                                                                                          March 16 2010




                                          DA 09-0166

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2010 MT 51



FRANK LEROY ROBINSON

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.


APPEAL FROM:          District Court of the Twenty-First Judicial District,
                      In and For the County of Ravalli, Cause No. DV-08-451
                      Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      William F. Hooks; Hooks & Wright, P.C., Helena, Montana

               For Appellee:

                      Hon. Steve Bullock, Montana Attorney General; John Paulson,
                      Assistant Attorney General, Helena, Montana

                      George H. Corn, Ravalli County Attorney; T. Geoffrey Mahar,
                      Deputy County Attorney, Hamilton, Montana


                                                  Submitted on Briefs: January 13, 2010

                                                             Decided: March 16, 2010


Filed:

                      __________________________________________
                                        Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Frank Robinson (Robinson) appeals from an opinion and order of the Twenty-First

Judicial District Court, Ravalli County, denying postconviction relief without a hearing.

We affirm.

¶2     We restate the issues on appeal as follows:

¶3     Whether the District Court properly denied, without an evidentiary hearing,

Robinson’s postconviction claim that his trial counsel’s failure to request a jury poll

about a newspaper article constituted ineffective assistance of counsel.

¶4     Whether the District Court properly denied Robinson’s postconviction claim that

he was denied the effective assistance of counsel due to a breakdown in the attorney-

client relationship.

                                    BACKGROUND

¶5     Robinson was convicted by a jury of two counts of felony assault on a peace

officer, failure to register as a sexual offender, and resisting arrest, on July 21, 2005.

Robinson was sentenced as a persistent felony offender to 30 years at the Montana State

Prison on September 21, 2005. This Court affirmed the convictions and sentence on

direct appeal on February 5, 2008. State v. Robinson, 2008 MT 34, 341 Mont. 300, 177

P.3d 488.

¶6     Robinson was represented at trial and on appeal by attorney Matthew M.

Stevenson (Stevenson). On June 28, 2005, three weeks before trial, Stevenson filed a

motion to continue the trial, on the grounds that Robinson wanted to hire a private


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attorney who would need more than three weeks to prepare for trial. However, Robinson

never retained private counsel.     Judge James A. Haynes denied the motion after

discussing the matter with counsel at a hearing on July 1, 2005. Judge Haynes received a

letter from Robinson on July 6, 2005, explaining that he was unsatisfied with Stevenson’s

work and was formally firing him due to ineffective assistance, and requesting a

continuance to have adequate time to retain new counsel. Judge Haynes held a hearing

the next day and Robinson requested to represent himself.

¶7    After the hearing, Stevenson filed a motion for an order permitting Robinson to

substitute counsel.   Stevenson indicated that when he visited Robinson at the jail,

Robinson told him to never come back.           Stevenson asserted that his attempts at

communicating with Robinson had fallen on deaf ears, and that his communications had

been misunderstood or construed as lies. Stevenson stated that “[d]efense counsel has no

vested interest in this case, other than doing his job (which he feels he has done and

continues to do).” Although he believed that any other attorney would have similar

problems communicating with Robinson, Stevenson agreed with Robinson’s assertion

that communications between them had been irretrievably broken. Stevenson therefore

reluctantly joined in Robinson’s request for substitution of counsel. At a hearing on July

14, Judge Haynes advised the parties that Robinson’s request to proceed pro se would be

addressed by Judge Langton on the morning of the first day of trial.

¶8    Before the jury was called on July 18, 2005, the question of Robinson’s

representation was discussed at length in chambers. Robinson claimed that he could not

trust Stevenson after Stevenson said he had objected to the State raising the existence of

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parole conditions when he did not. Stevenson explained that Robinson wanted him to

make an invalid objection, but that he had objected to a warrantless search. Stevenson

indicated that Robinson did not understand his explanation and decided that Stevenson

was lying. Additionally, when Robinson wanted to hire private counsel, Stevenson’s

motion to continue was not supported by an affidavit. Stevenson said there were no

grounds for a continuance because new counsel was not hired yet. The court found that

there were no grounds to support a claim of ineffective assistance and Robinson could

either continue with Stevenson or represent himself. Robinson renewed his request for a

continuance so his family could retain new counsel. Judge Langton denied the request

and Stevenson remained as counsel during the trial.

¶9     On August 14, 2008, Robinson filed a pro se petition for postconviction relief,

alleging various claims of ineffective assistance of counsel against Stevenson.           The

District Court denied relief and dismissed the petition without a hearing on February 26,

2009. Robinson now appeals from the denial of postconviction relief.

                               STANDARD OF REVIEW

¶10    This Court reviews a district court’s denial of a petition for postconviction relief to

determine whether the district court’s findings of fact are clearly erroneous and its

conclusions of law are correct. Hirt v. State, 2009 MT 116, ¶ 24, 350 Mont. 162, 206

P.3d 908. Ineffective assistance of counsel claims present mixed questions of fact and

law that this Court reviews de novo. Hirt, ¶ 24.

¶11    A request for substitution of appointed counsel is within the sound discretion of

the district court, and this Court will not overrule such a ruling absent an abuse of

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discretion. State v. Hendershot, 2007 MT 49, ¶ 19, 336 Mont. 164, 153 P.3d 619. A

district court abuses its discretion if it “acted arbitrarily without employment of

conscientious judgment or exceeded the bounds of reason resulting in substantial

injustice.” Hendershot, ¶ 19.

                                     DISCUSSION

¶12    The Sixth Amendment to the United States Constitution, as incorporated through

the Fourteenth Amendment, and Article II, Section 24, of the Montana Constitution

guarantee a criminal defendant the right to effective assistance of counsel. To evaluate

claims of ineffective assistance of counsel, this Court has adopted the two-prong test

from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 1064 (1984). State v.

Crosley, 2009 MT 126, ¶ 54, 350 Mont. 223, 206 P.3d 932. Under the Strickland test, the

defendant must establish that 1) counsel’s performance fell below an objective standard

of reasonableness, and 2) a reasonable probability exists that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. Crosley,

¶ 54. This test can be summarized as requiring a showing of deficiency and prejudice to

prove ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 1064.

¶13    There is a strong presumption under the Strickland deficiency prong that trial

counsel’s performance was based on sound trial strategy and falls within the broad range

of reasonable professional conduct. Crosley, ¶ 55. Regarding the Strickland prejudice

prong, “[a] reasonable probability is a probability sufficient to undermine confidence in

the outcome. When a defendant challenges a conviction, the defendant must show the



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fact finder’s reasonable doubt respecting guilt could have been routed by the

unprofessional errors of counsel.” Crosley, ¶ 55.

¶14    Whether the District Court properly denied, without an evidentiary hearing,

Robinson’s postconviction claim that his trial counsel’s failure to request a jury poll

about a newspaper article constituted ineffective assistance of counsel.

¶15    Robinson alleges that Stevenson’s failure to poll the jury regarding whether any

jurors had read a local newspaper account of the trial constitutes ineffective assistance of

counsel. The District Court summarily rejected Robinson’s contention, concluding that it

failed to satisfy the procedural threshold for postconviction relief.       Section 46-21-

104(1)(c), MCA, requires a petition for postconviction relief to “identify all facts

supporting the grounds for relief set forth in the petition and have attached affidavits,

records, or other evidence establishing the existence of those facts.” The District Court

noted in its order that at the close of each day of the trial, the court admonished the jury

to avoid any press coverage of the trial, and specifically to avoid looking at newspapers

unless someone else excised any stories about the trial.        The court concluded that

Robinson merely speculated that jurors disregarded these admonishments and failed to

identify a single fact to support this speculation.

¶16    Robinson discusses at length the utility of jury polling to determine if jurors were

exposed to and influenced by prejudicial news coverage. Robinson’s argument presents a

chicken and egg conundrum: since his lawyer refused to poll the jury, Robinson claims

he could not determine whether jurors read the newspaper account, yet this lack of

information undermined his petition for postconviction relief, since he could not meet the

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procedural threshold of identifying facts to support relief. Robinson overstates his case.

The question presented here is not whether jury polling is generally valuable, but whether

Robinson’s lawyer was ineffective for not polling the jury regarding whether they read a

newspaper article. Simply because it may be possible to poll a jury in a particular

situation does not mean that a failure to poll the jury constitutes ineffective assistance of

counsel.

¶17        Focusing our analysis on the question of ineffective assistance of counsel,

Robinson fails to establish any prejudice resulting from his counsel’s failure to request

jury polling. Specifically, Robinson’s petition fails to show how polling the jury would

have changed the results of the proceedings. In State v. Kirkland, this Court noted that

the defendant had not submitted any facts indicating that any juror had been exposed to

the news accounts of the trial, and the Court found no abuse of discretion in the district

court’s denial of the defendant’s request to poll the jury. 184 Mont. 229, 242-43, 602

P.2d 586, 594 (1979). If a court did not abuse its discretion by denying a request for a

jury poll in the absence of evidence that some member of the jury was exposed to

potentially prejudicial newspaper accounts, counsel cannot be ineffective for declining to

request jury polling without evidence that a juror may have been exposed to a newspaper

article.

¶18        Furthermore, the newspaper article in question is a factual, non-editorialized

account of the first day of trial. Although the article references Robinson’s history of

escape and assault, the court permitted the prosecutor to refer generally to this history in

order to explain the precautions taken by the officers in serving the arrest warrant on

                                              7
Robinson. Thus, we are unconvinced that any prejudice would occur had a juror not

followed the court’s admonishments to avoid the news reports during trial. We cannot

assume, in the absence of any evidence to the contrary, that jurors in fact read this

particular newspaper article or were prejudiced by it.

¶19    Finally, this Court has observed that postconviction proceedings are not a fishing

expedition or discovery device in which a petitioner, through broad allegations in a

verified petition, may establish the right to an evidentiary hearing. Smith v. State, 2000

MT 327, ¶ 28, 303 Mont. 47, 15 P.3d 395. Robinson has failed to demonstrate that his

counsel was ineffective by not polling the jury regarding their exposure to a newspaper

account of his trial or that the District Court erred by failing to hold a hearing on the

request.

¶20    Whether the District Court properly denied Robinson’s postconviction claim that

he was denied the effective assistance of counsel due to a breakdown in the attorney-

client relationship.

¶21    Robinson claims there was a clear irremediable breakdown in the attorney-client

relationship, confirmed by Stevenson’s agreement that all communications had broken

down. Robinson supports his claim by citing this Court: “[i]f the relationship between

lawyer and client completely collapses, the refusal to substitute new counsel violates the

defendant’s right to effective assistance of counsel.”     Hendershot, ¶ 24.    Robinson

attempts to illustrate the breakdown in communications by citing some of Stevenson’s

comments to the court at the July 18 hearing on his motion to permit substitution of



                                             8
counsel: Robinson’s actions were a ploy to delay trial; Robinson was making a “personal

attack” that was unfair and misguided; and Stevenson was “fed up” with Robinson.

¶22   The District Court concluded that Stevenson’s statements were insufficient to

warrant substitution of counsel in the absence of any complaints of substance. The court

examined how the misunderstanding about a potential objection initiated the

disagreement between attorney and client. Despite Stevenson’s efforts to explain the

legal basis for one objection and lack of validity for another, Robinson concluded that

Stevenson lied to him and sought to fire him and retain private counsel. At that point

communications between attorney and client broke down. The District Court reiterated

the “strong presumption that counsel’s defense strategies and trial tactics fall within a

wide range of reasonable and sound professional decisions” and then reasoned:

      While unfortunate that Robinson misunderstood the rationale behind Mr.
      Stevenson’s trial tactics and professional decisions and, as a result,
      attempted to fire him and ceased communications with him, that alone is
      insufficient to warrant a change in court-appointed counsel. Otherwise, a
      defendant could claim “irretrievable breakdown in communication” with
      every court-appointed attorney, ad infinitum. A defendant must, at the
      least, present “seemingly substantial complaints” about court-appointed
      counsel. Robinson failed to do so.

¶23   We agree. This Court has clarified that a defendant has a right to meaningful

representation, but not a right to “a meaningful client-attorney relationship.” State v.

Gallagher, 2001 MT 39, ¶ 21, 304 Mont. 215, 19 P.3d 817. Bare unsupported allegations

are insufficient to establish the total lack of communication required to warrant

appointment of new counsel. Gallagher, ¶ 10. The record demonstrates that Stevenson

maintained communication with Robinson until just prior to trial when Robinson refused


                                           9
to speak with him. Significantly, nothing in the record suggests that Stevenson’s actual

performance at trial was deficient. Stevenson filed four motions in limine regarding

evidence to be presented at trial, presented opening and closing arguments, cross-

examined the State’s witnesses, presented a witness to the arrest, and was well-prepared

despite not knowing whether he would actually try the case in the weeks immediately

preceding trial. The record supports finding that counsel’s performance was reasonable,

and certainly Robinson has presented nothing that overcomes the strong presumption that

trial counsel’s performance was based on sound trial strategy and falls within the broad

range of reasonable professional conduct. Crosley, ¶ 55.

¶24   Robinson himself appears to have initiated the breakdown in communication upon

which he now bases his ineffective assistance of counsel claim. This falls short of the

“complete collapse” of the relationship between attorney and client that this Court

discussed in Hendershot. In Hendershot, the attorney did not attend two substantive

procedural hearings, one on the adequacy of his representation; did not answer requests to

visit Hendershot or actually see him for months between incarceration and a hearing;

scheduled a change of plea hearing without discussing a change of plea with Hendershot;

declined to question the State’s witnesses; instructed Hendershot to remain silent; joined

the State’s recommendation for sentencing; and told the court that communications

between attorney and client had reached “an irreparable state” and actively joined in

Hendershot’s request to sever the attorney-client relationship. Hendershot, ¶¶ 25-26.

Additionally, the conflict between Hendershot and his attorney arose early in the

relationship and deteriorated for some time until it reached the “irreparable state”

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described by both attorney and client. Hendershot, ¶ 30. Thus, the facts of Hendershot

that support an ineffective assistance of counsel claim based on a “complete collapse” in

the attorney-client relationship or “irreconcilable conflict” contrast starkly with the facts

here. Robinson presented his claim three weeks before trial, based his claim on a

disagreement about trial strategy, and initiated the breakdown in communications

himself. While Stevenson agreed with Robinson’s assertion that communications

between them had been irretrievably broken and reluctantly joined in Robinson’s request

for substitution of counsel, this was not akin to counsel affirmatively arguing against his

client as Robinson claims. Stevenson simply acknowledged that Robinson refused to

communicate with him, yet despite these difficulties, Stevenson continued to perform

reasonably.

¶25    The District Court adequately inquired into Robinson’s complaints at the July 18

hearing on substitution of counsel. After hearing from both Robinson and Stevenson, the

court found no grounds to support an ineffective assistance of counsel claim.            The

District Court did not abuse its discretion in denying Robinson’s request to permit

substitution of counsel, nor was Robinson denied effective assistance of counsel due to a

breakdown in the attorney-client relationship.

¶26    Affirmed.



                                                  /S/ MIKE McGRATH




                                             11
We concur:

/S/ MICHAEL E WHEAT
/S/ PATRICIA O. COTTER
/S/ JIM RICE




Justice James C. Nelson, specially concurring.

¶27    I concur in the Court’s decision, although I do so under a different rationale with

respect to Issue 1.

¶28    Initially, it should be noted that as to Robinson’s claim that defense counsel

rendered constitutionally deficient performance by not polling the jury about the

newspaper article, the District Court denied this claim not based on the merits, but

pursuant to § 46-21-104(1)(c), MCA, which states that a petition for postconviction relief

must “identify all facts supporting the grounds for relief set forth in the petition and have

attached affidavits, records, or other evidence establishing the existence of those facts.”

Robinson makes a plausible argument on appeal that a defendant whose counsel fails to

poll a jury about a news story is thereby severely handicapped in his ability to

demonstrate in the postconviction arena that he was prejudiced by counsel’s conduct,

particularly where (as here) the district court refuses to grant a postconviction evidentiary



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hearing on the matter. I see no need to reach this issue, however, because in my view

Robinson’s claim fails for a more basic procedural reason.

¶29    As we do here, we applied the two-prong test of Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2052 (1984), in Whitlow v. State, 2008 MT 140, 343 Mont. 90, 183

P.3d 861. In Whitlow, we clarified the relevant inquiry under the test’s first prong (i.e.,

whether counsel’s performance was deficient) and overruled a number of cases that were

contrary to this inquiry. See Whitlow, ¶¶ 12-21. Specifically, we explained that “ ‘[t]he

proper measure of attorney performance remains simply reasonableness under prevailing

professional norms.’ ” Whitlow, ¶ 14 (quoting Strickland, 466 U.S. at 688, 104 S. Ct. at

2065). Thus, we further explained that in order to overcome the strong presumption that

counsel’s conduct fell within the wide range of reasonable professional assistance, the

convicted defendant making a claim of ineffective assistance must demonstrate that

“counsel’s conduct fell below an objective standard of reasonableness measured under

prevailing professional norms and in light of the surrounding circumstances. ” See

Whitlow, ¶¶ 20-21, 33, 39-40.

¶30    In the present case, Robinson’s petition for postconviction relief suffers from the

same inadequacies as Whitlow’s. See Whitlow, ¶ 38. I agree with the Court that simply

because a jury could be polled in a particular situation does not mean that counsel is per

se ineffective for failing to do so. Opinion, ¶ 16. Hence, it was incumbent on Robinson

to show that attorney Stevenson’s failure to poll the jury in this case fell below an

objective standard of reasonableness measured under prevailing professional norms and

in light of the surrounding circumstances. Whitlow, ¶ 20. Yet, like Whitlow, Robinson

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did not offer any evidence of what prevailing professional norms applied to Stevenson’s

performance, much less attempt to demonstrate how Stevenson’s conduct fell below an

objective standard of reasonableness measured under those norms and in light of the

surrounding circumstances. Rather, like Whitlow, Robinson’s claim was based on bald

speculation, pure hindsight, and his personal belief that it was unreasonable for Stevenson

not to poll the jury. Cf. Whitlow, ¶¶ 36-38. This is plainly insufficient to support an

ineffective assistance of counsel claim in the District Court, and appellate counsel’s

contrary arguments do not cure the underlying procedural deficiencies in Robinson’s

petition, all of which brings me to a concluding observation.

¶31    Whitlow has been the law of this State for two years. Yet, in that time, I have seen

few petitions for postconviction relief actually supported with affidavits or other evidence

of prevailing professional norms plus an analysis of how trial counsel’s conduct fell

below an objective standard of reasonableness.           Postconviction petitioners must

understand that they bear “a heavy burden” to overcome the strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance. See

Whitlow, ¶ 21. A postconviction petitioner’s burden of proof requires that his or her

petition for postconviction relief be supported with evidence; bald speculation, mere

assumptions, conclusory assertions, and 20-20 hindsight will not suffice.        Here, the

District Court properly ruled that Robinson’s petition was procedurally deficient.1


       1
         As an aside, I am not sure what to make of the Court’s reasoning in ¶ 17. In that
paragraph’s last sentence (which seems to relate more to counsel’s performance than to
the issue of prejudice), the Court suggests that trial counsel who fails to obtain evidence
that a juror may have been exposed to a newspaper article cannot be ineffective for
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¶32   Based on the foregoing rationale, I specially concur in our decision to affirm the

District Court’s dismissal of Robinson’s “jury polling” claim.



                                                 /S/ JAMES C. NELSON




declining to request jury polling. Yet, counsel might be ineffective for the very reason
that he did not monitor the news coverage and obtain the requisite evidence to support
such a request. And that, in my view, is where Robinson’s claim fails. Although he
contends that Stevenson’s failure to poll the jury constitutes constitutionally deficient
performance, he has not satisfied Whitlow’s requirement that such a claim be supported
by evidence of prevailing professional norms and an analysis of counsel’s conduct in
light of those norms and the surrounding circumstances.
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