No
No. 98-661
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 226
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DALE HANSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial
District,
In and for the County of Flathead,
The Honorable Katherine R. Curtis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Dale Hanson, Pro Se, Deer Lodge, Montana
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No
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Carol Schmidt,
Assistant Attorney General; Helena, Montana
Thomas J. Esch, Flathead County Attorney; Eric S. Hummel,
Deputy Flathead County Attorney, Kalispell, Montana
Submitted on Briefs: August 19, 1999
Decided: September 27, 1999
Filed:
__________________________________________
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
¶ Dale Hanson (Hanson) appeals from the order of the Eleventh Judicial District
Court, Flathead County, denying his petition for postconviction relief. We affirm.
¶ We restate the issues on appeal as follows:
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No
¶ 1. Did the District Court err in denying Hanson’s petition for postconviction relief
for his trial court’s failure to properly instruct the jury regarding unanimity?
¶ 2. Did the District Court abuse its discretion in denying Hanson’s petition for
postconviction relief for ineffective assistance of counsel without holding an
evidentiary hearing?
BACKGROUND
¶ The State of Montana (State) charged Hanson by information with one count of
felony sexual assault and one count of felony deviate sexual conduct. After a four-day
trial in March of 1995, the jury found Hanson guilty on both counts.
¶ Hanson subsequently moved for a new trial based on the court’s alleged error in
admitting, and his attorney’s failure to object to, the testimony of the victim, the
victim’s therapist and Detective Lamb. The court denied the motion, Hanson
appealed and we affirmed. See State v. Hanson (1997), 283 Mont. 316, 940 P.2d 1166.
¶ On June 30, 1998, Hanson petitioned the District Court for postconviction relief on
the basis of ineffective assistance of counsel. Hanson later amended his petition to
assert that, in light of State v. Weaver, 1998 MT 167, 290 Mont. 58, 964 P.2d 713, his
jury trial was fundamentally unfair because the trial court failed to instruct the jury
that it had to reach a unanimous verdict as to at least one specific underlying act of
sexual assault or deviate sexual conduct for each count charged.
¶ The District Court denied Hanson’s petition for postconviction relief and Hanson
appeals.
STANDARD OF REVIEW
¶ We review the denial of a petition for postconviction relief to determine whether
the trial court’s findings of fact are clearly erroneous and whether its conclusions of
law are correct. State v. Sullivan (1997), 285 Mont. 235, 239, 948 P.2d 215, 218
(citation omitted). Discretionary rulings in postconviction relief proceedings,
including rulings relating to whether to hold an evidentiary hearing, are reviewed for
abuse of discretion. See Sullivan, 285 Mont. at 239, 948 P.2d at 218 (citation omitted).
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DISCUSSION
¶ 1. Did the District Court err in denying Hanson’s petition for postconviction relief for
his trial court’s failure to properly instruct the jury regarding unanimity?
¶ Prior to deliberations at the end of Hanson’s trial, the district court instructed the
jury, in pertinent part, that "[t]he law requires the jury verdict in this case to be
unanimous. Thus, all twelve of you must agree in order to reach a verdict whether
the verdict be guilty or not guilty."
¶ After his direct appeal, Hanson petitioned for postconviction relief arguing that,
under State v. Weaver, 1998 MT 167, 290 Mont. 58, 964 P.2d 713, his fundamental
constitutional right to a fair trial was violated by the trial court’s failure to instruct
the jury that a unanimous verdict was necessary regarding at least one specific
underlying act of sexual assault and deviate sexual conduct to support a conviction
on each charge. The District Court concluded that Hanson was procedurally barred
under § 46-21-105, MCA, from raising this issue in his petition for postconviction
relief because the issue could have been raised on appeal as it was--under the plain
error doctrine--in Weaver.
¶ Hanson does not directly challenge the District Court’s conclusion and could not do
so successfully. The cases on which the successful appellant relied in Weaver had been
decided prior to Hanson’s direct appeal in 1996. See Weaver, ¶¶ 32-35, 37 (citing
United States v. Holley (5th Cir. 1991), 942 F.2d 916; United States v. Echeverry (9th
Cir. 1983), 719 F.2d 974; People v. Gordon (1985), 165 Cal. App. 3d 839, 212 Cal.
Rptr. 174; State v. Weldy (1995), 273 Mont. 68, 902 P.2d 1). In addition, the common
law plain error doctrine, pursuant to which we may review claimed errors
implicating a defendant’s fundamental constitutional rights even absent a
contemporaneous objection, clearly has been available since State v. Finley (1996),
276 Mont. 126, 915 P.2d 208, and, indeed, Hanson relied on Finley in attempting to
raise issues for the first time in his direct appeal. See Hanson, 283 Mont. at 321-22,
940 P.2d at 1169.
¶ We consistently apply the statutory bar "in order to prevent the abuse of
postconviction relief by criminal defendants who would substitute those proceedings
for direct appeal and in order to preserve the integrity of the trial and direct
appeal." In re Petition of Manula (1993), 263 Mont. 166, 169, 866 P.2d 1127, 1129.
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No
Because Hanson reasonably could have raised this instructional issue on direct
appeal, pursuant to § 46-21-105, MCA, he is barred from raising it via petition for
postconviction relief.
¶ Despite the statutory procedural bar, Hanson urges he is entitled to the retroactive
application of Weaver in this proceeding to collaterally attack his conviction. We
decline to address his argument.
¶ As was the case in State v. Harris, 1999 MT 115, ¶ 11, ___ P.2d ___, ¶ 11, 56 St.Rep.
481, ¶ 11, Hanson waived his right to raise the instructional error on appeal by
failing to preserve it at trial. Unlike Harris, he did not attempt to raise it on direct
appeal via the common law plain error doctrine. See Harris, ¶ 11. As a result, and as
we concluded above, Hanson is statutorily barred from raising the issue in his
petition for postconviction relief and we must continue to apply the statutory bar
consistently in order to prevent the abuse of postconviction proceedings by criminal
defendants. See Petition of Manula, 263 Mont. at 169, 866 P.2d at 1129.
¶ We hold that the District Court correctly concluded that Hanson’s Weaver-based
claim for postconviction relief was procedurally barred under § 46-21-105(2), MCA.
On that basis, we further hold that the District Court did not err in denying
Hanson’s petition for postconviction relief for his trial court’s failure to properly
instruct the jury regarding unanimity.
¶ 2. Did the District Court abuse its discretion in denying Hanson’s petition for
postconviction relief for ineffective assistance of counsel without holding an evidentiary
hearing?
¶ Hanson’s second claim for postconviction relief was ineffective assistance of
counsel. He alleged that his trial counsel failed to call character witnesses who were
present and waiting to testify at his trial, to play taped conversations in their entirety
at trial, and to adequately prepare him for--and advocate for him at--the sentencing
hearing. The District Court denied this portion of Hanson’s petition on several bases,
including Hanson’s failure to comply with § 46-21-104(1)(c), MCA, which requires a
postconviction petition to "identify all facts supporting the grounds for relief set
forth in the petition and have attached affidavits, records, or other evidence
establishing the existence of those facts."
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No
¶ Hanson contends the District Court erred. He asserts that because his petition was
verified as required by § 46-21-103, MCA, it was not necessary that he attach
evidence establishing the existence of the facts identified in his petition as supporting
his entitlement to relief. Hanson’s argument ignores the separate and distinct
requirements in §§ 46-21-103 and 46-21-104(1)(c), MCA.
¶ Section 46-21-103, MCA, addresses the commencement of a postconviction
proceeding and requires that a petition for postconviction relief be verified. A
"petition" is "a recital of facts which give rise to a cause of action." Black’s Law
Dictionary 1146 (6th ed. 1990). When a statute requires a verified petition, the
petitioner must "confirm or substantiate [it] by oath or affidavit." See Black’s Law
Dictionary 1561 (6th ed. 1990). The purpose of verification is to assure good faith in a
party’s averments or statements. See United States ex rel. Echevarria v. Silberglitt (2d
Cir. 1971), 441 F.2d 225, 226-27.
¶ Section 46-21-104, MCA, on the other hand, sets forth what the postconviction
petition must contain. Section 46-21-104(1)(c), MCA, expressly requires that
evidence--such as affidavits or records--establishing the existence of the facts on
which the petition is based be attached to the petition. Allegations in a petition, even
verified allegations as required for all petitions, are not evidence. Moreover,
unsupported allegations are not sufficient to entitle a postconviction petitioner to an
evidentiary hearing under § 46-21-201, MCA. See Sullivan, 285 Mont. at 240, 948
P.2d at 219.
¶ Here, Hanson’s verified petition satisfies the requirements of § 46-21-103, MCA,
for commencing a proceeding for postconviction relief. However, the petition does
not satisfy the separate requirement contained in § 46-21-104(1)(c), MCA, that
evidence establishing the facts alleged to provide a basis for relief be attached to the
petition.
¶ We conclude that Hanson’s unsupported petition did not comply with § 46-21-104
(1)(c), MCA, and as a result, the petition was not sufficient to entitle him to an
evidentiary hearing. We hold, therefore, that the District Court did not abuse its
discretion in denying Hanson’s petition for postconviction relief for ineffective
assistance of counsel without holding an evidentiary hearing.
¶ Affirmed.
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No
/S/ KARLA M. GRAY
We concur:
/S/ JAMES C. NELSON
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
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