IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
plaintiff and Respondent,
Defendant and Appellant.
Court of the Thirteenth ~udicial
In and for the County of Yellowstone,
The Honorable Russell K. Fillner, Judge presiding.
COUNSEL OF RECORD:
Kurt McColley, Butte, Montana, Pro Se
Hon. Marc Racicot, Attorney General, Helena, Montana
Deanne L. Sandholm, Assistant Attorney General,
Helena, Montana; Dennis Paxinos, County Attorney;
Attorney's Office, Billings, Montana
Submitted on Briefs:
F i l e d : c d S mc%
S-TATE of MO$JTAQIA
January 17, 1991
March 21, 1991
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
Appellant, Kurt McColley, filed a petition for post-conviction
relief in the Thirteenth Judicial District Court, Yellowstone
McColley appeals from the District Court's denial of his
The only issue raised by McColley on appeal is whether the
District Court erred by denying his petition for post-conviction
McColley was charged with one count of felony criminal sale
of dangerous drugs alleged to have been committed on or about April
1 and April 28, 1988.
Trial commenced in District Court on
February 1, 1989, and McColley was convicted by jury and sentenced
to a term of twenty years in the Montana State Prison, with ten
McColley appealed from this conviction to this
Court where we upheld the conviction on October 24, 1989.
v. McColley (1989), 239 Mont. 466, 781 P.2d 280.
On May 7, 1990, McColley filed a petition for post-conviction
relief with the District Court.
The District Court denied
McColleyts petition by an order entered on June 20, 1990, and
McColley now appeals from the denial of his petition for postconviction relief.
The factual background leading up to McColleyls conviction is
set forth in McColley, 239 Mont. 466, 781 P.2d 280, and will not
be repeated here except as is necessary to dispose of the issue
McColley presents four arguments in support of his claim that
the District Court erred when it denied his petition for postconviction relief.
They are: (1) the denial of the constitutional
right to representation by a competent lawyer at every critical
stage of the proceeding; (2) the unconstitutional use by the State
of perjured testimony; (3) the lack of sufficient evidence upon
which to base a conviction; and (4) prosecutorial misconduct.
McColley argues that he received ineffective assistance of
counsel throughout the proceedings and has thereby been denied his
constitutional right to representation. He argues that his counsel
failed to adequately prepare for the trial, failed to make proper
objections during the trial, failed to call any defense witnesses,
and filed an appeal in which no meritorious grounds for appeal were
There is a heavy burden of proof on an appellant who seeks to
reverse a judgment on grounds of incompetency of counsel.
v. LaValley (1983), 203 Mont. 393, 398, 661 P.2d 869, 872.
prevail on such a claim McColley must show specific acts or
omissions by his counsel which prejudiced his case and resulted in
the denial of a fair trial.
State v. Stewart (1988), 235 Mont.
239, 241, 767 P.2d 296, 297.
As we stated in Stewart, the two-
part test this Court applies in judging a claim of ineffective
assistance of counsel is, first, whether the defendant can show
deficient performance of counsel in that ucounsel made errors so
guaranteed the defendant by the Sixth Amendment
. . .
second,] the defendant must show that the deficient performance
prejudiced the defense."
Stewart, 235 Mont.
P.2d at 297.
McColley contends his counsel failed to adequately investigate
the facts, specifically an alleged statement by Matt Andre, a
I1middle man1' involved in the drug transactions, made at the time
of his arrest. McColley further argues that his counsel failed to
discuss the case with him and did not even interview him until the
week before the trial.
Although these general allegations may in
some way indicate insufficient trial preparation, there has been
indication of how
this alleged unpreparedness prejudiced
appellant's right to a fair trial.
McColley does not present any
reasonable probability that the result of the proceeding would have
been different but for his counsells alleged unpreparedness.
McColley also asserts that his counsel neglected to object to
hearsay testimony by police officers and did not make any specific
objections during the trial in order to preserve any error for
The record shows that the hearsay testimony to which McColley
refers was properly admissible at trial and his counsel was aware
of this fact.
As to the general complaint about the lack of other
objections, we have previously stated that "defense counsel's use
State v. Hurlbert (1988), 232 Mont. 115, 122,
P.2d 1110, 1114. And it is well established that it is not our
function to second guess the trial tactics of defense counsel when
evaluating counsel's representation.
See LaVallev, 203 Mont. at
Defense counsel's use of objections during trial lie
within his or her sound discretion and failure to object
must, in addition to being error, also prejudice the
defendant. (Citation omitted.)
Hurlbert, 232 Mont. at 120, 756 P.2d at 1113.
The defendant has
presented no evidence showing he has been prejudiced.
McColley claims that his counsel failed to call any defense
witnesses to testify on his behalf.
This argument is factually
unfounded. Several of the witnesses called by the State, including
Matt Andre, were defense witnesses.
At trial Andre continually
denied having ever made any statement that would connect McColley
to the drug transactions.
Defense counselts decision in this
regard is one of trial tactics and strategy and McColley fails to
indicate how this alleged deficient performance may have in any way
deprived him of a fair trial.
Finally, McColley claims that his counsel filed a frivolous
The appeal to which McColley refers was decided on the
merits by this Court in McCollev, supra.
disproves such a claim.
A review of that case
Effective assistance of counsel does not
mean that the defendant is guaranteed assistance of counsel that
will result in acquittal. LaVallev, 203 Mont. at 398, 661 P.2d at
A claim of ineffective assistance of counsel must be grounded
in facts found in the record, not on mere conclusory allegations.
Hurlbert, 232 Mont. at 120, 756 P.2d at 1113. McColley has failed
to meet the burden of proof necessary to establish his claim of
ineffective assistance of counsel.
McColleyls second argument in support of his claim that the
District Court erred by denying his petition is the allegation that
the State used perjured testimony.
The District Court refused to
address this issue based upon the fact that this was a matter which
could reasonably have been raised on direct appeal. We agree with
the District Court.
Where a defendant has been afforded a direct
appeal of his conviction, any grounds for relief which reasonably
could have been raised on direct appeal may not be subsequently
raised in a petition for post-conviction relief.
State (1990), 243 Mont. 232, 794 P.2d 331, and
See Duncan v.
McColley failed to raise this issue and could have reasonably done
so on direct appeal. He is procedurally barred from doing so now.
McColleyts last two arguments will be addressed concurrently.
He alleges that there was an insufficiency of evidence on which to
base a conviction and that there existed prosecutorial misconduct
which denied him a fair trial.
As with the previous argument both of these arguments could
have been raised on appeal and were not so raised.
therefore procedurally barred from raising these arguments in his
petition for post-conviction relief.
In addition to failing to
raise these claims on direct appeal, McColley also has failed to
raise these claims in his original petition for post-conviction
relief before the District Court.
He attempts to raise these
arguments for the first time in this appeal of his petition and may
not do so.
Although we do not address the merits of the prosecutorial
misconduct issue, we take this opportunity, as we did in State v.
Campbell (1990), 241 Mont. 323, 330, 787 P.2d 329, 334, to again
remind prosecuting attorneys that Rule 3.4 (e) of the Montana Rules
of Professional Conduct prohibit a lawyer from, in trial, stating
a personal opinion as to the guilt or innocence of an accused.
The standard of review for denial of post-conviction relief
is whether there is substantial evidence to support the findings
and conclusions of the district court. State v. Coates (1990), 241
Mont. 331, 336, 786 P.2d 1182, 1185. There is substantial evidence
in the record to support the District Court.