No. 94-630
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, State Appellate Defender,
Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Barbara Harris, Assistant Attorney General,
Helena, Montana
Dennis Paxinos, Yellowstone County Attorney,
Billings, Montana
Submitted on Briefs: July 27, 1995
Decided: September 8, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The defendant, Jimmy Ray Bromgard, was charged by information
in the District Court for the Thirteenth Judicial District in
Yellowstone County, with three counts of sexual intercourse without
consent, in violation of § 45-5-503, MCA. After a trial by jury,
Bromgard was convicted of all three charges, was sentenced to the
Montana State Prison, and was designated a dangerous offender.
Following a petition for post-conviction relief and appeal to this
Court, he filed his second petition for post-conviction relief in
the District Court. The District Court denied his petition. We
reverse the order of the District Court and remand for further
proceedings.
The issue on appeal is:
Did the District Court err when it denied Bromgard's second
petition for post-conviction relief?
FACTUAL BACKGROUND
During the early morning hours of March 20, 1987, L.T. was
asleep in her bedroom located on the second floor of her family's
home in Billings. L.T. was eight years old at the time. At
approximately 4:30 a.m., a man broke into the family residence by
opening and climbing through a bathroom window located on the main
floor of the house. The man walked to the second floor of the
house and entered the hallway which led to L.T.'s room.
L.T. testified that in this hallway, a "strong light" was
turned on. L.T. also testified that she awakened and could "not
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very clearly" see the man, but knew that he was a stranger. The
man approached L.T.'s bed, stuffed a cloth belt in her mouth and
told her that if she did not shut up, he would kill her. The man
then subjected L.T. to oral, vaginal, and anal intercourse.
Afterward, he placed a pillow over L.T.'s head and left the home.
L.T. went to her father immediately after the attack and told
him what had happened. L.T.'s parents took her to the Billings
Clinic and Dr. Linda Johnson confirmed that L.T. had been sexually
penetrated vaginally and anally.
With L.T.'s assistance, a composite sketch of her attacker was
drawn. During the ensuing investigation, the sketch was shown to
one of Bromgard's neighbors, who stated that the sketch resembled
Bromgard. Thereafter, L.T. identified Bromgard in a police
line-up. In addition, it was established that head and pubic hair
samples taken from Bromgard matched head and pubic hairs taken from
L.T.'s bed.
Bromgard was charged by information in the District Court of
the Thirteenth Judicial District in Yellowstone County with three
counts of sexual intercourse without consent, in violation of
5 45-5-503, MCA. After trial by jury, he was found guilty on all
three counts.
The day after the trial, a newspaper article published in the
Billings Gazette disclosed that during deliberations the jury
performed an experiment designed to test the lighting conditions
that existed at the time of the attack. Apparently, the jurors
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performed the experiment to determine whether the lighting was
sufficient for L.T. to have seen her assailant and the color of his
clothing. It does not appear that Bromgard's trial counsel in any
way challenged the propriety of the experiment on the basis that it
may have interjected evidence which was not admitted at trial.
The District Court sentenced Bromgard to three concurrent
40-year terms of imprisonment in the Montana State Prison, and
designated him a dangerous offender.
Bromgard appealed his conviction, but his trial counsel failed
to file an appellate brief or an Anders memorandum, pursuant to Anders
x Cdifornia (1967), 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493.
We, therefore, dismissed his appeal.
Bromgard, acting pro se, filed a petition for post-conviction
relief in which he presented seven grounds for relief. We denied
six of Bromgard's grounds for relief. However, we remanded the
case and directed the District Court to appoint counsel to evaluate
the merits of Bromgard's ineffective assistance of counsel claim.
We then appointed the State Appellate Defender to represent
Bromgard in the presentation of his appeal and granted Bromgard's
motion to file an "out-of-time" appeal.
Following Bromgard's subsequent appeal to this Court, we
affirmed his conviction. Statev.Bromgard(1993), 261 Mont. 291, 862
P.2d 1140. While his appeal was pending, Bromgard filed this
second petition for post-conviction relief. In this petition, he
alleged that the jury engaged in misconduct by conducting its own
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experiment and that he was, thereby, denied his right to a fair
trial. Additionally, Bromgard alleged that his counsel's failure
to challenge the propriety of the experiment denied him effective
assistance of counsel which is guaranteed pursuant to the Sixth
Amendment to the United States Constitution and Article II,
Section 24, of the Montana Constitution. The District Court denied
Bromgard's petition on the basis that Bromgard learned of the jury
misconduct immediately following trial and failed to raise the
issue on direct appeal.
DISCUSSION
Did the District Court err when it denied Bromgard's second
petition for post-conviction relief?
There were no factual issues resolved by the District Court.
Based on its conclusion that Bromgard's second petition for
post-conviction relief was procedurally barred, the District Court
denied his petition without ordering a response from the State. We
review a district court's legal conclusions to determine whether
the district court's application of the law was correct. state v.
Christensen (1994), 265 Mont. 374, 375-76, 877 P.2d 468, 469.
Bromgard contends that the District Court erred when it
concluded that the jury's misconduct and the related issue of
ineffective assistance of counsel could have been raised on appeal.
He correctly notes that evidence of the jury's misconduct was not
part of the District Court record and that this Court has often
stated that it will not consider on appeal facts that are not found
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in the record. 6'fatev. Mason (1992), 253 Mont. 419, 423, 833 P.2d
1058, 1060. In fact, we have, in the past, ordered that newspaper
articles (which formed the basis of Bromgard's post-trial
information) should be stricken from a brief filed on appeal. state
v.Peese (1987), 227 Mont. 424, 740 P.2d 659. We have also held that
allegations of ineffective assistance of counsel which are based on
facts which cannot be documented from the record in the underlying
case must be raised by petition for post-conviction relief. State v.
Courchene (1992), 256 Mont. 381, 847 P.2d 271.
We agree with Bromgard's assertion that the issue presented by
his second petition for post-conviction relief could not have been
raised on appeal. However, we need not belabor that point because
it is conceded by the State. Instead of defending the conclusion
of the District Court, the State responds that the result arrived
at in the District Court was correct, even though the District
Court's reason for arriving at that result was incorrect, and
therefore, that the District Court's denial of Bromgard's petition
should be affirmed. See Hagen V. State (1994), 265 Mont. 31, 35, 873
P.2d 1385, 1387.
The State contends that the issue raised in Bromgard's second
petition for post-conviction relief is procedurally barred based on
§ 46-21-105, MCA, of the Post-Conviction Hearing Act, which
provides in relevant part that:
(1) All grounds for relief claimed by a petitioner under
46-21-101 must be raised in the original or amended
petition. Those grounds for relief not raised are waived
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unless the court on hearing a subsequent petition finds
grounds for relief that could not reasonably have been
raised in the original or amended petition.
The State points out that the newspaper article relied on by
Bromgard to establish misconduct is the same newspaper article that
he relied on in his original prose petition to establish juror bias.
Therefore, it contends that this Court should conclude as a matter
of law that the current grounds for a new trial could reasonably
have been raised in the original petition.
The State also contends that Bromgard's second petition was
not adequately documented according to the requirements of
§ 46-21-104, MCA, and should have been dismissed on that
independent basis. However, because no response was ordered by the
District Court, that argument was neither raised in nor addressed
by the District Court, and therefore, we will not consider it on
appeal
In reply to the State's argument based on 5 46-21-105(l), MCA,
Bromgard emphasizes that part of the statute which provides that
waiver only occurs if "the court on hearinq a subsequent petition,
finds grounds for relief that could not reasonably have been raised
. . II Bromgard contends that whether or not the grounds raised
in his second petition could reasonably have been raised in the
first petition, or whether good cause can be shown why those
grounds were not raised, is a question of fact best left to the
District Court.
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Bromgard is correct. While at first blush it may seem obvious
that an argument based on the same newspaper article which formed
the basis of Bromgard's previous petition could have been raised by
the previous petition, we have no factual record from which to
consider evidence to the contrary. As Bromgard points out, issues
of this nature are best resolved after an evidentiary proceeding in
the district court. No evidentiary proceeding was afforded in this
case because of the District Court's erroneous conclusion that
Bromgard's basis for post-conviction relief could have been raised
on direct appeal to this Court. Therefore, we conclude that the
District Court erred when it denied Bromgard's petition for
post-conviction relief.
For these reasons, we vacate the order of the District Court
denying post-conviction relief, and remand this case to the
District Court for further proceedings to determine whether
Bromgard could reasonably have raised the issues which are the
subject of his second petition for post-conviction relief in his
first petition. If so, then Bromgard's second petition should be
denied pursuant to § 46-21-105(l), MCA. If not, then the District
Court should decide on the merits of Bromgard's second petition.
us ce
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we concur:
Justices
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