                                           No. 04-768

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 270N


SANDRA ICE,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Respondent.




APPEAL FROM:         The District Court of the Nineteenth Judicial District,
                     In and For the County of Lincoln, Cause No. DV 2004-27,
                     Honorable Michael C. Prezeau, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Amy N. Guth, Attorney at Law, Libby, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Carol E. Schmidt,
                     Assistant Attorney General, Helena, Montana

                     Bernard G. Cassidy, County Attorney, Libby, Montana



                                                         Submitted on Briefs: September 7, 2005

                                                                    Decided: November 1, 2005
Filed:


                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be cited

as precedent. Its case title, Supreme Court 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     Sandra Lynn Ice pled guilty to Aggravated Burglary with Dangerous Weapons, a

felony in violation of § 45-6-204(2)(a), MCA, for attempting to kill, by stabbing, her lover’s

wife, Stacey Callen, now known as Stacey Mitchell. Ice pled guilty after the State agreed

to recommend a twenty-year sentence with ten years suspended.

¶3     On January 3, 2003, Ice filed a notice requesting that the court enter Charles Sprinkle

as her new attorney of record. Ice did not know at the time that Sprinkle shared a law

practice with William Douglas, the attorney representing Mitchell, Ice’s victim, in a civil

action against Mark Callen–Mitchell’s husband and Ice’s lover and accomplice. Sprinkle

filed a motion to withdraw the guilty plea, but failed to provide a brief or memorandum in

support. The court denied Ice’s motion to withdraw her guilty plea, subject to reconsidera-

tion if counsel supported the request with appropriate legal authority. Since nothing further

was filed, the matter remained denied. The next day, pursuant to the court’s direction and

without objection, Sprinkle filed a psychological evaluation requested by Ice’s original

counsel. The District Court subsequently made this report available to counsel involved in



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the civil proceedings against Callen. Several weeks later the court sentenced Ice to Montana

Women’s Prison for twenty years, with ten years suspended.

¶4     On March 6, 2003, Ice filed an application requesting that the Sentence Review

Division of this Court review her sentence. The District Court granted Ice a new attorney

to represent her before the Sentence Review Division. Given Ice’s dissatisfaction with

counsel, the court granted her request for yet another attorney, who filed a petition for

postconviction relief, along with an affidavit and memorandum. The District Court ordered

a response within thirty days from the “Lincoln County Attorney and/or Montana Attorney

General’s Office.” The Lincoln County Attorney filed a brief with the court opposing all

relief requested in Ice’s petition. Meanwhile, this Court ordered Sprinkle to respond to

charges of ineffective assistance of counsel and he complied. Ice subsequently filed an

affidavit in opposition to Sprinkle’s affidavit. On September 1, 2004, without conducting

a hearing, the District Court issued its order denying Ice’s petition for postconviction relief.

Ice filed a notice of appeal.

¶5     Ice asserts three issues on appeal: (1) whether the District Court erred in denying her

claim for postconviction relief without consideration of a reply from the Montana Attorney

General; (2) whether the District Court erred in failing to afford Ice the opportunity to

address the District Court; and (3) whether Ice was provided effective assistance of counsel.

We affirm the District Court’s denial of postconviction relief.




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¶6     We have determined to decide this case with a memorandum opinion pursuant to

Section 1, Paragraph 3(d) of our 1996 Internal Operating Rules, as amended in 2003, and

affirm the District Court for the reasons stated below.

¶7     Since Ice failed to raise the first two issues in the District Court, we are barred from

addressing them on appeal. Sections 46-20-104 and 46-20-701(2), MCA. Regarding the

third issue, Ice argues that Sprinkle provided ineffective assistance of counsel because (1)

he abandoned her claim to withdraw the guilty plea; (2) he erred in not objecting to the

release of Ice’s psychological examination; and (3) he had a conflict of interest by sharing

office space with the attorney representing Ice’s victim in a civil claim against Ice’s lover.

              We review claims of ineffective assistance of counsel pursuant to the
       two-prong test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104
       S.Ct. 2052. The first prong of the Strickland test is to determine whether
       counsel acted within the range of competence demanded of attorneys in
       criminal cases. The second prong of the Strickland test requires a defendant
       to show that counsel’s deficient performance prejudiced the defense so as to
       deny the defendant a fair trial. In order to show prejudice, the petitioner must
       show that there is a reasonable probability that, because of the error, the
       defendant was denied a fair trial.

State v. Berg, 1999 MT 282, ¶ 28, 296 Mont. 546, ¶ 28, 991 P.2d. 428, ¶ 28 (citations

omitted).

¶8     We agree with the District Court that, in accordance with the second prong of the

Strickland test, Ice failed to demonstrate prejudice as a result of Sprinkle’s representation.

¶9     Affirmed.


                                                  /S/ W. WILLIAM LEAPHART

We concur:

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/S/ KARLA M. GRAY
/S/ PATRICIA O. COTTER
/S/ JOHN WARNER
/S/ JIM RICE




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