IN THE SUPREME COURT OF THE STATE OF PIONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
Defendant and Appellant.
District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
John Keith, Great Falls, Montana
For Respondent :
Ilon. Mike Greely, Attorney General, Helena, Montana
J. Fred Bourdeau, County Attorney, Great Falls,
Submitted on Briefs:
September 29, 1983
January 5, 1984
Mr. J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d
t h e Opinion of
C a s c a d e County.
We affirm the conviction.
a s s i s t a n c e of counsel.
The i s s u e i s w h e t h e r d e f e n s e c o u n s e l p e r f o r m e d w i t h i n
t h e range of
c o m p e t e n c e demanded
J u d g e Roth was
Roth a c c e p t e d j u r i s d i c t i o n and t r i e d t h e c a s e .
As a result
of h i s c o n v i c t i o n , a p p e l l a n t was s e n t e n c e d t o f i f t e e n y e a r s
i n t h e Montana S t a t e P r i s o n .
f a c t s a r e undisputed.
On A u g u s t
o p e r a t e t h e Town Pump g a s o l i n e s t a t i o n l o c a t e d a t 4 0 1 1 0 t h
in Great F a l l s ,
The two o p e r a t e d t h e
s t a t i o n by t h e m s e l v e s f r o m 7 a.m.
t o 1 0 p.m.,
acquainted with t h e Stouts.
seven days a
They t e s t i f i e d t h a t a p p e l l a n t
sometimes s e v e r a l t i m e s a d a y and p u r c h a s e d c i g a r e t t e s , b e e r
and g a s a t t h e i r s t a t i o n .
During t h i s time a p p e l l a n t , Dess,
s m a l l amount o f
H e would c h a r g e items and t h e n p a y o f f h i s c r e d i t
c h a r g e b e f o r e h e was a g a i n a l l o w e d t o c h a r g e .
shortly before closing.
who r e m a i n e d
i n or
D e s s showed J . C .
He was a c c o m p a n i e d by
two p e o p l e
t h e s t a t i o n wagon h e was d r i v i n g .
S t o u t a s t a t e w a r r a n t made o u t t o a n A l i c e
Wyborny, and t o l d him t h a t h e w a n t e d t o p a y h i s b i l l i f t h e
Stouts would cash the check.
He also wanted to buy beer,
gas and cigarettes.
The warrant had
indicated that it was a good check, but if it was necessary
he would bring
the lady who owned it in from the car to
that was not
necessary, but requested appellant to write his telephone
number on the back of the check.
Appellant wrote down a
phone number that was later determined to be assigned to one
Ralph P. Parsons.
Stout then cashed the warrant and gave
appellant $239 for the check.
Appellant used part of the
to pay his bill
and some to pay for his
He then left with his passengers,
enough never returned to the scene.
Late in August, Alice
Wyborny returned from a trip and discovered
that a state
warrant had been issued to her in her absence.
department to suggest they put a stop payment order on it,
and discovered it had already been cashed.
The check was
eventually returned to Town Pump by the bank marked "forged
counsel, appellant argues that counsel should have moved to
disqualify the trial judge for cause, moved
defendant's handwriting and
last that she should have
withdrawn as counsel of record.
The basis for appellant's
argument is contained in three exhibits, an affidavit and
two letters, which are attached to his brief on appeal.
On direct appeal this Court may consider only those
matters ascertainable from the record.
When a claim of ineffective assistance of counsel is
made, this Court has concluded that the attack must be based
State v. Lewis (1978), 177 Mont.
474, 485, 582 P.2d 346, 352-353.
We therefore conclude that
the exhibits attached to the appellant's brief can not be
considered on this direct appeal.
The standard to be applied in considering the question
of ineffective assistance of counsel has been determined by
this Court to be that "effective assistance of counsel means
the range of competence demanded of
attorneys in criminal cases."
1980), 608 P.2d
See State v.
1074, 1081, 37 St.Rep.
Court has also concluded that the burden of demonstrating
such prejudice is upon the defendant.
See State v. LaValley
(Mont. 1983), 661 P.2d 869, 872, 40 St.Rep. 527, 530.
While appellant bases his argument largely upon the
inadmissible exhibits which cannot be considered, we have
ineffective assistance of counsel.
We find that the record
ineffective assistance of
The record in fact suggests to the contrary that
In the total absence of
contentions, we conclude that the defense counsel performed
well within the range of competence demanded of attorneys in
T h e j u d g m e n t of t h e D i s t r i c t C o u r t i s a f f i r m e d .
W e concur:
Chief J u s t i c e