No. 05-102
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 60N
THOMAS J. NOVAK,
Petitioner and Appellant,
v.
STATE OF MONTANA ,
Respondent and Respondent.
APPEAL FROM: The District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV 2004-972,
Honorable Russell C. Fagg, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Thomas J. Novak, pro se, Alexander, North Dakota
For Respondent:
Honorable Mike McGrath, Attorney General; Joslyn M. Hunt,
Assistant Attorney General, Helena, Montana
Dennis Paxinos, County Attorney; Scott Twito, Deputy County
Attorney, Billings, Montana
Submitted on Briefs: December 29, 2005
Decided: March 21, 2006
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent. It shall be filed
as a public document with the Clerk of the Supreme Court and shall be reported by case
title, Supreme Court cause number and result in this Court’s quarterly list of noncitable
cases published in the Pacific Reporter and Montana Reports.
¶2 Thomas Novak appeals the order denying his petition for postconviction relief
entered in the Thirteenth Judicial District Court, Yellowstone County. We affirm.
¶3 Novak was charged with offenses in two causes. In the first cause, he was charged
with felony stalking. In the second, Novak was charged with stalking, tampering with a
witness, and impersonating a public servant, all felonies. He was also charged in the
second cause with resisting arrest, a misdemeanor. The stalking victim was the same
person in both causes, and the District Court processed the causes simultaneously. In
exchange for dismissal of the other charges, Novak pled guilty to felony stalking in the
first cause and to tampering with a witness in the second cause and was sentenced on July
22, 2003, to serve two five-year terms to run concurrently, each with two years
suspended. Novak did not appeal either judgment.
¶4 On September 20, 2004, Novak filed a petition for postconviction relief. The only
information Novak provided the District Court to support his petition was his own
conclusory affidavit alleging that his counsel rendered ineffective assistance by failing to
investigate the contents of a tape recording of telephone calls with the victim whom he
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stalked. Novak alleged that on the tape the victim stated that she wanted contact with
him. Novak contended that, had his counsel properly investigated the contents of the
tape, it may have provided a defense to the charges against him and he would not have
entered a guilty plea.
¶5 In denying the petition, the District Court ruled that Novak’s counsel made a
reasonable tactical decision not to investigate the tapes, that Novak failed to present facts
demonstrating that he was prejudiced by his counsel’s action, and that no evidentiary
hearing showing what an investigation by his counsel may have produced was required.
¶6 The issue on appeal is whether the District Court erred in denying the petition for
postconviction relief. In State v. McColley (1991), 247 Mont. 524, 527, 807 P.2d 1358,
1360, we stated, “A claim of ineffective assistance of counsel must be grounded in facts
found in the record, not on mere conclusory allegations.” Novak has offered only a
conclusory allegation. In State v. Cady, 2000 MT 353, ¶ 10, 303 Mont. 258, ¶ 10, 15
P.3d 479, ¶ 10, this Court confirmed that a “petitioner must show that counsel’s
performance was deficient and that the deficient performance prejudiced the defense.”
Novak has not met this burden. Finally, in Bishop v. State (1992), 254 Mont. 100, 107,
835 P.2d 732, 737, quoting Coleman v. State (1981), 194 Mont. 428, 433, 633 P.2d 624,
627, we stated, “[I]t is not error to deny an application for post-conviction relief without
an evidentiary hearing if the allegations are without merit or would otherwise not entitle
the petitioner to relief.” Novak’s allegations are without merit and would not otherwise
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entitle him to relief; thus, an evidentiary hearing was not required. Therefore, we
conclude that the District Court did not err in denying Novak’s petition.
¶7 It is appropriate to decide this case pursuant to our Order of February 11, 2003,
amending Section 1.3 of our 1996 Internal Operating Rules and providing for
memorandum opinions. It is manifest on the face of the briefs and the record before us
that the appeal is without merit because the findings of fact are supported by substantial
evidence, the legal issues are clearly controlled by settled Montana law which the District
Court correctly interpreted, and there was clearly no abuse of discretion by the District
Court.
¶8 We affirm the judgment of the District Court.
/S/ JIM RICE
We concur:
/S/ JOHN WARNER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
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Novak v. State
Combined Opinion