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No. 00-092
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 231
STATE OF MONTANA,
Plaintiff and Respondent,
v.
WAYLAND PAUL HARRIS,
Defendant and Appellant.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Michael C. Prezeau, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Wayland Paul Harris, Deer Lodge, Montana (pro se)
For Respondent:
Joseph P. Mazurek, Montana Attorney General, John Paulson, Assistant Montana Attorney General,
Helena, Montana; Bernie Cassidy, Lincoln County Attorney, Robert Slomski, Deputy Lincoln County
Attorney, Libby, Montana
Submitted on Briefs: October 12, 2000
Decided: November 20, 2001
Filed:
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__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Wayland Paul Harris appeals the denial of his petition for post-conviction relief in the
Nineteenth Judicial District Court, Lincoln County. We affirm the District Court's
dismissal of Harris' due process claim, and remand for an evidentiary hearing on Harris'
assertion of ineffective assistance of counsel.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In June 1997, Harris was charged with sexual intercourse without consent and incest,
based on allegations that he had sexual relations with his adopted daughter, Gwen, on
numerous occasions between November 1988, and January 1997. At the time of arrest,
two Lincoln County police officers engaged Harris in a lengthy taped interview at his
home, during which Harris confessed to having had sexual intercourse with Gwen on at
least one occasion. Prior to trial, Harris successfully moved to suppress the confession as
involuntary due to the police officers' implied promises of leniency in exchange for his
admissions. The court order barred the prosecution from using Harris' suppressed
confession in the case-in-chief, but deferred ruling on the use of the statement for
impeachment should Harris testify. Harris did not request a further ruling from the court
on the admissibility of his statement prior to testifying at trial. On direct examination,
Harris stated he had never had sexual relations with Gwen. Harris' attorney, Edmund
Sheehy, Jr., asked Harris about the statement he made at his arrest that he had committed
one act of sexual intercourse with his adopted daughter. Harris declared the prior
statement was false. On cross-examination, the State questioned Harris further regarding
his prior statement.
¶3 The Lincoln County jury found Harris guilty of the one count of incest, and not guilty
on both counts of sexual intercourse without consent. On April 24, 1998, the court
sentenced Harris to a term of 20 years in Montana State Prison.
¶4 Harris appealed, retaining Sheehy as counsel for the appeal. This Court affirmed the
conviction and sentence. See State v. Harris, 1999 MT 115, 294 Mont. 397, 983 P.2d 881.
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¶5 Harris filed a pro se petition for post-conviction relief in the District Court on
September 20, 1999, alleging violations of due process and ineffective assistance of
counsel. The court requested and received responsive pleadings from the parties, but
sought no additional information from Sheehy. Based upon the pleadings, the court
declined to hold an evidentiary hearing, and denied Harris' petition for relief. Harris
appeals.
¶6 The issues raised by post-conviction petition are:
¶7 1. Did this Court deny Harris his right to due process when we refused on appeal to
apply retroactively the rule on the specific unanimity jury instruction announced in State v.
Weaver?
¶8 2. Did the District Court err in dismissing Harris' post-conviction claim of ineffective
assistance of counsel?
STANDARD OF REVIEW
¶9 This Court reviews a district court's denial of post-conviction relief to determine
whether the court's findings of fact are clearly erroneous and whether its conclusions of
law are correct. State v. Hanson, 1999 MT 226, ¶ 9, 296 Mont. 82, ¶ 9, 988 P.2d 299, ¶ 9.
The decision to hold an evidentiary hearing in a post-conviction relief proceeding is
discretionary and reviewed for abuse of discretion. Hanson, ¶ 9.
DISCUSSION
¶10 As grounds for post-conviction relief, Harris alleges constitutional violations during
both trial and appellate proceedings. Harris contends that this Court's failure on appeal to
invoke the plain error doctrine and apply, retroactively to his case, a new rule on
instructing the jury regarding unanimous agreement on a specific criminal act to
substantiate a guilty verdict violated his right to due process. Harris alleges ineffective
assistance of counsel at trial because his attorney failed to request a final ruling on the use
of his suppressed confession for impeachment purposes prior to placing him on the stand
to testify, and, then, proceeded to question Harris on direct examination about the
suppressed statement. Finally, Harris insists failure of counsel to assert an ineffective
assistance of counsel claim on appeal in itself constitutes ineffective assistance.
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Issue 1.
Did this Court deny Harris his right to due process when we refused on appeal to apply
retroactively the rule on the specific unanimity jury instruction announced in State v.
Weaver?
¶11 Harris did not request the specific unanimity jury instruction at trial, but contended on
appeal that he deserved a new trial with a jury so instructed. This Court refused to invoke
the common law plain error doctrine, which affords the Court discretionary review of
claimed errors affecting fundamental constitutional rights when those claims have not
been preserved for appeal. State v. Finley (1996), 276 Mont. 126, 137, 915 P.2d 208, 215.
Plain error doctrine allows the Court to put aside the statutory prerequisites for appellate
review in certain extraordinary cases to prevent manifest injustice. Finley, 276 Mont. at
137, 915 P.2d at 215. See also § 46-20-701(2), MCA. Concluding that Harris did not
present exceptional circumstances warranting plain error review, we declined to address
the issue in our majority opinion. Harris, ¶ 12.
¶12 Harris asserts denial of due process, and we now reach the substance of his argument
for a specific unanimity jury instruction under § 46-21-101(1), MCA. In State v. Weaver,
we held that a specific unanimity instruction to the jury is required when different criminal
acts are charged in one count. State v. Weaver, 1998 MT 167, ¶ 40, 290 Mont. 58, ¶ 40,
964 P.2d 713, ¶ 40. When a genuine possibility exists that different jurors will conclude a
defendant committed disparate illegal acts subsumed under the single count, the special
instruction serves to direct the jurors to reach a unanimous verdict on at least one specific
criminal act before finding guilt for the multiple-act count. Weaver, ¶¶ 33-35 (citations
omitted). We also recognize a "continuous course of conduct" exception to this rule where
"the criminal acts are so closely connected that they form part of one and the same
transaction, and thus one offense." Weaver, ¶ 35 (citing People v. Gordon (1985), 165 Cal.
App. 3d 839, 854, 212 Cal. Rptr. 174, 184).
¶13 Harris was charged and convicted of one count of incest, which alleged that on many
occasions between November 1988, and January 1, 1997, he knowingly had sexual
intercourse with his adopted daughter. The District Court adopted the reasoning of the
concurring opinion from Harris' direct appeal to this Court and concluded that the
exception to the Weaver rule applied in this case. In his concurrence on appeal, Justice
Nelson reasoned:
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Unlike the victims in Weaver, the sexual assaults on Gwen involved more than a
few discrete incidents. Gwen testified that Harris demanded sex from her frequently,
as often as two to four times per week whenever her mother and brother were away
from their isolated, backwoods home. For the most part Harris would either
physically force her, intimidate her or frighten her into having sex with him on these
occasions. As the District Court noted in its sentencing order, "the Defendant held
his adopted daughter as his virtual 'sex slave' for a number of years in a remote
location, isolating her from her friends, and preventing her from attending school."
Harris, ¶39 (internal citation omitted).
¶14 The District Court found that no genuine possibility of jury confusion existed
regarding Harris' incessant criminal acts. The court reasoned that explicit jury agreement
on Harris' involvement in one discrete incidence of incest was not necessary when a
continuous course of sexual exploitation of his adopted daughter was demonstrated
beyond a reasonable doubt.
¶15 We agree. Harris' case falls within the exception carved from the Weaver rule, and no
specific unanimity instruction was necessary. While Harris' criminal conduct occurred
over a multiple-year period, we conclude that his persistent illegal acts were so frequently
perpetuated and so closely connected as to be properly viewed as a single, continuous,
running offense. We hold that the trial court did not err in failing to give a specific
unanimity instruction. This absence of error mirrors this Court's refusal to invoke the plain
error doctrine on appeal. Accordingly, we hold Harris received due process.
Issue 2.
Did the District Court err in dismissing Harris' post-conviction claim of ineffective
assistance of counsel without an evidentiary hearing?
¶16 Harris first claims trial counsel Sheehy provided ineffective assistance when he failed
to request the specific unanimity jury instruction and preserve the issue for appeal. We
have concluded this particular instruction is not required as a matter of law in Harris' case,
and hold counsel's performance was not deficient in this regard.
¶17 Harris next claims Sheehy's treatment of Harris' suppressed confession at trial
constitutes ineffective assistance. The State argues that Harris waived any claim to
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ineffective assistance of counsel at the trial phase by not raising the issue on appeal. Harris
counters that appellate counsel's failure to raise the claim of ineffective assistance
constitutes ineffective assistance.
¶18 The right to effective assistance of counsel is guaranteed by Article II, Section 24, of
the Montana Constitution and the Sixth Amendment to the United States Constitution. In
deciding ineffective assistance of counsel claims, we have adopted the two-prong
approach elucidated in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674. See Hagen v. State, 1999 MT 8, ¶ 10, 293 Mont. 60, ¶ 10, 973 P.2d 233, ¶
10. Under this test, the defendant bears the burden of showing that counsel's performance
fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S.Ct.
at 2064; State v. Coates (1990), 241 Mont. 331, 337, 786 P.2d 1182, 1185. The defendant
must overcome a strong presumption that counsel's defense strategies and trial tactics fall
within a wide range of reasonable and sound professional decisions. Strickland, 466 U.S.
at 688-89, 104 S.Ct. at 2064-65. Accord, State v. Langford (1991), 248 Mont. 420, 432-33,
813 P.2d 936, 946.
¶19 The second prong of the Strickland test examines the prejudicial impact of counsel's
errors, and the defendant must demonstrate the existence of a reasonable probability that
the result of the proceeding would have been different absent counsel's unprofessional
errors. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Strickler v. Greene (1999), 527 U.
S. 263, 291, 119 S.Ct. 1936, 1953, 142 L.Ed.2d 655. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at
694, 104 S.Ct. at 2068. When a defendant challenges a conviction, the defendant must
show the fact finder's reasonable doubt respecting guilt could have been routed by the
unprofessional errors of counsel. Strickland, 466 U.S. at 695, 104 S.Ct. at 2068-69. In
making this determination, a court must consider the totality of the evidence before the
judge or jury. Strickland, 466 U.S. at 695, 104 S.Ct. at 2069. When alleged ineffective
assistance does not prejudice the defendant to the degree that the outcome is implicated,
the claim may be dismissed without evaluating counsel's performance. Strickland, 466 U.
S. at 697, 104 S.Ct. at 2069.
¶20 The State argues that the procedural bar to record-based post-conviction claims
outlined in § 46-21-105(2), MCA, precludes Harris' petition for relief. This statute reads,
in pertinent part:
When a petitioner has been afforded the opportunity for a direct appeal of the
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petitioner's conviction, grounds for relief that were or could reasonably have been
raised on direct appeal may not be raised, considered, or decided in a proceeding
brought under this chapter.
Section 46-21-105(2), MCA.
¶21 We recently examined the application of this rule to certain claims of ineffective
assistance of counsel to distinguish those claims appropriately raised on appeal from those
best dealt with by post-conviction petition. See State v. Whitlow, 2001 MT 208, ___ Mont.
___, ___ P.3d ___; State v. White, 2001 MT 149, ___ Mont. ___ , ___ P.3d ___; State v.
St. John, 2001 MT 1, ___ Mont. ___, 15 P.3d 970. The trial record must adequately
document a challenged act or omission of defense counsel for a defendant to raise an
ineffective assistance claim on appeal. Whitlow, ¶ 16 (citing Hagen, ¶ 12). In addition to
documenting the error, the record available to this Court on appeal must afford sufficient
understanding of the reasons for counsel's act or omission to answer the threshold question
of whether the alleged error expresses a trial strategy or tactical decision. White, ¶ 20;
State v. Rose, 1998 MT 342, ¶ 18, 292 Mont. 350, ¶ 18. If the record does not supply the
reason for counsel's act or omission, the claim must be raised by petition for post-
conviction relief. St. John, ¶ 40 (citations omitted). In deciphering the use of the record
and the appropriate forum for adjudicating ineffective assistance claims, we explained:
Though not easily distilled into a formula, the definitive question that distinguishes
and decides which actions are record and which are non-record, is why? In other
words, if counsel fails to object to the admission of evidence, or fails to offer an
opening statement, does the record fully explain why counsel took the particular
course of action? If not, then the matter is best-suited for post-conviction
proceedings which permit a further inquiry into whether the particular
representation was ineffective. Only when the record will fully explain why counsel
took, or failed to take, action in providing a defense for the accused may this Court
review the matter on direct appeal.
White, ¶ 20.
¶22 When a tactical or strategic reason for defense counsel's alleged deficient performance
is apparent in the record on appeal or proffered by counsel in post-conviction proceedings,
the court must evaluate whether this underlying reason is "reasonable" before indulging
the strong presumption demanded by Strickland that a tactical or strategic act falls within
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the wide range of reasonable and sound professional assistance. Strickland, 466 U.S. at
688-89, 104 S.Ct. at 2064-65; Jones v. Wood (9th Cir. 1997), 114 F.3d 1002, 1010. When
a challenged act or omission reflects an unreasonable defense strategy, stems from neglect
or ignorance, or results from a misunderstanding of the law, counsel's deficient
performance meets the first prong of the Strickland test. State v. Aliff, 2001 MT 52, ¶ 13,
304 Mont. 310, ¶ 13, 21 P.3d 624, ¶ 13; State v. Gonzales (1996), 278 Mont. 525, 532,
926 P.2d 705, 710.
¶23 The record on appeal documented that Sheehy never requested a ruling from the trial
court on the prosecution's use of Harris' suppressed confession for impeachment purposes.
The trial court's deferral of the ruling preserved the issue for appeal should the prosecution
refer to the confession at trial. However, counsel's decision to raise Harris's suppressed
confession on direct examination created the opening for the prosecution to further
question Harris on cross-examination and mooted the appealable issue. The record on
appeal did not reveal whether Sheehy's acts and omissions sprang from tactical decisions
based upon articulable trial strategies or reflected misunderstandings of the law and trial
procedures. Consequently, we conclude that § 46-21-105(2), MCA, does not bar Harris'
post-conviction assertion of ineffective assistance of counsel at trial because extra-record
material is crucial in determining the merits of the claim.
¶24 Although the District Court supplemented the record with post-conviction pleadings
from the parties, no additional information from counsel Sheehy sheds light on the
threshold questions of why Sheehy failed to request a ruling from the court on the use of
Harris' suppressed confession or why he chose to question Harris on direct examination
regarding the incriminating statement. We do not know whether the alleged errors reflect a
coherent trial strategy or whether they were reasonable and deserve deference. We refuse
to speculate and, thus, are unable to evaluate Sheehy's performance. We remand to the
District Court for an evidentiary hearing to address the first prong of the Strickland test.
¶25 Because the surviving ineffective assistance issues raised by Harris must be
adjudicated in a post-conviction proceeding, the issue of appellate counsel's failure to raise
a claim of ineffective assistance of counsel at the trial level is without merit.
¶26 Remanded.
/S/ JAMES C. NELSON
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We Concur:
/S/ KARLA M. GRAY
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
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