                                                                                      September 24 2013


                                           DA 13-0128

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 276N



MICHAEL LAW GOULD,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DV-12-1
                       Honorable Karen Townsend, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Michael Law Gould, self-represented, Deer Lodge, Montana

                For Appellee:

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

                       Fred R. Van Valkenburg, Missoula County Attorney, Missoula, Montana


                                                  Submitted on Briefs: September 5, 2013
                                                             Decided: September 24, 2013



Filed:

                       __________________________________________
                                         Clerk
Justice Brian Morris 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     Appellant Michael Gould (Gould) appeals the order of the Fourth Judicial District

Court, Missoula County, that denied his petition for post-conviction relief. We affirm.

¶3     The State of Montana (State) charged Gould with aggravated assault pursuant to § 45-

5-202, MCA, in Missoula County. On January 1, 2010, Hillarie Cochran (Cochran) found

Gould, a friend, sleeping on her couch. She woke Gould. Gould struck Cochran in the

throat with an open hand and/or strangled her around her trachea below the jaw thereby

preventing Cochran from breathing. Gould claimed that Cochran was hitting him and he

defended himself “instinctively” due to his training in martial arts. He stated that he did not

actually intend to harm Cochran.

¶4     The case went to trial where Gould gave notice of the affirmative defense of

justifiable use of force. A jury found Gould guilty of aggravated assault. Gould appealed

that verdict. He claimed that the District Court erroneously instructed the jury with regard to

the mental state element of aggravated assault. He alleged that in its jury instructions the

District Court should have given the jury result-based definitions for “purposely or

knowingly.” The District Court instead gave conduct-based definitions of “purposely or

knowingly.” The instructions stated that a person acts “purposely” “when it is the person’s

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conscious object to engage in conduct of that nature.” The instructions stated that a person

acts “knowingly” “when the person is aware of his or her conduct.” Gould did not object to

these jury instructions and he did not offer alternative instructions. We rejected Gould’s

claim for plain error review, or in the alternative, ineffective assistance of trial counsel. State

v. Gould, 2011 MT 248N, 363 Mont. 413.

¶5     Gould timely filed a pro se petition for post-conviction relief on January 3, 2012. The

District Court appointed counsel for Gould. The District Court denied Gould’s petition for

post-conviction relief on January 28, 2013, after Gould’s counsel stipulated that an

evidentiary hearing was unnecessary. Gould filed a pro se motion for rehearing on February

4, 2013. Gould filed a notice of appeal on February 14, 2013, before the post-conviction

relief court had an opportunity to rule on Gould’s rehearing motion. Counsel Colin Stephens

filed a supplemental briefing on Gould’s pro se motion for rehearing on February 25, 2013.

¶6     Gould argues on appeal that his trial counsel’s failure to object to the jury instructions

given at trial constituted ineffective assistance of counsel. The State counters that Gould had

asserted justifiable use of force as a defense and by this claim admitted that he had acted

purposely and knowingly. The State contends the only question was whether the force

exerted by Gould had been justifiable.

¶7     We review a district court’s denial of a petition for post-conviction 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. We have

determined to decide this case pursuant to Section I, Paragraph 3(d), of our 1996 Internal
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Operating Rules, as amended in 2006, that provides for memorandum opinions. The District

Court properly denied Gould’s petition for post-conviction relief.

¶8    Affirmed.


                                                /S/ BRIAN MORRIS



We concur:

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




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