No. 83-229
IN THE SUPREME COURT OF THE STATE OF PIONTANA
1983
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
TIMOTHY 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: September 29, 1983
Decided: January 5, 1984
Filed:
Clerk
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
the Court.
Appellant was convicted of forgery in the Eighth
Judicial District, C a s c a d e County. He claims ineffective
a s s i s t a n c e of counsel. We affirm the conviction.
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 of attorneys in criminal
cases. In this case J u d g e Roth was called in after the
appellant disqualified the Hon. John N. McCarvel. Judge
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 .
The f a c t s a r e undisputed. On A u g u s t 4, 1982, J.C.
Stout and his wife, Jessie Cleon, leased and 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., seven days a
week. Appellant had traded at their Town Pump and was
acquainted with t h e Stouts. They t e s t i f i e d t h a t a p p e l l a n t
visited the Town Pump 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 and received a s m a l l amount o f credit from the
Stouts. 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, Dess drove into the Town Pump
shortly before closing. He was a c c o m p a n i e d by two p e o p l e
who r e m a i n e d i n or near t h e s t a t i o n wagon h e was d r i v i n g .
D e s s showed J . C . 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 the lady who owned it in from the car to
produce 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. Appellant used part of the
check proceeds to pay his bill and some to pay for his
purchases. He then left with his passengers, and oddly
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. Since she
had not received the warrant she called 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 for positive
identification of Alice Wyborny, moved to analyze
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. Section 46-20-701,
MCA. When a claim of ineffective assistance of counsel is
made, this Court has concluded that the attack must be based
upon facts in the record or easily deducible from the
record, and that there must be something more than
conclusive allegations. 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
assistance within the range of competence demanded of
attorneys in criminal cases." See State v. Rose (Mont.
1980), 608 P.2d 1074, 1081, 37 St.Rep. 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 for indications of
ineffective assistance of counsel. We find that the record
fails to demonstrate any such ineffective assistance of
counsel. The record in fact suggests to the contrary that
an 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