IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 89-601
SHERMAN P. HAWKINS,
Petitioner,
v.
A N D
STATE OF MONTANA, 0 P I'NI
( I
Respondent.
This is a petition for post-conviction relief from Hawkins's
April 1988 conviction of criminal possession of dangerous drugs and
misdemeanor escape and his October 1988 conviction of felony
assault. Hawkins appears pro se. He has filed an extensive
petition, to which the Attorney General, on behalf of the State,
has responded. Hawkins also filed a response to the State's
response, followed by a motion to deny the State's motion to
dismiss, with supporting memorandum.
The facts underlying these convictions were discussed fully
in this Court's opinion on direct appeal of this matter. State v.
Hawkins (Mont. 1989), 781 P.2d 259, 46 St.Rep. 1786. While Hawkins
asserts that, in its brief, the State misrepresents the facts, we
note that the facts set forth by the State are supported in the
record of trial before the District Court.
We will discuss the issues now raised as grounds for post-
conviction relief in the following order:
1. Whether issues determined by this Court on direct appeal
are res judicata.
2. Whether Hawkins was denied due process of law by the
retroactive application of State v. Burke (Mont. 1988), 766 P.2d
254, 45 St.Rep. 2278.
3. Whether Hawkins was unlawfully convicted of felony
possession of marijuana when the information charged only a
misdemeanor offense.
4. Whether Hawkins was denied his right to a fair trial by
virtue of the prosecutor's opening statement.
5. Whether Hawkins was denied effective assistance of counsel
either at trial or on appeal.
I
Are the issues now raised which were also considered by this
Court on direct appeal barred by the doctrine of res judicata?
Hawkins raises a number of issues in this proceeding which
represent claims also raised by his counsel on direct appeal.
Although Hawkins now makes some new arguments under some of these
issues, the basic claims are the same as those raised in his
appeal. Res judicata bars reconsideration in a post-conviction
relief proceeding of claims previously raised and considered on
direct appeal, Petition of Martin (Mont. 1989), - P . 2 d 1 46
St.Rep. 2213, 2214, and' also bars reconsideration of additional
arguments raised as to claims previously ruled upon. State v.
Perry (1988), 232 Mont. 455, 464-65, 758 P.2d 268, 273-74.
In this petition, Hawkins claims that he was improperly
sentenced as a persistent felony offender and improperly designated
a dangerous offender. He claims that his October 1988 conviction
is invalid under the former prosecution statutes, 5 46-11-502 and
-503, MCA. He argues that the search of his vehicle was invalid
for a number of reasons. These claims were raised on direct
appeal, considered by the Court, and rejected. Hawkins, 781 P.2d
at 261-63. We conclude that these claims are barred from recon-
sideration, under the doctrine of res judicata.
I1
Was Hawkins denied due process of law by the retroactive
application of State v. Burke (Mont. 1988), 766 P.2d 254, 45
St.Rep. 254?
In Burke, this Court followed the United States Supreme
Court's lead in Griffin v. Wisconsin (1987), 483 U.S. 868, 107
S.Ct. 3164, 97 L.Ed.2d 709, holding that a warrantless search of
a probationer's home by the probation officer does not violate the
Fourth Amendment. Hawkins argues that because the search in this
case occurred before Griffin and Burke were decided, those cases
cannot be applied. In this Court's opinion on direct appeal,
Hawkins, 781 P.2d at 263, we ruled that Burke was controlling.
If the court's decision in Burke affected only procedural,
and not substantial rights, Hawkins's due process rights were not
violated by application of the decision to his case. Dobbert v.
Florida (1977), 432 U.S. 282, 293-94, 97 S.Ct. 2290, 2298, 53
L.Ed. 2d 344, 356. We conclude that such is the case. The decision
changed an evidentiary rule about searches of a probationer's home
without a warrant. It abolished the warrant requirement in such
cases and held that such searches need not be individually
supervised by a parole officer. Burke, 766 P.2d at 257. We hold
that Hawkins was not denied due process by application of the rule
from Burke to his case.
Was Hawkins unlawfully convicted of felony possession of
marijuana when the information charged only a misdemeanor offense?
Hawkins asserts that because the information filed against him
referred to 5 45-9-102(2), MCA, it charged him with misdemeanor,
instead of felony, possession of marijuana. He argues that his
conviction of felony possession was a denial of due process.
The information filed against Hawkins gave him clear notice
that he was charged with felony possession of marijuana. It
included "COUNT 111: CRIMINAL POSSESSION OF DANGEROUS DRUGS
(FELONY).'' It stated that Hawkins was charged with possession of
marijuana Itinan amount exceeding 60 grams in weight, to wit: 590
grams.I1 It is true that subsection (2) of § 45-9-102, MCA, which
defines the crime of misdemeanor possession of dangerous drugs, was
cited in the information. However, that subsection also describes
the cutoff amount (60 grams) between a misdemeanor and a felony.
We hold that ~awkinswas not denied due process by the reference
to 5 45-9-102(2), MCA, in the information.
IV
Was Hawkins denied his right to a fair trial by virtue of the
prosecutor's opening statement?
In her opening statement in Hawkins s second trial, the deputy
county attorney referred to mental damages suffered by the victim
of Hawkins's assault. No evidence was offered on the subject of
those mental damages. Hawkins argues that mentioning them in the
opening statement was prejudicial to him.
At trial, Hawkins and his counsel disagreed on whether a
motion for mistrial should be made on this ground. Hawkins wished
to so move. The court deemed a motion to have been made pro se
and denied it.
The record shows that while the prosecution intended at the
beginning of trial to offer evidence about the victimls mental
damages, the parties agreed mid-trial that this evidence would not
be introduced because of discovery problems relating to it. It has
not been shown that the prosecuting attorney lacked good faith in
making her opening remarks.
A ruling on a motion for mistrial will only be disturbed if
it was clearly erroneous. State v. Dawson (Mont. 1988), 761 P . 2 d
352, 358, 45 St.Rep. 1542, 1549. Under the circumstances here, the
District Court's denial of Hawkins's motion for a mistrial was not
clearly erroneous. We conclude that Hawkins1s claim is without
merit.
v
Was Hawkins denied effective assistance of counsel either at
trial or on appeal?
An appellate court measures a claim of ineffective assistance
of counsel under the standard of whether the defendant has shown
specific acts or omissions by his attorney which prejudiced his
case and resulted in the denial of a fair trial. State v. Stewart
(Mont. 1988), 767' P.2d 296, 297, 45 St.Rep. 2350, 2352. The
defendant must show not only that counsel's performance was
deficient, but also that counsel made errors so serious that
counsel was not functioning as the counsel guaranteed under the
Sixth Amendment to the United States Constitution. Stewart, 767
P.2d at 297.
Hawkins raises several specific acts or omissions as grounds
for his claim of ineffective assistance of counsel. The first is
his attorney's failure to make a motion to dismiss on the grounds
that he was denied his right to a speedy trial.
This Court will look to four factors in determining whether
a person's right to speedy trial has been violated: 1) length of
the delay, 2) reason for the delay, 3) assertion of the right by
defendant, and 4) prejudice to the defendant. State v. Forsyth
(Mont. 1988), 761 P.2d 363, 369, 45 St. Rep. 1577, 1581.
The actual length of delay is the trigger to a speedy trial
inquiry. State v. Palmer (1986), 223 Mont. 25, 27, 723 P.2d 956,
958. In the present case, some 390 days passed between the filing
of the information against Hawkins and his first trial. That
period is sufficient to trigger a speedy trial inquiry. State v.
Waters (1987), 228 Mont. 490, 493, 743 P.2d 617, 619.
In this case, trial was originally set for July 20, 1987.
That date was vacated and reset to November 16, 1987, because of
Hawkins's motion for a psychological examination, the results of
which were filed November 4, 1987. Hawkins argues that he did not
want the examination and that his counsel was the one who requested
it. However, ~awkinswas represented by counsel at the time the
motion was made, and he continued to be represented by the same
counsel through his appeal to this Court. He will not now be heard
to complain that his counsel's motions were not his. A defendant
adequately represented by counsel has no right to represent
himself. State v. Brown (1987), 228 Mont. 209, 213, 741 P.2d 428,
431.
The November 16, 1987, trial date was vacated so that the
court could hear a motion to suppress by defense counsel. After
the court heard and ruled upon that motion on March 10, 1988, trial
was reset to begin April 13, 1988. (The date was later moved up
one day, to April 12, 1988.) In the intervening month, Hawkins
filed in this Court a petition for a writ of supervisory control,
moving for a continuance in District Court. The motion for a
continuance was denied, this Court denied the petition for
supervisory control, and trial commenced on April 12, 1988.
Of the 390 days between the filing of the information against
Hawkins and his first trial, we conclude that 263 days are
attributable to Hawkins (120 days for the psychological examina-
tion plus 122 days for the motion to suppress plus 21 days for the
supervisory control proceeding), which leaves 127 days chargeable
to the State. Most of that time represents institutional delays
inherent in calendaring the case.
Examining the other two factors in a speedy trial analysis,
we conclude that Hawkins asserted his right to speedy trial in a
timely manner but that the evidence of prejudice from the delay in
this case is minimal. Hawkins has not alleged any undue anxiety
or concern because of the delay, his custodial status was unaf-
fected by the delay because his furlough from a prison sentence for
a previous crime had been revoked, and he has not identified any
prejudice to the defense of his case because of the delay. We hold
that Hawkins was not denied his right to a speedy trial as to his
first trial.
The jury hung on the charge of assault in Hawkins's first
trial. Hawkins was convicted of that offense in a second trial
commencing October 11, 1988. He argues that he was denied his
right to speedy trial as to that conviction as well.
A total of 175 days elapsed between Hawkins's first and second
trials. While the State contends that this is not enough time to
trigger a speedy trial inquiry, it also notes that the reason for
much (35 days) of the delay was the unavailability of a key
witness, the victim of Hawkins's assault. Again, Hawkins asserted
his right to speedy trial in a timely manner, but he has not demon-
strated any unusual prejudice to himself as a result of the delay.
We conclude that F1awkins1s right to speedy trial was not violated
by the delay between his first and second trials.
Hawkins also asserts that he received ineffective assistance
of counsel because his attorney failed to object to the State's
evidence at trial that a high-speed chase had ensued when Billings
police first followed Hawkins in the events leading to the charges
against him. He maintains that no high-speed chase occurred.
Hawkins is referring to the pursuing officer's testimony that
Hawkins sped up to between 80 and 85 miles per hour after the
officer began following him. Hawkins himself took the stand and
testified on this subject. It related to the cause for his arrest.
Hawkins has not shown that this testimony was in any way improper.
Hawkins next argues that his counsel provided him with
ineffective assistance by failing to introduce evidence that would
have altered the outcome of the trial. This claim is made because
the attorney did not introduce evidence that Frances Kunz was still
married to Hawkins at the time of these events and that she
perjured herself by testifying otherwise. Also, Hawkins argues
that his attorney should have presented evidence of a conspiracy
against him by Frances Kunz and Lavon Bretz.
The affidavit of Hawkins's trial attorney, prepared in
response to this petition, is helpful on this issue. In that
affidavit, counsel states that, as a tactical matter, he chose to
de-emphasize the triangular romantic relationship between Hawkins,
Kunz, and Bretz. Counsel stated that he concluded it would be best
to avoid anything that might lead to introduction of evidence of
Hawkins's earlier conviction of killing his first wife. This Court
has stated that it will not find ineffective assistance of counsel
based on a matter of trial tactics which did not result in
prejudice to the defendant. State v. Stewart (Mont. 1988), 767
P.2d 296, 298, 4 5 ' ~ t . ~ e2350, 2353. We conclude that counsel's
~.
decision on this matter was a matter of trial tactics which has not
been shown to result in prejudice to Hawkins.
Hawkins asserts that his trial attorney rendered ineffective
assistance of counsel because he failed to object to evidence
regarding the police stop of Hawkins, his arrest, and their search
of him. He bases this claim on Payton v. New York (1980), 445 U.S.
573, 100 S.Ct. 1371, 63 L.Ed.2d 639.
Pavton stands for the proposition that routine felony arrests
may not be made inside the arresteels home without a warrant.
Hawkins disagrees with the State as to whether, at the time he was
arrested, he was a resident of the house outside of which he was
arrested. At any rate, according to the officersv testimony at the
suppression hearing, the arrest was made in the driveway. The
evidence thus indicates that this arrest was outside the protec-
tive realm of Payton. We hold that defense counsel did not render
ineffective assistance by failing to object to the stop, search,
and arrest as a violation of the rule in Pavton.
Hawkins maintains that his attorney rendered ineffective
assistance because he did not object that the prison furlough
contract Hawkins was under was not signed by the State. As the
State points out, this is untrue. Hawkins's counsel did object on
these grounds, in connection with a motion to suppress. The court
rejected the argument.
Hawkins argues that his attorney should have objected to the
evidence found in the search of the pickup truck he was driving,
because the truck belonged to a third party. However, if the
pickup belonged to a third party, Hawkins would have no standing
to object to the search. His counsel's affidavit indicates that
counsel was satisfied that Hawkins was exercising sufficient
control over the truck so that it could be said to be in Hawkins's
possession.
Failure to demand a hearing on the presentence report is the
next ground for Hawkins's claim of ineffective assistance of
counsel. Hawkins states that he objected to the report in its
entirety.
The transcript of Hawkins's first sentencing hearing shows
that his attorney objected to a number of points in the presentence
investigation report. At the end of those objections, counsel
asked Hawkins if he had stated all of their objections. Hawkins
replied, "Yes, it is. I believe so." Hawkins has not come forth
with additional specific objections to the report. The objections
that he wished to make were heard at his sentencing hearing. We
conclude that he has not shown that he was afforded ineffective
assistance of counsel in this regard.
Finally, Hawkins argues that his trial attorney filed an
inadequate appeal which was below acceptable standards. After
reviewing the merits of the issues raised in this petition, we
disagree. It is not necessary that counsel raise every colorable
issue on appeal. Jones v. Barnes (1983), 463 U.S. 745, 750-54, 103
S.Ct. 3308, 3312-14, 77 L.Ed.2d 987, 992-95. Hawkins's counsel
raised on appeal those issues most worthy of this Court's con-
sideration and argued them well.
CONCLUSION
Hawkins has hot established any ground upon which he is
entitled to post-conviction relief from the judgments of the
district court.
THEREFORE, IT IS ORDERED the motion of the State to dismiss
the petition for post-conviction relief is granted and the same is
hereby dismissed.
DATED this 8
/ 'day of April, 1990.