                                                                                          September 14 2011


                                          DA 10-0055

                     IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2011 MT 228



SCOTT P. HEDDINGS,

              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. CDV-09-093
                       Honorable Kenneth R. Neill, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Joslyn Hunt, Chief Appellate Defender, Koan Mercer, Assistant Appellate
                       Defender, Helena, Montana

                For Appellee:

                       Steve Bullock, Montana Attorney General, John Paulson, Assistant
                       Attorney General, Helena, Montana

                       John Parker, Cascade County Attorney, Marvin Anderson, Deputy County
                       Attorney, Great Falls, Montana



                                                   Submitted on Briefs: April 26, 2011

                                                               Decided: September 14, 2011


Filed:

                       __________________________________________
                                         Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1     Scott Heddings, a self-represented litigant, filed a Petition for Postconviction

Relief in the District Court for the Eighth Judicial District, Cascade County, alleging that

he was denied the effective assistance of counsel and that he was subjected to double

jeopardy during the trial court proceedings that led to his conviction and sentence for the

offense of incest. The District Court denied Heddings’ request for postconviction relief

and dismissed his petition. Heddings appealed and we affirm.

¶2     We address the following issue on appeal: Whether the District Court correctly

determined that Heddings was not denied the effective assistance of counsel.

                         Factual and Procedural Background

¶3     In September 2005, the State charged Heddings with one count of felony incest

based on Heddings’ sexual abuse of his stepdaughter during the summer of 2000. During

the course of the investigation on the incest charge, Heddings made incriminating

statements about his possession of child pornography which, in turn, prompted a federal

investigation.

¶4     In April 2006, while the State court incest charge was pending, Heddings was

indicted and charged in federal court with receipt of child pornography, possession of

child pornography, and destruction or removal of property to prevent seizure.           The

indictment alleged that Heddings committed these offenses in 2004 and 2005. On May 1,

2007, Heddings pled guilty in federal court to these charges, admitting that he possessed

over 50,000 images of child pornography, and that after his arrest, he had instructed his

wife to delete the computer files and destroy the DVDs containing these images.

                                             2
¶5       A presentence investigative report was prepared in advance of Heddings’

September 6, 2007 federal sentencing hearing. In the offense level computations under

the federal sentencing guidelines, the federal probation officer recommended an increase

of five levels in Heddings’ sentence since Heddings had engaged in a pattern of activity

involving the sexual abuse or exploitation of a minor. This five-level increase would

amount to an additional nine years added to Heddings’ sentence.

¶6       At the federal sentencing proceedings, the federal court considered the fact that

Heddings had been charged with incest in State court. The federal court sentenced

Heddings to 240 months in federal prison for receipt of child pornography and lesser

concurrent sentences for the remaining two charges.

¶7       Heddings pled guilty to the incest charge in State court on October 23, 2007.

Pursuant to a plea agreement, the State recommended a sentence of 20 years commitment

to the Department of Corrections with 16 years suspended. The District Court so ordered

and stipulated that the sentence was to be served concurrently to Heddings’ federal

sentence.

¶8       Heddings challenged several of the conditions of his suspended sentence in an

appeal to this Court. State v. Heddings, 2008 MT 402, 347 Mont. 169, 198 P.3d 242

(Heddings I). While we upheld the majority of the sentencing conditions, we reversed

and remanded for clarification two of the conditions of Heddings’ sentence. Heddings I,

¶¶ 22-23. Heddings did not challenge the State court prosecution and conviction on

double jeopardy grounds in the District Court proceedings or on direct appeal to this

Court.

                                             3
¶9     On January 21, 2009, Heddings filed his Petition for Post Conviction Relief

wherein he raised two claims. First, he argued that he was subjected to double jeopardy

because he was sentenced in State court for conduct that was used to enhance his federal

sentence. Second, he argued that his trial counsel was ineffective because counsel did not

challenge the State court charges on double jeopardy grounds. Along with his petition,

Heddings submitted a supporting memorandum to which he attached an affidavit, the

federal district court judgment, portions of the federal presentence investigative report, a

partial transcript of the federal district court sentencing hearing and a partial transcript of

the State court change-of-plea hearing.

¶10    Without conducting an evidentiary hearing, the District Court denied Heddings’

Petition for Postconviction Relief on January 13, 2010.           The court concluded that

Heddings’ double jeopardy claim had no legal merit because the federal charge and the

State charge were based on separate conduct. The court also concluded that because

Heddings’ double jeopardy claim had no merit, it would have been frivolous for his

counsel to raise that claim. Consequently, the court determined that Heddings was not

denied the effective assistance of counsel.

¶11    Heddings appealed the denial of his petition to this Court, filing both his opening

brief and his reply to the State’s brief without the benefit of counsel. Thereafter, this

Court determined that “extraordinary circumstances exist that require the appointment of

counsel to prevent a miscarriage of justice” and that rebriefing of the appeal was

necessary. Consequently, the Court appointed the Office of the Appellate Defender to

represent Heddings and to file supplemental appellate briefs on his behalf.

                                              4
                                   Standard of Review

¶12    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. Becker v. State, 2010 MT 93, ¶ 8, 356 Mont. 161, 232

P.3d 376 (citing Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d 861).

Ineffective assistance of counsel claims are mixed questions of law and fact that we

review de novo. Becker, ¶ 8. A district court’s denial of a defendant’s motion to dismiss

a criminal charge on double jeopardy grounds presents a question of law that we review

for correctness. State v. Maki, 2008 MT 379, ¶ 9, 347 Mont. 24, 196 P.3d 1281 (citing

State v. Cech, 2007 MT 184, ¶ 7, 338 Mont. 330, 167 P.3d 389).

                                        Discussion

¶13    Whether the District Court correctly determined that Heddings was not denied the
       effective assistance of counsel.

¶14    In his supplemental brief on appeal, Heddings argues that his State prosecution

violated both § 46-11-504, MCA, and Article II, Section 25 of the Montana Constitution

regarding double jeopardy.     Thus, Heddings argues that the District Court erred in

concluding that his trial counsel provided effective assistance when counsel failed to raise

a double jeopardy objection to Heddings being prosecuted in State court for what he

claims was the same conduct that was used to increase his sentence in federal court.

¶15    The State contends that Heddings’ double jeopardy protections were not violated

because the State court prosecution and the federal court prosecution were based on

different transactions that occurred at different times and involved different victims.


                                             5
Consequently, the State argues that the District Court correctly concluded that trial

counsel did not provide ineffective assistance when counsel did not seek dismissal of

Heddings’ State court charge on double jeopardy grounds.

¶16    Both the Sixth Amendment to the United States Constitution and Article II,

Section 24 of the Montana Constitution guarantee individuals the right to the effective

assistance of counsel in all criminal prosecutions. When we review ineffective assistance

of counsel claims, we employ the two-part test set forth in Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2052 (1984). State v. Ankeny, 2010 MT 224, ¶ 52, 358 Mont. 32,

243 P.3d 391 (citing State v. Gunderson, 2010 MT 166, ¶ 67, 357 Mont. 142, 237 P.3d

74). The Strickland test requires that a defendant establish (1) that counsel’s performance

fell below an objective standard of reasonableness, and (2) that a reasonable probability

exists that, but for counsel’s errors, the result of the proceeding would have been

different. Ankeny, ¶ 52. Because a defendant must satisfy both parts of the Strickland

test to prevail on a claim of ineffective assistance of counsel, if a defendant makes an

insufficient showing regarding one part of the test, there is no need for us to address the

other part. Ankeny, ¶ 53.

¶17    As to the first part of the test, Strickland provides that “a reviewing court ‘must

indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance’ and the defendant ‘must overcome the presumption

that, under the circumstances, the challenged action might be considered sound trial

strategy.’ ” Whitlow, ¶ 21 (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). As



                                            6
to the second part of the test, we have stated that a reasonable probability is a probability

sufficient to undermine confidence in the outcome. Ankeny, ¶ 54.

¶18    In his brief on appeal, Heddings correctly points out that both prongs of the

Strickland analysis in this case depend on whether Heddings’ double jeopardy claims

have merit. If the double jeopardy claims are without merit, then Heddings’ trial counsel

could not be deemed to have provided ineffective assistance by failing to raise a double

jeopardy objection to the District Court in an attempt to have the incest charge dismissed.

¶19    Heddings relies on our decisions in State v. Tadewalt, 277 Mont. 261, 922 P.2d

463 (1996), and State v. Neufeld, 2009 MT 235, 351 Mont. 389, 212 P.3d 1063, to argue

that his State court prosecution was barred under § 46-11-504, MCA, because it arose out

of the same transaction as the conduct for which he received an enhanced sentence in the

federal court. However, Heddings’ reliance on these two cases is unavailing.

¶20    Tadewaldt was charged in municipal court with a misdemeanor charge of driving

under the influence of alcohol or drugs. Immediately after his arrest on the DUI charge,

several pills were found in his possession and he was charged in district court with

criminal possession of dangerous drugs, a felony. Tadewaldt pled guilty in municipal

court to DUI and, after judgment was entered on that charge, he moved to dismiss the

possession charge in district court on the basis that that offense arose out of the same

transaction as the DUI offense, thus § 46-11-504, MCA, barred his subsequent

prosecution on the possession charge. Tadewaldt, 277 Mont. 263-64, 922 P.2d at 464.




                                             7
¶21    We analyzed the 1993 version of § 46-11-504, MCA, in Tadewaldt because

Tadewaldt’s offense was committed in August 1994. At that time, § 46-11-504, MCA,

provided:

               Former prosecution in another jurisdiction. When conduct
       constitutes an offense within the concurrent jurisdiction of this state and of
       the United States or another state or of two courts of separate, overlapping,
       or concurrent jurisdiction in this state, a prosecution in any other
       jurisdiction is a bar to a subsequent prosecution in this state under the same
       circumstances barring further prosecution in this state if:
               (1) the first prosecution resulted in an acquittal or in a conviction
       and the subsequent prosecution is based on an offense arising out of the
       same transaction; or
               (2) the former prosecution was terminated, after the charge had been
       filed, by an acquittal or by a final order or judgment for the defendant that
       has not been set aside, reversed, or vacated and the acquittal, final order, or
       judgment necessarily required a determination inconsistent with a fact that
       must be established for conviction of the offense for which the defendant is
       subsequently prosecuted.

¶22    Based on the foregoing language in § 46-11-504(1), MCA (1993), we set forth the

following three-part test in Tadewaldt to determine whether a subsequent prosecution

was barred under the terms of the statute as it existed at that time:

              (1) a defendant’s conduct constitutes an offense within the
       jurisdiction of the court where the first prosecution occurred and within the
       jurisdiction of the court where the subsequent prosecution is pursued;
              (2) the first prosecution resulted in an acquittal or a conviction; and
              (3) the subsequent prosecution is based on an offense arising out of
       the same transaction.

Tadewaldt, 277 Mont. at 264, 922 P.2d at 465.1


1
  Section 46-11-504, MCA, was amended in 1997 after our decision in Tadewaldt was
handed down. See Laws of Montana, 1997, Ch. 162, § 1. Section 46-11-504, MCA, now
provides:
              Former prosecution in another jurisdiction. When conduct
       constitutes an offense within the jurisdiction of any state or federal court, a
                                              8
¶23    In addition, the phrase “same transaction” was defined in 46-1-202(22), MCA

(1993) (now § 46-1-202(23), MCA), as

       conduct consisting of a series of acts or omissions that are motivated by:
              (a) a purpose to accomplish a criminal objective and that are
       necessary or incidental to the accomplishment of that objective; or
              (b) a common purpose or plan that results in the repeated
       commission of the same offense or effect upon the same person or the
       property of the same person.

¶24    Heddings claims that the question under § 46-1-202(23)(a), MCA, is not whether

the acts were the same or involved the same victims; the controlling question under our

decision in Neufeld is whether “a defendant’s underlying conduct which gives rise to

each prosecution is motivated by a purpose to accomplish the same criminal objective.”

Neufeld, ¶ 20. Here, Heddings argues that obtaining depictions of children in sexually

explicit conduct and sexually touching a child are motivated by the same unlawful sexual

purpose and are, thus, within the definition of “same transaction” in § 46-1-202(23)(a),


       prosecution in any jurisdiction is a bar to a subsequent prosecution in this
       state if:
               (1) the first prosecution resulted in an acquittal or in a conviction
       and the subsequent prosecution is based on an offense arising out of the
       same transaction; or
               (2) the former prosecution was terminated, after the charge had been
       filed, by an acquittal or by a final order or judgment for the defendant that
       has not been set aside, reversed, or vacated and the acquittal, final order, or
       judgment necessarily required a determination inconsistent with a fact that
       must be established for conviction of the offense for which the defendant is
       subsequently prosecuted.

Under subsection (1) of this amended statute, a subsequent prosecution in Montana is
barred if (a) a defendant’s conduct constituted an offense within the jurisdiction of any
state or federal court; (b) the other jurisdiction’s prosecution resulted in an acquittal or a
conviction; and (c) the subsequent Montana prosecution is based on an offense arising
out of the same transaction.
                                              9
MCA. However, Heddings is construing the criminal objective in his case more broadly

than did the Court in Neufeld.

¶25    Neufeld was charged in the district court for having sexual intercourse with a

minor. Before trial on that charge, he was indicted and convicted in federal court of the

federal offenses of sexual exploitation of children and possessing child pornography

based on his videotaping the sexual acts with the child. After his conviction in federal

court, Neufeld moved to dismiss the State charges based on § 46-11-504, MCA. The

district court granted his motion to dismiss and the State appealed. Neufeld, ¶¶ 1-9.

¶26    This Court upheld the district court in Neufeld because the charging documents in

both the federal court and the State court referenced the same time frame, the same sexual

conduct, and the same victim.         And, while the federal prosecution focused on

pornography, both the federal and State charges included, as a part of the offense, sexual

contact with the same victim. Neufeld, ¶¶ 19, 21.

¶27    Unlike Neufeld, the State and federal prosecutions in the case sub judice involved

different victims, different offenses and different time periods. In State court, Heddings

pled guilty to incest committed against his stepdaughter in 2000, while in federal court,

Heddings pled guilty to receipt and possession of child pornography and destruction of

property, offenses that were committed in 2005. In addition, Heddings’ stepdaughter was

not one of the identified victims of the child pornography offenses.

¶28    Nevertheless, Heddings suggests that the State and federal charges arose out of the

same transaction because his receipt of pornographic depictions of young girls was

incidental to, and motivated by, the same purpose as his incest conduct. Contrary to his

                                            10
contentions, however, Heddings’ criminal objective in the incest charge was to sexually

assault his stepdaughter, while his criminal objective in the pornography charges was to

possess child pornography. Hence, the conduct and objectives are distinct, and the State

charges and federal charges did not arise from the same transaction as defined in

§ 46-1-202(23)(a), MCA.

¶29    Heddings also challenges his State court conviction on Montana constitutional

double jeopardy grounds on the basis that he was prosecuted in State court for what he

claims was the same conduct that was used to increase his sentence in federal court. In

denying Heddings’ petition for postconviction relief, the District Court pointed out that

both this Court and the United States Supreme Court expressly rejected the argument that

sentence enhancement for conduct which is later the basis for another conviction

constitutes double jeopardy.

¶30    In Witte v. United States, 515 U.S. 389, 115 S. Ct. 2199 (1995), the Supreme

Court held that the Double Jeopardy Clause of the United States Constitution does not bar

a prosecution for an offense when the underlying conduct of the offense was used to

enhance the sentence in a prior prosecution. And, in State v. Anderson, 1998 MT 258,

291 Mont. 242, 967 P.2d 413 (Anderson I), we held that a defendant’s conviction for a

third offense DUI did not constitute double jeopardy when the underlying conduct for the

DUI charge was considered at sentencing on a separate charge of operating a motor

vehicle after having been declared a habitual traffic offender.

¶31    In his supplemental brief on appeal, Heddings maintained that Anderson I and

Witte were not controlling in this case because both decisions exclusively considered the

                                             11
Double Jeopardy Clause of the United States Constitution, thus they could not be used to

interpret the double jeopardy protections set forth in the Montana Constitution. However,

in his supplemental reply brief, Heddings withdrew his Montana constitutional double

jeopardy claim based on this Court’s holding in State v. Anderson, 2001 MT 188, 306

Mont. 243, 32 P.3d 750 (Anderson II), wherein this Court rejected the argument that

Anderson I would have been decided differently under Montana constitutional double

jeopardy analysis and this Court’s decision in State v. Guillaume, 1999 MT 29, 293

Mont. 224, 975 P.2d 312 (holding that the double jeopardy provision found in Article II,

Section 25 of the Montana Constitution affords greater protection against multiple

punishment than does the Fifth Amendment to the United States Constitution).

¶32   Heddings having withdrawn his objections to the District Court’s reliance on Witte

and Anderson I, we conclude that the District Court’s determination that those two cases

are controlling here is without error. We also conclude that Heddings’ counsel cannot

have provided ineffective assistance by failing to raise a double jeopardy objection when

two of the controlling cases at the time held that double jeopardy does not bar a

prosecution for an offense when the underlying conduct of the offense was used to

enhance the sentence in a prior prosecution—exactly contrary to the argument Heddings

attempts to make here.

¶33   In Whitlow we engaged in an exhaustive examination of the law underlying the

performance prong of Strickland. Whitlow, ¶¶ 10-21. As we observed, our standard for

evaluating counsel’s performance for purposes of Strickland is reasonableness—the

appropriate inquiry being whether counsel’s conduct fell below an objective standard of

                                           12
reasonableness measured under prevailing professional norms and in light of the

surrounding circumstances. Whitlow, ¶ 20. Examined through this lens, a claim of

constitutionally ineffective assistance of counsel will not succeed when predicated upon

counsel’s failure to make motions or objections which, under the circumstances, would

have been frivolous, which would have been, arguably, without procedural or substantive

merit, or which, otherwise, would likely not have changed the outcome of the proceeding.

While not phrased in precisely this fashion, that, nevertheless, has been and remains the

principle of law to which this Court adheres. See e.g. State v. Hildreth, 267 Mont. 423,

432-33, 884 P.2d 771, 777 (1994); State v. Maki, 2004 MT 226, ¶¶ 10-12, 322 Mont. 420,

97 P.3d 556; State v. Frasure, 2004 MT 305, ¶ 12, 323 Mont. 479, 100 P.3d 1013; Adams

v. State, 2007 MT 35, ¶ 37, 336 Mont. 63, 153 P.3d 601; Foston v. State, 2010 MT 281,

¶ 13, 358 Mont. 469, 245 P. 3d 1103.

                                       Conclusion

¶34    Under this standard of review, we hold that the failure of Heddings’ trial counsel

to move for the dismissal of the State incest charge on double jeopardy grounds did not

constitute ineffective assistance since the motion lacked merit and would not have

changed the outcome of the proceedings. Accordingly, we affirm the decision of the

District Court.

¶35    Affirmed.

                                                                /S/ JAMES C. NELSON



We Concur:

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/S/ BRIAN MORRIS
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JIM RICE




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