                                          DA 12-0413                                 February 5 2013


               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 28N


ROBERT AYRES DaSILVA, JR.,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.




APPEAL FROM:          District Court of the Eighth Judicial District,
                      In and For the County of Cascade, Cause No. DV 11-949
                      Honorable Dirk M. Sandefur, Presiding Judge

COUNSEL OF RECORD:

               For Appellant:

                      Robert Ayres DaSilva, Jr., self-represented, Deer Lodge, Montana

               For Appellee:

                      Timothy C. Fox, Montana Attorney General; Pamela P. Collins,
                      Assistant Attorney General, Helena, Montana

                      John Parker, Cascade County Attorney, Great Falls, Montana


                                                  Submitted on Briefs: January 9, 2013
                                                            Decided: February 5, 2013


Filed:

                      __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), 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     Robert Ayres DaSilva, Jr. appeals the order entered by the Eighth Judicial District

Court, Cascade County, dismissing his petition for postconviction relief.

¶3     On October 22, 2009, DaSilva was found guilty after trial by jury of Failure of Sex

Offender to Provide Notice of Address Change, a felony, in violation of §§ 46-23-505,

46-23-504(5), 46-23-507, and 46-23-502(9), MCA, and Resisting Arrest, a misdemeanor,

in violation of § 45-7-301, MCA. DaSilva appealed his conviction, asserting that his due

process rights were violated by the District Court’s instruction to the jury that his prior

Washington conviction was a “sexual offense” as a matter of law, and that the District

Court had erred by granting a continuance to the State for purposes of amending the

information. We affirmed. State v. DaSilva, 2011 MT 183, 361 Mont. 288, 258 P.3d

419.

¶4     On November 9, 2011, DaSilva filed a petition for postconviction relief asserting

11 claims, and asserted two additional claims by way of a later pleading. DaSilva’s

claims alleged, in sum, that he was deprived of his right to counsel, that his counsel was

ineffective, and that the elements of the crime of failing to provide an address change
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were not proven. The District Court restated DaSilva’s contentions as seven claims,

denying them on the ground that they were “record-based contentions that Petitioner

either did raise or could have raised on direct appeal.”           The District Court further

concluded that “to the extent that these contentions can arguably be properly construed as

not record-based,” they were either defeated on their merits by a review of the record or

by DaSilva’s failure “to make a particularized legal and factual showing that counsel’s

performance was not objectively reasonable and that a substantial likelihood exists that

his trial would have resulted in a different outcome if counsel had performed as Petitioner

alleges he should have.”

¶5     On appeal, DaSilva states two issues: (1) his trial counsel rendered ineffective

assistance by failing to provide the proper jury instruction for the change of address

charge as it was amended and, alternatively, that he was entitled to an evidentiary hearing

on this claim; 1 and (2) the State committed prosecutorial misconduct by failing to

disclose every element of the amended change of address charge to the jury, thus failing

to prove each element of that offense.              The State responds by arguing that the

prosecutorial misconduct claim was correctly denied by the District Court as procedurally

barred because the claim could reasonably have been raised on direct appeal from

DaSilva’s conviction, and that the ineffective assistance of counsel claim was


1
  The District Court dismissed the petition without a hearing, reasoning that evidentiary hearings
in postconviction proceedings are “discretionary, required only in ‘unique circumstances,’”
citing Heath v. State, 2009 MT 7, ¶¶ 21-24, 348 Mont. 361, 202 P.3d 118.

                                                3
insufficiently supported, but, in any event, DaSilva’s claim that a different jury

instruction was necessary in order to properly instruct the jury about the change of

address charge is legally incorrect.

¶6     “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.” Sanchez v. State, 2012 MT 191, ¶ 12, 366 Mont. 132,

285 P.3d 540 (citations omitted). Ineffective assistance of counsel claims are mixed

questions of law and fact, which are reviewed de novo. Sanchez, ¶ 12 (citation omitted).

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

our Internal Operating Rules, which provides for noncitable memorandum opinions. The

issues in this case are legal and are controlled by settled Montana law, which the District

Court correctly interpreted, or are issues of judicial discretion and there clearly was not

an abuse of discretion.

¶8     Affirmed.


                                                 /S/ Jim Rice

We concur:

/S/ Mike McGrath
/S/ Brian Morris
/S/ Michael E Wheat
/S/ Laurie McKinnon




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