                                           DA 07-0395                                    June 18 2008

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2008 MT 220N



SPENCER JEAN McCLURE,

              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 06-1346
                      Honorable Susan P. Watters, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Spencer McClure, Pro Se; Glendive, Montana

               For Appellee:


                      Hon. Mike McGrath, Attorney General; Mark W. Mattioli,
                      Assistant Attorney General, Helena, Montana

                      Dennis Paxinos, Yellowstone County Attorney; Christopher Morris,
                      Deputy County Attorney, Billings, Montana



                                                  Submitted on Briefs: May 21, 2008

                                                             Decided: June 18, 2008


Filed:

                      __________________________________________
                                        Clerk
Chief Justice Karla M. Gray delivered the Opinion of 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. It shall be filed as a public document with the Clerk of the Supreme Court and

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     Spencer Jean McClure (McClure) appeals from an order of the Thirteenth Judicial

District Court, Yellowstone County, denying his amended petition for postconviction relief

which was based on a claim of ineffective assistance of counsel (IAC) during probation

revocation proceedings. We affirm.

¶3     In earlier proceedings, McClure—a level 3 sex offender—had admitted violating

conditions of his suspended sentence by residing in the home of a woman with young

children and being terminated from a sex offender treatment program; the sentencing court

revoked the suspended sentence and sentenced him to 15 years at the Montana State Prison.

¶4     McClure subsequently petitioned for postconviction relief, raising an IAC claim. He

premised his claim on counsel’s failure to demand an evidentiary hearing on the alleged

violations of his conditions of supervision. He contends he wanted to call witnesses to

“explain” his violations.

¶5     An IAC claim constitutes a mixed question of law and fact that we review de novo to

determine if counsel’s performance was deficient and, if so, whether it prejudiced the
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claimant. State v. Morgan, 2003 MT 193, ¶ 9, 316 Mont. 509, ¶ 9, 74 P.3d 1047, ¶ 9 (citing

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)). We review discretionary

rulings—such as whether an evidentiary hearing was required in a revocation proceeding—

for an abuse of discretion. Morgan, ¶ 7 (citations omitted).

¶6     A sentencing court may revoke a suspended sentence based on one or more violations

of conditions. State v. Baird, 2006 MT 266, ¶ 17, 334 Mont. 185, ¶ 17, 145 P.3d 995, ¶ 17.

Here, McClure admitted two violations. Nothing more was required and, therefore, McClure

failed to satisfy either prong of the IAC test.

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

1996 Internal Operating Rules, as amended in 2003, which provides for memorandum

opinions. It is manifest on the face of the briefs and record that this appeal is without merit

because the issues are clearly controlled by settled Montana law. The District Court did not

err in denying McClure’s postconviction petition.

¶8     Affirmed.

                                                      /S/ KARLA M. GRAY

We concur:


/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS




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