December 18 2007
DA 06-0250
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 345N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
RONALD GILBERT,
Defendant and Appellant.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and For the County of Hill, Cause No. DC 05-077,
Honorable David Rice, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender; Joslyn M. Hunt, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Honorable Mike McGrath, Attorney General; John Paulson, Assistant
Attorney General, Helena, Montana
Cyndee L. Peterson, County Attorney; Gina Bishop, Deputy County
Attorney, Havre, Montana
Submitted on Briefs: October 31, 2007
Decided: December 18, 2007
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum 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 disposition to
the State Reporter Publishing Company and West Group in the quarterly table of
noncitable cases issued by this Court.
¶2 Appellant Ronald Gilbert appeals from the decision of the District Court for the
Twelfth Judicial District, Hill County, finding him guilty of one felony count of driving
under the influence of alcohol, one misdemeanor count of failure to carry/produce proof
of insurance, and one misdemeanor count of failure to remain to the right of the roadway.
We affirm.
¶3 On June 10, 2005, the State charged Gilbert by information with one felony count
of driving under the influence of alcohol, fourth or subsequent offense, in violation of
§ 61-8-401, MCA (Count I); one misdemeanor count of failure to carry/produce proof of
insurance, in violation of § 61-6-302, MCA (Count II); one misdemeanor count of failure
to remain to the right of the roadway, in violation of § 61-8-321, MCA (Count III); and
one misdemeanor count of speeding, in violation of § 61-8-303, MCA (Count IV). These
charges stemmed from a June 9, 2005, traffic stop in Hill County, Montana.
¶4 Gilbert pleaded not guilty to all four counts on June 20, 2005, and the matter went
to trial on January 30, 2006. During voir dire, prospective juror Cheryl Gilbert (hereafter
“Juror Gilbert”), no relation to the defendant, stated that she did not drink alcohol and
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expressed her belief that if a person has a drink, he or she should not drive. When later
questioned by defense counsel, Juror Gilbert stated that she was not 100 percent sure she
could set aside her personal feelings and judge Gilbert on the circumstances of his case.
Defense counsel challenged Juror Gilbert for cause and, in response to questioning by the
court, she affirmed that she could apply the Montana impaired driving rules as dictated
by the court, that she had not made up her mind, and that she was willing to listen to the
evidence and base her decision on what she heard. The court denied the challenge for
cause, and later, defense counsel did not use a peremptory challenge on Juror Gilbert.
The jury found Gilbert guilty on Counts I-III, and not guilty on Count IV. The District
Court sentenced Gilbert on February 22, 2006, on the three counts and designated him as
a persistent felony offender under §§ 46-18-501 and 502, MCA, with a sentence of eight
years at the Montana State Prison. This appeal followed.
¶5 Gilbert appeals his conviction on three grounds. He first contends that defense
counsel rendered ineffective assistance of counsel by failing to use a peremptory
challenge to remove Juror Gilbert after defense counsel unsuccessfully challenged her for
cause. Second, Gilbert argues that the District Court erred when it denied Gilbert’s
challenge for cause and rehabilitated Juror Gilbert. Finally, Gilbert claims that the
District Court violated the Double Jeopardy Clause when it suspended his driver’s license
in conjunction with his arrest for driving under the influence.
¶6 Claims of ineffective assistance of counsel present mixed questions of law and fact
that we review de novo. State v. St. Germain, 2007 MT 28, ¶ 14, 336 Mont. 17, ¶ 14, 153
P.3d 591, ¶ 14.
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¶7 When reviewing ineffective assistance of counsel claims, this Court applies the
two-pronged test set out by the Supreme Court in Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052 (1984). State v. Cobell, 2004 MT 46, ¶ 14, 320 Mont. 122, ¶ 14, 86
P.3d 20, ¶ 14. Under Strickland, to prevail on an ineffective assistance of counsel claim,
the defendant must show: (1) that counsel’s performance was deficient, and (2) that
counsel’s deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687,
104 S. Ct. at 2064; Cobell, ¶ 14. However, before applying the Strickland test, we must
first determine whether direct appeal is the appropriate forum for the defendant’s claims.
“Generally, in addressing ineffective assistance of counsel claims, we ask ‘why’ counsel
did or did not perform as alleged and then seek to answer the question by reference to the
record.” St. Germain, ¶ 34. “If the record on appeal explains ‘why,’ we will then address
the issue on appeal. If the claim is based on matters outside the record on appeal, we will
refuse to address the claim and allow the defendant to file a postconviction proceeding
where a record can be developed as to ‘why’ counsel acted as alleged, thus allowing the
court to determine whether counsel’s performance was ineffective or merely a tactical
decision.” St. Germain, ¶ 34.
¶8 Gilbert contends that h i s counsel rendered ineffective assistance when he
challenged Juror Gilbert for cause, which the District Court denied, but then failed to use
a peremptory challenge to remove Juror Gilbert. We have previously recognized that
peremptory challenges are essentially a matter of trial strategy. State v. Herrman, 2003
MT 149, ¶ 31, 316 Mont. 198, ¶ 31, 70 P.3d 738, ¶ 31. While Gilbert asserts that there
was no tactical reason for defense counsel’s failure to use a peremptory challenge on
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Juror Gilbert, the record is silent as to why defense counsel chose not to use a peremptory
challenge on her, and we conclude the matter would be more appropriately raised in a
petition for postconviction relief. Accordingly, we dismiss Gilbert’s ineffective
assistance of counsel claim without prejudice to its being raised in a postconviction relief
proceeding.
¶9 We review a district court’s denial of a challenge for cause to determine whether
the court abused its discretion. State v. Marble, 2005 MT 208, ¶ 10, 328 Mont. 223, ¶ 10,
119 P.3d 88, ¶ 10. A district court abuses its discretion if it fails to excuse a prospective
juror if actual bias is discovered during voir dire. State v. Rogers, 2007 MT 227, ¶ 18,
339 Mont. 132, ¶ 18, 168 P.3d 669, ¶ 18.
¶10 One ground for dismissal of a juror based on a challenge for cause is when the
juror has “a state of mind in reference to the case or to either of the parties that would
prevent the juror from acting with entire impartiality and without prejudice to the
substantial rights of either party.” Section 46-16-115(2)(j), MCA. Gilbert asserts that
Juror Gilbert expressed bias when she stated her personal feelings regarding those who
choose to drink alcohol, and that the District Court improperly rehabilitated Juror Gilbert
when questioning her as to whether she could listen to the evidence and then make up her
mind. “In determining whether a serious question has arisen regarding a prospective
juror’s ability to be fair and impartial, we review his or her responses as a whole.” State
v. Golie, 2006 MT 91, ¶ 10, 332 Mont. 69, ¶ 10, 134 P.3d 95, ¶ 10.
¶11 Here, a review of the transcript reveals that although Juror Gilbert expressed some
doubt as to whether she could put aside her personal feelings on drinking, she indicated
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on subsequent questioning that she would be willing to listen to the evidence and apply
the law on impaired driving. Juror Gilbert’s testimony as a whole demonstrated her
ability to be fair and impartial. Accordingly, we hold that the District Court did not abuse
its discretion in denying Gilbert’s challenge for cause regarding Juror Gilbert.
¶12 Whether the Double Jeopardy Clause is implicated in a course of conduct against
an individual by the government is a question of constitutional law, for which our
standard of review is plenary. State v. Schnittgen, 277 Mont. 291, 295, 922 P.2d 500, 503
(1996).
¶13 Gilbert argues that because suspension of a person’s license upon his or her refusal
to take a blood or breath test is punitive and lacks a remedial purpose, the suspension
violates the Double Jeopardy Clause of both the United States Constitution and the
Montana Constitution when used in conjunction with a person’s arrest for driving under
the influence. We have examined this argument in previous decisions and held that,
“suspension of a driver’s license followed by a DUI prosecution does not violate state or
federal constitutional provisions regarding double jeopardy.” State v. Ellenburg, 283
Mont. 136, 140, 938 P.2d 1376, 1378-79 (1997); see also City of Helena v. Danichek,
277 Mont. 461, 922 P.2d 1170 (1996). Because the law is well settled on this point, we
reject Gilbert’s double jeopardy argument.
¶14 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
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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.
¶15 Affirmed.
/S/ JIM RICE
We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
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