                                          No. DA 06-0372

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2007 MT 55N


CHERYL CLIFFORD,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Respondent.


APPEAL FROM:         District Court of the First Judicial District,
                     In and For the County of Lewis and Clark, Cause No. CDV-2005-903
                     Honorable Thomas Honzel, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Cheryl Clifford, pro se, Butte, Montana

              For Respondent:

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

                     Robert L. Deschamps III, Special Prosecutor, Lewis and Clark
                     County, Missoula, Montana



                                                    Submitted on Briefs: January 31, 2007

                                                               Decided: February 27, 2007


Filed:

                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.


¶1      Pursuant to Section I, Paragraph 3(d), 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      The facts surrounding Cheryl Clifford’s felony convictions for fabricating physical

evidence and threats and improper influence are described in detail in State v. Clifford, 2005

MT 219, 328 Mont. 300, 121 P.3d 489, and need not be repeated here.

¶3      After her convictions were affirmed by this Court on direct appeal, Clifford filed a

petition for postconviction relief in the District Court claiming jury misconduct, ineffective

assistance of counsel, violation of due process, that one of the State’s investigators had a

conflict of interest, and religious persecution. The next month, Clifford filed a petition for

DNA testing.

¶4      The State responded that Clifford’s postconviction claims were unsupported by facts

or law, procedurally barred, and without merit. In its response to Clifford’s request for DNA

testing, the State relied upon the affidavit of Phil Kinsey, Ph.D., the DNA Technical Leader

at Montana’s Crime Lab, arguing that further testing would be a waste of time and would not

be reasonably more probative of whether Clifford or someone else was the perpetrator.

Additionally, the State argued that all evidence cited by Clifford was available for testing

prior to trial.
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¶5     Clifford now appeals the District Court’s denial of her petitions. We affirm.

¶6     I. Did the District Court err in denying Clifford’s petition for DNA testing?

¶7     Clifford cites to twenty-one pieces of DNA evidence, primarily envelopes, that she

claims the State “failed to develop,” and one brown hair that the State “failed to analyze.”

While not specifically explaining how testing the DNA would serve to exonerate her,

Clifford does point out that the hair sample “revealed dissimilarities in numerous

characteristics” from her hair, and thus there is doubt as to whether she committed the

felonies for which she has been convicted and the DNA should be further analyzed to prove

her innocence.

¶8     A petitioner seeking DNA testing must “explain, in light of all the evidence, how the

requested testing would establish the petitioner’s innocence of the felony . . . .” Section 46-

21-110(1)(c), MCA. In response to her petition, the State submitted Dr. Kinsey’s affidavit.

Dr. Kinsey concluded that extra testing would reveal no usable data. First, the DNA present

in the extracts, if any, is at such a low level that it is “below the detection limit. . . . ”

Second, the envelopes “were potentially handled by numerous individuals in receipt and

delivery of those envelopes.” Accordingly, even if the envelopes were subjected to more

sensitive testing and the DNA of other people was found, it would not establish Clifford’s

innocence. Finally, Clifford had the opportunity, before trial, to seek more sensitive testing

but did not do so. Clifford has therefore failed to meet the burden required for the court to

order additional DNA testing.



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¶9     II. Were Clifford’s due process rights violated by the prosecutor’s opening and

closing statements?

¶10    Clifford contends that the prosecutor, in his opening statement, stated that no DNA

evidence was found, and then admitted, in closing, that his argument was “still kind of

fuzzy.” These statements, according to Clifford, misled the jury and violated her due process

rights. Although Clifford failed to object below to either statement, she argues we should

analyze her claim under plain error review.

¶11    We utilize plain error review sparingly, reserving it for situations where failing to

review may result in a “manifest miscarriage of justice, may leave unsettled the question of

the fundamental fairness of the trial,” or “may compromise the integrity of the judicial

process.” State v. English, 2006 MT 177, ¶ 66, 333 Mont. 23, ¶ 66, 140 P.3d 454, ¶ 66

(citations omitted). Here, Clifford fails to demonstrate that failure to review her claim would

result in a “manifest miscarriage of justice.” As discussed in Issue I, there were no usable

DNA samples collected, so it is questionable whether any error occurred at all, much less one

plainly implicating Clifford’s constitutional rights.   We thus refuse to invoke plain error

review.

¶12    III. Did the District Court err in denying Clifford’s ineffective assistance of

counsel claim?

¶13    Clifford claims that her counsel’s work on appeal was so deficient that she should be

granted a new appeal. As evidence of her counsel’s ineffective assistance, she notes that this



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Court refused, on appeal, to address many key issues because her counsel failed to raise the

issue below, failed to cite authority, and failed to cite to sufficient evidence.

¶14    We evaluate IAC claims based on a two-part test. A defendant must prove: (1) that

the counsel’s performance was deficient; and (2) that counsel’s deficient performance was

prejudicial.” Dawson v. State, 2000 MT 219, ¶ 20, 301 Mont. 135, ¶ 20, 10 P.3d 49, ¶ 20.

To show prejudice, a defendant must demonstrate a reasonable probability that, but for

counsel’s errors, the result would have been different. Dawson, ¶ 20.

¶15    Here, Clifford fails to explain what her appellate counsel should have done differently,

and also fails to identify any specific issue that would have been resolved in her favor if this

Court had addressed it. Consequently, Clifford has not carried her burden of proving that her

counsel’s errors on appeal, if any, were prejudicial.

¶16    IV. Were Clifford’s due process rights violated when the District Court delayed

entering its written judgment?

¶17    Clifford claims that the District Court failed to enter written judgment within thirty

days after its oral pronouncement of sentence, and thus violated § 46-18-116(1), MCA.

Clifford further claims that the court’s failure to enter written judgment deprived this Court

of jurisdiction to hear her appeal, as the written judgment was not entered until October 5,

2005, after our opinion was issued but prior to remittitur.

¶18    Clifford’s proposition that the lack of a written judgment deprives this Court of

jurisdiction is unsupported by authority. The oral pronouncement of a sentence, not the

written judgment, is the legally effective sentence and valid final judgment. State v. Lane,

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1998 MT 76, ¶ 40, 288 Mont. 286, ¶ 40, 957 P.2d 9, ¶ 40. Additionally, Clifford has failed to

show prejudice as she was the party who filed the notice of appeal, submitted arguments for

this Court’s consideration, and received the benefit of a stay of execution of her sentence

pending appeal.

¶19    V. Did the actions of a State Agent bias the prosecution?

¶20    Finally, Clifford cites to a poem apparently written by a State Agent working on her

case that she claims shows he was biased against her. She argues, further, that the poem

creates a “strong threshold of doubt” concerning her guilt and then, in her reply, argues that

the Agent’s bias affected the prosecution of her case.

¶21    Clifford fails to cite any legal authority or other evidence for her contention that the

Agent’s bias affected the prosecution. Also, the poem is just that, a poem, and, though

certainly odd and perhaps poorly crafted, does not by itself raise reasonable doubt concerning

the conduct of the prosecution in her case.

¶22    It is appropriate to decide this case pursuant to our Order of February 11, 2003,

amending Section 1.3 of our 1996 Internal Operating Rules and providing for memorandum

opinions. It is manifest on the face of the briefs and the record before us that the appeal is

without merit because the findings of fact were not clearly erroneous and the court’s

conclusions of law are correct.

¶23    We affirm the judgment of the District Court.


                                                  /S/ W. WILLIAM LEAPHART

We concur:
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/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS




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