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No. 00-364
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 165
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DONALD P. ROGERS,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
Honorable John W. Larson, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Helena, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General; Jennifer
Anders, Assistant Attorney General, Helena, Montana
Fred Van Valkenburg, County Attorney, Missoula, Montana
Submitted on Briefs: January 11, 2001
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Decided: August 21, 2001
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Donald Rogers (Rogers) appeals from the order of the Fourth Judicial District Court
denying post-conviction relief. The District Court found that Rogers's claims of defense
counsel's error in failing to request a "failure to agree" jury instruction and failing to
preserve Rogers's right to appeal lacked merit and, therefore, any error was harmless. The
court granted Rogers's double jeopardy claim and reversed the ten-year sentence
enhancement for use of a weapon. We reverse.
¶2 The following issues are raised on appeal:
I. Did the District Court err when it found that the failure to request a "failure to
agree" jury instruction did not constitute ineffective assistance of counsel?
II. Did the District Court err when it found that defense counsel's failure to preserve
Rogers's right to appeal was harmless?
Factual and Procedural Background
¶3 In the fall of 1995, Angela Tretteen (Tretteen) and Rogers were in Rogers's car when he
fired a gun out the window several times. Although Tretteen's version of what happened
differs from Rogers's version, both agree that Rogers made sexual advances, that Tretteen
rebuffed his advances and that the gun was fired. Tretteen testified that Rogers made
sexual advances and when she rebuffed him, he pulled out the gun and pointed it at her
demanding that she have sex with him. After she again refused, Tretteen testified, he shot
the gun out the window before again demanding she have sex with him. Witnesses for
Rogers testified that shortly after the incident, Tretteen said that Rogers did not point the
gun at her and that he did not try to rape her.
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¶4 Rogers was charged with one count of attempted sexual intercourse without consent
and one count of felony assault. At trial, the District Court provided jury instructions with
misdemeanor sexual assault and misdemeanor assault as lesser included offenses of the
two charged offenses. Rogers's attorney requested the "acquittal first" instruction which
provided that the jury was not to consider the lesser included offenses unless they first
acquitted on the greater offenses. The jury acquitted Rogers of attempted sexual
intercourse without consent and its lesser included offense of misdemeanor sexual assault
and convicted him of felony assault. Rogers was subsequently sentenced to ten years for
felony assault with a ten-year sentence enhancement for the use of a weapon in the
commission of the felony assault.
¶5 The attorney who represented Rogers at trial declined to file a notice of appeal,
asserting that he saw no appealable issues. Nine months after final judgment was entered,
Rogers attempted to file a notice of appeal, pro se. This Court dismissed that appeal and
ordered that any claims abandoned due to counsel's failure to file a notice of appeal could
be raised before the District Court in a petition for post-conviction relief.
¶6 Rogers filed a petition for post-conviction relief in which he alleged: 1) his counsel was
ineffective when he did not request a "failure to agree" instruction for the lesser included
offenses; 2) his counsel was ineffective for failing to preserve his right to appeal; 3) the
ten- year sentence enhancement for use of a weapon in the commission of the felony
assault subjected Rogers to double jeopardy. After a hearing, the District Court denied
Rogers's first two claims, finding that neither justified reversal of his conviction and
therefore constituted harmless error. The court granted Rogers's double jeopardy claim and
ordered the removal of the ten-year sentence enhancement.
Discussion
I. Did the District Court err when it found that the failure to request a "failure to
agree" jury instruction did not constitute ineffective assistance of counsel?
¶7 A defendant's right to assistance of counsel is guaranteed by Article II, Section 24 of
the Montana Constitution and by the Sixth Amendment to the United States Constitution.
The right to counsel means the right to effective assistance of counsel. State v. Enright
(1988), 233 Mont. 225, 758 P.2d 779; Strickland v. Washington (1984), 466 U.S. 668,
686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692.
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¶8 In Boyer, we adopted the Strickland standard which provides that a defendant is denied
effective assistance of counsel if: (1) counsel made errors so serious that his conduct fell
short of the range of competence required of attorneys in criminal cases; and (2) counsel's
errors were prejudicial. State v. Boyer (1984), 215 Mont. 143, 695 P.2d 829. The United
States Supreme Court recently warned however, that "[n]o particular set of detailed rules
for counsel's conduct can satisfactorily take account of the variety of circumstances faced
by defense counsel. Rather, courts must judge the reasonableness of counsel's conduct on
the facts of the particular case, viewed as of the time of counsel's conduct." Roe v. Flores-
Ortega (2000), 528 U.S. 470, 477, 120 S.Ct. 1029, 1034-35, 145 L.Ed.2d 985, 995
(internal citations omitted).
¶9 We recently reiterated that, to constitute ineffective assistance, counsel's actions must
stem from ignorance or neglect rather than from professional strategic decisions. State v.
Aliff, 2001 MT 52, ¶ 13, 304 Mont. 310, ¶ 13, 21 P.3d 624, ¶ 13 (citing State v. Gonzalez
(1996), 278 Mont. 525, 532, 926 P.2d 705, 710). In Aliff and Gonzales, counsel for each
defendant made a tactical decision to not offer a jury instruction regarding a defense
available to him, but not presented at trial. In both Aliff and Gonzales, the defendant failed,
on appeal, to sustain the substantial burden of proving that the tactical decision of defense
counsel fell outside of the range of competence demanded of an attorney in a criminal
case.
¶10 We have also found that because there is a strong presumption that counsel will
exercise professional judgment, a defendant fails to meet his burden of establishing that
counsel's actions were in error if the record is devoid of evidence indicating that counsel's
choice of instruction was the result of neglect or ignorance. State v. Hubbel, 2001 MT 31,
¶ 21, 304 Mont. 184, ¶ 21, 20 P.3d 111, ¶ 21.
¶11 Rogers contends that not requesting the "failure to agree" jury instruction allowed by
§ 46-16-607(3), MCA, constituted deficient performance. Section 46-16-607(3) provides
that "[u]pon request of the defendant at the settling of instructions, the court shall instruct
the jury that it may consider the lesser included offense if it is unable after reasonable
effort to reach a verdict on the greater offense." Rogers argues that the "acquittal first"
instruction significantly limited the jury's ability to consider the lesser included offense of
misdemeanor assault. In support of his claim, Rogers relies on United States v. Jackson, in
which the Ninth Circuit warned against the risk of requiring acquittal of the greater
offense before allowing consideration of the lesser included offense, stating:
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[J]urors harboring a doubt as to defendant's guilt of the greater offense but at the
same time convinced that defendant had committed some offense might wrongly
yield to the majority and vote to convict of the greater offense rather than not
convict defendant of any offense at all.
United States v. Jackson (9th Cir. 1984), 726 F.2d 1466, 1470.
¶12 Rogers argues that since § 46-16-607(3), MCA, was drafted to protect against the
serious risk identified by the Jackson court, defense counsel had an obligation to offer it
unless he had a strategic reason for not doing so. In support of his contention that counsel
had no strategic reason, Rogers relies on defense counsel's statements that he was unaware
that the jury instruction he offered did not include the "failure to agree" clause allowed by
the statute. Rogers relies on defense counsel's testimony that he did know that he was
allowed to offer the "failure to agree" instruction provided for in § 46-16-607(3), MCA,
and that he did not make a conscious choice not to do so.
¶13 The District Court found that counsel's failure to offer the "failure to agree"
instruction was error. Although Rogers's attorney stated he knew that the "failure to agree"
instruction was available, he could articulate no reason for limiting the jury's consideration
of the misdemeanor assault charge. In this case, the attorney exercised no professional
judgment and made no strategic decision in not offering the instruction allowing the jury
to consider the misdemeanor charge without first acquitting Rogers on the felony assault
charge. We agree that the failure to offer this potentially beneficial instruction, when that
failure is not part of counsel's trial strategy, is an error so serious that it falls outside of the
range of competence required of attorneys in criminal cases. Thus the first prong of the
Strickland test is satisfied, and we move on to address whether the deficient performance
was prejudicial.
¶14 To establish prejudice, a defendant must show there is a reasonable probability that
but for counsel's errors, the result of the proceedings would have been different. "A
reasonable probability is a probability sufficient to undermine confidence in the outcome,"
but it does not require that a defendant demonstrate that he would have been acquitted.
Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
¶15 We have previously held that a court must accept the "failure to agree" instruction
when defense counsel timely offers it. State v. Robbins, 1998 MT 297, ¶ 40, 292 Mont. 23
¶ 40, 971 P.2d 359, ¶ 40. In Robbins we further held that the failure to offer a "failure to
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agree" instruction was harmless where the record revealed insufficient evidence to support
a conviction on the lesser included offense. Robbins, ¶ 41.
¶16 The question Rogers presents however is whether, having offered a lesser included
offense instruction, it was prejudicial for his attorney to fail, without tactical reason, to
maximize the jury's ability to consider the lesser included offense. We conclude that such
failure was prejudicial to Rogers.
¶17 Rogers asserts that the jury's verdicts were divergent and that such divergence raises a
reasonable probability that had the "failure to agree" instruction been offered, the result
would have been different. Rogers maintains that to acquit him of attempted sexual
intercourse without consent, the jury had to reject Tretteen's testimony that, in an attempt
to have sexual intercourse with her, he used the gun to threaten infliction of bodily harm.
To then convict Rogers of felony assault, Rogers argues, the jury had to accept the same
testimony by Tretteen that it apparently rejected in acquitting Rogers of attempted sexual
intercourse without consent. Rogers argues that defense counsel's failure to maximize the
jury's ability to consider the lesser included offense, in light of these allegedly inconsistent
verdicts, is sufficient to undermine the confidence in the outcome.
¶18 The State responds that Rogers's claim incorrectly implies that had the "failure to
agree" instruction been offered, the jury could have considered both the felony assault and
the misdemeanor assault simultaneously. The State argues further that without an inquiry
from the jury indicating confusion or disagreement, Rogers cannot support his burden of
proof that counsel's failure to offer a "failure to agree" instruction was prejudicial. Because
there is no evidence suggesting the jury was deadlocked on the offense of felony assault,
the State asserts, the jury would not have reached the lesser included offense, even if a
"failure to agree" instruction had been given. Therefore, the State argues, any instructional
error is harmless.
¶19 Rogers's argument that the jury verdicts are divergent is unpersuasive. In acquitting
Rogers of both attempted sexual intercourse without consent and sexual assault, the jury
simply found that while he may have caused Tretteen apprehension of bodily injury, his
purpose was not to sexually assault her. In convicting Rogers of felony assault, the jury
found that Rogers purposely or knowingly caused apprehension in Tretteen of serious
bodily injury by threatening her with the gun. These two verdicts are not inconsistent and
do not raise a reasonable probability that had the "failure to agree" instruction been
offered, the result would have been different.
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¶20 The State argues that unless there is "evidence that the jury is deadlocked or is
confused," the failure to offer the "failure to agree" instruction is harmless. We disagree
that jury deadlock is required to raise a reasonable probability that the jury might have
reached a different verdict but for the error. Strickland requires only that a defendant show
"a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at
694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
¶21 The failure to offer a "failure to agree" instruction implicates the danger identified in
Jackson, that jurors, harboring doubts as to a defendant's guilt on the greater offense, will
wrongly yield to the majority rather than not convict the defendant of any offense at all.
To protect against that risk, we hold that when sufficient facts exist to support a conviction
for a lesser included offense, defense counsel shall offer the "failure to agree" instruction
unless she or he has a tactical reason for not doing so.
¶22 In the case before us, counsel and the court concluded there was sufficient evidence of
the lesser included offense to allow the jury to consider the lesser charge. Yet, after
offering the lesser included offense instruction, defense counsel, with no strategic or
tactical purpose, failed to maximize the jury's ability to consider the lesser included
offense. Under the facts of this case, defense counsel's failure to offer the "failure to
agree" instruction was prejudicial.
¶23 Rogers has established both error and prejudice under the Strickland test for
ineffective assistance of counsel. We conclude that defense counsel provided Rogers with
ineffective assistance, and we therefore reverse Rogers's felony assault conviction and
remand for a new trial.
II. Did the District Court err when it found that defense counsel's failure to preserve
Rogers's right to appeal was harmless?
¶24 Because we reverse on the jury instruction issue, the failure to appeal issue is not
dispositive. However, the District Court erred in ruling that counsel's failure to protect
Rogers's right to appeal was harmless error. Failure to preserve a defendant's right to
appeal when he has requested notice be filed is error. Roe, 528 U.S. at 477, 120 S.Ct. at
1035, 145 L.Ed.2d at 995. And when, but for counsel's deficient performance, defendant
would have appealed, such error is prejudicial. Roe, 528 U.S. at 484, 120 S.Ct. at 1038,
145 L.Ed.2d at 999.
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¶25 Defense counsel refused to file a notice of appeal asserting there were no appealable
issues. Rogers consequently missed the deadline for filing a notice of appeal. During post-
conviction review, the District Court agreed with defense counsel and ruled that counsel's
failure to protect Rogers's right to appeal was harmless error because Rogers's claims
lacked merit.
¶26 However, a defendant's right to appellate counsel must be safeguarded and allowing
counsel to be the final judge of the merits of an appeal does not adequately safeguard this
right. Smith v. Robbins (2000), 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756. We have
adopted the procedure set forth in Anders, and we require that, if after a conscientious
review, counsel concludes an appeal is wholly frivolous, counsel must advise the court
and request permission to withdraw. Anders v. California (1967), 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493.
¶27 Following the Anders procedure protects a defendant's right to effective assistance of
counsel on appeal. Defense counsel in the case at hand did not follow this procedure but
simply repeatedly refused Rogers's request to file a notice of appeal. Furthermore, in
granting relief on Rogers's double jeopardy appeal issue, the District Court contradicted its
own ruling that all of Rogers's claims were frivolous. Clearly the District Court believed
that at least one of the appeal issues had merit. The record also clearly indicates that but
for counsel's deficient performance, Rogers would have appealed. The failure to appeal
therefore violated Rogers's constitutional right to counsel, and we reverse the District
Court's finding that such error was harmless.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ PATRICIA COTTER
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