                                                                                       December 13 2007


                                          DA 06-0411

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2007 MT 336



REGINALD BERNARD ADGERSON,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.


APPEAL FROM:          District Court of the First Judicial District,
                      In and For the County of Lewis and Clark, Cause No. ADV 2004-792
                      Honorable Dorothy McCarter, Presiding Judge

COUNSEL OF RECORD:

               For Appellant:

                      Kris Copenhaver-Landon, Public Defender Regional Director;
                      Eric P. Bunn, Deputy Public Defender; Billings, Montana

               For Appellee:

                      Hon. Mike McGrath, Attorney General; Tammy Plubell, Assistant
                      Attorney General, Helena, Montana

                      Leo J. Gallagher, Lewis and Clark County Attorney, Helena, Montana



                                                  Submitted on Briefs: July 11, 2007

                                                             Decided: December 13, 2007


Filed:
                      __________________________________________
                                        Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1     Reginald Bernard Adgerson (Adgerson) appeals from the order entered by the First

Judicial District Court, Lewis and Clark County, denying his petition for postconviction

relief. We affirm.

¶2     Adgerson contends that the District Court erred in denying his postconviction relief

petition and raises two issues in support of that contention:

¶3     1. Did the District Court err in failing to grant Adgerson’s postconviction petition on

the basis that the trial court abused its discretion in admitting evidence of other crimes,

wrongs or acts at trial?

¶4     2. Did the District Court err in concluding that Adgerson received effective assistance

of appellate counsel?

                                     BACKGROUND

¶5     In 2002, a jury convicted Adgerson of felony stalking for conduct he directed toward

his ex-wife between the months of March and July of 2001. He appealed from the judgment

on his conviction, raising three issues: 1) whether the trial court erred by failing to recuse

itself and whether the prosecutor for the State of Montana (State) committed misconduct by

failing to remove his office as prosecutor; 2) whether Adgerson was denied effective

assistance of trial counsel; and 3) whether the trial court erred in denying his motion to

dismiss based on his assertion that the statute defining the offense of stalking is

unconstitutional. See State v. Adgerson, 2003 MT 284, ¶¶ 6-9, 318 Mont. 22, ¶¶ 6-9, 78 P.3d


                                              2
850, ¶¶ 6-9. We declined to address the first issue because Adgerson failed to properly

preserve it for appeal. Adgerson, ¶ 14. We also declined to address the second issue because

Adgerson’s ineffective assistance of trial counsel claim was not sufficiently record-based.

Adgerson, ¶¶ 21-22. With regard to the third issue, we concluded Adgerson had not

established that Montana’s stalking statute was unconstitutional and, therefore, the District

Court did not err in denying his motion to dismiss on that basis. We affirmed Adgerson’s

conviction. Adgerson, ¶ 29.

¶6     In October of 2004, Adgerson—acting on his own behalf—timely petitioned for

postconviction relief in the District Court. The District Court appointed counsel to represent

Adgerson in the proceeding and his counsel filed an amended postconviction relief petition

raising two claims: 1) that Adgerson’s appellate counsel rendered ineffective assistance by

failing to raise the issues of whether the trial court erred in admitting other crimes evidence

at trial and whether the jury was properly instructed regarding rendering a unanimous verdict

on appeal; and 2) that Adgerson’s right to due process of law under the Montana and United

States Constitutions was violated when the trial court and prosecutor in the underlying

criminal proceeding refused to recuse themselves from the case. Adgerson and the State

both briefed their respective positions, and Adgerson’s appellate counsel filed an affidavit in

response to Adgerson’s ineffective assistance of appellate counsel claim. In its order

denying Adgerson’s petition, the District Court concluded he failed to establish ineffective

assistance by appellate counsel and his remaining claims were procedurally barred under §

46-21-105(2), MCA. Adgerson appeals.
                                              3
                                STANDARD OF REVIEW

¶7     In reviewing a district court’s denial of a petition for postconviction relief, we

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

conclusions of law correct. State v. Evert, 2007 MT 30, ¶ 12, 336 Mont. 36, ¶ 12, 152 P.3d

713, ¶ 12.

                                        DISCUSSION

¶8     1. Did the District Court err in failing to grant Adgerson’s postconviction
petition on the basis that the trial court abused its discretion in admitting evidence of
other crimes, wrongs or acts at trial?

¶9     In the underlying criminal proceeding, the State charged Adgerson with felony

stalking based on actions which he committed between the months of March and July of

2001. Before trial, the State filed a notice of its intent to present evidence at trial regarding

Adgerson’s conduct and criminal convictions prior to March of 2001. The State asserted the

evidence was admissible under M. R. Evid. 404(b) and our decision in State v. Just, 184

Mont. 262, 602 P.2d 957 (1979), as modified in State v. Matt, 249 Mont. 136, 814 P.2d 52

(1991), because it tended to establish the existence of a common scheme by Adgerson to

harass and terrify the victim. In response, Adgerson moved in limine to preclude admission

of the evidence. The trial court denied Adgerson’s motion in part and granted it in part, and

allowed the State to present the prior crimes and acts evidence under specified conditions.

Adgerson did not challenge the court’s decision in this regard in his direct appeal.

¶10    In his memorandum in support of his postconviction relief petition, Adgerson argued

extensively that the trial court abused its discretion by admitting the other crimes/acts
                                               4
evidence at trial in order to lay a foundation for his claim that he received ineffective

assistance of appellate counsel. In its response brief, the State asserted that § 46-21-105(2),

MCA, barred Adgerson from directly challenging the trial court’s evidentiary ruling via

postconviction proceedings. On appeal, Adgerson contends the District Court erred by not

granting his petition based on the trial court’s erroneous evidentiary ruling and the State

again responds that his challenge to the trial court’s ruling is procedurally barred. We agree

with the State.

¶11    “When a petitioner has been afforded the opportunity for a direct appeal of the

petitioner’s conviction, grounds for relief that were or could reasonably have been raised on

direct appeal may not be raised, considered, or decided in a [postconviction relief

proceeding].” Section 46-21-105(2), MCA. Alleged errors committed by a district court

during trial which ostensibly affect the outcome of a case must be raised on direct appeal.

See State v. Woods, 2005 MT 186, ¶ 30, 328 Mont. 54, ¶ 30, 117 P.3d 152, ¶ 30. Thus, a

trial court’s allegedly erroneous evidentiary ruling regarding admission of other crimes/acts

evidence at trial is an issue which must be raised on direct appeal rather than via a

postconviction relief proceeding. We conclude that Adgerson’s direct challenge to the trial

court’s admission of other crimes/acts evidence is procedurally barred by § 46-21-105(2),

MCA.

¶12    Adgerson also presents a passing argument that we should address this claim under

our common law doctrine of plain error review. However, we consistently apply the

statutory procedural bar “in order to prevent the abuse of postconviction relief by criminal
                                              5
defendants who would substitute those proceedings for direct appeal.” Ford v. State, 2005

MT 151, ¶ 14, 327 Mont. 378, ¶ 14, 114 P.3d 244, ¶ 14. While an exception to this

procedural bar exists where a postconviction petitioner demonstrates a fundamental

miscarriage of justice, the exception only applies to claims alleging newly discovered

evidence which establishes that the petitioner did not commit the underlying offense. Evert,

¶ 16. Adgerson does not allege the existence of newly discovered evidence and provides no

authority for his contention that our common law plain error doctrine may be applied in

postconviction proceedings.

¶13    Finally, Adgerson contends, also in passing, that the due process provisions of the

United States and Montana Constitutions require that his conviction be reversed because the

trial court’s erroneous admission of the other crimes/acts evidence rendered his trial

fundamentally unfair. Adgerson did not raise a due process argument in support of this

claim in his postconviction relief petition in the District Court. We frequently have held that

we will not address issues raised for the first time on appeal. Ford, ¶ 12. Consequently, we

decline to address this argument further.

¶14    We hold that the District Court did not err in failing to grant Adgerson’s

postconviction petition on the basis that the trial court abused its discretion in admitting

evidence of other crimes, wrongs or acts at trial.

¶15 2. Did the District Court err in concluding that Adgerson received effective
assistance of appellate counsel?




                                              6
¶16    In his postconviction relief petition, Adgerson claimed that his appellate counsel

rendered ineffective assistance by failing to raise on appeal the issue of whether the trial

court abused its discretion in allowing the State to present other crimes/acts evidence at trial.

The District Court determined that Adgerson’s appellate counsel made a reasonable strategic

decision not to raise the issue on appeal and, as a result, Adgerson had failed to establish his

appellate counsel was ineffective. Adgerson asserts the District Court’s determination in this

regard is erroneous.

¶17    When addressing ineffective assistance of counsel claims, we apply the two-prong test

set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984),

which requires the defendant to establish that his or her counsel’s performance was deficient

and that the deficient performance prejudiced the defense, thereby depriving the defendant of

a fair trial. Dawson v. State, 2000 MT 219, ¶ 20, 301 Mont. 135, ¶ 20, 10 P.3d 49, ¶ 20. We

apply this same two-prong test when considering a petitioner’s postconviction claim of

ineffective assistance of appellate counsel, requiring the petitioner to demonstrate that

“counsel’s advice fell below an objective standard of reasonableness and that there is a

reasonable probability that, but for counsel’s unprofessional errors, the petitioner would have

prevailed on appeal.” Dawson, ¶ 147. A petitioner bears a heavy burden in seeking to

reverse a district court’s denial of postconviction relief based on a claim of ineffective

assistance of counsel. Dawson, ¶ 20. Furthermore, both prongs of the Strickland test must

be met, and a court is not required to address both prongs where a defendant makes an



                                               7
insufficient showing on one. State v. Vaughn, 2007 MT 164, ¶ 30, 338 Mont. 97, ¶ 30, 164

P.3d 873, ¶ 30.

¶18     In assessing whether counsel’s performance was deficient under the first prong of the

Strickland test, we have stated that a court’s scrutiny of counsel’s performance must be

highly deferential and there is a strong presumption that counsel’s actions regarding defense

strategies fall within a wide range of reasonable and sound professional assistance. Vaughn,

¶ 29.

        A defendant seeking to establish that counsel’s performance was deficient
        must show that counsel’s challenged actions stemmed from ignorance or
        neglect, rather than from professional deliberation. Thus, courts give
        counsel’s strategic decisions great deference and such strategic decisions
        cannot form the basis upon which to find ineffective assistance of counsel.

Vaughn, ¶ 29 (citation omitted). “Given the deference afforded counsel under the Strickland

test, strategic choices made after thorough investigation of the law and facts relevant to

plausible options are virtually unchallengeable.” State v. Thee, 2001 MT 294, ¶ 17, 307

Mont. 450, ¶ 17, 37 P.3d 741, ¶ 17.

¶19     As stated above, Adgerson’s appellate counsel filed an affidavit with the District

Court in response to Adgerson’s postconviction claim of ineffective assistance. In his

affidavit, appellate counsel stated that, prior to filing the opening brief on appeal, he had

numerous discussions with Adgerson regarding the possible issues to be raised in the direct

appeal and also consulted with other attorneys in determining which issues should be raised.

Appellate counsel further stated that, as a matter of legal strategy, he chose to raise on

appeal only those few issues which he believed had the most merit and chance of garnering a
                                              8
reversal of Adgerson’s conviction. Additionally, appellate counsel stated that, in his

professional judgment, the determination to admit the other crimes/acts evidence at trial was

within the trial court’s discretion and a challenge to that exercise of discretion was unlikely

to be successful on appeal.

¶20    Appellate counsel’s affidavit reflects that he made a reasoned strategic decision in

electing not to raise the other crime/acts evidence issue on direct appeal. His decision was

not a result of ignorance or neglect, but was a conscious and considered tactical choice. In

these circumstances, we cannot say that there was no plausible justification for counsel’s

decision. See, e.g., State v. Jefferson, 2003 MT 90, ¶ 50, 315 Mont. 146, ¶ 50, 69 P.3d 641, ¶

50. As a result, such tactical and strategic decisions “cannot form the basis upon which to

find ineffective assistance of counsel.” Vaughn, ¶ 29.

¶21    We conclude, therefore, that Adgerson has failed to establish under the first prong of

the ineffective assistance of counsel test that his appellate counsel’s performance was

deficient. Furthermore, because both prongs of the Strickland test must be met and

Adgerson has made an insufficient showing on the first prong, we are not required here to

address the prejudice prong. Vaughn, ¶ 30. As a result, we hold that the District Court did

not err in concluding that Adgerson received effective assistance of appellate counsel.

¶22    Affirmed.

                                                   /S/ KARLA M. GRAY

We concur:


/S/ W. WILLIAM LEAPHART
                                              9
/S/ JOHN WARNER
/S/ JIM RICE
/S/ BRIAN MORRIS



Justice Patricia O. Cotter dissents.

¶23    I concur with the Court’s resolution of Issue 1, but dissent from our resolution of

Issue 2. I would conclude that Adgerson received ineffective assistance of appellate counsel.

¶24    The Court concludes that because counsel made a strategic decision not to raise the

other crimes/acts evidence on direct appeal, the District Court did not err in concluding that

Adgerson received effective assistance of appellate counsel. Opinion, ¶¶ 20-21. While I

agree that our scrutiny of counsel’s performance must be highly deferential (Opinion, ¶ 18),

the fact that counsel’s decision not to raise an issue on appeal may have been strategic does

not render it unassailable. I submit that even under a highly deferential review, counsel’s

election not to appeal the District Court’s decision to admit other crimes and acts falls

outside the “wide range of reasonable and sound professional assistance.” Opinion, ¶ 18.

¶25    Trial counsel protested vigorously the State’s request to introduce evidence of other

crimes, arguing that the evidence did not fit within the Just/Matt criteria, and that it would be

extremely prejudicial. In addition, counsel filed a motion in limine seeking to preclude

admission of the particular bad acts and crimes evidence the State sought to introduce. After

the court granted the State’s motion to introduce the evidence, Adgerson’s trial counsel filed

a motion to reconsider, arguing that the District Court had misinterpreted the need to prove

Adgerson’s intent with other crimes evidence.           During trial, counsel sought further
                                               10
clarification and repeatedly objected to the introduction of this evidence. Thus, there is no

question that the objection to the other crimes and acts evidence was the most obvious and

well-preserved issue in the trial record; in fact, it was the mainstay of Adgerson’s defense.

¶26    While the State, in a “shotgun” Just Notice, offered a flurry of justifications for the

introduction of the other crimes evidence, the bottom line is that the State wanted to

demonstrate to the jury that Adgerson was convicted of a similar crime before, and therefore

he obviously did it again. The prosecutor trumpeted this very theme throughout his cross-

examination of Adgerson, and then closed the State’s case by arguing that Adgerson’s prior

convictions were the most persuasive and convincing evidence that he was guilty of the acts

with which he was charged in the instant case. The prosecutor stated to the jury: “What

stronger evidence do you need? He pled guilty to that behavior.” This is precisely the type

of argument that M. R. Evid. 404(b) was designed to preclude. State v. Keys, 258 Mont. 311,

317, 852 P.2d 621, 625 (1993).

¶27    Trial counsel—with the help of the State given the manner in which it presented its

case—created a compelling and comprehensive record for the proposition that the District

Court erred in admitting the other crimes evidence, providing appellate counsel with a clear

roadmap for appeal. Given this record and the questionable legal authority underlying the

District Court’s decision to admit the evidence to show proof of Adgerson’s intent and the

victim’s state of mind, appellate counsel was presented with ample opportunity to

demonstrate on appeal that the admission of such highly prejudicial evidence constituted an

abuse of discretion. This being so, I cannot agree that the decision not to raise this issue on
                                              11
appeal, regardless of the fact that it may have been tactical and strategic, “cannot form the

basis upon which to find ineffective assistance of counsel.” Vaughn, ¶ 29; Opinion, ¶ 20. In

my judgment, this is one of those rare instances in which the presumption that counsel’s

defense strategy falls within a wide range of reasonable and sound professional assistance,

must fail. I would conclude that counsel rendered ineffective assistance on appeal by failing

to raise this issue and on that basis, would reverse and remand for a new trial. I dissent from

our refusal to do so.

                                                          /S/ PATRICIA COTTER

Justice James C. Nelson joins the Dissent of Justice Patricia O. Cotter.


                                                          /S/ JAMES C. NELSON




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