                                                                                               May 3 2016


                                           DA 15-0396
                                                                                           Case Number: DA 15-0396

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2016 MT 100N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

PHILIP JASON GILHOUSEN,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eighteenth Judicial District,
                        In and For the County of Gallatin, Cause No. DC-12-179B
                        Honorable Mike Salvagni, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Herman A. “Chuck” Watson, III, Attorney at Law, Bozeman, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
                        Assistant Attorney General, Helena, Montana

                        Marty Lambert, Gallatin County Attorney, Eric Kitzmiller, Deputy
                        County Attorney, Bozeman, Montana



                                                    Submitted on Briefs: February 24, 2016

                                                                Decided: May 3, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat 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 memorandum 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        On July 1, 2014, following a bench trial, Philip Jason Gilhousen was found guilty

of violating § 45-5-213, MCA, assault with a weapon, a felony, and § 45-6-101, MCA,

criminal mischief, a misdemeanor, in the Montana Eighteenth Judicial District Court,

Gallatin County. He appeals from the judgment entered against him. The sole issue on

appeal is whether Gilhousen was afforded effective assistance of trial counsel. We

affirm.

¶3        On September 10, 2012, Gilhousen chased a man into the Pizza Hut restaurant on

East Main Street in Bozeman, Montana. He carried a piece of metal rebar, which he used

to hit the front door of the restaurant and shatter the glass. He left the restaurant and

attempted to pry a license plate from a parked vehicle. He then left the Pizza Hut

premises, carrying both the metal rebar and a metal fencepost. He crossed paths with a

male passerby, whom he did not know, and struck him with the fencepost, hitting the

male’s left arm and abdomen. He next encountered a UPS driver, who noticed Gilhousen

was extraordinarily agitated. After Gilhousen began moving aggressively toward the

driver, the driver sought refuge in the locked cargo area of his delivery truck. Gilhousen


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then struck the side of the delivery truck with the driver inside.         Gilhousen next

approached a man driving his vehicle near the Pizza Hut. The man believed Gilhousen

wanted to cross the street so he slowed down. Gilhousen struck the passenger side of the

truck with one of the metal objects he was carrying, gouging the side of the truck.

¶4     Bozeman police officer Jonathan Ogden responded to a police call regarding

Gilhousen’s behavior. Officer Ogden located Gilhousen walking west from the Pizza

Hut.   Officer Ogden ordered Gilhousen to drop the metal objects, and Gilhousen

complied. Gilhousen then removed his shirt and began wrapping it around his hand.

Officer Ogden ordered Gilhousen to drop the shirt, to which Gilhousen eventually

complied, but then lowered himself to the ground on top of the objects he had dropped.

When Officer Ogden ordered Gilhousen to stand and move away from the objects he

noticed Gilhousen held an open knife in his hand. In the meantime other officers had

arrived to assist Officer Ogden. Gilhousen took a step toward the officers, knife in hand.

The officers then pulled their duty weapons and Officer Ogden instructed Gilhousen to

drop the knife, move away from the objects, place his hands on his head, and kneel on the

ground. Gilhousen complied. Officer Ogden testified Gilhousen looked as though he

might have been slightly confused, but seemed to come to realize the situation with

multiple officers on the scene and complied with his commands.

¶5     Gilhousen is chronically mentally ill, with a long history of psychotic episodes,

including violent episodes with criminal conduct.       He suffers from schizoaffective

disorder, bipolar type. Initially, he hired two attorneys to represent him against the

charges stemming from the September incidents.          Throughout the course of their

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representation Gilhousen’s mental illness was discussed as to whether Gilhousen should

be examined to determine if he suffered from a mental disease or defect at the time of the

offenses. At defense counsel’s request, presiding Judge Salvagni issued an order for

Gilhousen’s mental examination and he was placed on a waiting list at the Montana State

Hospital (MSH). Ultimately, Gilhousen objected to the evaluation, stated to the trial

judge he understood the proceedings, fired his attorneys, and was appointed a public

defender, Andrew Breuner. Breuner filed a motion to withdraw the request for a mental

evaluation, citing speedy trial concerns.        Gilhousen’s current claims of ineffective

assistance of counsel are based on Breuner’s decision not to raise the defense of mental

disease or defect, and only raise evidence of mental illness at sentencing.

¶6     A criminal defendant may raise the issue of mental disease or defect at two

separate points during a criminal proceeding. The defendant may present evidence at

trial that he suffers from a mental disease or defect that makes him unable to have had the

requisite state of mind at the time the offense was committed. Section 46-14-102, MCA;

State v. Korell, 213 Mont. 316, 322, 690 P.2d 992, 996 (1984). After conviction, a

defendant may present evidence that the defendant was unable to appreciate the

criminality of his conduct or to conform his conduct to the law due to a mental disease or

disorder. Section 46-14-311, MCA; Korell, 213 Mont. at 323, 690 P.2d at 996.

¶7     Ineffective assistance of counsel claims that are based on the facts of record must

be raised on direct appeal. Hagen v. State, 1999 MT 8, ¶ 12, 293 Mont. 60, 973 P.2d

233. When a record does not illuminate the basis for the challenged acts or omissions of

defense counsel, objections must be raised in a petition for postconviction relief. Hagen,

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¶¶ 12, 15. The record is silent as to why Breuner chose not to raise the defense of mental

disease or defect. The record indicates that Breuner requested the court withdraw the

request for a mental health evaluation because of speedy trial issues due to the waiting

period of the evaluation at the MSH. The record also indicates Gilhousen sought his own

psychological evaluation privately. The record further indicates from Gilhousen himself

that he adamantly did not want an evaluation at the MSH. There are reasonable tactical

reasons that Breuner may have had to justify choosing not to raise a mental disease or

defect defense, or he may have been simply carrying out his client’s wishes. Based on

this record we cannot definitively address Gilhousen’s claims of ineffective assistance of

counsel. The appropriate method of addressing these allegations of ineffectiveness is

through postconviction relief.

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

our Internal Operating Rules, which provides for memorandum 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.

¶9     Affirmed.


                                                 /S/ MICHAEL E WHEAT

We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ JIM RICE



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