison’s no contest plea. He again argues that the

fact the vehicle was valued at less than $1,000 means that he could not have been charged

with arson pursuant to § 45-6-103(1)(a), MCA. As previously explained, this is an

incorrect interpretation of the plain meaning of the statute. A claim of constitutionally

ineffective assistance of counsel will not succeed when predicated upon counsel’s failure

to make motions or objections which, under the circumstances, would have been

frivolous, which would have been, arguably, without procedural or substantive merit, or

which, otherwise, would likely not have changed the outcome of the proceeding.

Heddings v. State, 2011 MT 228, ¶ 33, 326 Mont. 90, 265 P.3d 600; see e.g. State v.

Hildreth, 267 Mont. 423, 432-33, 884 P.2d 771, 777 (1994); State v. Maki, 2004 MT 226,

¶¶ 10-12, 322 Mont. 420, 97 P.3d 556; State v. Frasure, 2004 MT 305, ¶ 12, 323 Mont.

479, 100 P.3d 1013; Adams v. State, 2007 MT 35, ¶¶ 36-37, 336 Mont. 63, 153 P.3d

601; Foston v. State, 2010 MT 281, ¶ 13, 358 Mont. 469, 245 P.3d 1103. Because the

value of the vehicle is immaterial to the arson charge, it would have been frivolous for

either of Ellison’s attorneys to object or appeal on this issue. Thus, because Ellison

                                             9
cannot prove that either attorney was deficient in his decisions regarding the value of the

vehicle, he cannot establish an ineffective assistance of counsel claim on this basis.

¶19    Surveillance Video

¶20    Ellison also argues that Michael was deficient for failing to obtain an expert

analysis of the surveillance video prior to the change of plea hearing, and for failing to

object to its mention during the prosecutor’s offer of proof. Ellison further contends that

Watson was deficient for not raising this issue on appeal. Ellison relies on a report by an

expert in surveillance systems, obtained in support of his petition for postconviction

relief, which states that the surveillance video showed fire and smoke coming from an

unidentified vehicle, followed by the appearance of “one and two or even three barely

visible” unidentifiable individuals in the vicinity of the fire. The report notes, “it is truly

impossible to determine anything even remotely associated with actions taken or intent.”

Even though the report clearly states that the surveillance video is unreliable due to its

quality, Ellison nonetheless relies on the video to corroborate Ellison’s version of events.

¶21    Counsel has a duty to conduct reasonable investigations or to make a reasonable

decision that particular investigations are unnecessary. “In any ineffectiveness case, a

particular decision not to investigate must be directly assessed for reasonableness in all

the circumstances, applying a heavy measure of deference to counsel’s judgments.”

Dawson v. State, 2000 MT 219, ¶ 75, 301 Mont. 135, 10 P.3d 49. Here, Michael’s

decisions not to object to the prosecutor’s reference to the surveillance video at the

change of plea hearing, or get an expert analysis of the video prior to the hearing, are

reasonable under the circumstances. Michael swore in his affidavit that he watched the

                                              10
video prior to the hearing, and that he explained to Ellison that its contents were

damaging to Ellison. The fact that an expert witness later would conclude that the video

was not reliable does nothing to establish that Michael’s representation fell below an

objectively reasonable standard. In fact, it confirms that Michael’s decision not to retain

an expert in video surveillance was reasonable. Ellison therefore fails to establish that

Michael’s actions concerning the surveillance video were deficient.

¶22    For the same reasons, Watson’s decision not to raise the issue of the video on

appeal was also objectively reasonable under the circumstances. Furthermore, it is well

established that appellate counsel need not raise every colorable issue on appeal. Rose v.

State, 2013 MT 161, ¶ 28, 370 Mont. 398, 304 P.3d 387. Our presumption of effective

assistance of appellate counsel will be overcome only when “ignored issues are clearly

stronger than those presented.” Rose, ¶ 28. Watson’s affidavit states that he believed

Ellison had waived all challenges to the sufficiency of the State’s offer of proof by

entering the no contest plea, and thus chose to argue what he believed was Ellison’s

strongest argument—that his plea was not knowingly or voluntarily entered. Ellison has

presented no evidence that overcomes the presumption that Watson’s representation was

effective. Thus, Watson’s representation of Ellison cannot be deemed deficient.

¶23    Because Ellison cannot establish the deficiency portion of the ineffective

assistance of counsel test, we need not proceed with the prejudice analysis. As such,

Ellison’s ineffective assistance of counsel claims necessarily fail.




                                             11
                                    CONCLUSION

¶24    The District Court properly interpreted § 45-6-103(1)(a), MCA, when it found that

knowing or purposeful fire damage to a vehicle, regardless of the vehicle’s value,

constitutes arson. Therefore, the District Court did not err in its interpretation of the

statute. Additionally, Ellison is unable to prove that either Michael or Watson provided

ineffective assistance. In sum, we affirm the District Court’s denial of Ellison’s petition

for postconviction relief.


                                                 /S/ LAURIE McKINNON


We concur:


/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE




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