State v. Baker

No. 94-335
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995

STATE OF MONTANA,
Plaintiff and Respondent,
v.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Loren R. Baker, Deer Lodge, Montana, Pro Se
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Patricia Jordan, Ass't Attorney General, Helena,
Montana
Mike McGrath, Lewis and Clark County Attorney,
Helena, Montana

Submitted on Briefs: June 29, 1995
Decided: August 4, 1995
Filed:
Justice James C. Nelson delivered the Opinion of the Court.

Loren Robert Baker (Baker), pro se, appeals from the Decision
and Order of the First Judicial District Court, Lewis and Clark
County, denying his petition for post-conviction relief. We
affirm.
Background
As a result of a jury trial, Baker was convicted on June 21,
1990, of robbery, reckless driving and carrying a concealed weapon.
He was subsequently sentenced to serve a total of 36 years in
prison and was designated a dangerous offender for parole
eligibility purposes. We affirmed Baker's conviction on appeal in
State v. Baker (1991), 249 Mont. 156, 815 P.2d 587, and reference
is made to our decision in that case for further background
information. The Montana Sentence Review Board affirmed Baker's
sentence on August 21, 1992.
Baker filed his petition for post-conviction relief on January

6, 1994, alleging ineffective assistance of counsel. In his
petition Baker claimed that his counsel: (1) failed to litigate
issues concerning an alleged illegal search, an alleged compelled
self-incrimination, and the admission of other crimes evidence; (2)
failed to raise other possible defenses; (3) failed to prevent the
use of evidence of past behavior at sentencing; and (4) failed to
request a hearing pursuant to 5 46-18-222, MCA, regarding his
mental condition.
In accordance with our decision in Pet.it.ion of Gil.lham (1985),

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216 Mont. 279, 704 P.2d 1019, the State moved for and obtained
orders requiring Baker's trial counsel to respond to the claims of
ineffective assistance of counsel. After briefing and the
consideration of various documents and the responses of counsel,
but without an evidentiary hearing, the District Court denied
Baker's petition on May 20, 1994. Baker appeals.
Further facts are set forth in our following discussion as
necessary to dispose of the issues raised.
Issues
In his opening brief, Baker raises twenty-five issues (Baker's
issues) which we simply reiterate here as follows:
1 . Whether an exception should be made to allow
application of exclusionary rule to testimony of private
individuals whose felonious conduct was first-aggression
assault causing injury to the accused and whose
subsequent search produced no physical evidence of
alleged theft?
2 . Whether merchant violation of standards of reason-
ableness in his treatment of a customer voids his right
to assert a shoplifting claim?
3 . Whether a strong showing of probable factual
innocence of theft is reasonable doubt of guilt of
robbery which merits relief?
4. Whether the state has denied Baker the equal
protection of the laws?
5 . Whether the state has denied Baker speedy remedy for
injury of person and the administration of right and
justice?
6 . Whether the trial court errored [sic] and denied due
process of law by precluding pretrial motions and
evidentiary hearing from defense trial counsel?
7 . Whether officer's testimony of Baker's admissions was
evidence obtained from interrogation where officers
compelled self-incrimination in absence of counsel, and
the inadmissible testimony should have been suppressed?
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8. Whether counsel was deficient in omission to perform
pretrial investigation of plausible defenses?
9. Whether state procedural default of timely notice
requirements prejudiced the defense with indefensible
surprise?
10. Whether indefensible surprise from untimely notice
compelled self-incrimination from the defendant?
11. Whether indefensible surprise shifted the burden of
proof to the defense and unlawfully negated the state's
responsibility to prove every element of crime beyond
reasonable doubt?
12. Whether evidence of past acts and offenses prejud-
iced the jury?
13. Whether the state is required to meet the standards
cited in its notice and omission to do so is unfair to
the defense?
14. Whether the principles of fundamental fairness
require the Just standards to be met, prerequisite to
admission of evidence of past acts or offenses,
regardless of what rule of procedure the evidence is
introduced under?
15. Whether defense evidence Was prejudicially
suppressed?
16. Whether the Presentence Investigation Report is
biased and contributed to prejudicial sentencing?
17. Whether Baker was deprived of fair hearing and
consideration of mitigating circumstances for lesser
sentence?
18. Whether the dangerous designation was improperly
imposed?
19. Whether state default at trial prejudiced
sentencing?
20. Whether it is an unjust succession of sentence to
upon release from prison incarcerate Baker in the county
jail for one year: where this would reverse earned
custody reductions, would be contrary to rehabilitative
processes, and would cause breach of family
relationships?
21. Whether Baker's sentence is cruel punishment?
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 22. Whether defense counsel's performance was deficient,
and the deficient performance prejudiced the defense?
23. Whether conviction was obtained through malicious
prosecution?
24. Whether prejudicial error occurred when prosecution
raised prior conviction for carrying a concealed weapon
and rose [sic] issue of defendant's failure to obtain
concealed weapon permit?
25. Whether defendant's testimony at trial was inad-
missible, and his decision to testify was incompetent,
because of mental impairment; and, whether these facts
merit reversal?

For purposes of convenience and our discussion we adopt the
following issues as proposed by the State:
1. Whether Baker's issues 2-6, 13-14, 16, 18-21, 23 and 25
are procedurally barred for failure of Baker to raise them in his
original petition in District Court?
2. Whether Baker's issues 1, 7, 9-14, 17 and 19 are
procedurally barred for failure of Baker to raise them in his
direct appeal?
3. Whether Baker's issues lo-14 and 24 are barred by the
doctrine of res judicata?
4. Whether Baker received effective assistance of counsel?

Standard of Review
We review the District Court's denial of a petition for post-
conviction relief to determine whether substantial evidence
supports the findings and conclusions of the court. Walker v.
State (19931, 261 Mont. 1, 6, 862 P.2d 1, 4 (citing State v. Coates

(1990), 241 Mont. 331, 336, 786 P.2d 1182, 1185). We will not

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overturn the court ' s legal conclusions if the tribunal's

interpretation of the law is correct. Wagner v. State (Mont.

1995), 889 P.2d 1189, 1190, 52 St.Rep. 61, 61 (citing Eiler v.

State (1992). 254 Mont. 39, 42, 833 P.2d 1124, 1126).

Discussion

1. Whether Baker's issues 2-6, 13-14, 16, 18-21, 23 and 25

are procedurally barred for failure of Baker to raise them in his

original petition in District Court?

Section 46-21-105(l), MCA, provides:
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
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.

Baker's petition filed in District Court was premised upon his

claim that he did not receive effective assistance of counsel; it

was on that basis that the court denied his petition. Baker's

issues 2-6, 13-14, 16, 18-21, 23 and 25, were not raised in his

original petition filed in District Court, but are, instead, raised

for the first time in this appeal.
Under the clear and unambiguous language of § 46-21-105(l),

MCA, Baker's issues 2-6, 13-14, 16, 18-21, 23 and 25, have been

waived and are procedurally barred from being raised inasmuch as

these issues were not raised in Baker's original petition.

Moreover, this being a direct appeal from the District Court's

Decision and Order denying post-conviction relief under § 46-21-
203, MCA, we will decline to consider issues not first raised in

the trial court. Section 46-20-701, MCA; Rule 2(a), M.R.App.P.;

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State v. McColley (lPPl), 247 Mont. 524, 528, 807 P.2d 1358, 1361.
Accordingly, we will not consider Baker's issues 2-6, 13-14,

16, 18-21, 23 and 25, further.
2. Whether Baker's issues 1, 7, 9-14, 17 and 19 are
procedurally barred for failure of Baker to raise them in his
direct appeal?
Section 46-21-105(2), MCA, provides:
When a petitioner has been afforded a direct appeal
of the petitioner's conviction, grounds for relief that
could reasonably have been raised on direct appeal may
not be raised in the original or amended petition.
Under this statute, a petitioner, like Baker, who has been afforded
a direct appeal of his conviction may not raise in a post-
conviction petition grounds for relief that he could reasonably
have raised in his direct appeal. McCollev, 807 P.2d at 1361.
Moreover, we have held that the procedural bar applies to issues
which were not properly preserved at the trial level for appeal.
State v. Gorder (1990), 243 Mont. 333, 792 P.2d 370.
Here, Baker could reasonably have preserved his issues 1, 7,
9-14, 17 and 19, on their merits by first raising them in District
Court. Having failed to do so the sole issue which he may now
raise is one of ineffective assistance of counsel, by reason of the
failure of counsel to preserve those issues.
Unless a post-conviction petitioner can demonstrate a
fundamental miscarriage of justice (which Baker has failed to do
here), we will consistently apply the procedural bar. See, -
Eiler.
I
Petition of Evans (1991), 250 Mont. 172, 819 P.2d 156; McColley;
Duncan v. State (19901, 243 Mont. 232, 794 P.2d 331; Tecca v.
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McCormick (1990), 246 Mont. 317, 806 P.Zd 11; Petition of Martin

(1989), 240 Mont. 419, 707 P.2d 746.
Accordingly, we conclude that Baker's issues 1, 7, 9-14, 17
and 19, are procedurally barred under 5 46-21-105(2), MCA, as
having not been raised on direct appeal.
3. Whether Baker's issues lo-14 and 24 are barred by the
doctrine of res judicata?
In his direct appeal, Baker raised, and we decided against
him, the issue of whether the trial court erred when it allowed the
State to offer testimony of prior crimes and alleged acts. -,
Baker
815 P.2d at 589. Baker contended that the evidence relating to the
prior aggressive acts was inadmissible because it failed to conform
to Rule 404(b), M.R.Evid., and State v. Just (1979), 184 Mont. 262,
602 P.2d 957. Baker, 815 P.2d at 589. In support of his appeal,
Baker argued that the trial court erred when it allowed the State
to introduce evidence of other crimes on rebuttal; that the jury
was not voir-dired on this evidence; and that the State should not
have been allowed to raise the issue of character through cross-
examination of a defense witness. Baker's issues lo-14 and 24 are
the same as those raised in his direct appeal.
We will apply the bar of res judicata to the re-litigation of
issues already determined on direct appeal if:
(1) the same ground presented in the subsequent
application was determined adversely to the applicant on
the prior application, (2) the prior determination was on
the merits, and (3) the ends of justice would not be
served by reaching the merits of the subsequent
application.
Coleman v. State (1981), 194 Mont. 428, 438, 633 P.2d 624, 630
8
(quoting Sanders v. United States (1963), 373 U.S. 1, 15, 83 S.Ct.
1068, 1077, 10 L.Ed.2d 148, 161).
Having already decided Baker's issues lo-14 and 24 on direct
appeal, we conclude that the doctrine of res judicata bars
reconsideration of these issues in this appeal.
4. Whether Baker received effective assistance of counsel?
The only issue which Baker has properly raised in this appeal
is his claim of ineffective assistance of counsel. We will only
consider the specific allegations of deficient performance which
were properly raised in the trial court. Walker, 862 P.2d at 5.
In Walker, citing the seminal case of Strickland v. Washington
(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, along with
McCollev and Coates, we summarized the nature of our review of
ineffective assistance of counsel claims as follows:
There is a heavy burden of proof on a defendant who
seeks to reverse a judgment on the grounds of ineffective
assistance of counsel. [Citation omitted.] In
evaluating ineffective assistance of counsel claims, we
utilize a two-part test as set forth in [Strickland].
First, the defendant must establish that counsel's
performance was deficient. [Citation omitted.]
Counsel's performance will be evaluated pursuant to the
"reasonably effective assistance" test; if counsel acted
within the range of competence demanded of attorneys in
criminal cases, his performance was not deficient.
[Citation omitted.]
To satisfy the second prong of the Strickland test,
the defendant must establish that the deficient
performance prejudiced the defendant so as to deprive him
of a fair trial. [Citation omitted.1 The standard for
evaluating prejudice is whether a reasonable probability
exists that, but for counsel's deficient performance, the
trial's outcome would have been different. [Citation
omitted.1 However, this Court will not second-guess
trial tactics and strategy. [Citation omitted.]
Walker, 862 P.2d at 4.

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 Moreover, a defendant alleging ineffective assistance of
counsel bears the burden of provinq both deficient performance and
prejudice, and the proof must be grounded in facts found on the
record, not in mere conclusory allegations. State v. Hurlbert

(1988), 232 Mont. 115, 120, 756 P.2d 1110, 1112-13. If it is clear
that the defendant has not suffered prejudice depriving him of a
fair trial as a result of counsel's allegedly deficient
performance, the analysis ends at that point. Strickland, 466 U.S.
at 697. See also Hurlbert, 756 P.2d at 1113.
With these legal principles in mind, we address each of
Baker's ineffective assistance of counsel claims. Baker alleges
that counsel failed to move to suppress evidence obtained by a
private citizen search (Baker's issues 1 and 8). We conclude that
counsel did not err in so doing and that a motion to that effect
would have been frivolous under the facts of this case. Since our
decision in State v. Long (1985), 216 Mont. 65, 700 P.2d 153, we
have not applied the exclusionary rule to suppress the fruits of
private citizen searches, unless the citizens were "agents of the
State." State v. Christensen (19901, 244 Mont. 312, 797 P.2d 893.
Here, the patrons of Dapper Dan's bar in Helena were clearly not
acting at the behest of law enforcement.
Baker also contends that trial counsel did not provide
effective assistance in failing to move to suppress his statements
to Helena police officers Whitcomb and Hartman on the day following
his arrest as he was being transported from the Jefferson County
jail to the Lewis and Clark County jail (Baker's issues 7-8). We

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conclude that Baker's contentions are without merit. Officer
Whitcomb testified that he did advise Baker of his Miranda rights,
that he was not sure that the tape recorder had been turned on at
that point (the tape was inaudible), and that he did not recall
Baker asking for an attorney. The District Court concluded that
Baker offered no proof to the contrary.
Moreover, Baker suffered no prejudice as a result of the
introduction of his statements. Other witnesses at trial confirmed
much of what Baker stated to the police, and he never denied
committing the offenses charged, his defenses being self-defense
and mental disease and defect. In view of these circumstances and
because of the substantial quantum of evidence offered against
Baker at trial, it is unlikely that the outcome of the trial would
have been different even if his statements had been suppressed.
Baker maintains that counsel failed to effectively litigate
the admission of other crimes evidence (Baker's issues 9 and 14).
Again, we disagree. While Baker argues that he was prejudiced in
preparing his defense because the Just notice was not timely served
and that his counsel should, therefore, have asked for a
continuance, it is within trial counsel's professional judgment to
determine whether a continuance is necessary. Absent proof to the
contrary, we will not assume that defense counsel's failure to move
for a continuance prejudiced Baker's substantial rights. The
District Court found no prejudice, nor do we.
Baker argues that trial counsel erroneously failed to object
to the cross-examination of the aikido instructor. In Baker, we

11
concluded that the State's cross-examination was proper, because
the defendant had put his character in issue and that rebuttal by
past acts was proper. -, 815 P.Zd at 589.
Baker While there was no
objection to the cross-examination by defense counsel, any such
objection would have been overruled, the subject having been raised
on direct examination. Generally, whether to object is left to the
discretion of trial counsel in any event. Hurlbert, 756 P.2d at
1114; McCollev, 807 P.2d at 1360. Again Baker has failed to
demonstrate that his defense was prejudiced.
Baker contends that counsel was ineffective by failing to
obtain a gag order preventing an open trial (Baker's issue 15).
Baker wanted to present evidence that an assault on his wife in
1988 caused him to take measures to defend himself and caused
extreme mental stress which he contends affected his actions on the
night of the offenses. One of Baker's trial counsel stated that he
advised Baker against this course of action, because he felt that
the motion would be denied and create more adverse publicity; his
other counsel agreed with that analysis. The District Court found
that counsels' determination was a reasoned strategic decision. We
agree. Counsels' analysis of the law was correct. See, for
example, Globe Newspaper Co. v. Superior Court (1982), 457 U.S.
596, 102 S.Ct. 2613, 73 L.Ed.2d 248; Richmond Newspapers, Inc. v.
Virginia (1980), 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.Zd 973;
State ex rel. Smith v. District Court (1982), 201 Mont. 376, 654
P.2d 982.
Moreover, during the trial Baker had the opportunity to

12
present evidence of the attack on his wife, of his mental state at
the time of the crime, and of his reaction to the attack. Baker
has failed to demonstrate how the attack on his wife some one and
one-half years prior to the offenses with which he was charged
would have provided a valid defense. Again, no prejudice has been
shown affecting Baker's substantial rights, and we reject his
arguments.
'Baker contends that trial counsel erred in failing to prevent
use of evidence of past behavior at sentencing (Baker's issue 19).
Again, we find no support for Baker's position. Baker's past
conduct had been introduced in rebuttal during the trial over the
objection of defense counsel. More importantly, even if such
conduct had not been introduced at trial, such evidence would have
been properly presented as part of the presentence investigation
report which the court would have reviewed and considered at
sentencing. Sections 46-18-101(3), MCA, and 46-18-111, MCA.
Defense counsel could not have prevented the introduction of
Baker's criminal history at sentencing had he tried.
Baker argues that counsel failed to request a hearing pursuant
to § 46-18-223, MCA, on whether the mandatory minimum sentence
should apply to him (Baker's issues 17 and 22). The District Court
ruled that the mandatory minimum sentence was not considered in
this case. Baker was given a twenty-five year term for his robbery
conviction and a ten year term for use of a weapon. Accordingly,
whether the exceptions to the mandatory minimum sentence would have
applied is moot. Moreover, Baker had every opportunity at trial to

13
present his theory that he was the victim of threats, intimidation
and harassment which prevented him from acting with purpose or
knowledge on the date of the offense. He has failed to present any
new evidence relating to these factors which would have been
presented at a mitigation hearing, had one been held. Again, Baker
has failed to demonstrate how defense counsel's failure to request
a § 46-18-223, MCA, hearing prejudiced his defense.
In summary, having carefully reviewed the record and having
considered defendant's claims of ineffective assistance of counsel,
we conclude that Baker has failed in his burden to prove that trial
counsel made errors so serious that he was deprived of "counsel" as
guaranteed by the Sixth Amendment to the United States
Constitution. Moreover, Baker has failed in his burden to show
that counsel's performance in any way prejudiced his defense so as
to deny him a fair trial.
The District Court Decision and Order denying Baker's petition

/-??a - A\-
for post-conviction relief is, in all res P&L, AFFIj@IED.

‘p-v,
/ /

Chief Justice

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