                                           No. 03-846

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2004 MT 379N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

GERALD ALLEN ANTHONY,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Eleventh Judicial District,
                     In and for the County of Flathead, Cause No. DC 2003-067(B),
                     The Honorable Katherine Curtis, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Gerald Allen Anthony (pro se), Deer Lodge, Montana

              For Respondent:

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

                     Ed Corrigan, Flathead County Attorney; Dan Guzynski, Deputy Flathead
                     County Attorney, Kalispell, Montana


                                                   Submitted on Briefs: March 23, 2004

                                                             Decided: December 28, 2004

Filed:


                     __________________________________________
                                       Clerk
Justice John Warner delivered the Opinion of the Court.

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

Operating Rules, the following decision shall not be cited as precedent. It shall be filed as

a public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2       Appellate Gerald Allen Anthony (“Appellant”) appeals from a judgement imposing

a sentence according to a plea bargain agreement. Pursuant to the plea bargain, Appellant

was sentenced to prison, fined and forfeited $9,000. Several other charges were dismissed

as agreed in the plea bargain. Appellant, appearing pro se, appeals.

¶3       We restate the following issues on appeal as:

¶4       1. Has Appellant been subjected to Double Jeopardy by virtue of the imposition of

both a prison sentence and forfeiture?

¶5       2. Has Appellant been denied effective assistance of counsel through counsel’s

failure to file an appeal on Appellant’s behalf?

¶6       We affirm the District Court’s sentence and deny the ineffective assistance of counsel

claim.

                   FACTUAL AND PROCEDURAL BACKGROUND

¶7       In August 2002 Appellant was charged with one count of criminal possession of

dangerous drugs with intent to distribute, two counts of use or possession of property subject

to criminal forfeiture, criminal possession of dangerous drugs, and criminal possession of



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drug paraphernalia, a misdemeanor.

¶8     In October 2002 Appellant was released on a commercial bond. Within months he

was arrested for new drug related offenses including two counts of criminal possession with

intent to distribute, two counts of criminal possession of dangerous drugs, use or possession

of property subject to criminal forfeiture, and criminal possession of drug paraphernalia, a

misdemeanor.

¶9     Appellant was also under investigation for Witness Tampering.

¶10    In July 2003, the parties executed a Pre-Trial Agreement in which Appellant agreed

to plead guilty to one count of criminal possession of dangerous drugs with intent to

distribute and one count of criminal possession of dangerous drugs–both felonies. In

exchange for Appellant’s guilty plea the State agreed to recommend to the court a twenty-

five year sentence to the Montana State Prison with ten years suspended, a fine, and the

forfeiture of $9,000 seized in Cause No. DC-02-309 (B). Furthermore, the State agreed not

to charge the alleged Witness Tampering. Appellant, his attorney, and the State signed this

plea bargain.

¶11    In August 2003, Appellant’s counsel filed a Motion for Release of Property seeking

the return of Appellant’s property seized as a result of a search warrant. The motion

acknowledged Appellant was not entitled to the return of any contraband and the $9,000 in

cash which is the subject of this appeal. The property, other than contraband and $9,000,

was returned.

¶12    On September 5, 2003, the District Court notified Appellant of his right to apply for

sentence review.    This notification informed Appellant that he had sixty days from

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September 5, 2003, to file his appeal. Appellant filed his appeal on October 23, 2003, stating

“I contacted my lawyer Dean Knapton on 10-22-03 and he did not know if he wanted to file

a motition [sic] for appeal. I had to file this motition [sic] for appeal before my time ran

out!”

                                 STANDARD OF REVIEW

¶13     Ineffective assistance of counsel claims are mixed questions of fact and law. State

v. Herrman, 2003 MT 149, ¶ 18, 316 Mont. 198, ¶ 18, 70 P.3d 738, ¶ 18. Thus, we review

an ineffective assistance of counsel claim de novo. Herrman, ¶ 18. Appellant’s claim of

ineffective assistance of counsel on direct appeal is reviewed under the two-prong test

enunciated in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674. E.g., Dawson v. State, 2000 MT 219, ¶ 20, 301 Mont. 135, ¶ 20, 10 P.3d 49, ¶ 20.

¶14     The test adopted by this Court and set forth in Strickland is as follows:

        Strickland’s two-part test requires that the defendant must show that his
        counsel’s performance was deficient and that the deficient performance
        prejudiced the defense and deprived the defendant of a fair trial . . . [to prove
        prejudice the defendant] must demonstrate that “there is a reasonable
        probability that, but for counsel’s unprofessional errors, the result of the
        proceeding would have been different.” “A reasonable probability is a
        probability sufficient to undermine confidence in the outcome.” [Internal
        Citations omitted.]

Dawson, ¶ 20.

¶15     In analyzing ineffective assistance of counsel claims, we must first consider whether

the record is sufficient to determine whether counsel was ineffective. State v. Daniels, 2003

MT 247, ¶ 41, 317 Mont. 331, ¶ 41, 77 P.3d 224, ¶ 41. "[W]here ineffective assistance of

counsel claims are based on facts of record in the underlying case, they must be raised in the


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direct appeal and, conversely, where the allegations of ineffective assistance of counsel

cannot be documented from the record in the underlying case, those claims must be raised

by petition for post-conviction relief." State v. White, 2001 MT 149, ¶ 12, 306 Mont. 58, ¶

12, 30 P.3d 340, ¶ 12.

¶16    “This Court reviews a criminal sentence for legality only . . . [to determine] whether

the sentence is within the parameters provided by statute.” State v. Legg, 2004 MT 26, ¶ 24,

319 Mont. 362, ¶ 24, 84 P.3d 648, ¶ 24.

                                      DISCUSSION

                                          ISSUE 1

¶17    Has the Appellant been subjected to Double Jeopardy by virtue of both a prison

sentence and forfeiture?

¶18    The Fifth Amendment to the United States Constitution and Article II, Section 25 of

the Montana Constitution prohibit being placed in jeopardy twice for the same offense.

¶19    Here, Appellant argues that the imposition of both a term of confinement and a

forfeiture constitutes Double Jeopardy. Appellant claims this is especially true under

Montana’s Constitution under which the Double Jeopardy clause provides greater protection

than that granted through the United States Constitution.

¶20    The State argues Appellant waived any claims that the forfeiture condition was

punitive by his acceptance of the plea bargain agreement. In exchange for Appellant’s guilty

plea to two felonies, payment of a fine, and forfeiture of the $9,000, the prosecutor

recommended a twenty-five year sentence with ten years suspended.



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¶21    Appellant, appearing pro se, has the indulgence of this Court, in that we have

demonstrated a willingness to make accommodations for pro se parties by relaxing technical

requirements which do not impact fundamental bases for appeal. However, a district court

decision is presumed correct and it is the appellant who bears the burden of establishing

error. In re Marriage of McMahon, 2002 MT 198, ¶ 7, 311 Mont. 175, ¶ 7, 53 P.3d 1266,

¶ 7. It is not this Court’s obligation to locate authorities or formulate arguments in support

of positions taken on appeal. State v. Flowers, 2004 MT 37, ¶ 44, 320 Mont. 49, ¶ 44, 86

P.3d 3, ¶ 44.

¶22    Although we agree with Appellant that Montana’s Constitutional Double Jeopardy

provision provides greater protection than the United States Constitution, State v. Tadewaldt

(1996), 277 Mont. 261, 268, 922 P.2d 463, 467, Appellant is not entitled to the relief he

requests.

¶23    Montana law is clear “[h]e who takes the benefit must bear the burden.” Section 1-3-

212, MCA; see also, State v. Micklon, 2003 MT 45, ¶ 10, 314 Mont. 291, ¶ 10, 65 P.3d 559,

¶ 10, (“[w]e will not put a district court in error for an action in which the appealing party

acquiesced or actively participated.”) “[T]his Court will not lend its assistance to an accused

criminal in escaping the obligations of a plea bargain after accepting its benefits.” State v.

Schoonover, 1999 MT 7, ¶ 15, 293 Mont. 54, ¶ 15, 973 P.3d 230, ¶ 15; § 1-3-207, MCA

("[a]cquiescence in error takes away the right of objecting to it"). Thus, even if Appellant’s

Double Jeopardy claim was valid, his actions in agreeing to the plea agreement, and

accepting the benefit thereof, waives his complaint to its illegality.



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¶24    Like the defendant in Micklon, Appellant “did not merely remain silent[,]” rather, he

“affirmatively agreed” to the condition that the sentencing court imposed. Micklon, at ¶ 11.

Accordingly, Appellant has waived any claim that the forfeiture condition subjected him to

Double Jeopardy.

                                          ISSUE 2

¶25    Has the Appellant been denied the right to effective assistance of counsel?

¶26    Appellant argues that his counsel was ineffective because he failed to file an appeal

in this matter and thus failed to raise the Double Jeopardy issue addressed above. On

September 10, 2003, the District Court filed its Judgment and Sentence. Appellant filed his

appeal on October 23, 2003, stating “I contacted my lawyer Dean Knapton on 10-22-03 and

he did not know if he wanted to file a motition [sic] for appeal. I had to file this motition

[sic] for appeal before my time ran out!”

¶27    Because an appeal was timely filed the substance of the appeal is record based and

therefore is properly before us on direct appeal.

¶28    The right to effective assistance of counsel is guaranteed by the Sixth Amendment of

the United States Constitution and by Article II, Section 24, of the Montana Constitution.

We have adopted the two-prong test of Strickland in determining ineffective assistance of

counsel claims. State v. Kougl, 2004 MT 243, ¶ 11, 323 Mont. 6, ¶ 11, 97 P.3d 1095, ¶ 11.

Under the Strickland standard, a defendant must show both that the counsel's performance

was deficient and that this performance prejudiced the defense and denied the defendant a

fair trial such that the result of the proceeding would have been different. State v. Daniels,



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2003 MT 247, ¶ 21, 317 Mont. 331, ¶ 21, 77 P.3d 224, ¶ 21; Dawson, ¶ 20.

¶29    The foregoing procedure is compatible with § 46-20-701(1), MCA, which provides,

“[a] cause may not be reversed by reason of any error committed by the trial court against

the convicted person unless the record shows that the error was prejudicial.”

¶30    Thus, for Anthony to prevail on his ineffective assistance of counsel claim he "must

first show that his counsel was objectively unreasonable in failing to find arguable issues to

appeal–that is, that counsel unreasonably failed to discover nonfrivolous issues and to file

a merits brief raising them." Smith v. Robbins (2000), 528 U.S. 259, 285, 120 S.Ct. 746,

764, 145 L.Ed.2d 756. Anthony must then "show a reasonable probability that, but for his

counsel's unreasonable failure to file a merits brief, he would have prevailed on his appeal."

Smith, 528 U.S. at 285, 120 S.Ct. at 764. Counsel’s performance cannot be deficient when

the issue counsel failed to raise lacks merit. State v. Osterloth, 2000 MT 129, ¶ 32, 299

Mont. 517, ¶ 32, 1 P.3d 946, ¶ 32. Here, we cannot conclude that Anthony was prejudiced

by counsel’s failure to appeal an issue to which the Defendant, under the advice of counsel,

affirmatively agreed to before the District Court.

                                      CONCLUSION

¶31    Appeal denied.


                                                         /S/ JOHN WARNER




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We Concur:

/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
/S/ JIM RICE




                          9
Justice James C. Nelson specially concurs.

¶32    I concur in our Opinion because I am not persuaded, on the arguments here, that

Appellant’s double jeopardy claim is meritorious. I do not agree with the statement in ¶ 23

of our Opinion, however, that “even if Appellant’s Double Jeopardy claim was valid, his

actions in agreeing to the plea agreement, and accepting the benefit thereof, waives his

complaint to its illegality.” I do not believe that a defendant can waive an illegal sentence

because such a sentence is void ab initio. State v. Micklon, 2003 MT 45, ¶¶ 13-20, 314

Mont. 291, ¶¶ 13-20, 65 P.3d 559, ¶¶ 13-20 (Nelson, J., dissenting).

¶33    With that caveat, I concur.

                                                              /S/ JAMES C. NELSON



Justice W. William Leaphart joins in the special concurrence of Justice James C. Nelson.

                                                            /S/ W. WILLIAM LEAPHART




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