State v. Greene

378 Mont. 1

340 P.3d 551

2015 MT 1

STATE of Montana, Plaintiff and Appellee

v.Christopher Donald GREENE, Defendant and Appellant.

No. DA 12–0783.

Supreme Court of Montana.

Submitted on Briefs Dec. 3, 2014.

Decided Jan. 6, 2015.

For Appellant: Wade Zolynski, Chief Appellate Defender, Kristen L. Larson, Assistant Appellate Defender; Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General; Helena, Montana, Fred Van Valkenburg, Missoula County Attorney, Jason Marks, Deputy County Attorney; Missoula, Montana.

Opinion

Justice MICHAEL E. WHEAT delivered the Opinion of the Court.

¶ 1 Christopher Greene appeals from the judgment and sentence of the Montana Fourth Judicial District Court, Missoula County, sentencing him to 100 years in the Montana State Prison, with 60 years suspended, for failure to give notice of change of address by a sexual offender. We affirm in part, reverse in part, and remand.

ISSUES

¶ 2 We review the following issues:

1. Did Greene receive ineffective assistance of counsel due to his attorney's failure to challenge a prospective juror for cause?

2. Did the District Court abuse its discretion by providing the jury with a portion of the trial transcript during deliberation?

3. Did the District Court err by imposing an illegal sentence?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 In 1994, Greene was convicted of felony sexual assault. He was committed to the Department of Corrections and the Department of Health and Human Services for 20 years, and he was required to register as a sexual offender upon his release. Greene was not assigned a sexual offender tier level designation at this time.

¶ 4 On July 8, 2011, following his discharge from prison, Greene checked into the Ponderosa Lodge in Missoula. On July 9, 2011, he registered with Missoula County and reported the Ponderosa Lodge as his address. At that time he also signed a form regarding rules for updating his registered address.

¶ 5 On September 6, 2011, Detective Arianna Adams of the Missoula Police Department attempted to contact Greene. She visited the Ponderosa Lodge, but she learned that Greene had checked out of the Lodge on July 15, 2011. Since Greene had not updated his registered address, a warrant was issued for his arrest.

¶ 6 On September 8, 2011, Randy Martinez, a Deputy United States Marshal, learned of the warrant and contacted a probation officer familiar with Greene. The probation officer told Martinez of a possible address for Greene. Investigating this address, Martinez found and arrested Greene.

¶ 7 The State charged Greene with failure to give notice of change of address in September 2011, and the case eventually proceeded to trial before a jury. During voir dire, Greene's counsel told the jury pool about Greene's constitutional right not to testify. She then asked the jurors whether they could “judge the case on the evidence that's presented ... and not make any assumptions based on whether or not Mr. Greene chooses to testify.” Responding to the question, Juror Belanger stated, “I'd have a hard time if he can't explain himself or testify himself and I'd have a—I'd have a hard time making a decision.” Belanger then confirmed that he thought “something to hide is the only explanation to not wanting to get up on the stand and testify.” Counsel did not question Belanger further. Ultimately, Greene's counsel passed the jury panel for cause, and then exercised her peremptory challenges. One of these challenges was used to remove Belanger.

¶ 8 At trial, the State questioned Adams; Martinez; Kristi Sangrey, who maintained Missoula's records for the sex offender registry; and Christopher Birdeau, an employee of the Budget Inn (formerly the Ponderosa Lodge). Adams testified about her efforts to locate Greene in September 2011. Martinez testified about his efforts to locate and arrest Greene. Sangrey testified to Greene's registered address. Birdeau, who was not employed by the Ponderosa Lodge during the dates in question, checked the Ponderosa Lodge's business' records and testified that he found no record of Greene staying there after July 2011. While Greene's counsel cross-examined several of the State's witnesses, she did not cross-examine Adams or present any testimony or evidence on Greene's behalf.

¶ 9 Before the jury retired for deliberations, the District Court Judge instructed them to submit to him any questions they might have. The Judge stated that while he might not be allowed to answer the questions, he would consider any that were submitted. During deliberations, the jury sent a note to the court, which asked: “Did Detective actually go to the room at the Ponderosa or just check at [the] office[?]” In response, the District Court prepared a partial transcript of Adams' trial testimony. It read:

Q. (By [the STATE] ) How did you go about trying to locate [Greene]?

A. (DETECTIVE ADRIANNA ADAMS) I checked the state registry and found he was listed as living at the Ponderosa Lodge, 800 East Broadway, number 124.

Q. Did you go there?

A. I did.

Q. Were you able to locate Mr. Greene there?

A. I was not.

Q. Did you—were you able to learn if he was still staying there?

A. I did.

Q. What did you learn?

A. I learned that he had checked in on July 8th, and he had left on July 15th.

Q. Now at that point, did you know his whereabouts?

A. I did not at that point.

The District Court also prepared a cover to the transcript that stated: “In response to your question concerning Detective Adams' contact with the Ponderosa Lodge, the Court is attaching the relevant portion of the transcript.” Greene objected to providing the jury with the prepared transcript, while the State did not. The District Court overruled Greene's objection and gave the jury the cover sheet and partial transcript. The jury subsequently returned a guilty verdict.

¶ 10 Following an October 19, 2012 sentencing hearing, the District Court pronounced an oral sentence. It sentenced Greene to 100 years in Montana State Prison, suspending 60 of those years and restricting parole eligibility for 40. It also waived the applicable fines, fees, and public defender fee and designated Greene a tier three sexual offender. On November 7, 2012, the District Court entered a written judgment. It departed from the sentence pronounced in October and ordered Greene to pay fines and fees totaling $980. Greene appeals.

STANDARDS OF REVIEW

¶ 11 Claims of ineffective assistance of counsel are mixed questions of law and fact. Therefore, our review is de novo.

State v. Herrman, 2003 MT 149, ¶ 18, 316 Mont. 198, 70 P.3d 738.

¶ 12 The decision to provide requested information to a jury is one of discretion. Section 46–16–503(2), MCA ; State v. Evans, 261 Mont. 508, 511, 862 P.2d 417, 418 (1993). Accordingly, we review such a decision for abuse of discretion. State v. Crawford, 2002 MT 117, ¶ 15, 310 Mont. 18, 48 P.3d 706.

¶ 13 We review a criminal sentence longer than one year for legality. State v. Holt, 2011 MT 42, ¶ 7, 359 Mont. 308, 249 P.3d 470.

DISCUSSION

¶ 14 1. Did Greene receive ineffective assistance of counsel due to his attorney's failure to challenge a prospective juror for cause?

¶ 15 Greene argues that his counsel should have further questioned or challenged juror Belanger for cause, rather than use a peremptory challenge to dismiss him. Greene contends that this omission constituted ineffective assistance of counsel.

¶ 16 The United States and Montana Constitutions guarantee criminal defendants the right to effective counsel. U.S. Const. amend. VI ; Mont. Const. art. II, § 24 ; State v. Racz, 2007 MT 244, ¶ 22, 339 Mont. 218, 168 P.3d 685. We apply the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) to ineffective assistance of counsel claims. State v. Chafee, 2014 MT 226, ¶ 19, 376 Mont. 267, 332 P.3d 240. Under Strickland, a defendant must prove (1) that counsel's performance was deficient, and (2) that counsel's deficient performance prejudiced the defense. Racz, ¶ 22.

¶ 17 These are fact-dependent considerations that usually can only be reviewed by reference to a developed record. Accordingly, as a threshold matter when considering ineffective assistance of counsel claims, we must determine whether a direct appeal or a postconviction relief hearing is the more appropriate forum for the claim. State v. Kougl, 2004 MT 243, ¶ 14, 323 Mont. 6, 97 P.3d 1095. If we can discern from the record the reason for counsel's allegedly deficient act or omission, we can properly address the claim on direct appeal. If, on the other hand, the record does not disclose the reason, the defendant must raise the claim in a petition for postconviction relief. Kougl, ¶ 14. Postconviction relief allows the parties to develop a record and explore the reasons for counsel's act or omission. See Racz, ¶ 23.

¶ 18 We have recognized a narrow exception to this rule when there is “no plausible justification” for counsel's act or omission. In such cases, the record need not disclose counsel's reasons for the act or omission, and we will review the claim on direct appeal. Kougl, ¶ 15. Greene concedes that the record in this case is silent as to why his attorney failed to challenge Belanger for cause or further question him. He argues, however, that there was no plausible justification for counsel's failure to do so.

¶ 19 Greene asserts that counsel “had nothing to lose by following up with Belanger,” and he claims that removing Belanger for cause rather than with a peremptory challenge was “clearly to [Greene]'s advantage.” This conclusion, however, is not supported by the record, and it is at odds with this Court's precedent. In Herrman, we were unpersuaded by the same argument that Greene makes here. Herrman, ¶ 31 (addressing Herrman's argument that “there is no tactic that would justify defense counsel removing a potential juror peremptorily where that same person likely could have been successfully challenged ‘for cause.’ ”). As we...