IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 41N
THE STATE OF MONTANA,
Plaintiff and Respondent,
Defendant and Appellant.
District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DC-96-63,
Honorable C. B. McNeil, Presiding
COUNSEL OF RECORD:
Chad Wright, Appellate Defender, Helena, Montana
Honorable Mike McGrath, Attorney General; Tammy K. Plubell,
Assistant Attorney General, Helena, Montana
Robert J. Long, County Attorney, Polson, Montana
Submitted on Briefs: February 13, 2003
Decided: March 11, 2003
Justice W. William Leaphart delivered the Opinion of the Court.
Aloysius Blackcrow appeals from the denial of his petition for postconviction relief.
Pursuant to Section I, Paragraph 3(d)(i), Montana Supreme Court 1996 Internal
Operating Rules (Memorandum Opinions), we determine that the legal issues raised in this
appeal are clearly controlled by settled Montana law. Further, pursuant to Section I,
Paragraph 3(d)(v), the following decision shall not be cited as precedent but shall be filed
as a public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
Blackcrow contends that his state and federal right to the effective assistance of
counsel was violated when his trial attorney did not offer jury instructions on accomplice
testimony. Blackcrow appealed his conviction and did not, in the direct appeal, argue that
his trial counsel was ineffective. Blackcrow points out that the same counsel represented
him at trial and on appeal. Thus, in order to raise the issue, his counsel would have had to
argue his own ineffective assistance. Blackcrow contends that, given this untenable
situation, he should not be barred for not having raised a record-based claim on direct appeal.
Rather, he should be allowed to raise the issue for the first time on appeal from the denial
of his petition for postconviction relief.
The State contends that (1) defense counsel had a valid reason for not requesting jury
instructions on accomplice testimony and, thus, was not ineffective for failing to do so; (2)
any error in not requesting such instructions was a matter of record and should have been
raised on direct appeal; and, (3) since the issue was not raised in Blackcrow’s petition for
postconviction relief, it cannot be raised for the first time on appeal from the denial of that
Blackcrow concedes that he did not raise the issue of counsel’s failure to request jury
instructions in his petition for postconviction relief.
We hold that, since Blackcrow did not raise the issue of counsel’s failure to request
jury instructions on accomplice testimony in his petition for postconviction relief, he cannot
raise the issue for the first time on appeal. State v. Weaselboy, 1999 MT 274, ¶ 16, 296
Mont. 503, ¶16, 989 P.2d 836, ¶ 16.
The judgment of the District Court is affirmed.
/S/ W. WILLIAM LEAPHART
/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON