No. 94-400
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
APPEAL FROM: District Court of the Twenty-First Judicial
District,
In and for the County of Ravalli,
The Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Steven J. Henry, Darby, Montana, Pro Se
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, John
Paulson, Ass't Attorney General, Helena, Montana
Charles H. Recht, Attorney at Law, Hamilton, Montana
Submitted on Briefs: March 23, 1995
Decided: June 20, 1995
Filed:
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
Steven J. Henry (Henry) appeals from a jury verdict in the
Twenty-First Judicial District Court, Ravalli County, finding him
guilty of driving or being in actual physical control of a vehicle
while under the influence of alcohol or drugs pursuant to § 61-8-
401, MCA, and from that portion of the District Court's judgment
requiring him to pay legal fees incurred by the Town of Darby. We
affirm in part, reverse in part, and remand.
On August 25, 1993, Darby police officer Larry Rose (Rose)
received two calls from the Ravalli County Sheriff's Department
reporting that Henry had been observed driving on U.S. Highway 93
south of Darby and that he might be intoxicated. Rose patrolled
the general area and, while parked on the side of Highway 93,
observed Henry's car being driven in an erratic manner. Rose
pursued Henry and turned on his emergency flashers just as Henry
pulled into a convenience store parking lot. Upon approaching
Henry's car, Rose smelled alcohol and observed that Henry appeared
intoxicated. Rose requested that Henry perform field sobriety
maneuvers; Henry refused to perform two of the maneuvers and could
not perform the third. Rose arrested Henry for driving under the
influence and transported him to the Ravalli County Jail.
A jury trial was held in Darby City Court on February 16,
1994; the jury found Henry guilty of operating a motor vehicle
under the influence of alcohol. The court sentenced Henry to sixty
days in jail with thirty days suspended, assessed fines and costs
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totalling $1,773.32, and required Henry to complete Ravalli
County's alcohol information and treatment program. Henry appealed
to the District Court for a trial de now.
A jury trial held in the District Court on June 30, and July
1, 1994, resulted in another guilty verdict. Following a
sentencing hearing, the District court entered a judgment
sentencing Henry to sixty days in the Ravalli County jail with
thirty days suspended on certain conditions. Among other things,
the conditions required Henry to complete the alcohol program and
to pay various fees and penalties, including legal fees incurred by
Darby in the prosecution of Henry's case in both the Darby City
Court and the District Court. The legal fees total $10,550. Henry
appeals. Additional facts are included as necessary in our
discussion of the issues.
1. Was Henry denied his right to counsel in the Darby
City Court proceedings?
Henry asserts that the Darby City Court erred in determining
that William Roche (Roche), a friend of Henry's family, could not
represent Henry in criminal proceedings. He argues that §§ 25-31-
601 and 37-61-210, MCA, required the court to permit Roche to act
as counsel and that its failure to do so violated his right to
counsel. We decline to address the merits of Henry's argument
because the trial de nova on appeal to the District Court, during
which Henry was represented by counsel, cured any prejudice which
may have resulted from the City Court's decision regarding
representation by Roche. See City of Billings v. McCarvel (19931,
262 Mont. 96, 101, 863 P.2d 441, 445.
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2 . Was Henry denied the effective assistance of counsel
in the District Court proceedings?
Henry advances various allegations of improper representation
by his defense counsel during trial in the District Court. He
argues that defense counsel, who allegedly is "fraternally and
religiously linked" to the prosecutor, aided the prosecution by
failing to: 1) present Henry's claim of erroneous denial of counsel
by the City Court; 2) introduce certain evidence and call certain
witnesses; 3) object to the presence of a particular person in the
courtroom; and 4) present arguments that Rose exceeded his
jurisdiction by arresting Henry in the convenience store parking
lot, and that Henry was neither intoxicated nor driving or in
physical control of an automobile at the time of the arrest.
Henry's arguments, which we construe as a claim of ineffective
assistance of counsel, are without merit.
This Court evaluates ineffective assistance of counsel claims
under the two-prong test set forth in Strickland v. Washington
(19841, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. State v.
Bradley (1993), 262 Mont. 194, 197, 864 P.2d 707, 789. Under the
first Strickland prong, "the defendant must prove that counsel's
performance was deficient by establishing that it fell below the
range of competence reasonably demanded of attorneys in light of
the Sixth Amendment." Bradlev, 864 P.2d at 789. "The second prong
requires the defendant to demonstrate that counsel's deficiency was
so prejudicial that it denied the defendant a fair trial."
Bradlev, 864 P.2d at 789. Both Strickland prongs must be
established before we will conclude that a defendant received
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ineffective assistance of counsel. State v. Hildreth (1994), 267
Mont. 423, 431-32, 884 P.2d 771, 776.
First, we address whether counsel's failure to raise Henry's
claim of erroneous denial of counsel by the City Court on appeal to
the District Court constituted deficient performance. A district
court does not sit as a court of review on appeal from city court
proceedings. See Citv of Billinas, 863 P.2d at 445. Thus, counsel
had no legal basis on which to present this claim of error by the
City Court to the District Court; absent a legal basis, counsel's
failure to present such an argument cannot constitute deficient
performance. See Bradlev, 864 P.2d at 790.
Nor are we persuaded by Henry's argument regarding counsel's
failure to use a videotape and photographs of city limits and to
call certain witnesses. Decisions relating to presentation of the
case, including whether to introduce certain evidence or to present
witnesses, generally are matters of trial tactics and strategy.
See, e.q., State v. Johnstone (1990), 244 Mont. 450, 464-65, 798
P.2d 978, 987. We will not find error supporting an ineffective
assistance of counsel claim in counsel's tactical decisions. State
v. Sheppard (Mont. 1995), 890 P.2d 754, 757, 52 St.Rep. 106, 108.
Henry also contends that counsel's performance was deficient
because he failed to object to the presence, and alleged
prejudicial effect, of a particular person in the courtroom. Here,
we need observe only that the record before us is devoid of any
reference to the presence of the person about whom Henry complains;
Henry's contention is supported only by affidavits which are not
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part of the record on appeal. This Court's review of allegations
on direct appeal is confined to the record. Section 46-20-701,
MCA; Bradley, 864 P.2d at 791. Thus, we decline to address this
portion of Henry's argument.
Henry's allegation that counsel failed to argue that Rose did
not have jurisdiction to arrest him is not supported by the record.
Indeed, the record is clear that counsel filed a pretrial motion to
dismiss the charges against Henry or, in the alternative, to
suppress evidence seized at the time of Henry's arrest on this
basis.
The record is equally clear regarding Henry's remaining
assertions of deficient performance. In closing argument, counsel
reminded the jury that the prosecution bore the burden of proving
that Henry had committed the offense charged including the "under
the influence" element. Counsel further drew the jury's attention
to the prosecution's failure to provide any direct evidence of
Henry's alleged intoxication and its total reliance on opinions
provided by police officers and laypersons who observed Henry.
Regarding whether Henry was driving or in actual physical control
of a vehicle at the time of the arrest, counsel pointed out the
inconsistencies in the testimony relating to that issue.
We conclude that Henry has not established that his counsel's
performance was deficient under the first Strickland prong; for
that reason, we need not address Strickland's prejudice prong. On
the basis of the record before us, therefore, we hold that Henry
was not denied the effective assistance of counsel during the
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District Court proceedings.
3. Did the District Court err in denying Henry's motion
to dismiss or, in the alternative, to suppress evidence
on the grounds that Rose was acting outside his lawful
jurisdiction in arresting Henry?
Henry admits that his arrest occurred within the physical
boundaries of Ole's convenience store parking lot, but contends
that Ole's parking lot is located outside the town limits of Darby.
Based on this contention, Henry argues that Rose had no
jurisdiction to arrest him and, as a result, that the District
Court erred in denying his motion to dismiss or, in the
alternative, to suppress evidence.
Resolution of this issue turns on whether Ole's parking lot is
within the Darby town limits. The record relating to the Darby
town limits consists of a Darby town plat, a copy of Darby Town
Resolution 176, and an affidavit from Darby's mayor, Richard
Higgins (Higgins). Henry highlighted the parcels of property
containing Ole's parking lot on the town plat; it cannot be
ascertained from reviewing the plat, however, whether the
highlighted parcels are within the Darby town limits.
Higgins' affidavit states that on September 14, 1992, the
Darby Town Council enacted Resolution 176 which annexed the
property on which Ole's is located into the town limits.
Resolution 176 states that, by mutual consent of the owner of the
property, J.G.L. Distributing, Inc., and the Darby Town Council,
"[plroperty belonging to J.G.L. Distributing [is] annexed into the
incorporated limits of the Town of Darby." Resolution 176 then
sets forth the legal description of the two parcels of land being
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annexed. A comparison of those legal descriptions to the parcels
highlighted on the town plat reflects thatthe plat parcels are
those annexed in the town limits of Darby via Resolution 176.
Henry cites to no evidence of record supporting the argument
that Rose was without jurisdiction when he arrested Henry.
Instead, he advances a convoluted argument that the prosecutor
tampered with evidence in order to establish that Ole's parking lot
was within the town limits, relying on a series of photographs and
a home videotape which were not admitted into evidence at trial.
We will not consider evidence not contained in the record on
appeal. Section 46-20-701, MCA; Bradley, 864 P.2d at 791.
We conclude that the record establishes that Ole's parking
lot, the site of Henry's arrest, lies within the Darby town limits
and Rose's jurisdiction. Therefore, we hold that the District
Court did not err in denying Henry's motion to dismiss the charges
or, in the alternative, to suppress evidence.
4 . Did the District Court err in ordering Henry to pay
$10,550 as the costs of legal fees incurred by the Town
of Darby in prosecuting his case?
The District Court sentenced Henry to sixty days in the
Ravalli County Jail with thirty days suspended on certain
conditions. The conditions included payment by Henry of a $500
fine, a $15 surcharge, costs of incarceration totalling $960, jury
costs in the amount of $979.50, and $10,550 to the Town of Darby
for legal fees incurred in prosecuting Henry's case and any
additional legal fees incurred in defending this appeal.
Henry argues that the costs and fines included in his sentence
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exceeded the average $350 fine imposed in similar cases prosecuted
in Ravalli County; on that basis, he contends that the court's
sentence was illegal. It appears that Henry also challenges the
legal basis for the District Court's assessment of the prosecution
legal fees as a condition of his suspended sentence.
"Trial judges are granted broad discretion to determine the
appropriate punishment." State v. Hembd (1992), 254 Mont. 407,
411, 838 P.2d 412, 415. We do not review a sentence for inequity
or disparity, but determine whether the sentence is within the
statutory guidelines. Hembd 838 P.2d at 415 (citations omitted).
,
This Court will not disturb a district court's sentencing decision
absent a showing that the court abused its discretion. State v.
Blanchard (Mont. 1995), 889 P.2d 1180, 1182, 52 St.Rep. 54, 56.
Section 46-18-201, MCA, is the sentencing statute at issue
here. Under subsection (1) (b), a court may suspend execution of a
sentence for six months or for a period equal to the maximum
sentence allowed, whichever is greater; during that period, the
sentencing judge may impose any of the "reasonable restrictions or
conditions" listed in subsection (1) (a). Section 46-18-201(l) (b),
MCA.
The express statutory conditions contained in 5 46-18-
201(1) (a), MCA, and available for imposition as conditions of a
suspended sentence under § 46-18-201(l) (b), MCA, include certain
monetary obligations. For example, a defendant may be assessed
restitution, costs of confinement, payment of a fine, and payment
of certain costs. & 5 46-18-201(l) (a) (iv), (v), (vi), and (vii),
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MCA. With the exception of the prosecution legal fees, it is clear
that the fines and costs imposed by the District Court are
specifically authorized as reasonable conditions of a suspended
sentence pursuant to 5 46-18-201(l) (a) and (b), MCA. It is equally
clear that § 46-18-201(l) (a), MCA, does not specifically authorize
the imposition of prosecution legal fees as a "reasonable
condition" and, indeed, that no other statute provides express
authority for the imposition of such a condition.
Moreover, the legislature's inclusion of specific authority
for a court's imposition of the costs of court-appointed defense
counsel (see § 46-18-201(l) (a) (viii), MCA) reflects the
legislature's awareness of the means by which to provide for
corresponding authority relating to prosecution legal fees. As a
general rule, the express mention of a certain power or authority
within a statute implies the exclusion of non-expressed powers.
& State ex rel. Jones v. Giles (1975), 168 Mont. 130, 133, 541
P.2d 355, 357. Because the legislature expressly authorized the
imposition of the costs of court-appointed defense counsel as a
"reasonable condition" and did not provide for corresponding
authority regarding prosecution legal fees, we conclude that the
legislature did not intend to authorize the imposition of
prosecution legal fees as a condition of a suspended sentence.
In addition to the express conditions set forth in § 46-18-
201(1)(a)(i) through (xi), MCA, however, the "catch-all" provision
contained in subsection (1) (a) (xii) permits a sentencing court to
impose "any other reasonable conditions considered necessary for
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rehabilitation. . . .'I In imposing the condition regarding
prosecution legal fees here, the District Court expressed the hope
that, when Henry weighed the cost of his unlawful actions against
the cost of engaging in those activities, he would "make some
effort to conform [his] behavior to the law." At the same time,
the court stated that there was no reasonable prospect of
rehabilitation in Henry's case. Under these circumstances, it
appears that the condition requiring Henry to reimburse Darby for
its attorney fees more probably reflects the court's understandable
frustration with Henry than a condition imposed for rehabilitation
purposes pursuant to § 46-18-201(l) (a) (xii), MCA. Moreover, absent
express statutory authority, the imposition of prosecution legal
fees engenders a sense of a primarily punitive, rather than
rehabilitative, purpose.
District courts are vested with considerable discretionary
power regarding sentences. ,
Hembd 838 P.2d at 415. We conclude,
however, that the imposition of prosecution legal fees is neither
expressly nor implicitly authorized by § 46-18-201(l) (a), MCA. On
that basis, we hold that the District Court abused its discretion
in imposing the payment of prosecution legal fees as a condition of
Henry's suspended sentence.
Affirmed in part, reversed in part, and remanded for
resentencing. h
We concur:
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