January 18 2011
DA 10-0079
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 5N
RONALD VAUGHN,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV 08-787B
Honorable Mike Salvagni, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joseph P. Howard, Attorney at Law, Great Falls, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Tammy K. Plubell, Assistant
Attorney General, Helena, Montana
Marty Lambert, Gallatin County Attorney, Bozeman, Montana
Submitted on Briefs: December 15, 2010
Decided: January 18, 2011
Filed:
__________________________________________
Clerk
Justice Michael E Wheat 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 2006, 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
its case title, Supreme Court cause number, and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Ronald Vaughn (Vaughn) appeals from an order of the Eighteenth Judicial District
Court, Gallatin County, denying his petition for postconviction relief. We affirm.
¶3 Vaughn raises the following issues on appeal:
¶4 Issue 1: Whether the District Court properly denied Vaughn’s petition for
postconviction relief after concluding that his trial counsel provided effective representation
during jury selection?
¶5 Issue 2: Whether the District Court properly denied Vaughn’s petition for
postconviction relief after concluding that his appellate counsel provided effective
representation during his criminal appeal?
¶6 In 2004, Vaughn was convicted by a jury of felony Driving While Under the
Influence of Alcohol (DUI). He was designated a persistent felony offender and was
sentenced to fifty years at Montana State Prison (MSP). In November 2008, Vaughn filed a
petition for postconviction relief, arguing he received ineffective assistance of trial and
appellate counsel. Specifically, Vaughn alleged trial counsel provided ineffective assistance
of counsel by failing to challenge prospective juror Hawkes for cause, exercise a peremptory
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challenge to remove Hawkes, or otherwise question Hawkes. Vaughn argued that appellate
counsel rendered ineffective assistance of counsel by failing to assert on direct appeal that
Vaughn’s sentence constituted cruel and unusual punishment. The District Court denied the
petition.
¶7 During jury selection, juror Hawkes was called to replace a juror who was excused for
cause. Counsel for the State asked Hawkes whether he had heard anything up to that point
upon which he wanted to comment. Hawkes responded: “Couple of things. First of all,
drunk driving is a real pet peeve of mine and another thing is some of these roadside tests
they give I couldn’t do if I was stone cold sober. That’s the only two things that I can think
of.” Hawkes subsequently commented that the use of video cameras by police was a good
tool because he had “seen a lot of them where the cops were obviously in the wrong . . . so it
works both ways.” Vaughn’s trial counsel asked potential jurors whether anyone was
concerned that his or her feelings about DUI would cloud his or her judgment in that
particular case. None of the jurors responded affirmatively. Hawkes was seated on
Vaughn’s jury.
¶8 At Vaughn’s sentencing hearing, the State recommended that Vaughn be sentenced to
forty years at MSP without the possibility of parole. Vaughn’s appellate counsel represented
him at sentencing and argued for a twenty year sentence at MSP, with ten years suspended.
After reviewing Vaughn’s extensive criminal history, the District Court sentenced Vaughn to
fifty years at MSP, but did not restrict his parole eligibility. Vaughn did not directly appeal
his sentence.
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¶9 We review a district court’s denial of a petition for postconviction relief to determine
whether the court’s findings of fact are clearly erroneous and whether its conclusions of law
are correct. Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d 861. Ineffective
assistance of counsel claims are reviewed de novo. Id.
¶10 The Sixth and Fourteenth Amendments to the United States Constitution and Article
II, Section 24 of the Montana Constitution guarantee criminal defendants the right to
effective assistance of counsel. Id. at ¶ 10. In analyzing ineffective assistance of counsel
claims, we have adopted the test set forth by the United States Supreme Court in Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), which requires that the defendant
demonstrate that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. Id.; Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The above test
applies to both ineffective assistance of trial counsel and appellate counsel claims. DuBray
v. State, 2008 MT 121, ¶ 31, 342 Mont. 520, 182 P.3d 753.
¶11 The District Court concluded that in light of all the circumstances—juror Hawkes’
responses and demeanor during voir dire and trial counsel’s trial strategy—trial counsel’s
decision not to challenge Hawkes for cause or exercise a peremptory challenge to strike
Hawkes was not unreasonable and did not constitute ineffective assistance of trial counsel.
Further, the District Court recognized that given Vaughn’s extensive criminal history
(spanning some twenty-one years), his status as a persistent felony offender, and his high
likelihood to reoffend, his sentence did not constitute cruel and unusual punishment.
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Therefore, it was reasonable for appellate counsel to attack other issues, instead of Vaughn’s
sentence, on direct appeal.
¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
1996 Internal Operating Rules, as amended in 2006, which provides for memorandum
opinions. The legal issues are clearly controlled by settled Montana law which the District
Court correctly interpreted. The record supports the District Court’s conclusion that
Vaughn’s trial and appellate counsel rendered effective assistance of counsel. Therefore, the
District Court properly denied Vaughn’s petition for postconviction relief.
¶13 Affirmed.
/S/ MICHAEL E WHEAT
We Concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JIM RICE
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