No. 83-229
IN THE SUPREME COURT OF THE STATE OF PIONTANA
1983
STATE OF MONTANA,
Plaintiff and Respondent,
-vsTIMOTHY GESS,
Defendant and Appellant.
APPEAL FROM:
District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John Keith, Great Falls, Montana
For Respondent :
Ilon. Mike Greely, Attorney General, Helena, Montana
J. Fred Bourdeau, County Attorney, Great Falls,
Montana
Submitted on Briefs:
Decided:
Filed:
Clerk
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
the Court.
Appellant
Judicial
was
District,
convicted
of
t h e Opinion of
forgery
C a s c a d e County.
in
the
claims
He
Eighth
ineffective
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
cases.
In
appellant
c o m p e t e n c e demanded
this
case
of
attorneys
J u d g e Roth was
disqualified
the
Hon.
called
John
in criminal
in
after
McCarvel.
N.
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 .
the
Judge
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 .
The
Stout
f a c t s a r e undisputed.
and
his
Jessie
wife,
On A u g u s t
Cleon,
leased
1982,
4,
and
J.C.
began
to
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
Ave.
South
in Great F a l l s ,
Montana.
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.,
week.
their
Appellant
had
traded
acquainted with t h e Stouts.
visited
the
Town
Pump
at
Town
seven days a
Pump
and
was
They t e s t i f i e d t h a t a p p e l l a n t
every
day,
every
other
day
or
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,
requested
s m a l l amount o f
Stouts.
and
received
a
credit
from
the
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 .
On
August
25,
1982,
shortly before closing.
who r e m a i n e d
i n or
D e s s showed J . C .
near
Dess
drove
into
the
He was a c c o m p a n i e d by
Town Pump
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
already been
signed, and
appellant
indicated that it was a good check, but if it was necessary
he would bring
produce
the lady who owned it in from the car to
identification.
Stout told
him
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.
check proceeds
purchases.
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.
and oddly
Late in August, Alice
Wyborny returned from a trip and discovered
that a state
warrant had been issued to her in her absence.
had
not
received
the
warrant
she
called
Since she
the
issuing
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
endorsement."
In claiming
the
ineffective assistance
of
trial
counsel, appellant argues that counsel should have moved to
disqualify the trial judge for cause, moved
identification
of
Alice
Wyborny,
defendant's handwriting and
moved
for positive
to
analyze
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.
MCA.
Section 46-20-701,
When a claim of ineffective assistance of counsel is
made, this Court has concluded that the attack must be based
upon
facts
record,
and
in
the
that
record
there
or
easily
must
be
deducible
something
from
more
the
than
State v. Lewis (1978), 177 Mont.
conclusive allegations.
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
assistance within
the range of competence demanded of
attorneys in criminal cases."
1980), 608 P.2d
See State v.
1074, 1081, 37 St.Rep.
Rose
(Mont.
642, 649-50.
This
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
nonetheless
reviewed
the
record
ineffective assistance of counsel.
fails
to
counsel.
an
demonstrate
any
such
for
indications
of
We find that the record
ineffective assistance of
The record in fact suggests to the contrary that
adequate
and
resourceful
representation
was
made
by
counsel.
In the total absence of
evidence
supporting
his
contentions, we conclude that the defense counsel performed
well within the range of competence demanded of attorneys in
criminal cases.
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:
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Chief J u s t i c e
