No. 01-550
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 189
ALAN WAYNE WILLIAMS,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Respondent.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable E. Wayne Phillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jon A. Oldenburg, Attorney at Law, Lewistown, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Jennifer Anders,
Assistant Attorney General, Helena, Montana
Thomas P. Meissner, Fergus County Attorney, Lewistown, Montana
Submitted on Briefs: April 11, 2002
Decided: August 29, 2002
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1 By Information filed in the District Court for the Tenth
Judicial District in Fergus County, the Defendant, Alan Wayne
Williams, was charged with felony criminal possession of drugs
(methamphetamine), misdemeanor criminal possession of drugs
(marijuana), and misdemeanor criminal possession of drug
paraphernalia. Williams was convicted of all three offenses
following a non-jury trial, and sentenced on March 23, 1999. On
September 11, 2000, Williams filed a petition for postconviction
relief based on numerous claims of ineffective assistance of
counsel. Williams subsequently amended his petition to include two
additional claims of ineffective assistance of counsel. The
District Court denied Williams' petition for postconviction relief,
and Williams appeals from the District Court's denial. We affirm
the District Court to the extent that it addressed the issues
raised by Williams, but remand to the District Court for further
findings regarding those issues it has not addressed.
¶2 The following issues are presented on appeal:
¶3 1. Did the District Court erroneously decide the issues that
it addressed?
¶4 2. Did the District Court inadequately address the additional
issues raised in Williams' amended petition for postconviction
relief?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 On August 25, 1998, Jim Simonich, Alan Wayne William's
probation officer, conducted a probationary search of Williams'
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apartment based on a tip he had received from Williams' roommate,
Laura Wilton. Wilton alleged that Williams was involved in drug
activities. During the search, Simonich found a wooden box
containing glass vials, baggies, a scrap of paper with residue,
scissors, a razor, and tin foil with burned residue on it. The
wooden box was in plain view in the apartment on top of a box of
clothes that appeared ready to be moved.
¶6 Simonich had the items field-tested at the Lewistown Police
Department. Officer Ed McLean tested a portion of residue in a
glass vial and also a green leafy substance found in a glass case.
The residue in the glass vial tested positive for methamphetamine,
and the material in the glass case tested positive for THC, the
illegal substance found in marijuana. The items were then sent to
the State Crime Lab for further analysis. The State Crime Lab
confirmed that the residue in the glass vial was methamphetamine,
but found no THC on any of the items tested.
¶7 Based on the search and what was found, Williams was arrested.
At the time of the arrest, Simonich also had Williams provide a
urine sample. The urine sample was both "field tested" and sent to
a prerelease lab in Great Falls, Montana. At trail, Simonich
testified that the "field test" results were positive for THC and
negative for methamphetamine. The prerelease lab independently
tested Williams' urine sample, and found positive results for both
THC and methamphetamine. According to the State, neither the
prosecution nor the defense were provided the prerelease lab
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results prior to trial. Nevertheless, at trial, Simonich mentioned
those test results in his testimony.
¶8 The District Court appointed Carl G. DeBelly to represent
Williams on or about August 27, 1998. By Information filed on
September 1, 1998, Williams was charged with felony criminal
possession of dangerous drugs (methamphetamine), misdemeanor
criminal possession of dangerous drugs (marijuana), and misdemeanor
possession of drug paraphernalia.
¶9 Williams' defense was based on his denial that he owned or
possessed the drugs and the fact that others had an opportunity to
be in the apartment and either leave or plant the drugs. Williams
claimed that the wooden box did not belong to him and that he was
in the process of moving out when Simonich conducted the search.
Williams did admit, however, that he was in the apartment on the
morning of August 25, 1998, just hours before the search, and that
he stayed at the apartment three or four nights a week during that
month of August. Williams' roommate, Laura Wilton, also admitted
that she had access to the apartment, and that she had been in the
apartment the night before the search.
¶10 On February 3, 1999, Williams was convicted of the charged
offenses after a non-jury trial. On March 23, 1999, Williams was
sentenced. Both the non-jury trial and the sentencing were
presided over by the Honorable John R. Christensen. On April 15,
1999, DeBelly withdrew as Williams' attorney, and the District
Court appointed attorney Jack R. Stone to replace DeBelly.
Williams' direct appeal to this Court was withdrawn. However, he
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subsequently filed a petition for postconviction relief on
September 11, 2000, and asserted numerous claims that his trial
counsel, DeBelly, had been ineffective. An evidentiary hearing was
held before the Honorable E. Wayne Phillips to consider evidence in
support of Williams' petition on January 18, 2001. Following the
hearing, the District Court allowed Williams to amend his petition
for postconviction relief to include two additional ineffective
assistance of counsel claims.
¶11 On May 17, 2001, the District Court denied Williams' petition
for postconviction relief. The Court determined that two of
Williams' claims were procedurally barred and that the remaining
ineffective assistance of counsel claims lacked merit. Following
the District Court's denial, Jack R. Stone withdrew as Williams'
attorney. Acting pro se, Williams filed a notice of appeal on May
28, 2001, and requested that appellate counsel be appointed.
Attorney Jon A. Oldenburg was appointed for purposes of this
appeal. On appeal, Williams contends that the District Court
erred when it denied his petition for postconviction relief and
when it failed to address the additional ineffective assistance
claims raised in his amended petition.
STANDARD OF REVIEW
¶12 The standard of review of a district court's denial of a
petition for postconviction relief is whether the district 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.
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¶13 In considering ineffective assistance of counsel claims in
postconviction proceedings, we apply the two-part test set forth by
the United State Supreme Court in Strickland v. Washington (1984),
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Dawson v. State,
2000 MT 219, ¶ 20, 301 Mont. 135, ¶ 20, 10 P.3d 49, ¶ 20. The two-
part test requires the defendant to show that his counsel's
performance was deficient, or fails to meet an objective standard
of reasonableness, and that his counsel's deficient performance
prejudiced the defense and deprived the defendant of a fair trial.
Dawson, ¶ 20; Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. We
presume that counsel has rendered adequate assistance and has made
all significant decisions in the exercise of his or her reasonable
professional judgment. State v. Weaver, 2001 MT 115, ¶ 12, 305
Mont. 315, ¶ 12, 28 P.3d 451, ¶ 12.
ISSUE 1
¶14 Did the District Court erroneously decide the issues that it
addressed?
¶15 Williams' petition for postconviction relief was based on his
contention that he received ineffective assistance of counsel
before, during, and after trial. Specifically, Williams alleged
that his trial counsel: (1) failed to conduct proper discovery; (2)
failed to obtain and call certain witnesses necessary for his
defense to testify; (3) failed to properly question witnesses; (4)
conducted inadequate trial preparation; (5) allowed his personal
problems to detract from his representation; (6) failed to
substitute the trial judge when requested to do so; and (7) failed
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to call necessary and beneficial witnesses at Williams' sentencing
hearing. The final two claims were not included in Williams'
original petition, but were allowed by the District Court in the
amended petition. As relief, Williams requests this Court to order
a new trial.
¶16 In response, the State contends that the District Court's
conclusion that Williams' trial counsel was not ineffective was
fully supported by the evidence. According to the State, Williams'
trial counsel made reasonable efforts to contact witnesses,
formulated sound trial strategy, and employed that trial strategy
effectively through the witnesses he presented. Furthermore, the
State asserts that Williams' other claims that his counsel lacked
preparedness were either unfounded or did not result in prejudice.
¶17 Williams first contends that his trial counsel failed to
contact, discover, and prepare witnesses that would have been
beneficial to his defense. Specifically, Williams contends that
his trial counsel should have presented the testimony of two
witnesses, one of whom was an unnamed man who was a neighbor of
Williams, and the other was "Mr. Bruski," who purportedly had been
in Williams' apartment the night before the search. Because
Williams' defense was based on who had access to the apartment, the
ownership and possession of the drugs, and who had an opportunity
to have been in the apartment to either leave or plant the drugs,
Williams contends that those witnesses would have been beneficial
to his defense, and that his trial counsel's failure to find and
call those witnesses constitutes ineffective assistance of counsel.
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We conclude that ineffective assistance of counsel on that basis
was not established.
¶18 Williams contends that he awoke the unnamed neighbor at 3:00
a.m. on the morning of August 25, 1998, after discovering that his
apartment had been broken into. According to Williams, the unnamed
neighbor would have been able to show that there had been other
persons in the apartment other than Williams. However, despite the
fact that Williams could not provide DeBelly with a name or
physical description of the individual, the record establishes that
DeBelly went to Williams' apartment house and knocked on doors in
an attempt to find the individual. He testified at the evidentiary
hearing as follows:
Q: Did you go up to the TV Appliance Apartments to try
to find this unknown person?
A: Yes, I did.
Q: Did you inquire, knock on doors?
A: I knocked on doors. I asked people if they knew an
Alan Williams. If they said no I said, well, maybe
– then I would physically describe Mr. Williams as
being rather short and thin with dark hair and a
moustache at that time, and they said, well, yes,
we know who you are talking about, but he didn't –
he hadn't come and knock on my door. I have no
idea – the – the persons or people renting these
apartments at this particular time kind of came and
went an awful lot. I – I am not sure exactly what
Mr. Erlandson's policies are right now, but – so I
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am not even sure if during the time that I spent
there knocking on doors if the person that Mr.
Williams claims to have been there was even in TV
Appliance Apartments at the time that I was making
my inquiries. However, I did go up there and
attempt to locate someone.
We are satisfied, based on the foregoing testimony, that Williams'
trial counsel made a reasonable effort to locate the unnamed
person, that his performance was not deficient, and that,
therefore, Williams has failed to meet the first part of the
Strickland analysis based on this allegation.
¶19 As for "Mr. Bruski," Williams contends that Bruski should have
been called as an adverse witness to establish that he was in the
apartment with Laura Wilton on the night before the search was
conducted. However, it is unclear from the record what "Mr.
Bruski" would have established by his testimony, and how his
absence actually prejudiced Williams. The only testimony regarding
"Mr. Bruski," referred to in the transcript as "Burski," was as
follows:
Q: Now, even though he didn't testify his affidavit
talks about and the memorandum talks about Jim
Burski.
A: Correct.
Q: Did you talk to Mr. Burski?
A: Only after trial.
Q: Okay, and, in fact, information from Laura Wilton
hadn't even come out until the time of trial about
possibly Burski's involvement; is that correct?
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A: Correct. In fact, she had misled me I guess I
would say in an earlier conversation that I had
with her concerning her statement.
The only other evidence in support of Williams' contention that
"Mr. Bruski" was a critical witness to Williams' defense was
Williams' affidavit. However, we have stated in the past that
conclusory allegations in a self-serving affidavit, unsupported by
any evidence, are insufficient to establish a claim for
postconviction relief. State v. Wright, 2001 MT 282, ¶ 31, 307
Mont. 349, ¶ 31, 42 P.3d 753, ¶ 31. Furthermore, if Williams’
intent was to show that others had been in the apartment the night
before the search, that fact had already been established. Laura
Wilton readily admitted that she had been in the apartment the
night before the search, and it follows that others could have been
let into the apartment while she was there. Therefore, we conclude
that failure to call "Mr. Bruski" as a witness did not establish
ineffective assistance of counsel.
¶20 Williams also contended that his trial counsel should have
known of and objected to the introduction of his urinalysis test
results. After Williams was arrested, his urine was tested first
in a "field test" conducted by Simonich, then by a prerelease lab
in Great Falls. The field test was conducted by placing three
drops of Williams' urine on a small card, which will indicate
either positive or negative for certain substances. DeBelly made a
tactical decision to attack the weight of the evidence given his
reasonable interpretation that the field test was admissible.
Although neither the State nor DeBelly were provided with the test
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results from the prerelease lab prior to trial, Simonich introduced
the evidence in his testimony. DeBelly did not object to this
evidence. However, the District Court did not address these
evidentiary issues based on its understanding that they were waived
because they were not raised on appeal. On appeal from the
postconviction order, Williams' counsel concedes that was correct.
Therefore, we will not address whether failure to object to the
evidence was ineffective.
¶21 The final issue addressed by the District Court was Williams'
contention that DeBelly's overall emotional state adversely
affected DeBelly's representation of Williams. Williams asserts
that DeBelly was distracted, stressed, and depressed because of his
wife's medical problems, and that he often spoke of that depression
in visits with Williams.
¶22 In its order, the District Court addressed Williams' claim,
and found:
Not surprisingly, Attorney DeBelly disputed the
Petitioner's argument that he was suffering from
significant depression from family matters or that it
affected his representation of the Defendant at his trial
and sentencing hearing. Mr. DeBelly testified that the
precipitating event in his family had occurred some seven
months to one year prior to his appointment as attorney
for the Petitioner. . . .
The Court finds Mr. Williams not credible on this
particular question of poor representation due to family
stress and, while Mr. DeBelly acknowledged some emotional
difficulties, the Court finds credible his contention
that he represented a very demanding and undisciplined
client. In relationship to the second prong of
Strickland, the Petitioner has failed to show where the
depression or stress-related action or inaction on the
part of Mr. DeBelly prejudiced his trial or sentencing.
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The record is clear that the injuries to DeBelly's wife occurred on
January 14, 1998, that DeBelly did not practice law between the
period of mid-January to mid-March of 1998, and that DeBelly was
not appointed to represent Williams until August 27, 1998. When
asked directly whether his personal problems negatively affected
his representation of Williams, DeBelly stated, "No, no. By the
time I had – by the time I had returned to practice full time I had
determined that psychologically and physically I was capable of
resuming my practice." After review of the record, we are left
unconvinced that, as a result of DeBelly's personal problems, he
provided ineffective representation. We conclude that those
findings made by the District Court regarding DeBelly's assistance
as counsel were not clearly erroneous and that the District Court's
conclusions of law were correct.
ISSUE 2
¶23 Did the District Court inadequately address the additional
issues raised in Williams' amended petition for postconviction
relief?
¶24 Williams contends that this case should be remanded to the
District Court because the District Court's order which denied the
petition for postconviction relief failed to address all of the
issues raised. The District Court did not make specific findings
regarding his allegations that his attorney failed to substitute
the trial judge despite being requested to do so and that his
attorney failed to call important character witnesses to testify at
Williams' sentencing hearing. Those are the two issues that were
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added by Williams' amended petition for postconviction relief. As
relief, Williams requests that this Court remand the amended claims
to the District Court for further consideration and findings.
¶25 The State contends that a remand for additional findings is
unnecessary. Based on the doctrine of implied findings, the State
asserts that the findings made by the District Court imply that
relief should also be denied on those additional bases.
¶26 However, the doctrine of implied findings is not applicable to
this case. The doctrine of implied findings provides that where a
court's findings are general in terms, any findings not
specifically made, but necessary to the judgment, are deemed to
have been implied if supported by the evidence. Interstate Brands
Corp. v. Cannon, 218 Mont. 380, 384, 708 P.2d 573, 576 (1985).
Here, however, the findings enumerated in the District Court's
order were not general in nature, but specific to the claims raised
in Williams' original petition for postconviction relief. In
contrast, the additional issues raised in Williams' amended
petition were not addressed. Therefore, it is unclear, based on
the District Court's order, whether the District Court even
considered Williams' additional claims.
¶27 Findings are sufficient if they dispose of the material
issues. Northern Plains Resource Council v. Board of Natural
Resources and Conservation (1979), 181 Mont. 500, 512, 594 P.2d
297, 304. We conclude that Williams was entitled to have the
additional issues he raised in his amended petition independently
considered.
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¶28 Accordingly, we affirm the District Court's resolution of
those issues it addressed, but remand to the District Court for
further findings on the additional issues raised by Williams in his
amended petition for postconviction relief.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
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